CHRISTINA BRULAND

v.

FLORIDA DEPT. OF HIGHWAY SAFETY AND MOTOR VEHICLES

f river Licenses, Bureau of ~ ' Highway Safety and Motor Vehicles, DIVISIOII 0 Admirtistratiye Reviews George T. Pallas, Esq., for Petitioner. ' / 's E Reynolds, Esq Assistant General Coun Deman . _ ., Safety and Motor Vehicles, for Respondent. Before: BLAKE, BAGLEY and s1MoN,JJ. I sel ofthe Dep'artn_1ent ofHighway "W <1‘3m 0*’, {_-Y ._ If‘: [*2] A

PER CURIAM.

At 6:16 in the morning of July 30, 2011, the Petitioner, Christina Bruland, .was arrested for Driving Under the Influence in violation of section 316.193 of the Florida Statutes in Marathon, Monroe County, Florida, and" her license was subsequently. suspended for one year pursuant to section 322.2615 of the Florida Statutes. ' ’ On August 8, 2011, Bruland requested a format review of the suspension pursuant to section 322.2615, as well as pursuant to Rule 15A-6009 ofthe Florida Administrative Code, which states that “{h}earings shall be held in the judicial circuit where the notice of suspension was issued, unless othenvise ordered by the hearing ofiicer with the consent ofthe driver.” ‘ ' _~ - . . r‘ - On September 1, 2011, the hearing was held; however, the hearing officer, as well counsel for Bruland and the Respondent, Department of Highway Safety and Motor Vehicles (“the Department”), appeared in Miami, Miami-Dade County, Florida, and not in Marathon, Monroe County, Florida. At the conclusion of the hearing, and on procedural grounds, Bruland objected to this, maintaining that the heating in Miami-Dade was contrary to Rule ISA-6009. The hearing officer overruled the objection, At the hearing, the arresting officer, telephonically from Monroe County,‘-testified that Bruland refused the breath test at around “5:35 or so” in the morning of July 30, 2011. At the conclusion of the hearing, Bmland moved to have her suspension invalidated based on this testimony, in light of the fact that the Florida DUI Uniform Traffic Citation indicated that Bruland was arrested for DUI at 6:16 in the morning. The hearing officer denied the motion (and all others,.not appealed here), and on September 13, 2011, Bruland’s suspension was upheld. - ~ ~ ____.:_ii_.“........i.-....».i¢ [*3] Currently, pursuant to §§322.261s(13) & 322.31 ofthe Florida Statutes, as wellas Art. V, §5(b) of the Florida Constitution and Fla. R. App. P. 9.100, Bruland has filed the instant Petition for Writ of Certiorari, seeking to quash the upholding of her suspension. Bruland argues that the hearing oflicer, in failing to conduct the hearing in Monroe County, Florida but rather in Miami-Dade County, Florida denied her procedural due process. Secondly, Bruland argues that the hearing officer’s upholding the suspension, in light of the time discrepancies between the alleged refusal (as testified to by thearresting officer) and the arrest for DUI (as indicated on the DUI citation form), was not supported by competent substantial evidence. A P We grant the petition and quash the Department’s upholding of the Bruland’s suspension. , The standard ofreview for granting a Petition for Writ ofCertiorari is whether the quasi-judicial body (theDHSMV): (1) accorded the petitioner procedural due process; (2) observed the essential requirements of the law; and, (3) supported its decision with substantial competent evidence. See Dusseau v. Metropolitan Dade'C0um‘y, 794 So. 2d 1270, 1274 (Fla. 2001); Florida Power & Light Co. v. Dania, 761 So. 2d“ 1089,1092 (Fla. 2000); Board of County Commissioners ofBrevard County v. Snyder, 627 So." 2d 469 (Fla. 1993); City ofDeer;/ield Beach v. Vaillant,'4l9 So. 2d 624, 625-626 (Fla. I982). Biuland argues that the hearing officer, in upholding the suspension, did not afford her procedural due process, and that its decision was not supported by substantial competent evidence. A - As noted,‘ Rule 15A-6009 of the Florida Administrative Code states that “[h]earings shall be held in thejudicial circuit where the notice of suspension was issued, R I I [*4] | I unless otherwise ordered by the hearing officer with the consent of the driver.” There is no doubt that Bruland’s was arrested in Monroe County and her license was suspended in Monroe as well. Accordingly, pursuant to the rule, the hearing was required to be held in Monroe, and not in Miami-Dade, as it was. _ ‘ In response, the Department maintains that procedural due process was afforded because there is no requirement that witnesses appear before a hearing officer; that the telephonic appearance of witnesses does not serve to derogate an opposing par,ty’s procedural due process rights. While this may indeed be true, respectfully however, this has nothing to do with venue; i.e., where the case must be tried ab initio. Bruland timely requested a formal review of her license suspension and was entitled to have it_heard in Monroe County but, for whatever underlying reasons, it was not. As such, she was not afforded procedural due process, and thus her Petition, on this point at least, is. meritorious. » _ , A Testimony and record evidence reveal that Bruland was arrested after she;was read the implied consent warnings and refused to take the breath test. Pursuant to section 3l6.l932(l)(a)1, only after an arrest is made, a defendant is to have the warningsread, the refusal of which would warrant license suspension. Under this statute, the chemical or physical breath test must be “incidental to a lawful arrest”_ and administered at the request of a law enforcement officer who has reasonable cause to believe that the person was driving or was in actual physical control of the motor vehicle within Florida while under the influence of alcoholic beverages. Under this statute, “incident to a lawful arrest” means the arrest must precede the breath test. State, Dept. ofHighway Safety and Motor Vehicles v. Whitley, 846 So. 2d 1163 (Fla. 5th DCA 2003). ' I [*5] -0 , § . Here, there is evidence that this did not occur, and thus this Courtwould not be reweighing the evidence in finding that, in upholding the suspension, the Department's findings were not supported by substantial competent evidence. See e.g. Department of Highway Safety and Motor Vehicles v. Trimble, 821 So. 2d 1084' (Fla. lst DCA 2002) (finding that, in certiorari proceeding to review suspension ofdriver’s license, the circuit court did not impermissibly reweigh evidence in concluding that competent, substantial evidence did not support hearing officer’s finding that motorist was first given implied consent warning before she refusedto submit to breath, urine or bloods test after arrest for driving under the influence (DUI); arresting officeris affidavit of refusal, printout from breath test machine, and officer’s alcohol influence report each gave different time for m0torist’s refusal to take test). _ _ ' Accordingly, we grant the petition. In sustaining Bru1and’s suspension; the Department did not provide Bmland proceduraldue process" nor, secondarily, was its decision supported by substantial competent evidence. ' '

PETITION GRANTED.

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