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Department of Highway Safety and Motor Vehicles v. Mowry7/20/2001
Petition for Certiorari Review of Decision from the Circuit Court for Orange County, Acting in its Appellate Capacity.
The State of Florida, Department of Highway Safety and Motor Vehicles (the Department) seeks certiorari review of the circuit court's order granting a petition for writ of certiorari. That order quashed the Department's order which had suspended the driver's license of respondent Christina L. Mowry (Mowry) for six months based on her arrest for driving under the influence of alcohol (DUI). We grant the petition.
After Mowry was arrested for DUI, she agreed to submit to a breath test which revealed .143 and .137 grams of alcohol per 210 liters of breath, well above the statutory minimum of .08. See § 316.193(1)(c), Fla. Stat. (1999). Accordingly, she was issued a citation for driving with an unlawful blood-alcohol level and her driving privilege was suspended pursuant to section 322.2615(1)(a), Florida Statutes (1999).
Mowry requested and was granted a formal review of her driver's license suspension pursuant to section 322.2615(1)(b)3., Florida Statutes (1999). At such a hearing, if an individual's license is suspended for driving with an unlawful blood-alcohol level in violation of section 316.193, the hearing officer shall determine by a preponderance of the evidence whether sufficient cause exists to sustain the license suspension and the issues shall be limited to 1) whether the arresting officer had probable cause to believe that the individual was driving while under the influence of alcohol; 2) whether the person was lawfully arrested for violation of section 316.193; and 3) whether, pursuant to section 316.193, the person had an unlawful blood alcohol level. § 322.2615(7)(a), Fla. Stat. (1999). Mowry contends that the Department failed to meet its burden of proof regarding the third issue and argues that this court should deny the petition.
At the hearing, no testimony was presented. Thus the hearing officer, pursuant to section 322.2615(11), based his decision on the record evidence which contained, among other documents, the breath test result affidavit made part of the record pursuant to section 322.2615(2). Mowry moved to invalidate the license suspension, arguing there was no evidence to demonstrate compliance with rule 11D-8.0035, Florida Administrative Code, which concerns Department approval of sources for the alcohol reference solution used to test and maintain the Intoxilyzer. The hearing officer ultimately determined that sufficient cause existed to sustain the license suspension and, in its final order of license suspension, suspended Mowry's license for six months.
Mowry then sought certiorari review of the hearing officer's order in the circuit court. In its order granting petition for writ of certiorari, the circuit court concluded that the Department should not have been allowed to benefit from the breath test results because it failed to produce evidence demonstrating that the "monthly maintenance testing performed on the Intoxilyzer was conducted with alcohol reference solution from an approved source."
The standard of certiorari review this court must utilize in reviewing a decision of the circuit court sitting in its appellate capacity is to determine whether the circuit court afforded procedural due process to the litigants and whether the essential requirements of law have been observed. Ivey v. Allstate Ins. Co., 774 So. 2d 679 (Fla. 2000); Florida Power & Light Co. v. City of Dania, 761 So. 2d 1089 (Fla. 2000); Haines City Cmty. Dev. v. Heggs, 658 So. 2d 523 (Fla. 1995); Department of Highway Safety & Motor Vehicles v. Perry, 751 So. 2d 1277 (Fla. 5th DCA 2000). A finding that the
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