Florida/Georgia Personal Injury & Workers Compensation

..., seeks certiorari review of a circuit court order that reinstated William C. DeShong's driving privileges. Mr. DeShong's driving privileges were suspended because he refused to submit to a blood alcohol test after failing a field sobriety test. See § 322.2615, Fla....

...Consequently, the deputy requested that Mr. DeShong submit to a blood alcohol *1351 breath test, and informed him that if he refused, his license would be automatically suspended. Mr. DeShong refused to submit to the test, and his license was automatically suspended pursuant to section 322.2615(1)(a). II. THE ADMINISTRATIVE HEARING Mr. DeShong requested and received a formal administrative hearing before a Department hearing officer pursuant to section 322.2615(1)(b)3....

...The deputy, who was the only witness, provided testimony supporting the preceding facts. The procedures for such an administrative hearing are relatively new and are not well-explained in case law. [1] The hearing officer must determine by a preponderance of the evidence whether the suspension is valid. [2] § 322.2615(7), Fla....

...cement officer. 4. Whether the person was told that if he refused to submit to such test his privilege to operate a motor vehicle would be suspended for a period of 1 year or, in the case of a second or subsequent refusal, for a period of 18 months. § 322.2615(7)(b)1.-4., Fla....

...inst Mr. DeShong on all four issues, including the lawfulness of the arrest. III. THE CIRCUIT COURT CERTIORARI REVIEW As permitted by the statute, Mr. DeShong petitioned the circuit court for a writ of certiorari to quash the Department's order. See § 322.2615(13), Fla....

...rted to a breath-testing facility. Mr. Alliston's breath test results were .231 and .235. The arresting officer issued Mr. Alliston a DUI citation pursuant to section 316.193, Florida Statutes (2000), and suspended his driving privileges pursuant to section 322.2615(1)(a), Florida Statutes (2000). Mr. Alliston requested a formal review of his driver's license suspension. See § 322.2615(1)(b)(3)....

...of a clearly established principle of law resulting in a miscarriage of justice. Ivey v. Allstate Ins. Co., 774 So.2d 679 (Fla.2000); Combs v. State, 436 So.2d 93 (Fla.1983). In this case, the circuit court did not apply the correct law. Pursuant to section 322.2615(11), the formal review hearing for this type of license suspension may be conducted based upon a review of the reports of the arresting officer and the documents related to the administration of the breath test....

...the statutes and the administrative rules to establish a presumption of impairment. Once the breath test results were admitted into evidence, the record contained competent, substantial evidence of impairment, and the burden shifted to Mr. Alliston. Section 322.2615(11) then provides that "the driver may subpoena the officer or any person who administered or analyzed a breath or blood test." Indeed, Mr....

...using approved equipment); Bell v. Department of Motor Vehicles, 6 Wash. App. 736, 496 P.2d 545 (1972) (issue of qualification of operator not relevant to whether license lawfully revoked for refusal, but only bears on admissibility of test). Also, section 322.2615(7), Florida Statutes (1991), specifically limits the scope of review of a license suspension for refusal to take a test to the consideration of whether the law enforcement officer had probable cause to believe the person was driving...

...The Court held that, to determine whether due process requirements have been met, consideration must be given to the private interest affected by the official action, the risk that an erroneous deprivation might occur, and the governmental interest implicated. Application of the test in Mackey to the suspension procedure in section 322.2615 makes clear that the interest in a driver's license is a privilege, not a right; that the risk of an erroneous deprivation is slight in light of statutory requirements; and that the public interest in highway safety is great....

...GRIFFIN, Judge, concurring specially. I agree that the instant petition for certiorari should be denied. Petitioner has brought to our attention, however, that at least one circuit judge in this district has ruled that the evidentiary and fact-finding procedures of section 322.2615, Florida Statutes, do not meet minimum due process requirements, at least as applied in some cases....

...hat is expected from such "formal" hearings. If it can be shown that the citizens of Florida are not being afforded a prompt, fair, meaningful hearing by this statutory procedure, the procedure should be invalidated on due process grounds. NOTES [1] § 322.2615(6), Fla. Stat. (1991). [2] § 322.2615(13), Fla....

...Florida Statutes. Prior to his arrest, Favino refused a breath, blood or urine test. Favino filed for a formal administrative review of the suspension of his driver's license, which occurred automatically upon his refusal to submit to a field test. § 322.2615, Fla....

...ence. Given the assertions made in Favino's certiorari petition, we must assume that the circuit court granted relief on the ground that the findings and judgment of the hearing officer were not supported by competent substantial evidence. [3] Under section 322.2615(7)(b), Florida Statutes (1993), the relevant question before the hearing officer, given the allegations in the certiorari petition, was whether Trooper Bedenbaugh had probable cause to believe Favino was driving under the influence of alcohol or a controlled substance....

...At the Department's request, and pursuant to Florida Rule of Appellate Procedure 9.040(c), we will treat the instant appeal as a petition for writ of certiorari. Department of Highway Safety and Motor Vehicles v. Riggen, 654 So.2d 221 at n. 1 (Fla. 1st DCA 1995). [2] Section 322.2615(7)(b), Florida Statutes (1993), provides that in a formal review of a license suspended for refusal to submit to a breath, blood or urine test, the scope of review shall be limited to the following: 1....

...Accord Goines (applying section 92.525 to section 948.06); see also Shearer (Rule 3.987 form of oath requiring notary satisfied by section 92.525 verification); State Dep't of Highway Safety & Motor Vehicles v. Padilla, 629 So.2d 180 (Fla. 3d DCA 1993) (section 92.525 "verified" document satisfied affidavit requirement of section 322.2615(2), Florida Statutes)....

...cohol, each submitted to a breathalyzer test, and the blood alcohol of each was at a level exceeding .10%. The petitioners were charged with Driving Under the Influence and also had their drivers license seized by their arresting officer pursuant to section 322.2615, Florida Statutes (1991)....

...f his/her breath or urine "will result in the suspension of his [or her] privilege to operate a motor vehicle," § 316.1932(1)(a), Fla. Stat. (1991), for a certain period of time, which suspension becomes effective immediately upon such refusal, see § 322.2615, Fla....

...District Court of Appeal of Florida, Fifth District. June 2, 1995. William J. Sheaffer, Orlando, for petitioner. No appearance for respondent. W. SHARP, Judge. After Davidson refused to submit to a breathalyzer test, an administrative proceeding was conducted pursuant to section 322.2615, Florida Statutes (1995), and his driver's license was suspended....

...[2] We deny the writ of prohibition. Davidson argues that the suspension of his driver's license, which arose out of the same drunk driving conduct for which he is now being prosecuted, was a punitive action. He relies on language found in the 1989 Final Staff Analysis of section 322.2615, which was prepared by the staff for the Criminal Justice Committee of the House of Representatives. It states that section 322.2615 is consistent with the state's comprehensive plan in that it seeks to "prevent, punish and discourage criminal behavior." [3] The courts of this state have consistently held that the suspension of a driver's license in an administrative proceeding does *224 not bar a subsequent prosecution of the driver for DUI....

...1957) (revocation of driver's license based on defendant's conviction for DUI does not violate the prohibition against double jeopardy); State v. Murray, 644 So.2d 533 (Fla. 4th DCA 1994) (prosecution for DUI does not violate double jeopardy principles when defendant's driver's license has been suspended pursuant to F.S. § 322.2615); Gomez v. State, 621 So.2d 578 (Fla.3d DCA 1993) (no double jeopardy violation is involved in the prosecution of a DUI charge after a driver's license has been seized under F.S. § 322.2615 because of the same conduct); Freeman v....

...lowing those who cannot or do not choose to control their drinking habits, to continue to drive on the public roadways. Nonetheless, Davidson contends that the legislative history articulated by the House Criminal Justice Committee Staff Report when section 322.2615 was enacted, which indicates its purpose is to "punish," overcomes any prior judicial determination that the purpose of Florida's driver's license suspension or revocation laws is the protection of the public....

...As such, it is no more punitive than denying a person who is legally blind a driver's license. Both will live longer and healthier lives if they do not drive. PETITION DENIED. GRIFFIN and THOMPSON, JJ., concur. NOTES [1] U.S. Const. Amend. V; Fla. Const. Art. I, § 9. [2] § 322.2615, Fla....

...in-person testimony is required for a party to meaningfully cross-examine the individuals who prepared those reports. In holding that a party had the right to subpoena and then cross examine the author of inspection reports, this court in Lee cited section 322.2615, Florida Statutes, which gives a driver the right to present relevant evidence and to rebut evidence presented against him....

...OR NO CONTEST TO A TRAFFIC INFRACTION ON WHICH THE STATE WILL RELY TO PROVE AN ELEMENT OF THE CRIMINAL TRAFFIC OFFENSE? WHETHER THE DOUBLE JEOPARDY CLAUSE BARS TRIAL ON AN OFFENDER WHO HAS PREVIOUSLY HAD HIS DRIVING PRIVILEGES SUSPENDED PURSUANT TO § 322.2615? We accepted jurisdiction pursuant to rule 9.160, Florida Rules of Appellate Procedure....

...1st DCA 1994) (applying Blockburger test retroactively). Accordingly, we answer the first certified question in the negative. [2] As for the second question, we agree with our companion courts that double jeopardy is not violated when a person has their driver's license suspended pursuant to section 322.2615, Florida Statutes (1991), and is subsequently brought to trial on a DUI charge. Freeman v. State, 611 So.2d 1260 (Fla. 2d DCA 1992), rev. denied, 623 So.2d 493 (Fla.), cert. denied, ___ U.S. ___, 114 S.Ct. 415, 126 L.Ed.2d 361 (1993); Gomez v. State, 621 So.2d 578 (Fla. 3d DCA 1993). Because the primary purpose of section 322.2615 is to provide an administrative remedy for public protection, and not to punish the offender, a double jeopardy prohibition does not arise....

...Both respondents filed petitions for writs of certiorari, which were granted by the circuit court. The State of Florida, Department of Highway Safety and Motor Vehicles ("Department"), now petitions for certiorari review by this court of the lower court's decision that sections 322.261 and 322.2615, Florida Statutes (1991) are facially unconstitutional because they effect a forfeiture of a property right without due process of law....

...In addition to the opinions of the lower court in these two cases, the parties have provided us with copies of, or citations to, a dozen other trial level opinions that address many concerns about either the constitutionality or the fairness of the section 322.2615 hearing procedure....

...nsion hearing, at which the suspendee could present his or her side of the story, was available. Undoubtedly relevant to this conclusion are the limited facts required to be proved in the context of a suspension for refusal to submit to testing. See § 322.2615(7)(b), Fla....

...Michael Ufferman, Chair, Florida Association of Criminal Defense Lawyers, Tallahassee, FL, as Amicus Curiae. PER CURIAM. The issue we address is whether an individual's driver's license can be suspended by the Florida Department of Highway Safety and Motor Vehicles (DHSMV) under section 322.2615, Florida Statutes (2006), [1] for the refusal to submit to a test of his or her breath-alcohol level where the refusal is not incident to a lawful arrest and, if not, whether the hearing officer has authority to review whether the refusal was incident to a lawful arrest....

...See art. V, § 3(b)(3), 3(b)(4), Fla. Const. Because the certified questions involve two separate but related issues, we rephrase them and answer them separately. The first certified question as rephrased is: Can the DHSMV suspend a driver's license under section 322.2615, Florida Statutes, for refusal to submit to a breath test if the refusal is not incident to a lawful arrest? The second certified question as rephrased is: Is the issue of whether the refusal was incident to a lawful arrest within the allowable scope of review of a DHSMV hearing officer in a proceeding to determine if sufficient cause exists to sustain the suspension of a driver's license under section 322.2615, Florida Statutes, for refusal to submit to a breath test? In order to avoid any possible confusion stemming from the plurality opinion and the separate concurring-in-result-only opinion, we set forth the holdings in this case....

...Pelham, 979 So.2d 304, 305-08 (Fla. 5th DCA 2008), that a suspension can be predicated upon a refusal to take a breath test, but only if the refusal is incident to a lawful arrest. See per curiam op. at 1076 ("[W]e conclude that the DHSMV cannot suspend a driver's license under section 322.2615 for refusal to submit to a breath test under section 316.1932 if the refusal is not incident to a lawful arrest."); Justice Quince's concurring-in-result-only op....

...Hernandez, 995 So.2d at 1078. Accordingly, the DHSMV sustained the suspension of the driver's license. Upon petition for writ of certiorari to the circuit court, which is the authorized statutory route for review of a decision made by the DHSMV, see § 322.2615(13), Fla. Stat., the circuit court agreed that the legality of the arrest was outside of the scope of consideration for the hearing officer under section 322.2615(7), Florida Statutes (2007). The First District, relying on the reasoning of the Fifth District in Pelham, concluded that section 322.2615(7)(b), Florida Statutes, governing proceedings to review license suspensions must be read together with section 316.1932(1)(a)1.a., Florida Statutes (2007), Florida's implied consent law, because under the "statutory scheme, the lawf...

...Hernandez, 995 So.2d at 1079 (quoting Pelham, 979 So.2d at 308). The Second District in McLaughlin engaged in an opposite statutory analysis regarding the scope of the hearing officer's authority based on its determination that the plain language of section 322.2615(7)(b) limits the hearing officer's scope of review to the three specific determinations set forth in the statute, none of which includes consideration of whether the person was placed under lawful arrest....

...statutes relating to the same subject or object be construed together to harmonize the statutes and to give effect to the Legislature's intent."). I. Answering the First Rephrased Certified Question: The DHSMV cannot suspend a driver's license under section 322.2615, Florida Statutes, for refusal to submit to a breath test if the refusal is not incident to a lawful arrest....

