ANDREW C. SAXLEHNER

v.

STATE OF FLORIDA, DEPARTMENT OF HIGHWAY SAFETY & M

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NOT FINAL UNTIL TIME EXPIRES

- .1 .

ELEVENTH

JUDICIAL

CIRCUIT, IN

AND

FOR

MIAMI-DADE

COUNTY,

FLORIDA

‘ 13‘

APPELLATE DIVISION

CASEzqo. 10-050 AP LOWER CASE NO. .6638-XDX ' ANDREW C. SAXLEHNER, " ' T-‘CF36‘J5O Petitioner, V PD I04 - ¢.-. $3 SE4"1 S'I_‘ATiE-3'_0F FLORIDA; DBPARTNIENT o .01= HIGHWAY SAFETY AND MOTOR VEHICLES, Rnspondent. I . o r i Opinionfiledz 0<~>'I°be1‘ 77 0' 2011'; --—-—----‘-1 . ., ,... pw 1!? '3' ’ .l£Nl‘5’33 '-:2 *32. <1. 2' " I92 =2 Rd L21.30 I-' :1 qw— 0'31 ___, M44 nJ 1"-l .0- qunn . On Petition for Writ of Certiorari fi-om :1 decision by a Hearing Officor from the Departme1_1t ofHighway Safety and Motor Vehicles, for Miami-Dado County. S. Lee Kaufman, ofThe Ticket Defense Team Law Firm, for Petitioner. - ' - Jason Helfant, Assistant General Counsel, of 01¢; Department of Highway Safety and Motor Vehicles, for Respondent. Before PRESCOTT, CABALLERO, and CYNAMON, J]. CYNAMONJ.’ | Petitioner Andrew C. Saxlelmer seeks certiorari review of an order by Respondent State _. - ‘- IO Z4 // ' 0/0/.§b‘f’” % T0 FILE RE-HEARING MOTION, - _ Bhwaafl _ AND,[FFILED,DISPOSEI) OF. - “ci;».a.0“ . - A ~ "”‘ I“ * ' ? THE -cmcurr comm" OF 'T1-IE " - .- '4.-..<--h.~‘n [*2] l 1l | . I i I v I lI I I 'i i——-~ it El :4 =t.'1 1. »t -.-._,____ E ta I I I of Florida, Department of Highway Safety and Motor Vehicles, sustaining the administrative suspension‘ of his driver?s license for driving with an unlawful breath alcohol level. For the reasons stated below, we grant the writ ofcertiorari. ' - - FACTS,

