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Gurry v. Dep't of Highway Safety5/27/2005
Gurry seeks certiorari review of a circuit court's appellate decision affirming the Department of Highway Safety's hearing officer's final order, which suspended Gurry's driver's license for six months. We deny Gurry's petition because the record demonstrates the circuit court afforded Gurry procedural due process and it applied the correct law. See Haines City Comm. Dev. v. Heggs, 658 So. 2d 523, 530 (Fla. 1995); Department of Highway Safety and Motor Vehicles v. Perry, 751 So. 2d 1277, 1279 (Fla. 5th DCA 2000); Conahan v. Department of Highway Safety and Motor Vehicles, 619 So. 2d 988 (Fla. 5th DCA 1993).
Gurry contends that the circuit court departed from the essential requirements of the law in determining: 1) there was competent, substantial evidence to support the suspension; 2) Gurry was on notice as to the reason for her license suspension prior to the hearing; and 3) Gurry's rights were not violated because the hearing officer was not an attorney.
The record demonstrates that on February 4, 2004, Gurry was stopped by a police officer for failing to stop at a stop sign. The officer suspected, from a strong smell of alcohol on her breath, her slurred speech and glassy, bloodshot eyes that she was alcohol impaired. Gurry performed poorly on field sobriety tests. She was arrested and transported to a chemical testing facility. Two breath tests were administered, with results of .197 and .184.
The officer issued Gurry a citation, which included some irregularities: 1) no signature by Gurry; 2) no indication where Gurry could go to seek a review of her license suspension; and 3) no indication of whether her license suspension was based on a failure to submit to a breath test or based on driving with an unlawful blood-alcohol level. Her license was surrendered.
Gurry requested a formal review hearing of her license suspension. At the hearing, the traffic citation issued to Gurry and two copies of inspection reports on the intoxilyzer #66-002713 used to test her after her arrest, dated January 28, 2004 and February 25, 2004, were admitted in evidence. She challenged the two inspection reports because they did not contain the handwritten signature of Betham, the inspector. His name appeared in the signature area, in special italic print, as well as being typed in the blank provided for identification of the inspector. She also asserted she lacked notice of the grounds for the license suspension because the citation failed to indicate the reason for the suspension. In addition, Gurry challenged the hearing officer's qualifications to preside because he is not an attorney. The hearing officer rejected Gurry's challenges and upheld the license suspension.
Gurry then sought certiorari review in the circuit court, pursuant to section 322.2615(13), Florida Statutes. The circuit court upheld the hearing officer's determination that the inspection reports constituted competent, substantial evidence because they are self-authenticating and require no handwritten signature. It also upheld the hearing officer's determination that Gurry had actual notice of the basis for the license suspension. In addition, the court rejected Gurry's claim that her due process rights were violated because the hearing officer was not an attorney.
We agree with the circuit court that the inspection reports are in substantial compliance with the Florida Administrative Code Rule 11D-8.006, even though inspector Betham failed to physically sign the reports. The Rule does not require an actual handwritten signature and Gurry failed to introduce any evidence that Betham did not approve the reports or intend the special italic print to be his "mark" or signature.
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