...ivilege has been previously *1076 suspended for a prior refusal to submit to a lawful test of his or her breath, urine, or blood, he or she commits a misdemeanor in addition to any other penalties. § 316.1932(1)(a)1.a., Fla. Stat. (emphasis added). Section 322.2615, Florida Statutes, the statute before us in this case governing the suspension of an individual's driver's license and the right to review of such a suspension, authorizes a law enforcement officer, on behalf of the DHSMV, to suspend the driver's license of any person who refuses to submit to a " lawful " breath test. § 322.2615(1)(b)1.a., Fla....

...a period of 1 year for a first refusal or for a period of 18 months if his or her driving privilege has been previously suspended as a result of a refusal to submit to such a test. . . . Id. (emphasis added). Despite using the adjective "lawful" in section 322.2615, nowhere in that section does the Legislature define or provide notice as to what constitutes a lawful breath-alcohol test....

...a motor vehicle while under the influence of alcoholic beverages. Nowhere else does the Legislature mandate the circumstances under which an individual must submit to a breath-alcohol test or else face suspension of his or her driver's license under section 322.2615, Florida Statutes, in this context. [6] The only definition of a lawful breath test under section 322.2615 is found in section 316.1932(1)(a). For that reason, the statutes must be read in pari materia. In other words, section 316.1932 is the only statute that defines the parameters of a lawful breath-alcohol test in section 322.2615. If the statutes are not read in pari materia, then there is no notice as to when citizens are required to submit to the test or else face suspension of their driver's licenses. Accordingly, we hold that a "lawful test" under section 322.2615, Florida Statutes, is one that is requested incident to a lawful arrest, as specified in section 316.1932, Florida Statutes. For this reason, we conclude that the DHSMV cannot suspend a driver's license under section 322.2615 for refusal to submit to a breath test under section 316.1932 if the refusal is not incident to a lawful arrest....

...nflict: The issue of whether the refusal was incident to a lawful arrest is within the allowable scope of review of a DHSMV hearing officer in a proceeding to determine if sufficient cause exists to sustain the suspension of a driver's license under section 322.2615, Florida Statutes, for refusal to submit to a breath-alcohol test. This second question is related to the first question and concerns the method *1077 of challenging a suspension for refusal to submit to a breath test. After an individual's driver's license is suspended under section 322.2615 for refusing to submit to a breath test under section 316.1932, that section entitles the driver to request a formal or informal review of the validity of the suspension. § 322.2615(1)(b)3., Fla. Stat.; see also § 322.2615(4), (6), Fla....

...Whether the person whose license was suspended was told that if he or she refused to submit to such test his or her privilege to operate a motor vehicle would be suspended for a period of 1 year or, in the case of a second or subsequent refusal, for a period of 18 months. § 322.2615(7), Fla. Stat. In the prior version of the statute, the hearing officer's scope of review included consideration of the additional issue of "[w]hether the person was placed under lawful arrest for a violation of s. 316.193." § 322.2615(7)(b)(2), Fla....

...tends that the issue of whether a person was placed under a lawful arrest is no longer a consideration in the suspension process. As noted by the circuit court in McLaughlin, although the Legislature's removal of the "lawful arrest" requirement from section 322.2615(7) may seem clear, the Legislature left that requirement in the implied consent law....

...Dep't of Highway Safety & Motor Vehicles, No. 2007-CA-001672, order at 4 (Fla. 10th Cir.Ct. Sept. 18, 2007) (order denying petition for writ of certiorari) (stating that the Legislature had created an "unnerving quagmire"). We agree with the First and Fifth District Courts of Appeal that section 322.2615 cannot be read in isolation but must be read in concert with section 316.1932, which defines the scope of the driver's obligation to submit to a breath test. As the Fifth District cogently explained: Section 322.2615 does not establish any obligation on the part of a driver to take a test upon the request of law enforcement; it only establishes consequences for refusal....

...When we do, the conclusion is inescapable that a suspension may not be predicated on refusal to take a test that is the product of a unlawful arrest. Pelham, 979 So.2d at 307 (emphasis added). We further agree with the statutory construction analysis utilized by the Fifth District in construing section 322.2615(7): Nor have we overlooked the language of subsection 322.2615(7), which purports to "limit" the scope of review to three issues....

...The first issue, probable cause, is a concept that is often inextricably intertwined with the lawfulness of the detention as it is in this case. The second issue directs the hearing officer to address whether the driver "refused to submit to any such test." (Emphasis added). § 322.2615(7)(b)2., Fla....

...Therefore, we do not construe this so-called limitation on the hearing officer's scope of review to nullify the statute's directive that the hearing officer "determine. . . whether sufficient cause exists to sustain, amend, or invalidate the suspension." § 322.2615(7), Fla....

...ations. A driver whose license is unlawfully suspended must have a means to challenge that suspension, and the only means by which a driver can challenge the suspension of his or her driver's license for failure to submit to a breath test is through section 322.2615....

...(Emphasis added.) Here, the interpretation of the statutes urged by DHSMV would allow the DHSMV to suspend a driver's license without reasonable notice and no possibility of a meaningful process to review the lawfulness of the suspension. A reading of section 322.2615 to prohibit review of an unlawful license suspension would lead to an unreasonable result that would render the statutory scheme constitutionally infirm....

...Further, "[t]his Court has an obligation to give a statute a constitutional construction where such a construction is possible." Tyne v. Time Warner Entm't Co., 901 So.2d 802, 810 (Fla.2005). We conclude that the only reading of the statute that avoids an unreasonable and unconstitutional result is to construe sections 322.2615 and 322.1932 in pari materia and allow the hearing officer to review whether the test was administered incident to a lawful arrest....

...We conclude, as did the First and Fifth Districts, that reading the two statutes together leads to the conclusion that there must be a means for challenging the legality of the suspension when the request for a breath test was not incident to a lawful arrest. Once section 322.2615 and section 316.1932 are read together, it becomes clear that under the statutory scheme, "sufficient cause" to sustain the suspension under section 322.2615(7) and "whether the person whose license was suspended refused to submit to any such test" require that the hearing officer make the determination of whether the test was administered incident to a lawful arrest, as required by section 316.1932, Florida Statutes....

...Department of Highway Safety & Motor Vehicles, 2 *1081 So.3d 988 (Fla. 2d DCA 2008), and accordingly answer the rephrased first certified question in the affirmative and the second rephrased certified question in the negative. The contrary view adopted by a majority of this Court effectively rewrites the text of section 322.2615(7), Florida Statutes (2006), to expand the scope of the hearing officer's review beyond the ambit unequivocally laid down in the statute....

...holder "was placed under lawful arrest for a violation of s. 316.193." "[W]hen two statutes are in conflict, the later promulgated statute should prevail as the last expression of legislative intent." McKendry v. State, 641 So.2d 45, 46 (Fla. 1994). Section 322.2615(7) expressly limits the issues which may be considered by the hearing officer in a proceeding challenging an administrative suspension. The plurality transgresses the limits set forth in the text by reading back into section 322.2615(7) the provision repealed by the Legislature in 2006 which permitted the hearing officer to consider whether the suspension was incident to a "lawful arrest for a violation of s....

...older has not been subjected to a lawful arrest for a violation of section 316.193. POLSTON and LABARGA, JJ., concur. NOTES [1] Hernandez involved the 2007 version of the statute, and McLaughlin involved the 2006 version. The current 2010 version of section 322.2615, Florida Statutes, is the same as the 2006 and 2007 versions for purposes of this decision. Section 322.2615 was minimally revised in 2007 and 2010....

...ghway Safety and Motor Vehicles hearing officer which sustained the suspension of Porter's driver's license. In turn, the Department petitioned us for certiorari review of the circuit court's order. We grant the writ and quash the order. Pursuant to section 322.2615(1)(a), Florida Statutes (1997), Pasco County Deputy Sheriff John D. Watson suspended Porter's license after Porter refused to take a breath test. Porter then invoked his right to a formal review of the suspension by a Department hearing officer. § 322.2615(1)(b), Fla. Stat. (1997). No witnesses testified at the review hearing. Rather, as permitted by the statute, the hearing officer based his decision on information contained in sundry documents generated by Deputy Watson in regard to the incident. § 322.2615(11), Fla....

...4. Whether the person was told that if he or she refused to submit to such test his or her privilege to operate a motor vehicle would be suspended for a period of 1 year or, in the case of a second or subsequent refusal, for a period of 18 months. § 322.2615(7)(b), Fla....

...The hearing officer found in the affirmative on all four issues, and determined that there was sufficient cause to sustain the suspension of Porter's driver's license. At Porter's instance, the circuit court reviewed the hearing officer's order by certiorari. § 322.2615(13), Fla....

...re hearing officers to include findings of fact in their orders. Indeed, the statute declares that Florida's Administrative Procedures Act, which imposes such requirements on administrative orders generally, does not govern proceedings of this type. § 322.2615(12), Fla....

...(1999). Perry sought review of this determination in the circuit court by filing a petition for certiorari. [1] The circuit court held the suspension should not have been sustained because the record failed to include an affidavit of refusal pursuant to section 322.2615(2), Florida Statutes (1999)....

...suspension of Perry's driver's license. Perry filed a petition for writ of certiorari in the Circuit Court of the Eighteenth Judicial Circuit in and for Seminole County, Florida. The circuit court quashed the administrative order on the ground that section 322.2615(2), Florida Statutes (1999) requires law enforcement officers to forward both an arrest report affidavit and an affidavit of refusal to the Department within five days of the arrest....

...to determining whether the circuit court afforded procedural due process and applied the correct law. See Conahan v. Department of Highway Safety and Motor Vehicles, 619 So.2d 988 (Fla. 5th DCA 1993). We think the circuit court in this case misread section 322.2615(2), Florida Statutes (1999)....

...Whether the person was told that if he or she refused to submit to such test his or her privilege to operate a motor vehicle would be suspended for a period of one year, or in the case of second or subsequent refusal, for a period of eighteen months. § 322.2615(7)(b), Fla. Stat. (1999). The Department asserts that there is competent evidence to support the hearing *1280 officer's decision to sustain the suspension of Perry's driver's license and that section 322.2615(2) does not mandate the filing of an affidavit of refusal on a form provided by the Department....

...It requires only that an affidavit stating the breath, blood or urine test was requested by a law enforcement officer, implied consent warnings were given, and that the person arrested refused to submit. We agree. In this case the arrest affidavit filed was sufficient to meet the dual affidavit requirements of section 322.2615(2)....

...onths, if she refused. The video task format also indicates Perry refused to take the test. The document was signed by the breath technician at the jail, but it was not sworn to or notarized. Although it does not satisfy the affidavit requirement of section 322.2615(2), it does provide further evidence from which the hearing officer could conclude that Perry was given the proper notice of automatic penalties before she refused the test. The hearing officer could consider this additional evidence in determining the arresting officer properly suspended Perry's driver's license. See § 322.2615(11), Fla. Stat. (1999); Fla. Admin. Code R. 15A-6.013. Accordingly, we grant the writ and quash the circuit court's order. Petition for Writ of Certiorari GRANTED; Order QUASHED. DAUKSCH and COBB, JJ., concur. NOTES [1] See generally, § 322.2615(13), Fla....

...State, 611 So.2d 1260 (Fla. 2d DCA 1992), that no double jeopardy violation is involved in the prosecution of a D.U.I. charge after the defendant's driver's license has been seized, because of the same conduct, by the arresting officer pursuant to section 322.2615, Florida Statutes (1991)....

...Both documents would support a prosecution for perjury, [2] but the latter must be sworn to before a person authorized to administer oaths. Accord Op. Att'y Gen. Fla. 95-40 (1995)(document verified under section 92.525 is not affidavit within meaning of section 322.2615(2), if not attested to before an officer authorized to administer oaths)....

...Whitney, General Counsel, Kim Feigin and Jill Tavlin Swartz, Assistant General Counsels, Miami, for petitioner. Flem K. Whited, III, and Barbara C. Davis, Daytona Beach, for respondent. GRIFFIN, Judge. The state seeks certiorari review of a decision of the lower court sitting in its appellate capacity, pursuant to section 322.2615(13), Florida Statutes (1993)....

...5th DCA 1994), review denied, 651 So.2d 1195 (Fla. 1995); Conahan v. Department of Highway Safety and Motor Vehicles, 619 So.2d 988, 989 (Fla. 5th DCA 1993). By statute, such a determination may be made based upon the written documents and reports generated by law enforcement. § 322.2615(11), Fla....

...he test has been in police custody and under observation since his arrest. [2] If a withdrawal of refusal did occur and the licensee wishes to bolster his evidence, the licensee can call the officer to corroborate his or her testimony on that issue. § 322.2615(11), Fla....

...Whitley did, however, consent to a breath test, which revealed that he had a blood alcohol level well in excess of the legal limit. Whitley was then formally charged with DUI. Whitley requested a formal review of his driver's license suspension pursuant to section 322.2615(6), Florida Statutes (2000). In accordance with section 322.2615(7), which defines the scope of the formal hearing, the hearing officer concluded: 1) the arresting officer had probable cause to believe that Whitley was driving under the influence of alcohol; 2) Whitley was lawfully arrested and ch...

...blood alcohol content. To allow the State to suspend a license when the test is administered prior to the individual's lawful arrest for DUI would, according to the circuit court's reasoning, be contrary to the requirements of sections 316.1932 and 322.2615....

...t failed to apply the correct law and that the failure resulted in a miscarriage of justice. Ivey. Having determined the appropriate standard of review, we proceed to address the issues. Probable Cause There is nothing in section 316.1932(1)(a)1. or section 322.2615(7)(a) that requires that a breath test be administered in order to give a law enforcement officer probable cause to arrest a person for DUI....

...We therefore conclude that the breath test was incidental to a lawful arrest because it was administered well after Whitley was lawfully arrested. Hence, the dictates of section 316.1932(1)(a)1. were met. [2] *1168 We likewise find nothing in the provisions of section 322.2615(7) that requires an individual to be arrested for DUI as a predicate to administration of the breath test. Based on the facts and circumstances of the instant case, we conclude that all of the requirements of section 322.2615(7) were satisfied....