PROCEDURAL HISTORY

" On October 9, 2009, a police dispatch went over the patrol car radios pursuant to a BOLO (Be on the Lookout) for a driver in a Maroon Mercedes Benz; possibly involved in a hit and run ac0_ident._ The BOLO also mentioned that the car had frontend damage and smoke coming out of _ the vehicle. According to the Arrest Aflidavit, Coral Gables Police Ofiioer Wheeler conducted a traflic atop of Petitioner in the parking lot of the Biltmore Hotel based on the BOLO. Subsequent to the traffic stop, Officer Rodriguez was dispatched to 1200 Anastasia, which is the Biltmore Hotel's parking lot. . ' . V ' _ ~ ' Ofiicer Rodriguez observed that Petitioner had afibloody nose, and requested that Fire Rescue come to the scene. Petitioner was treated on the scene,_and released. _Officer Rodriguez also observed thut Petitioner‘ had-blood shot, watery eyes, and a strong odor of alcoholic beverage emitting fi-om his breath. ‘Subsequently, Oflicer Perez responded to the scene as a back up oflicer based on the BOLO alert. ' - - Ofiicor Perezasked ofneet Rodriguezifit were okay one administered the field sobriety exercises because he has substantial experience involving DUI enforcement. Tlrercatter, Oificer Perez administered field sobrietyexercises to the Petitioner. Petitioner did not perform them to‘ standards and was placedunder arrest for driving under the influence. While at the Coral Gables Police Department, Oflleer Rodriguez requested Petitioner’ submit to a breath test, to which he agreed. Following the breath -the Petitioncfs driving privilege was suspended for six months by the'Respondenti - i i ' ' [*3] t ‘I H _ . Petitioner requested a formal review of his license suspension with Respondent. At the request of the Petitioner, subpoenas were issued for Officers Wheeler, Rodriguez, and Perez to . - appear at the formal review hearing on December l7, 2009. Officer Wheeler failed to appear at hearing. However; the other two officers provided testimonial evidence. In addition -to testimonial evidence, documentary evidence was presented at the hearing.‘ Petitioner moved to invalidate the suspension because Officer Wheelerfailed to appear. The -Hearing Officer sense the motion, and allowed the Petitioner to seek enforcement of Officer Wheeler’s subpoena through the circuit court. - . _ . l_>etitioner_did not seek the enforcement of the subpoena regarding Officer Wheeler through the circuit court. Instead, Petitionefs counsel submitted case law, motions and closing arguments to the Hearing Ofiicer. On January 1 1, 2010, the Hearing Officer issued a final order of license suspension on behalf of -Respondent, sustaining the suspension of the Petitioner’s driving privilege for six months for driving -with an unlawful breath alcohol level. Thereaiter, Petitioner filed a Petition for Writ ofCe11:iorari.2 . - ' - ~ , , ‘ "STANDARD on Rnvrnw The standard ofreview to applied by a circuit when reviewing an administrative proceeding is limited to determining whether procedural due process has been accorded, whether 1 The Hearing Ol’ficer’s Findings of Fact, Conclusion of Law and Decision states that the following documentary evidence was presented at the hearing: (1) Notice of Suspension, (2) Petitioner’s Drivers License, (3) Probable Cause Aftidavit signed by Ofiicer Rodriguez, (4) Alcohol Influence Report, (5) Implied Consent, (6) Miranda Warnings, (7) Breath Alcohol Test Affidavit, (8) Agency Inspection Report, and (9)-Department Inspection. 2 On certlorari review, the following documents were presented; (1) Hearing officer’s Findings of Fact, Conclusions ofLaw and Decision, (2) Arrest Affidavit signed by Officer Rodriguez, (3) Implied Consent Warning, (4) DUI _ Uniform Traffic Citation, (5) Application for Formalllnformal Review of Driver, License Suspensionlmsqualification, and (6) Subpoena! Subpoena Duces Teeum for Officers Wheeler, Rodriguez, and Perez. I [*4] t l I }' f r.‘. ‘t ea:-i. ii i ~. i l: i I I I ‘I r ~ I I the essential requirements ofthe law have been observed, and whether the decision is supported by substantial competent evidence. Haines City Camry. Devi v. Heggs, 658 So. 2d 523, $30 (Fla. 1995). ‘Further, this Court, sitting in its appellate capacity, is limited to the record on appeal. State v. Stang, 41 So. 3d 206 (Fla. 2010). The Court cannot reweigh the evidence, but can only determine if the hearing officer had competent substantial “evidence to support the findings and ,

. - - .‘- _ judgment. Dep '1 cfHighway Safety & Motor Vehicles, v. Allen, 539 S0. 2d 20, 21 (Fla. Sth DCA : ' toss). . ,t , ~

