MOTOR VEHICLES

v.

MARSHALL

This case is before the Court on Jessica Mockapetris’ Petition for Writ of Certiorari filed June 5, 2023. The Petition is timely, and this Court has jurisdiction. Rule 9.100(c)(2), Fla. R. App. P.; Rule 9.030(c)(3), Fla. R. App. P.; §322.31, Fla. Stat. Petitioner asserts that the Department departed from the essential requirements of the law, issued an order not supported by competent, substantial evidence, and violated Petitioner’s right to due process. Petitioner asserts that the Hearing Officer was required to invalidate the suspension because Officer Martinez failed to appear and because there was not competent substantial evidence to find there was probable cause to detain the Petitioner and initiate an arrest. Here, as Petitioner was afforded due process, there was competent substantial evidence to support the Hearing Officer’s findings and because the Order does not depart from the essential requirements of law, the Hearing Officer’s Order must be upheld and, therefore, Petitioners Writ of Certiorari is DENIED.

JURISDICTION

Jurisdiction to review a decision of the Department upholding or invalidating a suspension is by petition for writ of certiorari to the circuit court in the county in which the person resides or where formal or informal review [*2] 2 of 7 was held. §§ 322.31; 322.2615(13), Fla. Stat. Therefore, this Court has jurisdiction to review the decision upholding the suspension of Petitioner’s driving privilege.

STANDARD OF REVIEW

When a person’s driving privileges are suspended as the result of an unlawful blood alcohol level, the administrative hearing officer is to determine whether the following elements have been established by a preponderance of the evidence: (1) whether the arresting law enforcement officer had probable cause to believe that the person was driving or in actual physical control of a motor vehicle while under the influence of alcoholic beverages or controlled substances; and (2) whether the person whose license was suspended had an unlawful blood-alcohol level or breath-alcohol level of 0.08 or higher. See § 322.2615(7)(a)1-3, Fla. Stat. This Court’s review of an administrative decision upholding the suspension is not de novo. § 322.2615(13), Fla. Stat. Rather, this Court must determine “whether procedural due process was afforded, whether the essential requirements of law had been observed, and whether the administrative order was supported by competent substantial evidence.” Dep’t of Highway Safety & Motor Vehicles v. Marshall, 848 So. 2d 482, 485 (Fla. 5th DCA 2003)). “It is neither the function nor the prerogative of a circuit court to reweigh evidence and make findings when it undertakes a review of a decision of an administrative forum.” Dep’t of Highway Safety & Motor Vehicles v. Allen, 539 So. 2d 20, 21 (Fla. 5th DCA 1989). The law is well settled that it is the hearing officer’s responsibility as trier of fact to weigh the record evidence, assess the credibility of the witnesses, resolve any conflicts in the evidence, and make findings of fact. Id.

FACTS AND PROCEDURAL HISTORY

On February 18, 2023, at approximately 12:18 a.m., Officer Martinez was informed by a citizen that Petitioner was getting into a vehicle and “did not appear to be okay to drive.” Martinez observed Petitioner seated in the vehicle with the motor running. Petitioner displayed signs of impairment so Martinez advised her against driving and further advised her to contact a [*3] 3 of 7 rideshare service. Petitioner agreed, secured her vehicle, and walked away to wait for the rideshare driver. After a few minutes, Petitioner returned to the vehicle, sat in the driver’s seat and started the engine. Based on the witness statement, and his own objective observations, Martinez believed that Petitioner intended to drive away and suspected she was under the influence of alcohol, so he detained her for a DUI investigation. Martinez handcuffed Petitioner and placed her in the back of his patrol vehicle to wait for Officer Bailey, a DUI specialist, who was almost immediately en route to conduct the DUI investigation. Shortly after being placed in the patrol car, at approximately 12:34 a.m., Officer Bailey arrived at the scene. When Petitioner stepped out of the vehicle and the handcuffs were removed, Bailey informed Petitioner about the investigation and informed her that while she was not under arrest, that she was not free to go. Bailey then read Petitioner a Miranda warning, after which Petitioner admitted that she had consumed alcohol and was feeling the effects. Bailey observed that Petitioner was slurring her speech, had a strong odor of an alcoholic beverage coming from her breath, was swaying as she stood and staggered as she walked, had bloodshot and glassy eyes, and that she had difficulty focusing her attention. Based on her poor performance on the field sobriety exercises, Bailey arrested her for DUI.

On April 28, 2023, an administrative hearing was held to review the suspension. The Hearing Officer reviewed the police reports and Officer Bailey appeared under subpoena to provide testimony. Martinez, the initial officer who observed Petitioner behind the wheel, did not appear at the hearing despite having been properly subpoenaed. Petitioner argued that the license suspension should be invalidated based on Martinez’s failure to appear, contending that Officer Martinez was the arresting officer, not Officer Bailey and that pursuant to Florida Statute section 322.2615(11) the Hearing Officer was required to invalidate the suspension. While the Hearing Officer afforded Petitioner with an opportunity to continue the hearing to enforce the subpoena on Officer Martinez, Petitioner through counsel declined. The hearing was held as scheduled and on May 4, 2022, the Hearing Officer affirmed the license suspension and denied Petitioner’s Motion for Invalidation.