...ol per 210 liters of breath, well above the statutory minimum of .08. See § 316.193(1)(c), Fla.Stat. (1999). Accordingly, she was issued a citation for driving with an unlawful blood-alcohol level and her driving privilege was suspended pursuant to section 322.2615(1)(a), Florida Statutes (1999). Mowry requested and was granted a formal review of her driver's license suspension *658 pursuant to section 322.2615(1)(b)3., Florida Statutes (1999)....

...believe that the individual was driving while under the influence of alcohol; 2) whether the person was lawfully arrested for violation of section 316.193; and 3) whether, pursuant to section 316.193, the person had an unlawful blood alcohol level. § 322.2615(7)(a), Fla. Stat. (1999). Mowry contends that the Department failed to meet its burden of proof regarding the third issue and argues that this court should deny the petition. At the hearing, no testimony was presented. Thus the hearing officer, pursuant to section 322.2615(11), based his decision on the record evidence which contained, among other documents, [1] the breath test result affidavit made part of the record pursuant to section 322.2615(2)....

...Placing the burden upon her does not offend notions of due process because of the civil nature of a license suspension proceeding and because the Department is only required to establish that the individual had an unlawful blood-alcohol level by a preponderance of the evidence. § 322.2615(7), Fla. Stat. (1999). If Mowry wished to meet her burden of establishing noncompliance with the regulations by the Department, she could have, pursuant to section 322.2615(6)(b), subpoenaed the breath test technician and Intoxilyzer documents....

...At the sheriff's office, Deputy Foster read the implied consent warnings to Prue. Because Prue refused to submit to a breath test, Trooper Gissendaner issued Prue a DUI citation for refusal to submit to a breath test and suspended her driving privilege pursuant to section 322.2615(1)(a), Florida Statutes (1995)....

...The Department informed Prue in an order that the suspension of her driving privilege would be for a period of eighteen months. The Department also informed Prue that she was ineligible for a hardship license because she had a prior refusal. In a formal review conducted under section 322.2615, Florida Statutes (1995), the hearing officer must determine by a preponderance of the evidence whether sufficient cause exists to sustain the suspension....

...Whether the person was told that if he or she refused to submit to such test his or her privilege to operate a motor vehicle would be suspended for a period of 1 year or, in the case of a second or subsequent refusal, for a period of eighteen months. § 322.2615(7)(b), Fla....

...ing does not have probable cause to stop the vehicle to issue the citation. I believe that this is erroneous and I totally reject it. Factual and Procedural Background This holding arises out of proceedings instituted by Roberts pursuant to sections 322.2615(6), (7), and (15) and section 322.31, Florida Statutes (2003), to determine whether his driver's license was properly suspended after he refused to submit to a breath test. Section 322.2615(7)(b) provides that at such a hearing, the hearing officer is confined to determining four issues by a preponderance of the evidence, one of which is whether the arresting law enforcement officer had probable cause to believe that the person was driving under the influence of alcoholic beverages. § 322.2615(7)(b), Fla. Stat. (2003). These issues may be resolved based on documents submitted, which in the instant case included the citation for DUI, the officer's arrest affidavit, and the refusal forms. § 322.2615(11), Fla. Stat. (2003). The majority fails to recognize what this court recognized many years ago, which is that the principal features of the procedure established by section 322.2615 are that: 1) "the burden of proof is by a preponderance of the evidence"; and 2) "submission of the law enforcement officer's written report to the hearing officer is enough to sustain the burden." Dep't of Highway Safety & Motor Vehicles v....

...We grant the petition. I. Defendant-respondent Manuel Chamizo was arrested for driving under the influence of alcohol. At the police station he submitted to a breathalyzer test which resulted in readings of .163/.187/.180, all well above the legal limit of .08. See § 322.2615(1)(a), Fla....

...Under the statute, these breath readings result in an automatic driver's license suspension, but the driver is entitled to a hearing before a hearing officer to determine "whether sufficient cause exists to sustain, amend, or invalidate the suspension." Id. § 322.2615(7)....

...se to believe that the person was driving under the influence of alcoholic beverages; (2) the person was placed under lawful arrest for a violation of section 316.193, Florida Statutes; and (3) the person had an unlawful blood alcohol level. See id. § 322.2615(7)(a)....

...harlotte County jail. Silva's breath test results exceeded the legal limit, and subsequently his driving privilege was suspended. The Charlotte County deputy who administered the breath test timely filed his paperwork with the Department pursuant to section 322.2615(2), Florida Statutes (1999), and Florida Administrative Code Rule 15A-6.013, including, inter alia, the DUI traffic citation, intoxilyzer print card, and the probable cause affidavit....

...She was transported to a DUI testing facility, and her breath tests resulted in .140 and .139 blood alcohol levels. Pursuant to section 316.193, Florida Statutes, Tynan's driver's license was suspended. Tynan requested a formal hearing, pursuant to section 322.2615 Florida Statutes....

...However, until confronted with a case raising this issue, it is inappropriate for us to address it. PETITION GRANTED. GRIFFIN and SAWAYA, JJ., concur. NOTES [1] She also objected that the holding of the second hearing came too late, more than 30 days following her request for a formal hearing as required by sections 322.2615(6)(a) and 322.2615(9), Florida Statutes, and presents her argument to this court in this proceeding....

...rratically. During the stop, Dehart was twice administrated a breath test, and her alcohol level registered 0.85 and 0.86 respectively. The deputy then issued Dehart a DUI citation, and her driving privileges were automatically suspended pursuant to section 322.2615(1)(a) of the Florida Statutes (1999). The deputy sheriff timely filed his paperwork with DHSMV as mandated by section 322.2615(2) of the Florida Statutes (1999) and rule 15A-6.013 of Florida's Administrative Code....

...All of these issues are without merit because the circuit court applied the correct law, and we deny his petition. However, we write to address Mr. McLaughlin's argument that the lawfulness of a driver's arrest is relevant in a post-suspension hearing authorized by section 322.2615, Florida Statutes (2006)....

...ion of section 316.193, Florida Statutes (2006). Consequently, the Department of Highway Safety and Motor Vehicles (DHSMV) suspended his driver's license for one year. Mr. McLaughlin exercised his right to formal review as authorized by section *990 322.2615(1)(b)(3), Florida Statutes (2006), and challenged the suspension of his license. At the hearing, Mr. McLaughlin moved to invalidate the suspension based on the unlawfulness of his arrest. The hearing officer explained that section 322.2615(7)(b) did not authorize him to address the lawfulness of the arrest....

...The hearing officer's written decision denied Mr. McLaughlin's motion without further explanation. Mr. McLaughlin challenged the hearing officer's written decision by petition for writ of certiorari in the circuit court. Mr. McLaughlin argued that section 322.2615 conflicted with section 316.1932, because the latter did not require that a driver submit to a breath, blood, or urine test unless he or she was first lawfully arrested....

...[1] The DHSMV contended that the plain language of the statute indicated that the legislature's intent was to make the lawfulness of the arrest a relevant factor in criminal proceedings under section 316.1932 but not in postsuspension administrative hearings authorized by section 322.2615....

...Accordingly, this court has jurisdiction to hear the merits even if the petition is moot. See Enter. Leasing Co. v. Jones, 789 So.2d 964, 965-66 (Fla.2001). III. STANDARD OF REVIEW Certiorari is the proper remedy to seek review of an administrative order sustaining the suspension of a driver's license. § 322.2615(13)....

...Consequently, this court may not grant relief unless the circuit court departed from the essential requirements of the law with a resulting miscarriage of justice. See Dep't of Highway Safety Motor Vehicles v. Alliston, 813 So.2d 141, 144 (Fla. 2d DCA 2002). V. THE SCOPE OF THE HEARING OFFICER'S REVIEW UNDER SECTION 322.2615 The circuit court's denial of Mr....

...Courts are "`without power to construe an unambiguous statute in a way which would extend, modify, or limit, its express terms or its reasonable and obvious implications. To do so would be an abrogation of legislative power.'" Id. (emphasis omitted). Section 322.2615(7)(b) sets out the scope of review applicable in a postsuspension administrative hearing, and its plain language does not include the lawfulness of the arrest as one of the three enumerated issues that the hearing officer may review. In pertinent part, section 322.2615(7) provides: In a formal review hearing ....

...hree enumerated issues to the exclusion of all others including the lawfulness of the arrest. See Hess v. Walton, 898 So.2d 1046, 1049 (Fla. 2d DCA 2005) (explaining that a statute is "`ambiguous' when its language may permit two or more outcomes"). Section 322.2615 is sufficiently certain on its face that courts have no basis to invoke the rules of construction. But the Fifth District has interpreted section 322.2615 to allow a hearing officer to consider the lawfulness of the arrest during a postsuspension hearing in Pelham, 979 So.2d 304. [2] The Pelham court reached this conclusion by construing section 322.2615 in pari materia with section 316.1932....

...However, the rules of construction "`are useful only in the case of doubt and should never be used to create doubt, but to remove it.'" Fajardo v. State, 805 So.2d 961, 964 (Fla. 2d DCA 2001) (quoting State v. Egan, 287 So.2d 1, 4 (Fla.1973)). Thus section 322.2615 cannot be read in pari materia with section 316.1932 to create an ambiguity that does not exist. The plain language of section 322.2615 limits the hearing officer's scope of review to the three issues enumerated in the statute....

...Although our analysis might logically end here because this is a case where the refusal followed an unlawful arrest, Petitioner contends that the refusal may nevertheless form the basis for the suspension of Respondent's license because of the 2006 amendments to section 322.2615, Florida Statutes (2007). As a result of these amendments, Petitioner urges that the legislature "negated" lawfulness of the arrest as a precondition to the administrative suspension of one's license. Our resolution of this case thus requires us to consider the effect of section 322.2615, as amended. Among other things, section 322.2615 authorizes a law enforcement officer on behalf of DHSMV to suspend the driver's license of any person who refuses to submit to a " lawful " breath test. § 322.2615(1)(a) and (1)(b)1.a., Fla....

...Whether the person whose license was suspended was told that if he or she refused to submit to such test his or her privilege to operate a motor vehicle would be suspended for a period of 1 year or, in the case of a second or subsequent refusal, for a period of 18 months. § 322.2615(7), Fla. Stat. (2007) (emphasis added). In the prior version of the statute, the hearing officer's scope of review included the additional issue of "whether the person was placed under lawful arrest for a violation of s. 316.193." § 322.2615(7)(b)2., Fla....

...longer an issue in the suspension process. Respondent counters that the text of the amended statute does not support this construction, especially when considered in pari materia with section 316.1932. Petitioner responds that sections 316.1932 and 322.2615 should be read in isolation because they are intended to address different issues. *307 Section 316.1932, Petitioner contends, is a criminal statute, while section 322.2615 is a statute that authorizes administrative sanctions....

...ed" for the DHSMV to show "that a lawful arrest for a violation of s. 316.193, F.S. occurred" in an administrative license suspension proceeding. Fla. H.R. Comm. on Transp., HB 7079 (2006) Staff Analysis 25 (Apr. 26, 2006). We agree with Respondent. Section 322.2615 does not establish any obligation on the part of a driver to take a test upon the request of law enforcement; it only establishes consequences for refusal....

...be construed together and compared with each other). When we do, the conclusion is inescapable that a suspension may not be predicated on refusal to take a test that is the product of a unlawful arrest. This conclusion is supported by the fact that section 322.2615 only permits suspension "pursuant to" a "lawful" test, based on a statutory form of notice, which must state that the refusal involves a "lawful" test. § 322.2615(1)(a) and (1)(b)1.a., Fla....

...tive intent). Even were we to accept the analysis as evidence of legislative intent, however, it is not our function to rewrite the statutory scheme to do what the legislature failed to accomplish expressly. Nor have we overlooked the language of subsection 322.2615(7), which purports to "limit" the scope of review to three issues....

...etention as it is in this case. Indialantic Police Dep't v. Zimmerman, 677 So.2d 1307, 1309 (Fla. 5th DCA 1996). The second issue directs the hearing officer to *308 address whether the driver "refused to submit to any such test. " (Emphasis added). § 322.2615(7)(b)2., Fla....

...Therefore, we do not construe this so-called limitation on the hearing officer's scope of review to nullify the statute's directive that the hearing officer "determine . . . whether sufficient cause exists to sustain, amend, or invalidate the suspension." § 322.2615(7), Fla....

...[2] The statute provides that the suspension "shall be pursuant to, and the notice of suspension shall inform the driver . . . [that] . . . [t]he driver refused to submit to a lawful . . . test. . . ." [3] Though not material to our analysis, Petitioner does not explain its characterization of section 322.2615 as a criminal statute....

...to support the suspension of DeGroot's license. On August 20, 2006, DeGroot was arrested for DUI. He cooperated and submitted to a breath test on an Intoxilyzer 8000. Based on the results of that test, DeGroot's driving privilege was suspended. See § 322.2615(1)(a), Fla....

...In those cases this court granted the second-tier petitions for writ of certiorari and overturned the circuit court orders. We held that the circuit courts had relied upon the language of rule 15A-6.013(2) and had ignored the patently permissive language of section 322.2615(2)....

...the law enforcement officer shall submit "the results of any breath or blood test or an affidavit stating that a breath, blood, or urine test was requested by a law enforcement officer or correctional officer and that the person refused to submit." § 322.2615(2)....

...ent law [1] to the driver and asked her whether she would submit to a "breath, blood, or urine" test. Because each woman refused, the Department sought to suspend each woman's driver's license for a period of one year. See §§ 316.1932(1)(a)(1)(a), 322.2615(1), Fla....

...ely on the language of the two standard forms used by the deputies in the breath test centers. The hearing officer rejected this argument in both cases and sustained the suspensions. Both women then sought certiorari review in the circuit court, see § 322.2615(13), arguing again that the implied consent warnings given were improper and that the license suspensions were thus invalid....