DISCUSSION

Petitioner asserts four reasons to support his position that his license suspension should be invalidated: (1) the hearing officer failed to enforce the subpoena regarding Officer Wheeler, who failed to appear at the fornialreview heating; (2) the only evidence presented at the formal review hearing toestablishno Petitionerwas aavng or at imam physical control ofthe vehicle came from Ofiicers Rodriguez and Perez, which amounted to hearsay evidence; (3) the reason for stopping the Petitioner was based solely on inadmissible evidence; and (4) the Petitioner invoked the rule of sequestration ofWitnesses; however, theihearing officer allowed an officer to remain in the room aiter testifying. ‘We find merit in Pet:itio'ner‘s second 8l'g1lm6l1i, and grant the . ':_ writ ofcertlorari based onan reasoning below. T t Regarding Petitioner's second argument, he contends ‘that the only evidence presented at the formal review hearing to establishhe wasdriving or in actual physical control ofthe vehicle was the hearsay testimony of Officers Rodriguez and Perez, and the hearsay evidence in the Probable Cause Afiidavit. Petitioner contends that this hearsaytestimony and evidence, standing . I _ alone, does not support the suspension ofhis license because the evidence is not corroborated by competent substantial evidence. ' ' I ~ [*5] Q » - ‘- u 1 ¢ | 1. i i ‘I. i I I ti ii Generally, hearsay evidence is admissible in administrative hearings. Spicer v. Metro. ,_ . Dada County, 458 So. 2d 792, 794 (Fla. 3d DCA 1984) (citations omitted). However, “hearsay evidence alone is not-sufficient to support a finding unless it would be admissible over objection in civil actions.”_ Id. Thus, if hearsay evidence is corroborated by otherwise competent substantial evidence, it may an ‘agency 'detenninalion. Id. Here, the Arrest Affidavit signed by Officer Rodriguez provides that Ofiicer Wheeler conducted a traffic stop in the Biltmore Hotel parking lot, approached the listed vehicle and rnade contact with the driver. However, Ofiicer Wheeler failed to appear at the formal review hearing. Further; the record is devoid of any other evidence regarding the traflic stop, except what has been provided in the Arrest Afidavlt and testimonial evidence of Officers Rodriguez and Perez. Both ofiicers testificd that they did not observe the traffic stop and appeared on the scene ofler Petitioner was .,; outside the vehicle. ' l l ‘ _ '1. Officer Rodrigrrez’s Testimony ' [Petitioner’s counsel]: Okay, So, what did you see when you arrived? ' [Officer Rodriguez]: I observed the defendant outside ofthe vehicle when 1 arrived. - He had a bloody nose and at thattime I was concerned about his safety so I called fire rescue. " (Trial Tr. e: 14-17); " " “ ~ [Petiti0ne1"s counsel]: Okay, And going back, at any point in time did you ever see the defendant inside the vehicle? . - _ _ [Oflieer Rodriguez]: No. Officer Wheeler is the one that puts him behind the wheel. - [Petitiouer’s counsel]: Oltay, Andzthen --- , [Officer Rodriguez]: I respond after the fact. . V [Petitionefs counselli I’ll move to strike that as hearsay. But my question simply is did you ever see him in a vehicle other than perhaps the policevehicle? - I I J.-_--v. [*6] It ii if-1 ii E! jx i t k O I I . ' \ .1 s [Officer Rodriguez]_:' No; [Petitioner’s counsel]: Okay. Did you ever sec himdriving? [Officer Rodriguez]: No. (Trial Tr. ‘I: 3-14). V '

II.

Office!‘ Perez’s Testimony - ' [Pet.itioner?s cotmsel]: Okay. And what did you sec when you got there? . [Officer Perez]: When I. got there Offieer Rodriguezand Officer Wheeler were out with _. the gentleman. Fire rescue was behind me, so I pretty muclrpulled my car in one ofthe empty parking lots and let fire rescue deal with it. The gentleman was outside the car. " Officer Wheeler was on his‘ -_-- had the gentleman out with Officer Rodriguez when I got there. The gentleman was out ofthe car in the parking lot. (Trial Tr. 33:25; 34=1-'1). ‘ ' [Petitioner"s counsel]: Okay. You never saw him in a vehicle ofany kind? ' [Officer Perez]: lnever did. . » -'_ ._ . , A [Petitioner's counsel]: Okay. You never sawhim driving either? [Officer Perez]: I never. No. - (Trial Tr. 34; 12-16). ' - ' ' - " . . Although Respondent deserts that under Florida Administrative Code Rule ISA- 'r 6.013(6),’ any relevant evidence shall be admitted, the evidence submitted does not establish a lawful hasis for the traflio stop and subsequent detention. ‘Because Officer Wheeler conducted I the trafiio stop, but failed to appear at the hearing, the record evidence does not provide any corroborating evidence that the stop was lawfitl. The Arrest Affidavit and the two officers’ 3 The Rule apnovides that“[a]ny‘relcvant evidence shall be admitted, provided that it is timely filed as provided in this rule. Relevant evidence is defined as evidence which tends to prove or disprove a material fact.” Fla. Admin. Code R. ISA-6.013(6). _ -l P E [*7] I l _~_-:.r1‘__:.'=|.1r I -\;_;-..-_-“.1.-._... i E 44._...,i..._._.,..,._T...- . l , _ . \ . '_U M ‘ testimony, standing alone, without other admissible, competent, corroborating evidence cannot sustain the suspension of Petitioner’s license. Accordingly, Petitioner's Writ of Certlorari is

GRANTED.

- r PRESCOTT and CABALLERO, JJ., concur. corms FURNISHED TO c0u"NsnL on neconn AND T0 ANY PARTY - NOT nnrnssnnrnn BY counsst i Z__ ,L;— __l I