MAHON

v.

FLORIDA DEPARTMENT OF HIGHWAY SAFETY AND MOTOR VEHICLES

from the Florida Department of Highway Safety and Motor Vehicles, Robert Mustain, Hearing Officer. Matthews R. Bark, Esquire, for Petitioner

Richard M. Coln, Assistant General Counsel, for Respondent.

Before POWELL, WHITEHEAD, BRONSON, J.J.

FINAL ORDER GRANTING PETITION FOR WRIT OF CERTIORARI

Petitioner Mahon seeks certiorari review of a decision of a hearing officer sustaining the suspension of his driver’s license following a formal review hearing. We dispense with oral argument pursuant to Florida Rule of Appellate Procedure 9.320, and grant the Petition.

Petitioner was arrested for DUI, his driver’s license was suspended, and he timely requested a formal review hearing which was scheduled within the required 30 days for June 22, 2010. On June 16, five days before the hearing, Petitioner requested the Department to issue a witness subpoena for Deputy Danjou, the arresting officer who authored the DUI citation and the arrest report which had been supplied as required to the Department. Hearing Officer Labbe refused to issue the subpoena.

At the hearing on June 22 before a different hearing officer, Robert Mustain, Petitioner moved to invalidate the suspension based upon the refusal to issue a subpoena for Danjou, and objected to the hearing officer considering Danjou’s arrest report until he could have Danjou present and examine him. The motion was denied and the objection overruled. Hearing officer Mustain offered to grant Petitioner a continuance which was declined. The record does not show that he offered to issue Petitioner a temporary driving permit to be in force until the re-scheduled hearing.¹ Hearing officer Mustain went ahead and marked and admitted in evidence the several required documents including DUI citation and Danjou’s arrest report which he obviously considered in making his decision. On June 28, 2010, the hearing officer issued his decision sustaining the suspension of Petitioner’s driver’s license. Petitioner then filed this petition for writ of certiorari.

Several Florida District Court of Appeals have held that it is error and a denial of due process for a hearing officer to refuse to issue a subpoena for a witness named in the documents required to be filed by the arresting officer if the witness’s testimony would be relevant to an issue to be decided by the hearing officer at a formal review hearing. See DHSMV v. Auster, 52 So. 3d 802 (Fla. 5th DCA 2010); Lee v. DHSMV, 4 So. 3d 754 (Fla. 1st DCA 2009) Yankey v. DHSMV, 6 So. 3d 633 (Fla.2d DCA 2009); DHSMV v. Maffet,¹ So. 3d 1286 (Fla. 2d DCA 2009). Here, deputy Danjou’s testimony would be relevant to reasonable suspicion for the stop and probable cause for the DUI arrest, two issues to be decided by the hearing officer at the formal review hearing.

Hearing Officer Labbe noted on Petitioner’s subpoena request two reasons for denial: “subpoena not timely” and “officer out 6-19-2010 until 6-27-10". Neither of these two reasons

It was further a denial of due process for Hearing Officer Mustain to offer to grant a continuance of the hearing to Petitioner without charging the continuance to the Department and issuing Petitioner a temporary driving permit. Consequently it is ordered that the hearing officer’s decision of June 28, 2010 is quashed, and this case is remanded to the Department to immediately restore Petitioner’s driving privileges if he is otherwise eligible, and remove from Petitioner’s driving record the suspension herein.

Accordingly, it is hereby ORDERED AND ADJUDGED that the Petition for Writ of Certiorari is GRANTED, the hearing officer’s decision of June 28, 2010 is QUASHED, and the case is REMANDED with directions. DONE AND ORDERED at Orlando, Florida this __24th___ day of ___June______, 2011.

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ROM W. POWELL Senior Judge

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_/S/_________________________ REGINALD WHITEHEAD THEOTIS BRONSON

Circuit Judge Circuit Judge CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a copy of the foregoing order was furnished to Matthews R. Bark, Esq., 217 E. Ivanhoe Blvd., N, Orlando, Florida 32804; and Richard M. Coln, Assistant General Counsel, P.O. Box 570066, Orlando, Florida 32857, by mail, this __24th__ day of ____June_____________, 2011.

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Judicial Assistant