...ful test of his or her breath and his or her driving privilege has been previously suspended for a prior refusal to submit to a lawful test of his or her breath, urine, or blood, he or she commits a misdemeanor in addition to any other penalties.... Section 322.2615 then provides: (1)(a) A law enforcement officer or correctional officer shall, on behalf of the department, suspend the driving privilege of ......

...it to such a test.... An officer who has suspended the driver's license under this statute must forward appropriate documents supporting the suspension to the Department. At that point, the driver may seek an informal or formal review hearing. Under section 322.2615(7)(b), a formal review hearing requires the hearing officer to consider 1....

...motor vehicle would be suspended for a period of 1 year or, in the case of a second or subsequent refusal, for a period of 18 months. If the hearing officer determines that these three criteria are met, the Department "shall" sustain the suspension. § 322.2615(8)(a)....

...atives were intended). Notably, there is no evidence in these cases that either driver was confused, that they requested clarification, or that they asked specifically for a breath test and were denied that request. Sections 316.1932(1)(a)(1)(a) and 322.2615 plainly require the suspension of a driver's license when the driver refuses to submit to a lawful request for a breath-alcohol test....

...In that agencies are given powers only explicitly delegated to them by the legislature, or reasonably implied therefrom, the circuit court, in exercising its certiorari review over an administrative order, must necessarily be cognizant of the authority conferred on an HO in a license-suspension hearing. Section 322.2615(7), Florida Statutes (2001), directs the HO to determine whether a preponderance of the evidence supports the license suspension based upon the following issues: (b) If the license was suspended for refusal to submit to a breath, blood, or urine test: 1....

...the hearing which the HO was required by law to consider in resolving such issue, specifically the arrest report and the field sobriety report, which were offered into evidence without objection. This evidence was appropriately admitted pursuant to section 322.2615(2), which directs an arresting officer to submit various documents to the Department, and section 322.2615(11), which permits "[t]he formal review hearing [to] be conducted upon a review of the reports of a law enforcement officer or a correctional officer, including documents relating to the administration of a breath test or blood test...

...room where she agreed to take the test. The operator told her that it was too late and completed a document indicating that she had refused to take the test. Pursuant to statute, the arresting officer suspended her license for one year. Pursuant to § 322.2615(6)(a), [4] Florida Statutes, Satter sought a formal hearing before an administrative hearing officer on the issue of her license suspension....

...Neither the arresting officer nor the operator of the videocamera testified at the administrative hearing. Satter testified to support her case. The hearing officer ruled that Satter's license was properly suspended because she refused to take the test. Satter petitioned the circuit court by writ of certiorari. See § 322.2615(13), Fla....

...lcohol test and then rescinding that refusal by agreeing to take the tests. We do not find Larmer applicable. For the reasons detailed herein, we find both of the circuit court's reasons specious. DISCUSSION This court in two previous cases has held section 322.2615, Florida Statutes (1991), constitutional because it affords automobile drivers due process....

...The hearing officer only has to determine by a preponderance of the evidence that the arresting officer had probable cause for Satter's arrest; that she was arrested lawfully; that she refused to submit to a blood-alcohol test and that she was told that her license would be suspended for one year if she refused the test. See § 322.2615(7)(b), Fla. Stat. (1991). This determination can be made without witnesses testifying on behalf of DHSMV. A determination can be made based upon the written documents generated at the time of Satter's arrest and refusal to take the test. See § 322.2615(11), Fla....

...ring officer's order is reinstated. Writ GRANTED and REMANDED with instructions. HARRIS, C.J., concurs. GRIFFIN, J., dissents without opinion. NOTES [1] Fla.R.App.P. 9.030(b)(2)(B); City of Deerfield Beach v. Vaillant, 419 So.2d 624 (Fla. 1982). [2] § 322.2615(13), Fla....

...[4] This section provides: If the person arrested requests a formal review, the department must schedule a hearing to be held within 30 days after such request is received by the department and must notify the person of the date, time, and place of the hearing. § 322.2615(6)(a), Fla....

...[5] This section provides in relevant part: A person may appeal any decision of the department sustaining a suspension of [that person's] driver's license by a petition for writ of certiorari to the circuit court in the county wherein such person resides or wherein a formal or informal review was conducted ... § 322.2615(13), Fla....

...Before NESBITT, JORGENSON and GERSTEN, JJ. NESBITT, Judge. In July 1992, a hearing officer sustained the Department of Highway Safety and Motor Vehicles Bureau of Driver Improvement (the Department) administrative suspension of Sheryl Padilla's driver's license under section 322.2615, Florida Statutes (1991)....

...The jurisdiction of this *181 court is invoked pursuant to Florida Rules of Appellate Procedure 9.030(b)(2) and 9.100. We grant the petition for writ of certiorari and quash the order of the circuit court and order the administrative suspension of Padilla's driving privilege reinstated. Section 322.2615(2), Florida Statutes (1991) requires "an affidavit stating the officer's grounds for belief that the person arrested was in violation of section 316.193." Below, Padilla challenged the competency of the evidence received proving the requirement in section 322.2615(7)(b)1, "[w]hether the arresting law enforcement officer had probable cause to believe that the person driving was driving or in actual physical control of a motor vehicle in this state while under the influence of alcoholic beverage...

...hed the suspension of Deborah Stenmark's driver's license. We grant the petition. Stenmark was stopped and ultimately arrested for driving under the influence. She requested a formal review of the Department's suspension of her driver's license. See § 322.2615, Fla. Stat. (2004). At the hearing, Stenmark challenged the suspension and asserted that the stop was not based on a reasonable suspicion. See § 322.2615(7)(a)(2) (requiring hearing officer to determine whether person was placed under lawful arrest for DUI)....

...this is a blow, not a refusal." At the conclusion of the hearing, counsel moved to disqualify the hearing officer and the motion was denied. [1] Thereafter, the *741 hearing officer entered a final order upholding the license suspension. Pursuant to section 322.2615(13), Florida Statutes (2000), Pitts sought certiorari review in the circuit court....

...Peninsula Utilities Corp., 169 So.2d 499, 501 (Fla. 3d DCA 1964). This court finds that the hearing officer below abused her discretion when she participated to the point of interposing objections to relevancy and instructing witnesses not to answer questions. (Citations to the record omitted). Section 322.2615, Florida Statutes Under section 322.2615, Florida Statutes (2000), a law enforcement officer is required to take the driver's license of a person who has been arrested for violating section 316.193 for driving with an unlawful breath alcohol level and to issue that person a 30 day temporary permit. § 322.2615(1)(a), Fla. Stat. (2000). Thereafter, a notice of suspension issues informing the driver of his violation. § 322.2615(1)(b)....

...quested but refused by the driver; and the officer's description of the driver's performance on a field sobriety test, if any. Id. The officer may also submit a copy of any videotape of the field sobriety test or the attempt to administer such test. § 322.2615(2). The person arrested may request an informal or formal review. § 322.2615(4)(5). If a formal review is requested, the Department must schedule a hearing within thirty days after the request is received. § 322.2615(6)(a)....

...The formal hearing must be held before a hearing officer who "shall be authorized to administer oaths, examine witnesses and take testimony, receive relevant evidence, issue subpoenas, regulate the course and conduct of the hearing, and make a ruling on the suspension." § 322.2615(6)(b)....

...§ 316.2615(7)(a); see also Fla. Admin. Code Rule 15A-6.013(7)(a). The hearing officer's determination, which must be based upon a preponderance of the evidence, can be made based upon the written documents and reports submitted by law enforcement. § 322.2615(11); see Department of Highway Safety v....

...review, improperly substituted its decision and misapplied the law in ruling otherwise. The Department asserts that the evidence sought to be introduced by defense counsel was not relevant, because it did not pertain to any of the issues provided in section 322.2615(7)(a), and, therefore, the hearing officer did not fail to accord procedural due process when she limited the testimony of the witnesses....

...Pitts argues, however, that the hearing officer is not to act in the dual role of a prosecutor and judge and that such a role conflicts with his right to a fair and impartial hearing accorded him under requirements of procedural due process. As to what constitutes relevant evidence in a hearing under section 322.2615, Pitts notes that "relevant evidence" is "evidence which tends to prove or disprove a material fact." Rule 15A-6.013(6), Florida Administrative Code (emphasis supplied)....

...unding the arrest, so that the hearing officer could determine whether the arresting officer had sufficient and reasonably trustworthy information to reach the conclusion that Pitts was driving a vehicle under the influence of alcohol. Id.; see also § 322.2615(7)(a)....

...At the conclusion of the field sobriety tests, Officer Booker placed Smith under arrest for driving under the influence. Her breath test conducted later at the Duval County Jail revealed a blood alcohol level of over .08 percent. Smith then suffered an automatic driver's license suspension pursuant to section 322.2615(1)(a), Florida Statutes (1993). After the suspension, Smith requested a formal review under the provisions of section 322.2615(6)....

...The issue before the court was whether competent substantial evidence supported the Department's finding that the arresting law enforcement officer had probable cause to believe Smith was driving or in actual physical control of a motor vehicle while under the influence of alcoholic beverages or controlled substances. § 322.2615(7)(a), Florida Statutes (1993)....

...ohol, the hearing officer's inquiry at the formal hearing was limited to whether the arresting officer had probable cause to believe Smith was driving or in actual physical control of a motor vehicle while under the influence of alcoholic beverages. § 322.2615(7)(a)1, Florida Statutes (1993)....

...Patrick thereafter sought certiorari review of the suspension by the circuit court. While the circuit court did not disagree with the factual findings of the hearing officer, it rejected the hearing officer's central legal conclusion. The court indicated in its order that because the plain language of subparagraphs 322.2615(7)(a)1.-3....

...5th DCA 1993). The issue raised by this proceeding can best be understood by a review of the statutory framework for the suspension of driving privileges of those persons who drive when the level of alcohol in their systems exceeds certain thresholds. Paragraph 322.2615(1)(a), Florida Statutes (2003), provides that a law enforcement or correctional officer shall suspend the license of any person who has been arrested for violation of section 316.193, Florida Statutes (2003), a statute that regulates driving with an unlawful blood-alcohol or breath-alcohol level....

...iliters of blood. Alternatively, a person violates paragraph 316.193(1)(c) if he or she has a breath-alcohol level of 0.08 or more grams of alcohol per 210 liters of breath. Thus, either test is an expression of the person's alcohol level. Paragraph 322.2615(1)(b) is the problematic part of the statute....

...tion and his or her driving privilege is suspended.... (Emphasis added). There is no similar notice provision for breath-alcohol level suspensions, although quite clearly in the present case Ms. Patrick was given that notice. The next subsection, subsection 322.2615(2), requires the law enforcement officer to notify the DMV of the details of the suspension for violation of section 316.193, including the "results of any breath or blood test" that was administered. Subsection (3) then requires the DMV to notify any person whose driving privilege should have been suspended pursuant to subsection 322.2615(1), and who has not been so notified of the suspension by the law enforcement corrections officer. Therefore, despite the fact that the notification provisions of sub-subsection 322.2615(1)(b)1.b. do not specifically provide for notice to persons who failed the breath test, this section would appear to require the DMV to give the appropriate notice. Subsections (4) and (5) of section 322.2615 provide for informal review of the suspension, while subsection (6) deals with formal review....

...otor vehicle in this state while under the influence of alcoholic beverages or controlled substances. 2. Whether the person was placed under lawful arrest.... 3. Whether the person had an unlawful blood-alcohol level as provided in s. 316.193. *1135 § 322.2615(7)(a)1.-3., Fla....

...ng to the administration of a breath test or blood test or the refusal to take either test." It then gives the driver the right to subpoena the person "who administered or analyzed a breath or blood test." When the trial court reviewed subparagraphs 322.2615(7)(a)1.-3....

...If, however, the language of the statute is in conflict, and thus ambiguous, we must resort to traditional rules of statutory construction to determine legislative intent. See Palm Beach County Canvassing Bd. v. Harris, 772 So.2d 1273 (Fla.2000). It is evident from the internally conflicting subdivisions of section 322.2615, when read in pari materia with other sections of the statutes, that the formal review provision is ambiguous....

...The legislature made driving with either an excessive blood-alcohol or breath-alcohol level illegal in section 316.193; and gave law enforcement officers the power to suspend the driving privileges of drivers whose blood-alcohol or breath-alcohol exceeded the legislatively set limit in paragraph 322.2615(1)(a); and gave hearing officers the authority to consider the results of either breath tests or blood tests at a formal review in subsection 322.2615(11). The legislature, however, did not specifically provide the method for formal review of suspensions based on breath-alcohol tests in subsection 322.2615(7), although it did so with respect to blood-alcohol tests....

...Given the obvious inadvertent failure to include suspensions based on breath-alcohol results in the formal review proceedings, we have little hesitancy in reading the statute to include the omitted language, as we believe the legislature clearly intended. Thus, we read paragraph 322.2615(7)(a) to include formal review for suspensions based on breath-alcohol, as well as blood-alcohol level violations of section 316.193....

...ysical breath test as well as a urine test or blood test. In other words, a driver has the right to request additional testing as provided by statute. Notice and Procedure to Request Administrative Review In conjunction with the implied consent law, section 322.2615, Florida Statutes (2007), addresses the consequence of a license suspension and provides the driver with an opportunity to request an administrative review. Pursuant to this provision, a law enforcement officer must suspend a person’s driving privilege if that person has refused to submit to “a urine test or a test of his or her breath-alcohol or blood- *720 alcohol level.” § 322.2615(l)(a), Fla....

...d to submit to a lawful breath, blood, or urine test and his or her driving privilege is suspended for a period of 1 year for a first refusal” and that “the suspension period shall commence on the date of issuance of the notice of suspension.” § 322.2615(l)(b), Fla. Stat. Subsection 322.2615(2) then requires that the law enforcement officer shall forward to the department, within 5 days after issuing the notice of suspension, the driver’s license; an affidavit stating the officer’s grounds for belief that the person...

...erages or chemical or controlled substances; the results of any breath or blood test or an affidavit stating that a breath, blood, or wine test was requested by a law enforcement officer or correctional officer and that the person refused to submit. § 322.2615(2), Fla....

