ROMAGUERA
v.
DEPARTMENT OF HIGHWAY SAFETY AND MOTOR VEHICLES
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This appellate decision addresses a driver's license suspension hearing where the Department of Highway Safety and Motor Vehicles failed to include a statutorily required crash report in the hearing record. The court granted the petitioner's motion for rehearing in part, vacated its prior order, granted the petition for writ of certiorari, quashed the license suspension, and remanded the case for new proceedings with the crash report included.
The court held that the department's failure to include the statutorily required crash report in the hearing record departed from the essential requirements of law and denied the petitioner due process. The prior final order denying the petition for writ of certiorari was vacated, and the petition for writ of certiorari was granted.
[1] A scrivener's error may be grounds for finding that discrepancies in evidence were unintentional.
[2] Failure to include statutorily required documents in a hearing record can depart from the essential requirements of law and deny due process.
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Join FLexlaw to unlock all legal intelligence“the department's failure to include the statutorily required crash report in the hearing record departed from the essential requirements of [*2] law and denied petitioner due process of law”
Establishes the core holding that the missing crash report violated both statutory requirements and due process rights.
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Join FLexlaw to unlock all legal intelligencePetitioner Romaguera challenged a license suspension imposed by the Department of Highway Safety and Motor Vehicles. The hearing officer's final order…
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THIS MATTER came before the Court for consideration of Petitioner’s “Motion for Rehearing and Rehearing En Banc,” filed on April 7, 2010, and Respondent’s “Response to Motion for Rehearing,” filed on April 19, 2010. This Court having reviewed the motion and response, the Final Order Denying Petition for Writ of Certiorari, entered on March 22, 2010, the court file, and being otherwise fully advised in the premises, finds as follows: We reject, without decision, Petitioner’s first argument regarding the lack of live testimony to explain the discrepancies in the dates and times shown on the evidence exhibits. We agree with the hearing officer’s finding that the discrepancies were due to a scrivener’s error. However, as to Petitioner’s second argument, we note a direct conflict between this Court’s Final Order Denying Petition for Writ of Certiorari, entered on April 5, 2010, and the decision of another Ninth Circuit appellate panel in the case of Romaguera v. Department of Highway Safety and Motor Vehicles, Case No. 2007-CA-9009-O, dated January 29, 2010. In Romaguera, this circuit, in its appellate capacity, held that the department’s failure to include the statutorily required crash report in the hearing record departed from the essential requirements of law and denied petitioner due process of law. Consequently, we approve the holding in Romaguera and apply it to the instant case. It is hereby ORDERED AND ADJUDGED that this Court’s Final Order Denying Petition for Writ of Certiorari, entered March 22, 2010, is VACATED and this decision is substituted in its place; Petitioner’s Motion for Rehearing is GRANTED IN PART; the Petition for Writ of Certiorari is GRANTED; Petitioner’s requests for oral argument and rehearing en banc are DENIED; the hearing officer’s Final Order of License Suspension is QUASHED; and this matter is REMANDED for further proceedings consistent with this opinion. On remand, it shall be the Department’s burden to include the crash report in the hearing record. If there is not crash report, the hearing officer is directed to make a finding to that effect. DONE AND ORDERED at Orlando, Florida this __23__ day _________June_______,
2010.
______/S/_____________________
ROM W. POWELL Senior Judge
_______/S/_____________________ _______/S/____________________ MAURA T. SMITH
DONALD E. GRINCEWICZ Circuit Judge
Circuit Judge
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the foregoing order was furnished via U.S. mail on this 24 day of June , 2010, to the following: William R. Ponall, Esquire, Post Office Box 2728, Winter Park, Florida 32790-2728 and Kimberly A. Gibbs, DHSMV, 133 South Semoran Blvd., Suite A, Orlando, Florida 32807.
/S/
Judicial Assistant