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DISCUSSION

Petitioner argues that her right to due process was abridged when Officer Martinez failed to appear and that the Order departed from the essential requirements of the law because it upheld the license suspension despite Martinez failing to appear after being properly subpoenaed, which in addition to violating section 322.2615 also violated her right to due process. Petitioner further argues the decision should be quashed because that there was not competent substantial evidence to support probable cause to detain Petitioner and initiate a DUI investigation.

The Arresting Officer, Officer Bailey did Attend the Hearing Under Florida Statute section 322.2615, hearing officers are required to invalidate a license suspension in certain scenarios. While 322.2615(11) requires the suspension be invalidated if the arresting officer fails to appear, the Hearing Officer in its order, concluded that Officer Bailey, not Officer Martinez was the arresting officer. As Officer Bailey appeared at the hearing, invalidation under 322.2615 was not required. The Hearing Officer in his detailed order found that Officer Martinez was merely the responding officer and that Officer Bailey who appeared at the hearing was the arresting officer. That finding was supported by competent substantial evidence. See generally Melton v. State, 75 So 2d 291, 294 (Fla. 1954)( “an arrest involves the following elements: (1) A purpose or intention to effect an arrest under real or pretended authority; (2) An actual or constructive seizure or detention of the person to be arrested by a person having present power to control the person arrested; (3) A communication by the arresting officer to the person whose arrest is sought, of an intention or purpose then and there to effect an arrest; and (4) An understanding by the person whose arrest is sought that is the intention of the arresting officer then and there to arrest and detain him.”). The record reflects that Officer Bailey testified that he was the arresting officer, signed the affidavit as the arresting officer, read Petitioner her Miranda rights, performed the field sobriety exercises and ultimately placed Petitioner under arrest. Further, that finding comports with governing law that concludes [*5] 5 of 7 placing an individual in handcuffs and in the back of a patrol car does not automatically turn an investigatory stop into a de-facto arrest.¹ Due Process was Afforded when the Hearing Officer Offered to Continue the Hearing to Allow Petitioner to Enforce the Subpoena The Court finds no violation of procedural due process arising from the non-appearing officer’s absence. The record demonstrates the Hearing Officer expressly offered Petitioner a continuance in order to permit her to enforce the subpoena and secure the officer’s attendance. Petitioner declined that opportunity and elected to proceed with the hearing without pursuing her statutory remedy pursuant to § 322.2615(6)(c).² Under these circumstances, Petitioner cannot establish a denial of due process. McKenney v. Department of Highway Safety & Motor Vehicles, 12 Fla. L. Weekly Supp. 1030a (Fla. 13th Cir.Ct. Jan. 12, 2011), cert. denied, 75 So. 3d 1259 (Fla. 2d DCA 2011); Werle v. Dep’t of Highway Safety & Motor Vehicles, 13 Fla. L. Weekly Supp. 664a (Fla. 9th Cir. Ct. Feb. 20, 2006) Substantial Competent Evidence Exists to Establish Probable Cause Further, the Hearing Officer relied on competent substantial evidence in in finding that the arresting law enforcement officer, who appeared at the hearing, had probable cause to believe that the person was driving or in actual physical control of a motor vehicle while under the influence of alcoholic beverages or controlled substances; and that the person whose license was suspended had an unlawful blood-alcohol level or breath-alcohol level of 0.08 or higher. See § 322.2615(7)(a)1-3, Fla. Stat.; Dep’t of Highway [*6] 6 of 7 Safety and Motor Vehicles v. Saxlehner, 96 So 3d 1002 (Fla. 3d DCA 2012); Werle v. Dep’t of Highway Safety & Motor Vehicles, 13 Fla. L. Weekly Supp. 664a (Fla. 9th Cir. Ct. Feb. 20, 2006); State v. Keen, 384 So 2d 284 (Fla. 4th DCA 1980); Smith v. State, 719 So 2d 1018 (Fla 3d DCA 1998) The Order Comports with the Essential Requirements of Law “A departure from the essential requirements of law means an inherent illegality or irregularity, an abuse of judicial power, an act of judicial tyranny perpetrated with disregard of procedural requirements, resulting in a gross miscarriage of justice.” Haines City Community Development v. Heggs, 658 So. 2d 523, 527 (Fla. 1995). It is apparent from the record that the Hearing Officer considered the facts and circumstances of Petitioner detainment, ultimately finding Officer Bailey was the arresting officer and applied that finding to Section 322. 2615(11). There is competent substantial evidence to support the Hearing Officer’s finding that Martinez was merely the initial contacting officer and that Martinez’s failure to appear did not require the Hearing Officer to invalidate the suspension as the arresting officer, Officer Bailey was present at the hearing. Further, since the Hearing Officer offered to continue the hearing, but Petitioner decided to proceed, her right to due process was not abridged. The Court does not find that there was a gross miscarriage of justice or a departure from the essential requirements of law, but rather finds the essential requirements of law have been observed. As the Petitioner was afforded due process, and because the Hearing Officer’s determination was based on competent substantial evidence and was not a departure from the essential requirements of law, the Petitioner’s Writ of Certiorari is DENIED.

DONE AND ORDERED in Tampa, Hillsborough County, Florida, on ______________, 2026.

________________________________________ CYNTHIA S. OSTER Circuit Court Judge Electronically Conformed 5/28/2026 Cynthia Oster [*7] 7 of 7

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