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Department of Highway Safety and Motor Vehicles v. Cochran8/10/2001
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 § 322.2615(7)(a), Fla. Stat. (1999). The hearing officer's determination may be conducted based on a review of the reports of the police officer "including documents relating to the administration of a breath test.... See § 322.2615(11), Fla. Stat. (1999).
The circuit court in this case focused solely on the affidavit of the breath test result submitted by the police officer, finding it fatally defective because it did not comply with section 316.1934(5). That statute provides an affidavit containing breath test results is admissible and presumptive proof of the results if it discloses . . . (e) "the date of performance of the most recent required maintenance on such instrument." Thus, the circuit court concluded there was no competent proof of Cochran's blood alcohol level.
The record in this case indicates that the affidavit in question stated the date of the agency's last inspection of the machine, but not the date of the last required maintenance. The last agency inspection in this case was on April 26, 2000 - less than a month before the test. However, an additional document in the record, also submitted to the hearing officer - the alcohol testing program form - indicates the required maintenance was performed on the same day. Further, the sworn arrest report contains the breath test results, as does the incident report and the traffic citation.
We disagree that the possible defect in the affidavit alone is a sound basis to overturn the hearing officer's findings which support the license suspension. The circuit court should have addressed the issue of whether or not there was substantial evidence in the record to support the hearing officer's findings. Here the additional document which clarified that the inspection included maintenance should have sufficed, even if the requirements of section 316.1934(5) apply to such hearings. Further, as described above, there was other evidence presented in the record regarding Cochran's blood alcohol level, including the arrest affidavit and maintenance records. See Department of Highway Safety & Motor Vehicles v. Nikollaj, 780 So. 2d 943 (Fla. 5th DCA 2001); Department of Highway Safety & Motor Vehicles v. Perry, 751 So. 2d 1277 (Fla. 5th DCA 2000); Department of Highway Safety & Motor Vehicles v. McGill, 616 So. 2d 1212 (Fla. 5th DCA), rev. denied, 626 So. 2d 206 (Fla. 1993).
We conclude that the circuit court erred in overturning the hearing officer based solely on the affidavit form, without determining whether there was competent substantial evidence to sustain the hearing officer's decision. See, e.g., Dusseau. In so doing, the circuit court departed from the essential requirements of law. Accordingly, we grant the petition for writ of certiorari, and remand for a determination of whether there was competent and substantial evidence in the record to sustain the license suspension.
PETITION GRANTED and ORDER QUASHED; REMANDED.
THOMPSON, C.J., and PALMER, J., concur.
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