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State, Dept. of Highway Safety and Motor Vehicles, Div. of Driver2/11/2004
This cause comes before us on the Department of Highway Safety and Motor Vehicles' ("DHSMV"), motion for rehearing and clarification of our denial of a petition for writ of certiorari. DHSMV's petition sought to quash a decision of the circuit court, sitting in its appellate capacity, which reinstated the respondent's driver's license after he refused to take the breathalyzer test. Because we find that *739 the circuit court departed from the essential requirements of law resulting in a miscarriage of justice, we vacate our earlier decision and grant DHSMV's petition for certiorari.
On March 23, 2002, a car driven by the respondent, Alessandro Marco Possati, collided with a parked, marked decoy police vehicle. Possati was apprehended by Miami police officer St. Surin. The officer detected a strong smell of alcohol from Possati and noted that he had watery, bloodshot eyes. A DUI unit was called to the scene, and Officer Abad, a DUI-trained officer, administered sobriety tests to Possati, who allegedly failed them. Possati was read an implied consent warning but refused to submit to the breathalyzer test. He was arrested, given Miranda warnings, and issued a citation for DUI. His driver's license was suspended under section 322.2615(1)(a), Florida Statutes (2001). [FN1]
FN1. The statute provides, in pertinent part: "A law enforcement officer ... shall, on behalf of the department, suspend the driving privilege of ... a person who has refused to submit to a breath ... test authorized by s. 316.1932." § 322.2615(1)(a), Fla. Stat. (2001).
Possati requested a formal review hearing. Both police officers, St. Surin and Abad, appeared at the hearing. Abad could not recall Possati's performance on the sobriety tests or his arrest, and none of the written incident reports were sufficient to refresh his memory. The hearing officer found there was competent, substantial evidence for sustaining the suspension of Possati's driving privilege.
Possati petitioned the circuit court for certiorari review. That court found that there had been a departure from the essential requirements of the law and a procedural due process violation because (1) Possati's Sixth Amendment confrontation right [FN2] was abridged due to Officer Abad's inability to recall the field sobriety tests and (2) Officer Abad's report was admitted without a proper predicate being laid for a past recollection recorded. The court granted Possati's petition and reinstated his driver's license. DHSMV petitioned this court for certiorari to quash the circuit court's order. This court denied the petition. DHSMV moved for rehearing and clarification. We now grant rehearing and quash the decision of the circuit court.
FN2. "In all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him...." U.S. Const. amend. VI.
The standard of review for a district court of appeal reviewing a decision of a circuit court in its appellate capacity is whether the circuit court violated a clearly established principle of law resulting in a miscarriage of justice. Combs v. State, 436 So.2d 93, 96 (Fla.1983). To justify this court's issuance of a writ of certiorari, the circuit court's departure from the essential requirements of the law must be more than simple legal error. See Ivey v. Allstate Ins. Co., 774 So.2d 679, 682 (Fla.2000). In determining whether the lower court violated an established principle of law, the district court may consider, among other things, recent controlling case law, rules of court, statutes, and constitutional law. See Allstate Ins. Co. v. Kaklamanos, 843 So.2d 885, 890 (Fla.2003).
This case is controlled by section 316.1932, Florida Statutes (2001), which provides that anyone who accepts the pr
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