JAMES GREGORY PASA
v.
DEPARTMENT OF HIGHWAY SAFETY AND MOTOR VEHICLES
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James Gregory Pasa challenges the suspension of his driver's license by the DHSMV. The appellate court found that the hearing officer erred by admitting breath-alcohol test results without requiring DHSMV to prove the breath test operator and agency inspector held valid permits, and remanded for the agency to demonstrate compliance with regulations.
The court held that the hearing officer erred in admitting the breath test results without requiring DHSMV to prove that the breath test operator and agency inspector held valid permits. Without valid evidence of the breath-alcohol test results, the hearing officer lacked substantial, competent evidence to support the license suspension.
[1] An administrative agency must demonstrate that its personnel possessed valid permits when conducting tests that form the basis of license suspension proceedings.
[2] Results of a breath-alcohol test are inadmissible in a license suspension proceeding if the breath test operator and agency inspector lacked valid permits at the time of…
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Join FLexlaw to unlock all legal intelligence“the DHSMV hearing officer erred in admitting the results of Pasa's breath-alcohol test into evidence without shifting the burden to DHSMV to prove that the breath test operator and agency inspector had valid permits”
States the core legal error—the burden was on DHSMV to prove compliance with permitting requirements
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Join FLexlaw to unlock all legal intelligencePasa's driver's license was suspended following a DUI-related proceeding. A breath-alcohol test was administered using an Intoxilyzer 8000 machine by …
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P.O. Box 540609 Lake Worth, FL 33454
PER CURIAM.
James Gregory Pasa ("Pasa") seeks review of an order of the Department of Highway Safety and Motor Vehicles ("DHSMV") affirming the suspension of his driver's license.
We find that the DHSMV hearing officer erred in admitting the results of Pasa's breath-alcohol test into evidence without shifting the burden to DHSMV to prove that the breath test operator and agency inspector had valid permits. See Boivin v. DHSMV, 19 Fla.
L. Weekly Supp. 1004a (Fla. 15th Cir. Ct. Sept. 5, 2012); Rivera v. DHSMV, 19 Fla.
L. Weekly Supp. 1048a (Fla. 15th Cir. Ct. Sept. 5, 2012). If the breath test operator and agency inspector did not have valid permits when We decline to reach the merits of the other grounds raised in Pasa's petition. N 1 text they operated and inspected the Intoxilyzer machine used on Pasa, the results of Pasa's breathalcohol test are not admissible in the license suspension proceeding. See Yankey v. DHSMV, 6 So. 3d 633, 637 (Fla. 2d DCA 2009) (citing § 316.1932, Fla. Stat. (2012)); Fla. Admin. Code R. 11D-8.006(1).
Furthermore, without the results of the breath-alcohol test, the hearing officer did not have substantial, competent evidence to support the finding that Pasa drove with a blood-or breath-alcohol level of 0.08 or higher. See § 322.2615(7), Fla. Stat. (2012).
Accordingly, the hearing officer's order of February 14, 2012 is QUASHED and this matter is REMANDED to the hearing officer. DHSMV shall have the opportunity to submit evidence that the agency inspector, Gregory Croucher, and the breath-test operator, Sue Owen, possessed valid Florida Department of Law Enforcement permits when they inspected and operated the Intoxilyzer 8000 used to test Pasa's breath-alcohol content. If DHSMV fails to prove that the breath-alcohol test was performed in substantial compliance with FDLE regulations, the hearing officer shall reverse Pasa's license suspension and his driving privilege shall be reinstated, if he is otherwise eligible. N 2 text (ROSENBERG, FRENCH, and McCARTHY, JJ., concurring.)
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Citator
Authorities Cited
- Yankey v. Dep't of Hwy. Safety & Motor Vehicles, 6 So. 3d 633 (Fla. 2d DCA 2009)