v. CASE NO.: 2006-CA O Writ No.: STATE OF FLORIDA, DEPARTMENT OF HIGHWAY SAFETY & MOTOR VEHICLES, DIVISION OF DRIVER LICENSES,

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1 IN THE CIRCUIT COURT OF THE NINTH JUDICIAL CIRCUIT, IN AND FOR ORANGE COUNTY, FLORIDA GARY BERNE, Petitioner, v. CASE NO.: 2006-CA O Writ No.: STATE OF FLORIDA, DEPARTMENT OF HIGHWAY SAFETY & MOTOR VEHICLES, DIVISION OF DRIVER LICENSES, Respondent. / Petition for Writ of Certiorari. Stuart I. Hyman, Esquire, for Petitioner. Heather Rose Cramer, Esquire, for Respondent. BEFORE LATIMORE, THORPE, and MIHOK, JJ. ORDER GRANTING PETITION FOR WRIT OF CERTIORARI Gary Berne ( 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 , Florida Statutes, the order sustained the suspension of the Petitioner s driver s license for unlawful breath alcohol level. This Court has jurisdiction under sections , Florida Statutes, and Florida Rule of Appellate Procedure 9.030(c)(3). We dispense with oral argument. Fla. R. App. P

2 The Formal Review Hearings were held over three dates, on August 16, 2006, September 22, 2006, and October 12, The following exhibits, inter alia, were admitted at the hearing: 1) Petitioner s driver s license; 2) the DUI traffic citation; 3) the Agency s monthly inspection report for Intoxilyzer 8000, serial number ; 4) the Department s annual inspection report for Intoxilyzer 8000, serial number ; 5) the breath alcohol test affidavit; 6) Trooper Hawkins charging affidavit; 7) a three page DUI worksheet; 8) an alcohol influence form. Over the course of the three hearing days, Michael Rodriguez, Roger Skipper, Kelly Melville, and the Petitioner testified at the hearing. Following the conclusion of the hearings, the Hearing Officer made the following findings of fact: On July 11, 2006, Trooper Hawkins, of the Florida Highway Patrol, was dispatched to a crash involving Mr. Berne. After completing the crash investigation, Trooper Hawkins read Mr. Berne his Miranda Rights at which time he admitted to driving the vehicle that was involved [in] the crash. Trooper Hawkins detected the following: the odor of alcohol emitting from his breath, he swayed while standing, and his speech was slurred. Mr. Berne admitting to consuming two glasses of wine prior to driving. Mr. Berne consented to the following [field] sobriety exercises: Horizontal Gaze Nystagmus, walk and turn, finger to nose, and one leg stand. Mr. Berne did not maintain his balance nor follow instructions throughout. Mr. Berne was placed under arrest for DUI and transported to the Orange County DUI Breath Testing Center. Mr. Berne submitted samples of.137 and.131. Mr. Berne s privilege to operate a motor vehicle was suspended for six months for driving with an unlawful alcohol level. The hearing officer issued these findings on October 20, 2006, along with his conclusions of law and order. In that order the hearing officer sustained the Petitioner s suspension of his license for a period of six months. The Petitioner now seeks certiorari review of this October 20, 2006, 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 departure 2

3 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 scope of the review is limited to the following issues: 1. Whether the arresting law enforcement officer had probable cause to believe that the person whose license was suspended 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 was placed under lawful arrest for a violation of s 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 s (7)(a), Fla. Stat. (2005). Petitioner argues that: 1) The hearing officer deprived Petitioner of due process of law and violated Florida Statute (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; and 2) the breath test results obtained from Petitioner 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; and 3) the hearing officer erred by failing to set aside the suspension when Trooper Freeburn, the custodian of the video tapes for the Florida Highway Patrol, failed to appear with the roadside video of the Petitioner. 3