...4 This affidavit was apparently used by the Department in all situations where a driver has refused testing, including those situations involving commercial motor vehicles, which are not addressed in section 316.1932, but rather in section 322.63, Florida Statutes (2007). Section 322.2615 further provides for the method by which the driver can request review of the license suspension....

...Whether the person whose license was suspended was told that if he or she refused to submit to such test his or her privilege to operate a motor vehicle would be suspended for a period of 1 year or, in the case of a second or subsequent refusal, for a period of 18 months. § 322.2615(7)(b)2.-3., Fla....

...provided for by statute. Specifically, in challenging her license suspension, Nader was required to “request a formal or informal review of the suspension by the department within 10 days after the date of issuance of the notice of suspension.” § 322.2615(l)(b)3., Fla....

...The statute further provides that a “person may appeal any decision of the department sustaining a suspension of his or her driver’s license by a petition for writ of certiorari to the circuit court.... This subsection shall not be construed to provide for a de novo appeal.” § 322.2615(13), Fla....

...ty jail. He agreed to take a breath test, and the results were 0.123 and 0.122, both above the legal limit. Accordingly, respondent *944 was issued a citation for driving with an unlawful blood-alcohol level and his license was suspended pursuant to section 322.2615, Florida Statutes. Pursuant to section 322.2615(1)(b)(3), respondent requested a formal review of his driver's license suspension, which was conducted by a hearing officer....

...See generally Conahan v. Dept. of Highway Safety and Motor Vehicles, 619 So.2d 988 (Fla. 5th DCA 1993) (district court's review of circuit court order entered in appellate capacity is limited to whether circuit court afforded due process and applied the correct law). Section 322.2615, Florida Statutes (2000) states in pertinent part: (1)(b) The suspension under paragraph (a) shall be pursuant to, and the notice of suspension shall inform the driver of, the following: 1.a....

...hat the Department lacked jurisdiction due to the incomplete suspension portion of the DUI citation. However, it is clear that the Department had jurisdiction, as the arresting officer forwarded to the Department all of the necessary documents under section 322.2615(2), Florida Statutes, including the DUI citation with the notice of suspension....

...The balance of Johnson's motion for rehearing, rehearing en banc, certification, and Griffin's motion for rehearing, etc., are denied. In these consolidated petitions for writ of certiorari, we are faced with a constitutional question of whether the use of nonlawyers as hearing officers, in formal hearings pursuant to section 322.2615(6), Florida *540 Statutes, violates the due process rights of motorists arrested for driving under the influence (DUI). Before we answer the constitutional question, it is important to understand the procedural history of the four cases now before us. In each case, a law enforcement officer suspected a motorist of DUI and made an arrest. Pursuant to section 322.2615(1)(a), Florida Statutes, these motorists had their driver's licenses automatically suspended. Each motorist sought formal review before a hearing officer, pursuant to section 322.2615(6), Florida Statutes....

...three suspensions were upheld, amidst various challenges, including the instant claim of a constitutional infirmity. In one case, a circuit judge declared, inter alia, that the procedure of using non-lawyers as hearing officers for proceedings under section 322.2615, Florida Statutes, violated due process....

...sought second-tier certiorari review of their cases, suggesting a conflict in the circuit courts. By order, this court consolidated these cases for the sole purpose of resolving the conflict; to wit, determining whether the use of non-lawyers under section 322.2615, Florida Statutes, is unconstitutional....

...n case, deny the petitions of the motorists in the related, consolidated cases, and declare that the use of non-lawyers as hearing officers does not violate our State or Federal Constitutions and does not violate due process. The statutory scheme of section 322.2615(6), Florida Statutes, allows for a motorist to request a formal hearing if the Department suspends the driving privileges after an arrest for a violation of 316.193, Florida Statutes. § 322.2615(1)(a), (6)(a), Fla. Stat. (2003). The Legislature requires a "formal review hearing shall be held before a hearing officer employed by the department," but does not require the hearing officer to be a member of The Florida Bar. § 322.2615(6)(b), Fla....

...A litigant is entitled to have confidence that the hearing officer before whom he or she appears is acting impartially as a fact-finder. See Ducre v. State, 768 So.2d 1159 (Fla. 2d DCA 2000). While we see no constitutional infirmity in non-lawyers serving as hearing officers under section 322.2615, we do strongly caution those hearing officers that they must take extraordinary care to be as impartial and neutral as the members of the judiciary are required to be....

...POLEN, J., concurring specially. Although I agree with the majority's opinion, I write separately to address Judge Ramirez's special concurrence in Wolok v. Mellon, 1 Fla. L. Weekly Supp. 204a (Fla. 11th Cir.Ct.1992). Judge Ramirez's critique of the statutory procedures of section 322.2615 is well taken and provides thought-provoking ideas on how this procedure could be improved....

...The officers gave Fernandez various implied consent warnings, including a warning that failure to submit to the breath test would result in suspension of Fernandez’s driving license for at least one year. Fernandez maintained his refusal and his license was suspended administratively pursuant to section 322.2615, Florida Statutes (2011)....

...The Appellate Division granted certiorari and quashed the hearing officer’s order, reasoning that the hearing officer failed to convene the formal review hearing “in Monroe County” by appearing telephoni-cally from an office in Miami in contravention of section 322.2615(6)(b), Florida Statutes (2011) (requiring that a formal hearing be “held before a hearing officer”) (emphasis added), and Florida Administrative Code Rule 15A-6.009, (providing that, absent driver’s consent, venue for formal re...

...[T]he Court finds that the failure to accord a hearing at which the hearing officer physically appears in the statutorily designated judicial circuit, and wherein a Petitioner has the right to physically appear before the hearing officer for the hearing, does not comply with Section 322.2615(6)(b) or the rules set forth above....

...a district court can use second-tier certiorari to correct a circuit court decision that departed from the essential requirements of statutory law.” Nader, 87 So.3d at 727 . The Department argues that the Appellate Division failed to apply the correct law when it read section 322.2615(6)(b), Florida Statutes (2001), Florida Administrative Code Rule 15A-6.009, and Florida Rule of Judicial Administration 2.530(d)(1) to require that the hearing be conducted in the physical presence of the hearing officers. We find that the Appellate Division’s reading of section 322.2615(6)(b), Florida Statutes, is a departure from the essential requirements of law as it violates a clearly established principle of law by “disobeying] the plain language of the statute.” Nader, 87 So.3d at 723 . Section 322.2615(6)(b) provides in relevant part: [The] formal review hearing shall be held before a hearing officer employed by the department, and the hearing officer shall be authorized to administer oaths, examine witnesses and take testimony, re...

...ellate Division’s statutory construction isolates the words “before a hearing officer” from the subsection’s remaining language, particularly, the terms authorizing the hearing officer to “regulate the course and conduct of the hearing.” § 322.2615(6)(b)....

...ew hearing initiated by the driver, except to the extent the hearing officer’s telephonic appearance implicates the other rights protected in Rule 15A-6.013(5). The hearing officer’s power to “regulate the course and conduct of the hearing,” § 322.2615(6)(b), permits the hearing officer to tailor a proceeding to the circumstances, such that the rights protected in Rule 15A-6.013(5) will not be abridged in a manner inconsistent with due process....

...“An agency’s statutory construction is entitled to great weight and is not to be overturned on appeal, unless clearly erroneous.” Braman Cadillac, Inc. v. Dep’t of Highway Safety & Motor Vehicles, 584 So.2d 1047, 1050 (Fla. 1st DCA 1991). Because we conclude that the Department’s interpretation of section 322.2615(6)(b) is not clearly erroneous, the Appellate Division’s reading of section 322.2615(6)(b) is contrary to the Department’s interpretation of the statute. The Appellate Division also relied on Florida Administrative Code Rule 15A-6.009 to conclude that the words “before a hearing officer” in section 322.2615(6)(b) meant “in the hearing officer’s physical presence.” Rule 15A-6.009, however, provides that: “Hearings shall be held in the judicial circuit where the notice of suspension was issued, unless otherwise ordered by the hearing officer with the consent of the driver.” Notably, section 322.2615 offers no direction with respect to the venue of a formal review hearing; it does not expressly authorize a hearing officer to convene a hearing “in Monroe County” via telephone, but neither does it prohibit a hearing officer fro...

...Indeed, as Fernandez failed to properly subpoena or otherwise present any witnesses to testify at the review hearing, Rule 2.530(d)(1) had no application to the matter before the Appellate Division. In sum, the Appellate Division’s failure to apply section 322.2615 according to its clear and unambiguous terms amounted to a failure to apply clearly established law. See Freeman, 63 So.3d at 27 (holding that circuit court’s erroneous interpretation of section 322.2615 “disobeyed the plain language of the statute” and justified issuance of writ of certiorari to correct error)....

...Accordingly, we grant the petition and quash the order. Petition granted. . "A law enforcement officer ... shall ... suspend the driving privilege ... of a person who has refused to submit to a urine test or a test of his or her breath-alcohol or blood-alcohol level.” § 322.2615(l)(a), Fla....

...One of the subpoenas was returned non-served based on the officer’s training schedule, which prevented him from appearing on October 12, 2011. . The record does not reflect whether an enforcement action was filed. . The Department asserts that the change in location was an error. . Pursuant to section 322.2615(2), Florida Statutes (2011), "[m]aterials submitted to the department by a law enforcement agency or correctional agency shall be considered self-authenticating and shall be in the record for consideration by the hearing officer.” Formal review hearings conducted solely on the basis of police reports and documents are authorized. § 322.2615(11), Fla....

...Cochran's alcohol levels registered .220, .206 and .227. The officer issued Cochran a citation for violating section 316.193, Florida Statutes (1999), pursuant to which Cochran's driving privileges were suspended. Cochran requested a formal review of his license suspension in accordance with section 322.2615(1)(b)(3), Florida Statutes (1999)....

...We cannot review the record to determine whether there was competent substantial evidence to support an agency's decision, as that responsibility lies solely with the circuit court. See Dusseau v. Metropolitan Dade County Board of County Commissioners, 794 So.2d 1270 (Fla.2001). Section 322.2615(7), Florida Statutes (1999) provides that the hearing officer must determine "by a preponderance of the evidence whether or not sufficient cause exists to sustain, amend or invalidate the [license] suspension." The hearing officer mu...

...he person was driving or in actual physical control of a motor vehicle while under the influence of alcohol or a controlled substance, whether the person was placed under lawful arrest, and whether the person had an unlawful blood alcohol level. See § 322.2615(7)(a), Fla. Stat. (1999). The hearing officer's determination may be conducted based on a review of the reports of the police officer "including documents relating to the administration of a breath test...." See § 322.2615(11), Fla....

...it to a breath test. His driver's license was thereafter administratively suspended, and Hernandez sought a hearing before the Department of Highway Safety and Motor Vehicles. The hearing officer determined that the scope of the hearing, pursuant to section 322.2615, Florida Statutes (2007), would be limited to: (i) whether law enforcement had probable cause to believe Hernandez was driving or in actual physical control of a motor vehicle in this state while under the influence of alcohol or a c...

...llowed by an unlawful arrest. The circuit court denied certiorari relief ruling that as of October 1, 2006, a hearing officer in an administrative review of a driver's license suspension is no longer permitted to consider the legality of the arrest. Section 322.2615, Florida Statutes (2007), provides in pertinent part, (7) In a formal review hearing under subsection (6) or an informal review hearing under subsection (4), the hearing officer shall determine by a preponderance of the evidence whether sufficient cause exists to sustain, amend, or invalidate the suspension....

...Whether the person whose license was suspended was told that if he or she refused to submit to such test his or her *1079 privilege to operate a motor vehicle would be suspended for a period of 1 year or, in the case of a second or subsequent refusal, for a period of 18 months. Prior to October 1, 2006, section 322.2615 provided as well that a DHSMV hearing officer, in a proceeding following a suspension of a license for refusal to submit to a test, was also to consider "[w]hether the person was placed under lawful arrest for a violation of s. 316.193." Section 322.2615 was amended prior to Hernandez' arrest to delete this subsection....

...e influence of alcoholic beverages.... (Bold added). In Department of Highway Safety and Motor Vehicles v. Pelham, 979 So.2d 304 (Fla. 5th DCA 2008), rev. denied, 984 So.2d 519 (Fla.2008), the reviewing court considered the effect of the revision to section 322.2615 and concluded, when reading the revised statute in pari materia with section 316.1932, that it is "inescapable that a suspension may not be predicated on refusal to take a test that is the product of a[n] unlawful arrest." 979 So.2d at 307....

...the suspension is central to any determination that there is `sufficient cause' to `sustain' it." 979 So.2d at 308. In reaching this conclusion, the Pelham court was not unmindful of a legislative staff analysis which indicated that the amendment of section 322.2615 negated the need for DHSMV to show in an administrative review of a license suspension that a lawful arrest for a violation of section 316.1932 (the DUI statute) occurred....

...Metropolitan Dade County, 794 So.2d 1270 (Fla.2001); Broward County v. G.B.V. Intern., Ltd., 787 So.2d 838 *546 (Fla.2001). The Department argues, and we agree, that the circuit court departed from the essential requirements of law and failed to apply the correct law. In a formal review pursuant to section 322.2615(7), Florida Statutes, the hearing officer reviewed a probable cause affidavit prepared by a city of Maitland, Florida police officer, alleging that Swegheimer committed the offense of DUI at "W/B SR 400/ SR 414, Maitland, Fl....

...nce. Department of Highway Safety and Motor Vehicles v. Currier, 824 So.2d 966 (Fla. 1st DCA 2002). The circuit court misapplied the law by concluding that the officer failed to establish jurisdiction when the affidavit clearly alleged jurisdiction. Section 322.2615(11), Florida Statutes, allows the hearing officer to conduct a formal review "upon a review of the reports of a law enforcement officer." Therefore, the circuit court misapplied the law when it concluded that the officer failed to es...

