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Department of Highway Safety and Motor Vehicles v. Neff12/28/2001
761 So. 2d 1089, 1092-93 (Fla. 2000); Haines City Community Dev. v. Heggs, 658 So. 2d 523, 530 (Fla. 1995).
We conclude that the circuit court did not apply the correct law in this case. The first ground utilized by the circuit court has been rejected by our opinions in Russell, Mowry, and Fiorenzo. Ground two was rejected in Dehart, Cochran and Russell. Cochran also held that a single defect is insufficient to overturn the hearing officer's findings which support the license suspension. Instead, the circuit court is to look at whether there is substantial evidence in the record to support the hearing officer's findings.
The third point relied upon by the circuit court related to the Department's supposed failure to present evidence that the inspector, one Keith Betham, was properly qualified to inspect intoxilyzer machines. In regard to this point, the petitioners rely upon our recent opinion in Department of Highway Safety & Motor Vehicles v. Stevens, 26 Fla. L. Weekly D2565) (Fla. 5th DCA Oct. 26, 2001). In that case, Stevens successfully argued to the circuit court on certiorari review that the Department had failed to establish, as an evidentiary matter, that the inspector had received a valid permit under the former rules in effect prior to January 1, 1997.
On the other hand, in Lamb's case, Betham testified that he has been certified by FDLE to conduct inspections of the breath test instruments since 1992, and that since 1992 his certification has never lapsed. He also testified that he took two 4-hour refresher courses. Rule 11D-8.008(4) provides that an agency inspector permit must be renewed prior to its expiration and that it shall be renewed upon the successful completion of a training course of no less than 4 hours which is approved by the Department. Keith Betham also explained that, until 1997, there was no agency inspector permit.
Prior to January 1, 1997, all breath technicians were trained in inspection and maintenance of the breath test machines. Keith Betham further testified that in 1997, the rules were changed and the permits for breath technician and agency inspector were separated. However, he testified that in order to have an agency inspector permit, one needs a breath technician permit. Therefore, when the rules changed, since Keith Betham already had his breath technician permit, he was only required to take a 4-hour refresher course in order to obtain the agency inspector permit. His testimony was to similar effect in Neff's case. Clearly, Keith Betham was and is properly certified to conduct inspections of breath test instruments.
Accordingly, we grant the petition, quash the order of the circuit court, and reinstate the suspension of the licenses of Neff and Lamb.
PETITION GRANTED.
HARRIS and PALMER, JJ., concur.
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