4 The Petitioner first contends that the hearing officer violated the Petitioner s due process rights and section (1)(f)4, Florida Statutes, when he refused to set aside the license suspension due to the failure of Tanya Shrum and Laura Barfield to appear at the hearing pursuant to lawfully issued subpoenas. In response, the Respondent contends that the hearing officer did not violate the Petitioner s due process rights because the hearing officer offered the Petitioner the statutorily available remedy (a continuance for an additional thirty days to seek enforcement of the subpoenas) that the Petitioner declined. The Petitioner does not raise a novel issue in this circuit. In Cabello v. Department of Highway Safety & Motor Vehicles, 16 Fla. L. Weekly Supp. 287a, (Fla. 9th Cir. Ct. November 3, 2008), another appellate panel in this circuit dealt with the exact same issues and arguments. In the Cabello case, both Tanya Shrum and Laura Barfield were likewise subpoenaed to appear before the Hearing Officer. Like the instant case, both individuals did not appear at the hearing. The court in the Cabello case stated: Under Florida Administrative Code Rule 15A-6.015, a properly subpoenaed witness who fails to appear at a hearing may, within two days of the hearing, submit a written statement showing just cause for such failure to appear. Fla. Admin. Code R. 15A (2). However, rule 15A-6.015(2), Florida Administrative Code, does not mandate a statement showing cause by the witness upon his failure to appear. Werle v. Dep t of Highway Safety & Motor Vehicles, 13 Fla. L. Weekly Supp. 664a (Fla. 9th Cir. Ct. Feb. 20, 2006). Moreover, rule 15A-6.015(2) does not prohibit the hearing officer from continuing the proceeding for a first failure to appear in the absence of a written statement showing cause. Victor v. Dep t of Highway Safety & Motor Vehicles, 12 Fla. L. Weekly Supp. 110a (Fla. 9th Cir. Ct. Aug. 31, 2004) (citation omitted). In addition, section (6)(c), Florida Statutes, provides the method for enforcing a subpoena issued pursuant to an administrative suspension hearing. Under section (6)(c), Florida Statutes, [a] party may seek enforcement of a subpoena... by filing a petition for enforcement in the circuit court of the judicial circuit in which the person failing to comply with the subpoena resides (6)(c), Fla. Stat. (2005). The hearing officer in the instant case offered the Petitioner thirty days to seek enforcement of the subpoenas in the circuit court but the Petitioner declined. There is no claim that the Petitioner ever attempted to avail herself of the statutorily prescribed 4

5 method of enforcing the subpoenas issued to Shrum and Barfield. Instead, the Petitioner moved to invalidate that suspension based on the failure to appear. Because the Petitioner failed to utilize the available method to enforce the subpoenas and compel Shrum s and Barfield s attendance, the Petitioner cannot now seek to invalidate the license suspension on due process grounds based on failure of the witnesses to appear. Werle v. Dep t of Highway Safety & Motor Vehicles, 13 Fla. L. Weekly Supp. 664a (Fla. 9th Cir. Ct. Feb. 20, 2006). Cabello v. DHSMV, 16 Fla. L. Weekly Supp. 287a. The decision by the court in Cabello guides this Court s decision concerning the first subpoena argument in the instant case. On more than one occasion the Hearing Officer informed the Petitioner of his right to enforce the subpoenas through (6)(c). Petitioner refused each time, and argued it was not his burden to enforce the subpoenas. Rather, the Petitioner relied on the Fifth District Court of Appeal s decision in State v. Muldowny, 871 So. 2d 911 (Fla. 5th DCA 2004), as support for his argument that the burden is on the Department and not the driver to enforce that subpoena on behalf of the State of Florida. The Fifth District Court of Appeal spoke specifically to this issue in Kubasak v. Department of Highway Safety & Motor Vehicles, 957 So. 2d 15 (Fla. 5th DCA 2007). In a per curiam decision denying a petition for writ of certiorari, the court wrote only to state that Kubasak s reliance on State v. Muldowny.is misplaced. Muldowny should not be construed to relieve a respondent in an administrative driver s license suspension proceeding from the necessity of complying with section (6)(c), Florida Statutes (2005), when a subpoenaed witness has failed to appear. Id. Thus it is clear that the hearing officer did not deny the Petitioner due process by failing to set aside the suspension based on failure of Tonya Shrum and Laura Barfield to appear pursuant to a subpoena. Next, the 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 Under Florida s Implied Consent Law, only approved breath testing machines may be used to establish impairment, and Florida Administrative 5