...In compliance with the supreme court’s mandate, we have reconsidered Mr. McLaughlin’s petition for second-tier certiorari review of the circuit court’s order, which denied certio-rari relief from an administrative decision upholding Mr. McLaughlin’s driver’s license suspension under section 322.2615(l)(a), Florida Statutes (2006), for failing to submit to a breath, blood, or urine test in connection with his arrest for driving under the influence....

...tests to Possati, who allegedly failed them. Possati was read an implied consent warning but refused to submit to the breathalyzer test. He was arrested, given Miranda warnings, and issued a citation for DUI. His driver's license was suspended under section 322.2615(1)(a), Florida Statutes (2001)....

...d under lawful arrest for driving while intoxicated, (3) whether Possati refused to submit to a breath test requested by the officer, and (4) whether, when he refused the test, he was given the proper warning that his license would be suspended. See § 322.2615, Fla....

...Petition for writ of certiorari granted. NOTES [1] The statute provides, in pertinent part: "A law enforcement officer ... shall, on behalf of the department, suspend the driving privilege of ... a person who has refused to submit to a breath ... test authorized by s. 316.1932." § 322.2615(1)(a), Fla....

...4. Whether the person was told that if he or she refused to submit to such test his or her privilege to operate a motor vehicle would be suspended for a period of 1 year or, in the case of a second or subsequent refusal, for a period of 18 months. § 322.2615(7)(b), Fla....

...ion of driving under the influence. Based on facts not in issue in this proceeding, the officer ultimately issued an affidavit of refusal to submit to a breath, urine or blood test (hereinafter "refusal affidavit") and, pursuant to the provisions of section 322.2615, *1213 Florida Statutes, respondent's driver's license was suspended....

...cuments submitted to the hearing officer to support suspension were fatally defective because the formal requirements for notarization added by the substantial amendments to Chapter 117, Florida Statutes, effective January 1, 1992, [2] were not met. Section 322.2615(11) permits the use of written reports as evidence in the formal hearing: The formal review hearing may be conducted upon a review of the reports of a law enforcement officer or a correctional officer, including documents relating to ... the refusal to take either test. However, as provided in subsection (6), the driver may subpoena the officer or any person who administered or analyzed a blood or breath test. [3] The Department's Rule 15A-6.013, implementing section 322.2615(11) provides: The hearing officer shall consider any report submitted by a law enforcement officer or correctional officer relating to ......

...Because I am of the opinion that the state should strictly comply with all "technicalities" when depriving its citizens, I cannot say the circuit judge departed from the essential requirements of law. That is the standard to be applied in certiorari proceedings. NOTES [1] § 322.2615(6), Fla. Stat. (1991). [2] Chapter 91-291, Laws of Florida. [3] See also § 322.2615(2), Fla....

...After his arrest for driving under the influence of alcohol, Riggen submitted to two breath tests which were rendered invalid because in each instance the machine became clogged with a foreign substance, apparently from Riggen's mouth. Upon his refusal to take a third test, Riggen's driver's license was suspended pursuant to section 322.2615, Florida Statutes (1993)....

...efused test. Although the validity of a breathalyzer test may be essential to its admissibility in a criminal proceeding, the hypothetical *222 validity of a refused test is not relevant to review the administrative suspension of a driver's license. § 322.2615(7)(b)1....

...d transported him to the Coral Gables police station. At the station, Pipkin was informed of Florida's implied consent law, § 316.1932, Fla. Stat. (2004), but refused to take a breath-alcohol test. His license was suspended for one year pursuant to section 322.2615(b)1.a of the Florida Statutes....

..., Suann Ivey. Ms. Ivey's driving privileges were suspended because after she failed a field sobriety test, she refused to submit to a test of either her breath alcohol or blood alcohol after being requested to do so by a law enforcement officer. See § 322.2615, Fla....

...Ivey initially agreed to submit to the test but later refused to do so. Ms. Ivey's privilege to operate a motor vehicle was suspended for refusal to submit to a breath test. Ms. Ivey petitioned the circuit court for certiorari relief to quash the order of the Department. See § 322.2615(13), Fla....

...Before the Department can suspend a person's license for refusing to submit to a blood or breath test, the law enforcement officer must have had probable cause to believe that the person had been driving or had physical control of a vehicle while intoxicated. See § 322.2615(7)(b), Florida Statutes (2010)....

...The State Department of Highway Safety and Motor Vehicles seeks certiorari review of an order of the circuit court which overturned a hearing officer's determination upholding the suspension of Deborah S. Shonyo's driving privileges. We grant the petition and quash the lower court order. At the formal hearing authorized by section 322.2615(6), Florida Statutes (1993), the hearing officer based the decision to uphold Shonyo's suspension on the probable cause affidavit of the arresting deputy which included a description of certain of Shonyo's actions as witnessed by another officer....

...he "fellow officers" rule [1] at the suspension hearing, hearsay statements attributable to another officer which were contained in the affidavit could not be considered. On that basis, the circuit court found that the probable cause requirements of section 322.2615(7)(b)1, Florida Statutes (1993), had not been met....

...tances. The hearing officer is not a potted plant. Second, the hearing officer was empowered by law to "administer oaths, examine witnesses and take testimony, receive relevant evidence . . . question witnesses, and make a ruling on the suspension." § 322.2615(6)(b), Fla....

...The Department of Highway Safety and Motor Vehicles (DHSMV) seeks a writ of certiorari to the circuit court to quash an order that reinstated Matthew Snelson's driver's license privileges following an arrest for driving under the influence. Mr. Snelson's license had been suspended pursuant to section 322.2615(1)(a), Florida Statutes (2000), based on his refusal to submit to a breath test....

...Upon Mr. Snelson's request a formal review hearing of his license suspension was conducted. Both deputies involved in the stop and investigation of the DUI testified at the hearing. The arresting officer also timely filed paperwork pursuant to *1047 section 322.2615(2) and rule 15A-6.013(2), Florida Administrative Code, which included a probable cause affidavit, a refusal affidavit, the DUI citation, and the driver's license....

...al requirements of the law; and (3) whether the agency's findings and judgment are supported by competent substantial evidence." Id. at 34. In this case the circuit court misinterpreted the applicable statute and rule and the interplay between them. Section 322.2615, which granted Mr....

...date of the arrest, a copy of the notice of suspension, the driver's license of the person arrested, and a report of the arrest, including an affidavit stating the officer's grounds for belief that the person arrested was in violation of s. 316.193. § 322.2615(2)(a) (emphasis added)....

...ction and in subsection (1) shall not affect the department's ability to consider any evidence submitted at or prior to the hearing. The officer may also submit a copy of a videotape of the field sobriety test or the attempt to administer such test. § 322.2615(2)(a) (emphasis added)....

...After being arrested, Garcia was transported to a police station where he submitted to breath-alcohol tests. As the intoxilyzer test results were allegedly 0.08 or higher, the police officer took Garcia's driver's license and filed a notice of suspension. See § 322.2615(1)(a), Fla. Stat. (2005). Thereafter, pursuant to section 322.2615(1)(b)(3), Florida Statutes (2005), Garcia filed a request for formal review of his driver's license suspension with the Department. In support of the suspension, the law enforcement officer submitted documentary evidence, as required by section 322.2615(2), Florida Statutes (2005), and rule 15A-6.013(2) of the Florida Administrative Code....

...red pursuant to rule 15A-6.013(2). See Dep't of Highway Safety *546 & Motor Vehicles v. Silva, 806 So.2d 551 (Fla. 2d DCA 2002) ("The Charlotte County deputy who administered the breath test timely filed his paperwork with the Department pursuant to section 322.2615(2), Florida Statutes (1999), and Florida Administrative Code Rule 15A-6.013, including, inter alia, the DUI traffic citation, intoxilyzer print card, and the probable cause affidavit."); Dep't of Highway Safety & Motor Vehicles v....

...1st DCA 1997); [1] see Shearer (rule 3.987 form of oath requiring notary satisfied by section 92.525 verification); State v. Padilla, 629 So.2d 180 (Fla. 3d DCA 1993) (finding that section 92.525 "verified" document satisfied affidavit requirement of section 322.2615(2), Florida Statutes)....

...ng whether the circuit court afforded procedural due process and applied the correct law. State Farm Fla. Ins. Co. v. Lorenzo, 969 So.2d 393 (Fla. 5th DCA 2007); Conahan v. Dep't of Highway Safety & Motor Vehicles, 619 So.2d 988 (Fla. 5th DCA 1993). Section 322.2615(2), Florida Statutes (2007), requires the arresting officer to submit to the Department an affidavit setting forth the officer's basis to believe that the person arrested was driving or in actual physical control of a motor vehicle while under the influence of alcohol or some other intoxicating substance....

...the attestor did not indicate whether the document was executed in the capacity of a notary, or as a law enforcement officer. [1] Gupton argues that, because the attestor's status was not specified, the document is not an "affidavit," as required by section 322.2615(2)....

...est Mr. Maffett's breath-alcohol level. In Yankey v. Department of Highway Safety & Motor Vehicles, No. 2D08-2045, ___ So.2d ___, 2009 WL 416514 (Fla. 2d DCA Feb.20, 2009), an opinion we issue simultaneously with this opinion, we have concluded that section 322.2615(6)(b), Florida Statutes (2007), and related statutory and administrative provisions require the Department to issue a subpoena to the agency inspector when the agency inspector is identified in documents submitted to the Department to validate the breath test results....

...car. Officer Long went to ORMC, and, upon making contact with McClane, smelled a strong odor of alcohol. A test of McClane's blood showed .162 grams of alcohol per 100 milliliters. Officer Long then suspended McClane's driving privilege pursuant to section 322.2615, Florida Statutes (2003), for driving with an unlawful blood alcohol level....

...TECTION OR DUE PROCESS LAWS OR DOUBLE JEOPARDY OR THE SEPARATION OF POWERS UNDER THE STATE AND FEDERAL CONSTITUTIONS WHEREIN THE DEFENDANT HAS ALREADY SERVED A DRIVER'S LICENSE SUSPENSION AS A RESULT OF HER ARREST FOR DUI PURSUANT TO FLORIDA STATUTE 322.2615 PRIOR TO TRIAL? We accepted discretionary jurisdiction pursuant to Florida Rule of Appellate Procedure 9.160....

...The facts in this case are not in dispute. Brandenburg was arrested on November 5, 2002 for driving under the influence of alcohol or drugs. [2] It was her first offense for DUI. The arresting officer suspended her license for 180 days, pursuant to section 322.2615(1)(a)....

...t conceded that in this context, the words "suspension" and "revocation" have the same effect and meaning and appear to have been used in section 322.28 as interchangeable terms. [7] *1074 We conclude that the statutory scheme of sections 322.28 and 322.2615 establish two different time periods a driver's license must be suspended or revoked; upon arrest, and upon conviction. Under section 322.2615, the arresting officer must initially suspend a driver's license, as in this case, for a period of six months commencing from the date of the arrest....

...dent or episode and that " [t]he disposition of any related criminal proceedings shall not affect a suspension imposed pursuant to this section. " [8] Section 322.28 deals with administrative requirements in the event the arrest and suspension under section 322.2615 are not challenged or overturned, the case goes forward to trial, and a conviction results. Like section 322.2615, this section mandates a period of suspension or revocation of the convicted driver's license....

...l power to insure public safety on the highways. See Smith v. City of Gainesville, 93 So.2d 105 (Fla.1957); McDaniel v. State, 683 So.2d 597 (Fla. 2d DCA 1996); Dept. of Highway Safety & Motor Vehicles v. Degrossi, 680 So.2d 1093 (Fla. 4d DCA 1996). Section 322.2615(15) recognizes that multiple periods of suspension, on arrest, should not be imposed if a person is arrested under both section 322.2615 and 322.2616, entitled "Suspension of license: persons under 21 years of age; right to review." However, the Legislature clearly has mandated two periods for suspension or revocation of driver's licenses in the context of DUI arrests and subsequent convictions....

...NOTES [1] See Chaachou v. Chaachou, 135 So.2d 206 (Fla.1961); McKinzie v. State, 845 So.2d 316 (Fla. 1st DCA 2003); State v. Schell, 211 So.2d 581 (Fla. 2d DCA 1968); Weisman v. Weisman, 141 So.2d 622 (Fla. 3d DCA 1962)(deemed waived). [2] § 316.193, Fla. Stat. [3] See § 322.2615(1)(b)1.b., Fla....

...[7] The heading of section 322.28 reads: "Period of suspension or revocation." Subsection (1) reads: "Unless otherwise provided by this section, the department shall not suspend a license for a period of more than one year, and upon revoking a license in any case...." The remainder of the statute refers to revocation. [8] § 322.2615(14), Fla....

...The Department contends the circuit court departed from the essential requirements of the law in applying the accident report privilege in section 316.066(4), Florida Statutes, to an administrative license suspension hearing. The Department argues the license suspension hearing conducted under section 322.2615, Florida Statutes, is governed by the Department's rules, chapter 15A-6, Florida Administrative Code, and is not subject to the provisions of Chapter 120, the Administrative Procedures Act....

...After Russell performed field sobriety exercises, she was arrested for DUI. Russell was read the implied consent warnings and agreed to submit to a breath test. Her breath test results were .119 and .124. Russell then received a DUI citation and her driving privilege was suspended as required by section 322.2615(1)(a), Florida Statutes (2000). Pursuant to section 322.2615(1)(b)(3), Russell *1075 requested a formal review of her driver's license suspension before the Bureau of Administrative Reviews....

arrest of Riehle was unlawful. . Pursuant to section 322.2615, Florida Statutes (1993).

...Nader, 4 So.3d at 710) involves "clearly established law" and an interpretation which "disobeyed the plain language of the statute," authorizing our issuance of the writ in this case. We find the Second District's analysis in Nader to be persuasive for purposes of section 322.2615 when a driver is warned that driving privileges will be suspended if he or she refuses to submit to a "breath, blood, or urine test" under circumstances in which a request for a blood test is not authorized....

