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Department of Highway Safety and Motor Vehicles v. Neff12/28/2001
Petition for Certiorari Review of Order from the Circuit Court for Seminole County, Acting in its Appellate Capacity.
The petitioner, State of Florida, Department of Highway Safety and Motor Vehicles (hereinafter the Department) has petitioned for certiorari review of an order issued by the Circuit Court of Seminole County, acting in its appellate review capacity, which overturned the drivers' license suspensions of the respondents here, Jeffrey Neff and James Lamb. We grant the petition and quash the order of the circuit court.
In the last six months we have granted certiorari review in cases of this nature on six occasions: Department of Highway Safety & Motor Vehicles v. Lazzopina, 26 Fla. L. Weekly D2524 (Fla. 5th DCA Oct. 19, 2001); Department of Highway Safety & Motor Vehicles v. Dehart, 26 Fla. L. Weekly D2411 (Fla. 5th DCA Oct. 5, 2001); Department of Highway Safety & Motor Vehicles v. Fiorenzo, 795 So. 2d 1128 (Fla. 5th DCA 2001); Department of Highway Safety & Motor Vehicles v. Cochran, 798 So. 2d 761 (Fla. 5th DCA 2001); Department of Highway Safety & Motor Vehicles v. Russell, 793 So. 2d 1073 (Fla. 5th DCA 2001); Department of Highway Safety & Motor Vehicles v. Mowry, 794 So. 2d 657 (Fla. 5th DCA 2001).
The facts of Lamb's arrest, as adduced at the formal review hearing held pursuant to section 322.2615(1)(b)(3), Florida Statutes, are that he was stopped because he could not maintain a single lane and because he was doing 48 in a 35 mile-per-hour zone. He had the odor of alcohol, his speech was slow, his eyes were glassy and bloodshot, and his pupils were constricted. He performed the field sobriety exercises poorly. His breath test results were .147 and .151. At the hearing a Florida Department of Law Enforcement Inspector, Roger Skipper, testified as did the DUI Technician and Agency Inspector for Seminole County, Keith Betham.
The facts of Neff's arrest are that he was stopped for driving in an erratic manner, weaving, stopping suddenly and accelerating rapidly. He had the odor of alcohol, his speech was thick tongued and slurred, his mouth was dry, and his face appeared flushed. He was unsteady on his feet and performed the field sobriety exercises poorly. He had difficulty maintaining his balance and could not follow instructions. His breath test results were .227 and .221. At the formal review hearing, the arresting officer, Longwood Police Officer Grieb, and a DUI technician, Nelson Wilder, testified, as did Skipper and Betham. The hearing officers, based upon a preponderance of the evidence, sustained both suspensions. The circuit court granted review and reversed the suspensions. The three grounds upon which it based its decision were:
1. " he hearing officer departed from the essential requirements of law when he upheld the license suspensions despite a lack of evidence that Guth solutions used in the monthly inspections were FDLE-approved. . . ."
2. " he breath test results affidavits do not reflect `the date of the performance of the most recent required maintenance' as required by Florida Statute § 316.1934(5)."
3. " he Department failed to present evidence that the inspector was properly qualified to inspect intoxilyzer machines under Rule 11D-8-008 beyond a four-hour course that he took."
Our jurisdiction to review the action of the circuit court, which is the second tier of certiorari review, is limited to the following inquiry: (1) whether the circuit court afforded procedural due process; and (2) whether the circuit court applied the correct law. See Ivey v. Allstate Ins. Co., 774 So. 2d 679, 682 (Fla. 2000); Florida Power & Light Co. v. City of Dania,
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