DEPT. OF HIGHWAY V. ELIAS

SUPREME COURT CASES

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State: Florida

Court: Florida Third District Court

Docket No: 07-3347

Case Date: 12/17/2008

Preview:Third District Court of Appeal
State of Florida, July Term, A.D. 2008
Opinion filed December 17, 2008. Not final until disposition of timely filed motion for rehearing. ________________ No. 3D07-3347 Lower Tribunal No. 07-23203 ________________

Department of Highway Safety and Motor Vehicles,
Appellant, vs.

Ovadia Roni Elias,
Appellee.

An Appeal from the Circuit Court for Miami-Dade County, Pedro Echarte, Jr., Judge. Robin Lotane, General Counsel, and Jason Helfant, Assistant General Counsel, for appellant. Robert S. Reiff, for appellee.

Before RAMIREZ, WELLS, and LAGOA, JJ. WELLS, Judge.

The Department of Highway Safety and Motor Vehicles appeals from an order requiring a department hearing officer to issue a subpoena in an administrative license suspension proceeding. Because the lower court lacked jurisdiction to take such action, we reverse. On April 10, 2007, Ovadia Roni Elias was arrested for driving under the influence, having performed poorly on a field sobriety test and having yielded a breath alcohol level of .123 on a breath test. His driving privileges were

immediately suspended as required by section 322.2615, Florida Statutes (2007), following which he requested a formal review before a Department hearing officer. Prior to the hearing, Elias asked the hearing officer to issue subpoenas for Officers Dominguez, Garcia and Millan of the Miami Beach Police Department. The

request was granted as to Officers Dominguez and Garcia, but denied as to Officer Millan. At the formal review hearing, Elias renewed his request for a subpoena for Officer Millan. Although the request was denied, the hearing officer agreed to delay a final ruling on the license suspension to permit Elias to challenge the denial in the circuit court. Elias thereafter sought relief in the circuit court via a motion titled, "Motion to Enforce the Issuance of his Subpoena on Officer Kevin Millan." The Department moved to dismiss arguing, as pertinent here, that there was no subpoena to enforce because one had never been issued, and that the only method

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for challenging the hearing officer's refusal to issue a subpoena for Officer Millan was by petition for writ of certiorari to the appellate division of the circuit court. 1 On December 6, 2007, the circuit court entered an order granting Elias' motion to enforce, compelling the hearing officer to issue a subpoena for Officer Millan to appear at a new hearing: ORDERED AND ADJUDGED, that the Plaintiff's Motion is GRANTED and this Court hereby compels Hearing Officer Frank Gonzalez . . . to issue a subpoena to Officer Kevin Millan for his appearance at a formal hearing to be scheduled within thirty (30) days of today's date. (Emphasis added). We reverse this order because the court below lacked jurisdiction to issue it. As section 322.2615 expressly provides, circuit courts are authorized to enforce or compel compliance with subpoenas issued by a Department hearing officer in license suspension review proceedings; they are not, however, authorized to issue subpoenas in these proceedings: (6)(a) If the person whose license was suspended requests a formal review, the department must schedule a hearing . . . . (b) Such formal review hearing shall be held before a hearing officer employed by the [D]epartment [of Highway Safety and Motor Vehicles], and the hearing officer shall be authorized to administer oaths, examine witnesses and take testimony, receive relevant evidence, issue subpoenas for the officers and witnesses identified in In the meantime, while this motion was pending, a final order upholding suspension of Elias' driving privileges was issued.
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documents in subsection (2), regulate the course and conduct of the hearing, question witnesses, and make a ruling on the suspension. . . . (c) A party may seek enforcement of a subpoena under paragraph (b) by filing a petition for enforcement in the circuit court of the judicial circuit in which the person failing to comply with the subpoena resides. . . .

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