6 Code Rule 11D establishes the procedures for the approval of such machines. State v. Muldowny, 871 So. 2d 911, 913 (Fla. 5th DCA 2004). In order for an analysis of a person s breath to be considered valid, the State must show that it was performed substantially according to the methods approved by the Department as reflected in the administrative rules and statutes. Dep t of Highway Safety & Motor Vehicles v. Russell, 793 So. 2d 1073, 1075 (Fla. 5th DCA 2001). A formal review hearing in which a petitioner challenges the suspension of his or her driver s license is civil in nature; therefore, the burden is on the petitioner to come forward with evidence that the Department failed to substantially comply with the administrative rules concerning the approval of the breath testing machine. Dep t of Highway Safety & Motor Vehicles v. Mowry, 794 So. 2d 657, 659 (Fla. 5th DCA 2001); see also Dep t of Highway Safety & Motor Vehicles v. Fiorenzo, 795 So. 2d 1128 (Fla. 5th DCA 2001) (where petitioner failed to rebut the presumption created by documentary evidence that the Department substantially complied with the administrative rules, circuit court erred in granting certiorari). Once the breath test results are properly challenged on the basis that the Department failed to comply with the rules, the burden shifts to the Department to demonstrate substantial compliance. Dep t of Highway Safety & Motor Vehicles v. Farley, 633 So. 2d 69, 71 (Fla. 5th DCA 1994). The court in Mowry suggested that [i]f Mowry wished to meet her burden of establishing noncompliance with the regulations by the Department, she could have, pursuant to section (6)(b), subpoenaed the breath test technician and Intoxilyzer documents. Mowry, 794 So. 2d at 659. She chose not to in that case, and the result was a ruling that she had shifted the burden of proof to the Department. Id. at In the instant case, however, the Petitioner subpoenaed the breath test technician, Michael Rodriguez; the Florida Department of Law Enforcement Inspector, Roger Skipper; and Kelly Melville, the Orange County Sheriff s Office agency inspector, 6

7 among others. In his effort to demonstrate noncompliance with the regulations the Petitioner questioned these three individuals during the course of the hearing days. Additionally, the Petitioner presented evidence of numerous alleged deficiencies in the use and certification of the Intoxilyzer 8000 breath testing machine. This Court finds that the Petitioner met his initial burden of rebutting the presumption created by the Department s documentary evidence that it substantially complied with the rules governing the approval of the breath testing instrument. At the hearing, both Roger Skipper and Kelly Melville testified that the machine used to test the Petitioner was an Intoxilyzer 8000 with software version Roger Skipper also testified that the last approval studies for Intoxilyzer 8000 took place on April 30, 2002 (with software ), and May 29, 2002, (with software ). The reports entitled, CMI, Inc. Intoxilyzer 8000 Instrumentation Evaluation Report, from those respective inspection dates further indicate that the approved software version was at least sixteen updates prior to the version used to the test the Petitioner. From these reports it is clear that the approval of the Intoxilyzer 8000 in 2002, was far from a smooth process. As the en banc panel in State v. Atkins, et al., 16 Fla. L. Weekly Supp. 251a (Fla. 9th Cir. Ct. June 20, 2008) noted in its Order Granting Defendant s Request to Produce, the head of the FDLE s Alcohol Testing Program, Laura Barfield, testified there were issues during the first attempt to evaluate the instruments resulting in the suspension of the testing, until they could be repaired and returned to FDLE. During the second round of testing on May 29, 2002, only one of the two instruments met all the requirements for certification in the FDLE s Form 34; the other s test was cut short when it began to emit smoke. Id. The Respondents counter the Petitioner s claims by asserting that they complied with all applicable FDLE regulations in the use and inspection of the breath testing machine. Specifically, 7

