INGRID HUNTER

v.

STATE OF FLA DEPT OF HWY SAFETY & MOTOR VEHICLES

W, *1 appeal from a decision of the Hearing Officer from the Florida Department of Michael Catalano, Michael A. Catalano, P.A., for Petitioner. Natalia C Before PRESCOTT, FIGAROLA, and SANTOVENIA, U PRESCOTT and SANTOVENIA, JJ. Affirmed. ROSA C. FIGAROLA, J., Dissents.

OAP

RCF

MJS

DZ *1~ 8‘?!-I9 =6 NV CZ ostea, Department of Highway Safety and Motor Vehicles, for Respondent. ‘"7 '1

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{'73 .-1 -er? "T3 Xx; f“¥'% "i,\._. TE‘ Qbaxs -..- [*2] I do not agree with my esteemed colleagues and thus file the following dissent. This case is before the Court pursuant to the filing of a Petition for Writ of Certiorari from an administrative hearing in which the Petitioner’s driving license was suspended for a period of six months following a refusal to submit to a breath test. The issue before the Court is interpretation of §322.26l5(l l), Fla. Stat. (2013), which provides that “[i]f the arresting officer or the breath technician fails to appear pursuant to a subpoena provided in subsection (6), the department shall invalidate the suspension.” The facts are as follows. Officer Jones initiated a traffic stop. Upon observing Hunter’s condition, he called Officer Grossrnan to the scene to conduct the DUI investigation. Grossrnan explained that although Jones was able to conduct roadside sobriety exercises, he was unable to administer the intoxilyzer. Upon arriving on the scene, Grossman spoke to Jones before approaching the car where Hunter was seated. Grossman administered the roadside exercises to Hunter and made the decision to place Hunter under arrest for driving under the influence. Officer Robbins transported Hunter to the station for the intoxilyzer because both Grossman and Jones were motorcycle officers. Although Officer Grossman had initially planned to administer the intoxilyzer to Hunter at the station, Officer Beltran ultimately did so. Hunter’s license was suspended due to her failure to provide a breath sample and Hunter filed a timely request for a formal administrative hearing. Officers Jones and Grossman both labeled themselves arresting officers. The formal hearing was scheduled for October 8, 2013. At the inception of the hearing, the Petitioner alerted the Hearing Officer that he had subpoenaed Officer Jones, Robbins and Beltran. Neither Officer Robbins nor Officer Jones were present. Officer Beltran had notified [*3] that he was unable to attend prior to the hearing because he had another court hearing. Officer Beltran’s absence was thus excused for just cause. Fla. Admin. Code §l5A-6.015. Officer Grossman was permitted to testify after which the Hearing Officer indicated that the matter would be continued. The Petitioner objected to the continuance maintaining that §322.26l5(l l), Fla. Stat.(20l3) allowed him “to win” if either the arresting officer or the breath technician failed to appear. The Petitioner maintained that although Beltran’s absence had been excused for just cause, Jones, the other “arresting” officer, had failed to appear without an excuse. The hearing continued on October 24"‘. Officer Jones was present ‘out Officer Beltran, the breath technician was not. The Petitioner renewed his motion to set aside the suspension in light of the fact that Officer Beltran had failed to appear in spite of a duly issued subpoena. §322.2615(l l). After taking testimony from Officer Jones, the Hearing Officer reserved ruling on the Petitioner’s motion and “concluded” review of Hunter’s case. Yet another hearing was held on November l3. Officer Beltran was present at this third hearing. Before commencing the hearing, the Hearing Officer noted that the officer had arrived “later but he did phone in and provided a letter to the hearing officer as to why he was not here and he spoke to one of the clerks stating that he was going to be late and the hearing officer was never really notified and it was continued for today. We do have Officer Beltran present and we will take this opportunity and place him under oath.” The hearing continued over the Petitioner’s objection. At the conclusion of the hearing, Petitioner’s counsel once again raised an objection to Officer Beltran’s testimony claiming that the suspension should be invalidated as the officer had failed to appear on October 24. Counsel noted that he stayed talking to the Hearing Officer after [*4] the hearing concluded on October 24“ and had subsequently been excused by the Hearing Officer. At no point before counsel left on October 24*“, was he notified that the officer had arrived, was running late, or had notified the Hearing Officer that he was running late. Included in the appellate record are a series of email communications between Petitioner’s counsel and a HSMV Field Supervisor attempting to resolve the issue. Inclusion of these emails was not objected to. The emails suggest that Officer Beltran called the “front counter” indicating he would be late on the day of the hearing. The emails also suggest that the Hearing Officer was informed of the fact but conducted the hearing in any event. In reviewing an administrative order by certiorari, the circuit court must determine (l) whether the administrative agency accorded procedural due process, (2) whether the agency observed the essential requirements of law, and (3) whether the administrative findings and judgment are supported by competent substantial evidence. Dept. of Highway and Motor Vehicles v. Currier, 824 So. 2d 966 (Fla. 1“ DCA 2002); Locascio v. Dept. ofhlighway Safely & Motor Vehicles, 20 Fla. L. Weekly Supp. 239a (Fla. llth Cir. Ct. October 31, 2012). The administrative agency in this case failed to observe essential requirements of law. Regardless of the validity of the Petitioner’s argument with regards to invalidating the suspension after the initial hearing, I believe that the suspension should have been invalidated when the hearing on October 24"‘ took place without Officer Beltran, the breath technician. The applicable procedures for formal administrative hearings by the Department of Highway Safety and Motor Vehicles are contained in §322.26l5 Stat. (2013) and in the administrative regulations adopted by the Department. Dept. Safely and Motor Vehicles v. Saxlehner, 96 So. 2d 1002, 1007 (Fla. 3d DCA 2012). Section 322.26l5(ll) specifically requires that the Department invalidate a suspension if a duly subpoenaed arresting officer or [*5] breath technician fail to appear for a formal hearing. The Code exempts a witness’ absence from being considered a failure to appear if the witness provides notification that there is just cause for his/her failure to appear before the hearing takes place. Fla. Admin. Code §l4A-6.01 5(2)(d). It is uncontroverted that Officer Beltran was not present when the hearing took place on October 24"“. It is also uncontroverted that there was not a determination prior to the start of the hearing that there was just cause for the officer’s absence. Quite the contrary, according to the Hearing Officer’s statements at the commencement of the third hearing, the officer never indicated he would not be present, he stated he was running late. The Hearing Officer either choose to disregard the fact that he had been relayed that information or the “front counter” never relayed the information. In any event, the officer was not present and the Petitioner’s suspension should therefore have been invalidated. Henriquez v. Dept. Highway Safizty & Motor Vehicles, 21 Fla. L. Weekly Supp.305a (Fla. lllh Cir. Ct. App. Ct. December⁵, 2013); Miranda v. Dept. Highway Safi2ty and Motor Vehicles, Case 13-030AP (Fla. llth Cir.Ct. February 28, 2014); Hamallan v. Dept. Highway Safety and Motor Vehicles, 21 Fla. L. Weekly Supp.7 (Fla. 6*“ Cir. App. ct. October 4, 2013). Much is made of the fact that the officer notified the “front counter” that he was running late. The officer’s conduct displays professionalism and is not at fault. However in spite of the officer’s best efforts, the hearing was conducted without his presence. To rule that continuing the hearing was appropriate under the present scenario would in my opinion establish that the agency’s failure to relay a message or a hearing officer’s decision to proceed without an essential witness are grounds to circumvent statutory requirements.