...r rather than Trauth I when only a breath test is authorized but it is refused after a disjunctive warning of the kind involved here. Petition granted; opinion of October 19, 2010, and order denying rehearing of December 17, 2010, quashed. NOTES [1] § 322.2615, Fla....

...trative order. The underlying administrative proceedings were separate cases involving the suspension of the driving privileges of respondents Jason Trauth and Luis Llamas. Trauth and Llamas each requested a formal administrative hearing pursuant to section 322.2615, Florida Statutes....

...Essentially, the circuit court held that a driver's license cannot be administratively suspended under the im plied consent statute unless the arresting officer assists the driver to obtain a blood test after the driver has refused to take a breath test. We conclude that the circuit court misconstrued section 322.2615(7)(b)3, Florida Statutes (1995), and that such error is a departure from the essential requirements of the law....

...n officer. 4. Whether the person was told that if he refused to submit to such test his privilege to operate a motor vehicle would be suspended for a period of 1 year or, in the *586 case of a second or subsequent refusal, for a period of 18 months. § 322.2615(7)(b), Fla....

...n breath test); cf. State v. Kilpatrick, 4 Fla. L. Weekly Supp. 176 (Fla. 15th Cir.Ct.1996) (defendant who intentionally fails breath test does not have right to assistance in obtaining additional blood test). A fair reading of sections 316.1932 and 322.2615 makes it clear that a driver is deemed to have consented to "an approved chemical test or physical test" "administered at the request of a law enforcement officer." [2] It is the officer who "re quests" the test, not the driver who selects it....

...The Department raises several arguments, but we find merit in only one. Accordingly, we grant the petition and quash the circuit court’s order. Rose was arrested for DUI and refused to submit to a breath test. His license was suspended pursuant to section 322.2615(1), Florida Statutes (2010). Rose requested a formal hearing under section 322.2615(6), and the hearing officer found that the arresting officer had probable cause to believe that Rose was driving a car while under the influence of alcohol....

...The issue before the hearing officer was “[wjhether the 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 chemical or controlled substances.” § 322.2615(7)(b)(l) (emphasis added)....

...No further motions. HEARING OFFICER: Okay. Counsel, your motions are denied. In a written order entered July 24, 2012, the hearing officer found “that all elements necessary to sustain the suspension for refusal to submit to a breath, blood, or urine test under section 322.2615 of the *619 Florida Statutes are supported by a preponderance of the evidence.” Corcoran sought first-tier certiorari review of the hearing officer’s final order in the circuit court for the Ninth Judicial Circuit, sitting in its appellate capacity....

...he documents pertaining to the license suspension and has the right to present evidence relevant to the issues, to cross-examine opposing witnesses, to impeach any witness, and to rebut the evidence presented against the driver. §§ 822.2615(2) and 322.2615(6)(b), Florida Statutes (2012); Rules 15A-6.012(1) and 15A-6.013(5), Fla....

...Dep’t of Highway Safety & Motor Vehicles, No. CI96-3994 (Fla. 9th CSr.Ct.1997), Aff'd, without opinion, 711 So.2d 148 (Fla. 5th DCA 1998), 711 So.2d 148 (Fla. 5th DCA 1998) (holding that a hearing officer may not quash a subpoena for a fact witness pursuant to section 322.2615(2), Florida Statutes, and Rule 15A-6.013(5), Florida Administrative Code, and the defense has the absolute right to subpoena other witnesses to testify as to whether or not the defendant exhibited any signs of impairment at or near the time of arrest)....

...of court, statutes, and constitutional law. See Nader v. Fla. Dep’t of High. Saf. & Motor Veh., 87 So.3d 712 (Fla.2012); Allstate Ins. Co. v. Kaklamanos, 843 So.2d 885, 890 (Fla.2003). The formal administrative review procedure contemplated by section 322.2615, Florida Statutes (2012), is outlined in three particular subsections. First, subsection 322.2615(7), Florida Statutes (2012), provides: In a formal review hearing under subsection (6) ......

...Whether the person whose license was suspended was told that if he or she refused to submit to such test his or her privilege to operate a motor vehicle would be suspended for a period of 1 year or, in the case of a second or subsequent refusal, for a period of 18 months. In completing the task provided in subsection 322.2615(7), subsection 322.2615(11), Florida Statutes (2012), provides the hearing officer with the following tools: The formal review hearing may be conducted upon a review of the reports of a law enforcement officer or a correctional officer, including documents...

...ath test or blood test or the refusal to take either test or the refusal to take a urine test. However, as provided in subsection (6), the driver may subpoena the officer or any person who administered or analyzed a breath or blood test. Finally, subsection 322.2615(6)(b), Florida Statutes (2012), provides guidance to the hearing officer in how to regulate his/her hearings: Such formal review hearing shall be held before a hearing officer employed by the department, and the hearing officer shall...

...lure to appear deprived him of due process and should result in the invalidation of the suspension altogether. 3 Corcoran had a statutory remedy for the failure of the witness to appear and should have pursued enforcement of the subpoena pursuant to section 322.2615(6)(c), Fla....

...We write only to state that Kubasak's reliance on State v. Muldowny, 871 So.2d 911 (Fla. 5th DCA 2004), 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 322.2615(6)(c), Florida Statutes (2005), when a subpoenaed witness has failed to appear....

...Hofer's driver's license following his arrest for driving under the influence (DUI). Because we conclude that the circuit court failed to apply the correct law when it decided that due process required that a hearing officer determine the legality of the initial stop in a postsuspension hearing authorized by section 322.2615, Florida Statutes (2006), we grant the petition and quash the circuit court's orders....

...Hofer refused to submit to a breath test after the police officer read him the implied consent warnings. Mr. Hofer's driver's license was then suspended because he refused the breath test. B. The Administrative Proceeding Mr. Hofer exercised his right to formal review, see § 322.2615(1)(b)(3), Fla....

...(2006), and challenged the suspension of his license. At the hearing, Mr. Hofer attempted to challenge the legality of the initial stop. However, the hearing officer advised Mr. Hofer that issues concerning the legality of the stop were not within the scope of review authorized by section 322.2615(7)(b) unless the circumstances surrounding the stop indicated the driver's impairment....

...Hofer refused to take the breath test after being requested to do so, and (3) Mr. Hofer was told that refusal would result in suspension. Consequently, the hearing officer sustained the suspension of Mr. Hofer's license for refusal to submit to a breath, blood, or urine test under section 322.2615....

...circuit court. Mr. Hofer's petition argued that the administrative proceeding did not afford him procedural due process because, among other things, the hearing officer refused to consider the legality of the stop. Mr. Hofer noted that according to section 322.2615, in any implied consent case, the license suspension is based on a refusal to take a breath, blood, or urine test or on an alcohol level in excess of the legal limit....

...Hofer's stop was "repugnant to any notion of due process." The DHSMV's response contended that the legislature had authorized the hearing officer's actions. The DHSMV explained that the lawfulness of the arrest was within the scope of review authorized by section 322.2615(7)(b) before October 1, 2006. The legislature, however, specifically removed the consideration of the lawfulness of the arrest from the scope of review when it amended section 322.2615(7)(b). See ch. 2006-290, § 45, at 2957, 2960-61, Laws of Fla. The DHSMV also cited Conahan v. Department of Highway Safety & Motor Vehicles, 619 So.2d 988 (Fla. 5th DCA 1993). In Conahan, the Fifth District found that section 322.2615, Florida Statutes (1991), afforded drivers procedural due process....

...PRELIMINARY CONSIDERATIONS The DHSMV's petition for second-tier certiorari contends that the circuit court departed from the essential requirements of the law because the lawfulness of the stop and arrest of a driver is not within the scope of review in a postsuspension hearing under section 322.2615(7)(b)....

...THE CIRCUIT COURT'S DUE PROCESS ANALYSIS A. Essential Requirements of the Law The circuit court departed from the essential requirements of the law in *771 reaching its conclusion that the hearing officer had to consider the legality of the arrest in an administrative proceeding under section 322.2615....

...Ins. Co. v. Lorenzo, 969 So.2d 393, 398 (Fla. 5th DCA 2007). The order granting Mr. Hofer's petition establishes the general principle that a hearing officer must consider the legality of the stop and arrest in postsuspension hearings authorized by section 322.2615....

...that warrants the exercise of this court's certiorari jurisdiction. C. The Pelham, Hernandez, and McLaughlin decisions are distinguishable. In the circuit court proceedings, Mr. Hofer briefly mentioned the relationship between sections 316.1932 and 322.2615. In Department of Highway Safety & Motor Vehicles v. Pelham, 979 So.2d 304 (Fla. 5th DCA), review denied, 984 So.2d 519 (Fla.2008), the Fifth District addressed the interplay between sections 316.1932 and 322.2615 in considerable detail....

...Department of Highway Safety & Motor Vehicles, 995 So.2d 1077 (Fla. 1st DCA 2008). However, the circuit court focused on Mr. Hofer's claim that the hearing officer must consider the legality of the stop "`in order to maintain the constitutionality of [section] 316.1932 and [section] 322.2615.'" Hofer, 15 Fla....

NORTHCUTT, Judge. Dominic Forth’s license to drive was suspended pursuant to section 322.2615(1), Florida Statutes (2011), based on a breath sample that indicated his blood-alcohol content was above the legal limit. Forth requested a formal review of the suspension, which entails a hearing before a hearing officer employed by the Department of Highway Safety and Motor Vehicles. § 322.2615(6). The hearing officer upheld the suspension. Forth sought certiorari review of the hearing officer’s order in the circuit court, §§ 322.2615(14), 322.31, and it quashed the order and remanded for further proceedings....

...The court remanded for further proceedings consistent with its opinion. Forth filed a motion for clarification, advising that the Department interpreted the circuit court’s remand for further proceedings as meaning that a new formal hearing under section 322.2615(6) must be held....

...arted from the essential requirements of law when it granted Luttrell's petition for writ of certiorari below. We agree. Following Luttrell's arrest for DUI, [1] Luttrell requested a formal administrative review of her license suspension pursuant to section 322.2615(1)(b)(3), Florida Statutes (2006)....

...lled for back-up, and one of the officers who came to the scene investigated and arrested Williamson for DUI. Williamson's driver's license was suspended when he refused the officer's request to take a breath test. At a hearing conducted pursuant to section 322.2615, Florida Statutes (2005), the department made the requisite findings and concluded that the evidence supported the suspension....

...Safety & Motor Vehicles v. Wiggins, 151 So.3d 457 (Fla. 1st DCA 2014). Here, the First District certified a question of great public importance, which we rephrase as follows: WHETHER A CIRCUIT COURT CONDUCTING FIRST-TIER CER-TIORARI REVIEW UNDER SECTION 322.2615, FLORIDA STATUTES, APPLIES THE CORRECT LAW BY REJECTING OFFICER TESTIMONY AS COMPETENT, SUBSTANTIAL EVIDENCE WHEN THAT TESTIMONY IS CONTRARY TO VIDEO EVIDENCE....

...novo review. See Jackson-Shaw Co. v. Jacksonville Aviation Auth., 8 So.3d 1076, 1084-85 (Fla. 2008). We have jurisdiction. Art. V, § 3(b)(4), Fla. Const. We answer the rephrased certified question in the affirmative and hold that in this context of section 322.2615 first-tier review, a circuit court must review and consider video evidence of the events which are of record as part of its competent, substantial evidence analysis. Further, we hold in this limited context that evidence which is totally contradicted and totally negated and refuted by video evidence of record, is not competent, substantial evidence. Statutory Background Section 322.2615, Florida Statutes, provides for the suspension of one’s driving privilege for driving under the influence (DUI)....

...ng or in physical control of a vehicle and has a blood- or breath-alcohol level of .08 or higher. Alternatively, a law enforcement officer may also suspend the driving privilege of one who refuses to submit to a urine, breath, or blood-alcohol test. § 322.2615(1)(a), Fla....

...If the driver refuses to perform a lawfully requested urine, breath, or blood test, the officer must notify the driver that his or her license will be suspended for a year, or eighteen months if the driver has previously had his or her license suspended for *1167 failure to submit to such tests. § 322.2615(1)(b)1.a. Section 322.2615 is to be read in pari materia with section 316.1932, Florida Department of Highway-Safety & Motor Vehicles v....

...Stat. (2015). Once the license is suspended, the driver may request review by the Department of Motor Safety and Vehicles (Department) through an administrative hearing before the Department within ten days after issuance of the notice of suspension. § 322.2615(1)(b)3....

...es and take testimony, receive relevant evidence, issue subpoenas for the officers and witnesses identified in documents [submitted for review], regulate the course and conduct of the hearing, question witnesses, and make a ruling on the suspension. § 322.2615(6)(b)....

...Whether the person whose license was suspehded was told that if he or she refused to submit to such test his or her privilege to operate a motor vehicle would be suspended for a period of 1 year or, in the case of a second or subsequent refusal, for a period of 18 months. § 322.2615(7)(b)....

...3d DCA 2005) (quoting Fla. Dep’t of Highway Safety & Motor Vehicles v. DeShong, 603 So.2d 1349, 1351 (Fla. 2d, DCA 1992)). Finally, the hearing officer’s decision may be reviewed by an Article V judge or judges in a circuit court by a writ of certiorari. § 322.2615(13)....

...Eventually, Saunders convinced Wiggins to exit the vehicle. Wiggins was subsequently transported to the Clay County Jail, where Saunders requested a breath test. After his arrest, Wiggins requested a formal hearing before the Department pursuant to section 322.2615....

...pute, contrary to all concepts of appellate procedure. Circuit Court Opinion and Order Subsequent to the Department’s administrative hearing decision, Wiggins filed a Petition for Writ of Certiorari in the Fourth Judicial Circuit Court pursuant to section 322.2615, Florida Statutes....

