5D01-506 Dept of Hwy Safety v. Cochran

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State: Florida

Court: Florida Fifth District Court

Docket No: 5D01-506

Case Date: 08/06/2001

Preview:IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA FIFTH DISTRICT JULY TERM 2001

DEPARTMENT OF HIGHWAY SAFETY AND MOTOR VEHICLES, Petitioner, v. JEFF A. COCHRAN, Respondent. _____________________________/ Opinion filed August 10, 2001 Petition for Certiorari Review of Decision from the Circuit Court for Seminole County, Acting in its Appellate Capacity. Enoch J. Whitney, General Counsel, Tallahassee, and Kathy A. Jimenez, Assistant General Counsel, Miami, for Petitioner. Warren W. Lindsey of Kirkconnell, Lindsey and Snure, P.A., Winter Park, for Respondent. SHARP, W., J. Petitioner State of Florida, Department of Highway Safety and Motor Vehicles, seeks certiorari review of the order of the circuit court, sitting in its appellate capacity, which quashed the suspension of Respondent Jeff Cochran's driver's license. We in turn quash the circuit court's order under review here because it departs from the essential requirements of law. The facts in this case are not in dispute. On May 21, 2000, a police officer observed Cochran driving erratically and as a result, he conducted a traffic stop. The officer detected CASE NO. 5D01-506

signs Cochran was under the influence of alcohol, and he had Cochran perform sobriety tests. Cochran's performance was poor, so the officer arrested him for driving under the influence, read the implied consent warnings and administered breath tests. Cochran's alcohol levels registered .220, .206 and .227. The officer issued Cochran a citation for violating section 316.193, Florida Statutes (1999), pursuant to which Cochran's driving privileges were suspended. Cochran requested a formal review of his license suspension in accordance with section 322.2615(1)(b)(3), Florida Statutes (1999). At the hearing, the state produced Cochran's DUI citation, his driver's license, the arrest report, the offense incident report, the request for test affidavit, two DUI technicians' reports, the DUI task format/implied consent affidavit, the operations procedures checklist, the intoxilyzer instrument printer cards, the breath test affidavit, the Department annual inspection report, and the agency monthly inspection report. Cochran objected to the breath test affidavit because it did not contain the date of the last maintenance on the breath test machine. The hearing officer denied the objection. However the circuit court quashed the hearing officer's decision based on the court's prior opinion in Giovanetti v. Dep't of Highway Safety & Motor Vehicles, No. 99-13 (18th Cir. April 6, 2000). In that opinion, the court held that the breath test result affidavit, which was the only evidence in that case of the driver's blood alcohol level, failed to comply with section 316.1934(5), Florida Statutes (1999), because the affidavit did not contain the date of the performance of the most recent maintenance of the breath testing instrument.

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In a certiorari proceeding to review an administrative decision, the circuit court's inquiry is limited to whether the administrative agency accorded the parties procedural due process, whether it observed the essential requirement of law, and whether the agency's findings and judgments are supported by competent substantial evidence. See Florida Power & Light Co. v. City of Dania, 761 So. 2d 1089 (Fla. 2000); Haines City Community Dev. v. Heggs, 658 So. 2d 523 (Fla. 1995). And in turn, this appellate court is limited in reviewing the circuit court's opinion, to determine whether the circuit court afforded procedural due process and applied the correct law. See Ivey v. Allstate Ins. Co., 774 So. 2d 679 (Fla. 2000). We cannot review the record to determine whether there was competent substantial evidence to support an agency's decision, as that responsibility lies solely with the circuit court. See Dusseau v. Metropolitan Dade County Board of County Commissioners, 26 Fla. L. Weekly S329 (Fla. May 17, 2001). Section 322.2615(7), Florida Statutes (1999) provides that the hearing officer must determine "by a preponderance of the evidence whether or not sufficient cause exists to sustain, amend or invalidate the [license] suspension." The hearing officer must find that the police officer had probable cause to believe the person was driving or in actual physical control of a motor vehicle while under the influence of alcohol or a controlled substance, whether the person was placed under lawful arrest, and whether the person had an unlawful blood alcohol level. See

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