SEAN BROWNSTEIN

v.

DHSMV

PER CURIAM.

FINAL ORDER DENYING PETITION FOR WRIT OF CERTIORARI

Petitioner, Sean Brownstein (“Brownstein” or “Petitioner”) seeks certiorari review of the Department of Highway Safety and Motor Vehicles’ (“Department” or “Respondent”) final order sustaining the suspension of his driver’s license for driving with an unlawful breath alcohol level. This Court has jurisdiction pursuant to section 322.2615(13), Florida Statutes and Florida Rule of Appellate Procedure 9.030(c)(3). 2 of 4 Facts and Procedural History On October 18, 2012, Brownstein was arrested for driving under the influence. Brownstein provided breath test results of 0.116 and 0.117 and his license was suspended. He requested a formal review hearing pursuant to section 322.2615, Florida Statutes, and a hearing was held on November 30, 2012. At the hearing, Brownstein attempted to introduce documents related to the 2002 approval study of the Intoxilyzer 8000; transcripts of the testimony of FDLE Inspector Roger Skipper from a formal review hearing in other cases in 2006; a letter dated in 2006 from FDLE Custodian of Records Laura Barfield about Intoxilyzer software version 8100.26; numerous breath test results obtained from various Intoxilyzer 8000 machines; subpoenas for Roger Skipper, Patrick Murphy Laura Barfield, and FDLE Custodian of Records Jennifer Keegan that the hearing officer did not issue, and other documents. On December 4, 2012, the hearing officer entered a written order sustaining Petitioner’s license suspension. Standard of Review “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 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 license was suspended for driving with an unlawful 3 of 4 breath 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. (2012).

Analysis

In the Petition for Writ of Certiorari, Brownstein argues that: 1) the hearing officer deprived him of due process of law when his license suspension was not set aside due to the failure of the hearing officer to issue subpoenas for Roger Skipper, Patrick Murphy, Jennifer Keegan and Laura Barfield; 2) the breath test results were not properly approved because they were obtained by use of an unapproved breath testing machine and provided scientifically unreliable results; 3) the breath test results were inadmissible due to the failure of the record to contain the annual inspection report; 4) and the Intoxilyzer 8000 was improperly evaluated for approval; and 5) the Intoxilyzer 8000 was not kept in a secure location and was accessible by unauthorized individuals. This Court denied the Petitions raising these same arguments in Keen v. Dep’t of Highway Safety & Motor Vehicles, 20 Fla. L. Weekly Supp. 15a (Fla. 9th Cir. Ct. Oct. 8, 2012); Klinker v. Dep’t of Highway Safety & Motor Vehicles, 20 Fla. L. Weekly Supp. 1a (Fla. 9th Cir. Ct. Sept. 10, 2012); and Morrow v. Dep’t of Highway Safety & Motor Vehicles, 19 Fla. L. Weekly Supp. 704a (Fla. 9th Cir. Ct. Feb. 27, 2012). Although Petitioner has added additional documents containing more recent Subject Test Electronic Data of Intoxilyzer 8000 breath test 4 of 4 results than those included in Klinker, the Court does not find that these documents warrant a decision contrary to Klinker. For the reasons stated above and in Klinker, Morrow, and Keen, the Court finds that the hearing officer properly admitted the breath tests results, there was competent substantial evidence to support the hearing officer’s findings, and Petitioner was not deprived of due process. Accordingly, it is hereby ORDERED AND ADJUDGED that The Petition for Writ of Certiorari is DENIED. DONE AND ORDERED in Chambers at Orlando, Orange County, Florida, this 29th day of January, 2013.

/S/____________________________ ALICIA L. LATIMORE Circuit Judge

/S/___________________________

/S/____________________________ JOSE R. RODRIGUEZ

TIM SHEA Circuit Judge

Circuit Judge

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and correct copy of the foregoing has been furnished to: Stuart I. Hyman, Esq., Stuart I. Hyman, P.A., 1520 East Amelia St., Orlando, Florida 32803 and to Richard M. Coln, Assistant General Counsel, Department of Highway Safety and Motor Vehicles, P.O. Box 570066, Orlando, Florida 32857 on this 6th day of February, 2013.

/S/___________________________

Judicial Assistant