8 the Respondents claim that the breath test results are admissible if evidence of the following is provided by the Department: (1) the breath test was performed substantially in accordance with [FDLE] rules, with an approved machine and by a qualified technician; and (2) the machine has been inspected in accordance with [FDLE] rules to assures it accuracy. State v. Donaldson, 579 So. 2d 728, 729 (Fla. 1991). The Respondent refers to the Breath Alcohol Test Affidavit, the Agency Inspection Report, and the Department Inspection Report in order to demonstrate compliance with the FDLE rules and the requirements set out in Donaldson. Citing Florida Administrative Code Rule 11D-8.003(4), the Respondent argues that, An [FDLE] inspection performed in accordance with Rule 11D-8.004, F.A.C., validates the approval, accuracy and reliability of an evidentiary breath test instrument. The rule also notes that, [t]he availability or approval of new instruments, software, options or modifications does not negate the approval status of previously approved instruments, software, options or modifications. Id. at 11D (6). The Respondents use this rule as conclusive proof that the Intoxilyzer 8000 used in this case was approved for evidentiary use by the FDLE. Clearly the rule indicates that an approved device with a certain set of instruments, software, options or modifications will not become obsolete as newer versions are developed. This does not mean, however, that new software becomes automatically when it is released. Proper approval is still required under the rules and the law. Whether or not the Petitioner s breath was tested on an approved device is at the heart of the instant case. Despite the Petitioner s best efforts, the hearing officer failed to consider the discrepancies and problems presented in the Intoxilyzer approval studies performed in April and May of Competent substantial evidence existed to demonstrate that these approval studies did not comply with the requirements of FDLE Rule 11D and FDLE Form 34, as argued by the Petitioner and noted by the en banc panel in the Atkins case. Without independent scientific 8

9 evidence demonstrating the reliability of the Intoxilyzer 8000 with software version , the hearing officer should have excluded the Petitioner s breath test results. Absent any controlling authority on this point from the Fifth District Court of Appeal, we find that en banc panel s decision in the Atkins case to be well reasoned and highly persuasive. In this specific case, the Petitioner rebutted the presumption that the Department complied with the applicable rules and regulations, and the Respondent failed to adequately meet their burden of demonstrating substantial compliance. By failing to do so, this Court finds a reversible error and grants the petition for writ of certiorari. 1 Based upon the foregoing, it is hereby ORDERED AND ADJUDGED that Berne s Petition for Writ of Certiorari is GRANTED and the hearing officer s Final Order of License Suspension is QUASHED. DONE AND ORDERED in Chambers at Orlando, Orange County, Florida, this 23rd day of Oct, /S/ ALICIA L. LATIMORE Circuit Court Judge /S/ JANET C. THORPE Circuit Court Judge /S/ A. THOMAS MIHOK Circuit Court Judge 1 Since the Petitioner s arguments regarding the approval of the Intoxilyzer 8000 device have resolved this case, we decline to rule on the question of whether the FDLE video custodian s failure to appear should have resulted in dismissal of the proceedings. 9

10 CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing has been furnished via U.S. mail or hand delivery to Stuart I. Hyman, Esq., Stuart I. Hyman, P.A., 1520 East Amelia Street, Orlando, FL 32803; and to Heather Rose Cramer, Esq., Assistant General Counsel, Department of Highway Safety and Motor Vehicles, 6801 Lake Worth Road, #230, Lake Worth, FL 33467, on this 23rd day of Oct, /S/ Judicial Assistant 10