IN THE CIRCUITCOURT FOR THE NINTH JUDICIAL CIRCUIT, IN AND ...

IN THE CIRCUITCOURT FOR THE NINTH JUDICIAL CIRCUIT, IN AND FOR ORANGE COUNTY, FLORIDA

BRADFORD G. MEINKEN,

Petitioner,

v.

STATE OF FLORIDA, DEPARTMENT OF HIGHWAY SAFETY & MOTOR VEHICLES, DIVISION OF DRIVER LICENSES,

CASE NO.: 2006-CA-8456-O Writ No.: 06-77

Respondent. _____________________________________/

Petition for Writ of Certiorari.

Stuart I. Hyman, Esquire, for Petitioner.

Heather Rose Cramer, Esquire, for Respondent.

BEFORE EVANS, MACKINNON, J. KEST, JJ.

PER CURIAM.

ORDER GRANTING PETITION FOR WRIT OF CERTIORARI

Bradford G. Meinken ("Petitioner") timely filed this petition seeking certiorari review of

the Florida Department of Highway Safety and Motor Vehicles' ("Department") Final Order of

License Suspension. Pursuant to section 322.2615, Florida Statutes, the order sustained the six

month suspension of his driver's license for driving with an unlawful alcohol level. This Court

has jurisdiction under sections 322.2615(13), Florida Statutes, and Florida Rule of Appellate

Procedure 9.030(c)(3). We dispense with oral argument. Fla. R. App. P. 9.320.

On August 5, 2006, the arresting officer was dispatched to a crash scene involving Petitioner. After completing the traffic investigation and reading Petitioner his Miranda rights, Petitioner admitted to driving the vehicle that was involved in the crash. The arresting officer observed an odor of an alcoholic beverage, bloodshot and red eyes, and slurred speech. Petitioner did not consent to performance of field sobriety exercises. Petitioner was placed under arrest for DUI and transported to the breath testing facility. Petitioner submitted breath samples of .184 and .168. Petitioner's driver's license was suspended for driving with an unlawful breath alcohol level of .08 or higher.

The Petitioner requested a formal review hearing pursuant to section 322.2615, Florida Statutes, and a hearing was held on September 7, 2006. At the hearing, Michael Rodriguez, the breath test operator, Kelly Melville, the Orange County agency inspector, and Roger Skipper, department inspector from F.D.L.E., all testified regarding the testing, approval and operation of the Intoxilyzer 8000. Additionally, Petitioner issued subpoenas for two F.D.L.E. employees, Laura Barfield and Tanya Shrum. Petitioner moved to set aside the suspension based on Ms. Barfield and Ms. Shrum's failure to appear arguing that their failure to appear deprived him of due process of law as well as his rights under section 316.1932(1)(f)(4). Next, Petitioner moved to set aside the suspension based on the failure of the Department to establish that the breath testing device upon which Petitioner was tested had ever been properly approved pursuant to F.D.L.E. Rule 11D-8.003. On September 13, 2006, the hearing officer entered a written order denying Petitioner's motions and sustaining Petitioner's license suspension for a period of six months. Petitioner now seeks certiorari review of this order.

"The duty of the circuit court on a certiorari review of an administrative agency is limited to three components: Whether procedural due process was followed; whether there was a

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departure from the essential requirements of law; and whether the administrative findings and judgment were supported by competent substantial evidence." Dep't of Highway Safety & Motor Vehicles v. Satter, 643 So. 2d 692, 695 (Fla. 5th DCA 1994).

In a formal review of an administrative suspension, the burden of proof is on the State, through the Department. Where the driver's license was suspended for driving with an unlawful blood alcohol level, the hearing officer must find that the following elements have been established by a preponderance of the evidence:

1. Whether the arresting law enforcement officer had probable cause to believe that the person was driving or in actual physical control of a motor vehicle in this state while under the influence of alcoholic beverages or controlled substances. 2. Whether the person whose license was suspended had an unlawful blood-alcohol level or breath-alcohol level of 0.08 or higher as provided in ? 316.193. ? 322.2615(7)(a), Fla. Stat. (2006). In the Petition for Writ of Certiorari, Petitioner argues that: 1) the hearing officer deprived Petitioner of due process of law and violated section 316.1932(1)(f)(4) when the suspension of Petitioner's driver's license was not set aside due to the failure of Tanya Shrum and Laura Barfield to appear along with the documents requested, pursuant to the lawfully served subpoena duces tecum; 2) that the breath test results were not properly approved because they were obtained by use of an unapproved breath testing machine; 3) that Inspector Melville was improperly certified to conduct agency inspections on the Intoxilyzer 8000; and 4) that there is no competent substantial evidence to establish that Petitioner was driving or in actual physical control of an automobile. Because the Court finds the second argument dispositive, the Court will only address the Petitioner's first two arguments.

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First, Petitioner argues that the hearing officer violated Petitioner's due process rights and section 316.1932(1)(f)(4), when he refused to set aside the license suspension based on Tanya Shrum and Laura Barfield's failure to appear at the hearing. In response, the Department argues that Petitioner's rights were not violated because Petitioner failed to seek enforcement of the subpoenas.

At the hearing, upon Petitioner's motion to set aside the suspension, the hearing officer offered Petitioner a continuance to seek enforcement of the subpoenas in the circuit court pursuant to section 322.2615(7)(c). Petitioner declined to take advantage of the continuance. Recently, a separate appellate panel from the ninth circuit ruled on this issue in Cabello v. Dep't of Highway Safety & Motor Vehicles, 16 Fla. L. Weekly Supp. 287a (Fla. 9th Cir. Ct. 2008). The facts and issues in the Cabello case were similar to those involved in the present case. In Cabello, both Tanya Shrum and Laura Barfield were served with lawfully issued subpoenas duces tecum and both failed to appear at the hearing. The court in Cabello noted that section 322.2615(6)(c) provides the method for enforcing a subpoena issued pursuant to an administrative suspension hearing. Id. The provision allows the party to seek enforcement by filing a petition for enforcement in the circuit court in which the person failing to comply with the subpoena resides. Id. In Cabello, the court reasoned that because the hearing officer provided Petitioner thirty days to seek enforcement of the subpoenas with the circuit court and the Petitioner failed to do so, the Petitioner cannot now seek to invalidate the license suspension on due process grounds. Id.

The Court adopts the reasoning in Cabello for the instant case. Here, the hearing officer informed the Petitioner of his right to enforce the subpoenas and offered him the opportunity for a continuance. Relying on State v. Muldowny, 871 So. 2d 911 (Fla. 5th DCA 204), Petitioner

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refused the opportunity for a continuance and argued that it wasn't his burden to enforce the subpoenas. Subsequent to the ruling in Muldowny, the Fifth District held that Muldowny should not be construed to relieve a respondent in an administrative driver's license suspension proceeding from the necessity of complying with section 322.2615(6)(c) when a subpoenaed witness has failed to appear. Kubasak v. Department of Highway Safety & Motor Vehicles, 957 So. 2d 15 (Fla. 5th DCA 2007). Accordingly, it is clear that Petitioner's reliance on Muldowny was misplaced. The hearing officer did not deny the Petitioner due process by failing to set aside the license suspension based on the failure of Tonya Shrum and Laura Barfield to appear at the hearing.

Second, Petitioner argues that the breath test results obtained from him were not properly approved since they were obtained by use of a breath testing machine that had not been properly approved pursuant to F.D.L.E. Rule 11D-8.003. Under Florida's "Implied Consent Law," only approved breath testing machines may be used to establish impairment and Florida Administrative Code Rule 11D-8.003 establishes the procedures for the approval of such machines. Muldowny, at 913. Rule 11D-8.003, in effect on May 29, 2001 and used for the evaluation of the Intoxilyzer 8000, provides in subparagraph (4) the following:

The determination to evaluate an evidentiary breath test instrument for use in the State of Florida will be made by the Department. Upon notification by the Department that an evidentiary breath test instrument will be evaluated, the instrument's manufacturer shall submit the following to the Department: (a) The method of analysis upon which the instrument is based; (b) The instrument's model designation; (c) At least two (2) instruments for evaluation and a Certificate of Calibration for each instrument;

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