...Sheffield, 95 So.2d 912, 916 (Fla. 1957) (concerning removal of an employee of the Duval County School Board). However, this Court and. others have voiced concerns with fairness and due process specifically in the context of hearings held before Department hearing officers under section 322.2615. See, e.g,, Hernandez, 74 So.3d at 1079 (stating that a petitioner seeking review of a license suspension under section 322.2615 must be afforded reasonable notice and meaningful review of the lawfulness of the suspension); Forth v....

...s found that the hearing officer was not impartial); Fla. Dep’t of Highway Safety & Motor Vehicles v. Griffin, 909 So.2d 538, 543 (Fla. 4th DCA 2005) (“While we see no constitutional infirmity in non-lawyers serving as hearing officers under section 322.2615, we do strongly caution those hearing officers that they must take extraordinary care to be as impartial and neutral as the members of the judiciary are required to be.”); Fla....

...ese revocation hearings suggests a continuing concern about the fairness of this statutory procedure.”); Dep’t of Highway Safety & Motor Vehicles v. Stewart, 625 So.2d 123, 124 (Fla. 5th DCA 1993) (reasoning that although the procedure under section 322.2615 is expeditious and facially valid, “[l]ower courts may find, under the facts of a specific case, that a suspendee’s rights have not been respected”). Today, we address those concerns. *1172 The substance of cases that involve special issues of zoning or policy decisions greatly differ from those that involve license suspensions for DUI. A court conducting section 322.2615 first-tier certiora-ri review faces constitutional questions that do not normally arise in other administrative review settings....

...Every case involving a license suspension contains a Fourth Amendment analysis of whether there was reasonable suspicion to stop the vehicle or probable cause to believe that the driver was in physical control of the vehicle while under the influence of alcohol. § 322.2615(7)(b)1....

...While a policy that provides deference to the agency fact-finder may be appropriate in special areas such as zoning or policy decisions, which involve concepts that require a certain level of expertise that can be provided by a nonlawyer, the same does not hold true for the questions of constitutional law that arise under section 322.2615....

...Yet, the reasoning of the Department and the dissent would require exactly that. We disagree with the First District that the circuit court’s refusal to accept the officer’s testimony as competent, substantial evidence constituted a reweighing of the evidence. Notably, in another case involving section 322.2615 review, the'First District concluded that documents that are hopelessly in conflict could not amount to competent, substantial evidence....

...edetermined stamp of approval. To hold that a judge on first-tier certiorari review must accept testimony that, as here, is clearly contradicted and totally refuted by objective video evidence, would be an injustice to Florida drivers. The law under section 322.2615 is not designed to protect the decision of the hearing officer, but to preserve due process and justice....

...The law is designed and intended to protect that significant interest, not exploit it. Had the evidence in conflict been merely documentary or testimonial, as we often see in the context of other administrative hearings, perhaps more deference could be afforded to the hearing officer. In the context of section 322.2615 first-tier certiorari, however, objective and neutral video evidence is often available to confirm the true facts....

...rary to the standing orders of his superiors, and the government witness also admitted that his written report from which he testified was in conflict with the real-time video of the actual events. Accordingly, we hold that in the limited context of section 322.2615 first-tier review of a DUI license suspension, a circuit court applies the correct law by rejecting officer testimony as being competent, substantial evidence when that testimony is contrary to and refuted by objective real-time video evidence....

...the department and its divisions, about questions of law or fact concerning driving privilege litigation. Further, the court ordered that driving privileges of all parties be reinstated, [2] even though such privileges were suspended by operation of section 322.2615, Florida Statutes, and no hearing was ever held on the propriety of their suspensions....

...Prohibition is available to address the constitutionality of a statute which invalidly extends the jurisdiction of a court. Van Cott v. Driver, 243 So.2d 457, 458 (Fla. 2d DCA 1971). Here, however, the constitutionality of the statute has been upheld. Section 322.2615(6)(b), Florida Statutes, authorizes the department to conduct formal review hearings before hearing officers "employed by the department," and in Department of Highway Safety & Motor Vehicles v....

...1st DCA 1998); First Union Nat'l Bank, N.A. v. Peoples Nat'l Bank of Commerce, 644 So.2d 538, 539 (Fla. 3d DCA 1994). Additionally, the irreparable harm necessary for injunctive relief is not shown where relief is available, here, by motion to recuse once the officer's conduct occurs under section 322.2615(6)(a), Florida Statutes, or by writ of certiorari upon an adverse decision pursuant to section 322.2615(13), Florida Statutes, or by a suit for declaratory relief pursuant to section 86.011, Florida Statutes....

...fit of appropriate pleadings to clarify the issues and the agency to conduct complete discovery. We additionally conclude that the trial court went beyond the scope of the procedure by reinstating the driving privileges of the appellees. Pursuant to section 322.2615, Florida Statutes, driving privileges are automatically suspended following a DUI arrest....

...In denying Ms. Yankey's petition for writ of certiorari, the circuit court concluded that the Department was not authorized to issue such a subpoena. We conclude the *635 circuit court departed from the essential requirements of the law in interpreting section 322.2615(6)(b), Florida Statutes (2007), to prohibit the Department's issuance of this subpoena....

...The results of the test reflected breath-alcohol levels of .158 and .160 grams of alcohol per 210 liters of breath. Ms. Yankey's driving privilege was suspended based upon these results. Ms. Yankey requested a formal administrative review of the suspension. See § 322.2615(6)....

...reath test machine used to test Ms. Yankey's breath-alcohol level and who had signed the agency inspection report submitted as part of the documentation to support the license suspension. The Department refused to issue this subpoena, asserting that section 322.2615(6)(b) did not authorize it to do so. The formal review hearing was thus held without this witness, and the hearing officer ultimately sustained the administrative license suspension. Ms. Yankey sought review with the circuit court. See § 322.2615(13). [1] The circuit court denied the petition, agreeing that section 322.2615(6)(b) did not authorize the issuance of the subpoena to the agency inspector. Ms. Yankey now petitions this court for a writ of common law certiorari, seeking to quash the circuit court order. We conclude the circuit court departed from the essential requirements of the law in holding that section 322.2615(6)(b) did not authorize the Department to issue this subpoena....

...Co., 774 So.2d 679, 682 (Fla.2000); Haines City Cmty. Dev. v. Heggs, 658 So.2d 523, 528 (Fla. 1995). In this case, we conclude certiorari relief is appropriate because the circuit *636 court departed from the essential requirements of the law in interpreting section 322.2615(6)(b) to prohibit the issuance of a subpoena for the agency inspector. Moreover, this error results in a miscarriage of justice because it establishes a rule of general application in license suspension hearings within the circuit that may deprive drivers of appropriate process in these administrative hearings. [3] Section 322.2615(1) expressly permits a law enforcement officer, on behalf of the Department, to administratively suspend a driver's license when the person is driving while having an unlawful breath-alcohol level. If an officer does this, section 322.2615(2) requires the officer to forward to the Department, within five days, certain documents supporting the officer's actions. These documents must include "the results of any breath or blood test." § 322.2615(2). Section 322.2615(1)(b)(3) permits a driver whose license has been administratively suspended in this manner to request a formal review hearing. Pursuant to section 322.2615(6)(b): Such formal review hearing shall be held before a hearing officer employed by the department, and the hearing officer shall be authorized to administer oaths, examine witnesses and take testimony, receive relevant evidence, is...

...ke a ruling on the suspension. (Emphasis added.) "Subsection (2)," as referred to here and as discussed above, refers to documents that the officer who suspended the license must provide to the Department, including "the results of any breath test." § 322.2615(2). Section 322.2615(7)(a) explains the tasks then assigned to the hearing officer in such a formal review....

...pended was driving or in actual physical control of the motor vehicle in this state while under the influence of alcoholic beverages.... 2. Whether the person whose license was suspended had an unlawful ... breath-alcohol level of 0.08 or higher.... Section 322.2615(11) explains: The formal review hearing may be conducted upon a review of the reports of a law enforcement officer or a correctional officer, including documents related to the administration of a breath test.... However, as provided in subsection (6), the driver may subpoena the officer or any person who administered or analyzed a breath or blood test. To reiterate, then, in an attempt to keep these various subsections of section 322.2615 straight, subsection (6)(b), as referenced in section 322.2615(11), permits the hearing officer to issue subpoenas "for the officers and witnesses identified in documents in subsection (2)." Subsection (2) refers to those records the officer was required to provide to the Department, including "...

...sults of any breath or blood test." That is, in a formal review hearing the driver may subpoena those witnesses who are identified in documents submitted by the arresting officer, which *637 documents include the results of any breath test. Although section 322.2615(2) requires the officer to submit "breath test results," it does not indicate the format or information that must be included for these results....

...n "agency inspection report — FDLE/ATP FORM 40 — March 2004," signed by the agency inspector — the person Ms. Yankey sought to subpoena. The question presented here is whether this document is a part of the "breath test results" referred to under section 322.2615(2), thus permitting the Department to issue a subpoena to the agency inspector identified in this report pursuant to section 322.2615(6)(b)....

...ecifically requires the use of certain forms for the report, including "FDLE/ATP Form 40." Construing these provisions together, under sections 316.1932(1)(a)(2) and (b)(2), a breath test result is valid for purposes of chapter 322, and specifically section 322.2615, if performed substantially according to methods approved by the Department....

...In light of the statutory and administrative code provisions regarding the proper procedures to establish the validity of breath test results, we conclude that when the officer who administratively suspends a person's license submits breath test results pursuant to section 322.2615(2) that include the breath alcohol analysis report, a breath test affidavit, and an agency inspection report, and those documents identify specific persons, the hearing officer is authorized under section 322.2615(6)(b) to issue a subpoena to any person "identified in" those documents....

...The circuit court thus departed from the essential requirements of the law in concluding the Department was not authorized to issue a subpoena for the agency inspector. Moreover, this is the type of error that results in a miscarriage of justice meriting certiorari review. Section 322.2615 provides a driver the right to challenge a license suspension through an administrative proceeding....

...oof for the issues to be resolved by the hearing officer. We therefore grant Ms. Yankey's petition for writ of certiorari and quash the circuit court order. Petition granted; circuit court order quashed. CASANUEVA and WALLACE, JJ., Concur. NOTES [1] Section 322.2615(13) creates a statutory right of review "by petition for writ of certiorari to the circuit court." Technically, this review is not a review under the circuit court's constitutional jurisdiction to issue writs of common law certiorari....

...Karizma Kirpalani's license was suspended after she submitted to a breath test that yielded results exceeding the legal limit of .08 grams of alcohol per 100 milliliters of blood. She filed for formal review of the suspension with the Department of Highway Safety and Motor Vehicles pursuant to section 322.2615(6), Florida Statutes (2007)....

...atically [...] suspended for one year for a first refusal and 18 months if she had previously refused the test." The hearing officer overruled her objections. The hearing officer sustained the suspension of Kirpalani's driving privilege. Pursuant to section 322.2615(7)(a), Florida Statutes (2007), the hearing officer found that Deputy Maris had probable cause to believe that Kirpalani was driving a motor vehicle while under the influence of alcohol and that her blood alcohol level was .08 or higher....

...4th DCA 1981). Recently, the second district succinctly set forth the standard of review that applies in a case such as this: *505 Certiorari is the proper remedy to seek review of an administrative order sustaining the suspension of a driver's license. § 322.2615(13)....

...he lower court "reached a correct result, albeit for the wrong reason, in denying certiorari, despite its use of an erroneous standard of review"). We deny Kirpalani's petition for second tier certiorari review. Her license was suspended pursuant to section 322.2615(1)(b)(1)(b), which mandates a six month suspension where a driver has taken a breath test that established a breath alcohol level of .08 or more. Section 322.2615(1)(b)(1)(a) mandates a longer suspension of at least one year where a driver refuses to take a breath test....

...on its merits. On October 5, 1990, Scott, a resident of New Hampshire, was arrested in Lee County for driving under the influence, a violation of section 316.193, Florida Statutes (1989). The Department suspended Scott's driver's license pursuant to section 322.2615 for his refusal to submit to a blood alcohol level breath test. An informal administrative review of the suspension pursuant to section 322.2615(1)(b)3 was held at Scott's request on October 25, 1990. That review resulted in an order finding that Scott had refused to submit to the breath test and sustaining the Department's suspension of his license for one year. Section 322.2615(13) provides for appeal from the Department's decision pursuant to section 322.31....

...ntrary notwithstanding. Scott filed a petition for a writ of certiorari in the circuit court in Lee County challenging the license suspension on the merits. In his amended petition Scott challenged the suspension, as well as the constitutionality of section 322.2615 as applied to a person who is not a resident of Florida. We do not address the merits of Scott's challenge. Rather, we limit our consideration to the issue raised on this petition for certiorari, i.e., the jurisdiction of the circuit court to conduct a review under section 322.2615(13)....

...Nevertheless, because Scott was not a Florida resident, the court found it did not have jurisdiction to entertain his petition. The court held section 322.31 unconstitutional as applied to any non-Florida resident whose driver's license has been suspended pursuant to section 322.2615....

...voluntarily submitted himself to the circuit court in Lee County, and the Department acquiesced to venue in that county. Thus, we think it was appropriate for the circuit court in Lee County to conduct the review. The Florida Legislature has amended Section 322.2615(13), effective July 1, 1991 to read: "A person may appeal any decision of the department sustaining a suspension of his driver's license by a petition for writ of certiorari to the circuit court in the county wherein such person resides or wherein a formal or informal review was conducted pursuant to s....

...ANALYSIS The circuit court’s decision constituted a clear departure from the essential requirements of law. The circuit court failed to apply the correct statutory and administrative provisions governing formal review hearings for suspension of one’s driving privileges. The specific and relevant provisions are found at section 322.2615, Florida Statutes (2010), and Florida Administrative Code Chapter 15A-6.013. Section 322.2615 provides in pertinent part: (6)(a) If the person whose license was suspended requests a formal review, the department must schedule a hearing to be held within 30 days after such request is received by the department and must notify the person of the date, time, and place of the hearing....

...Relevant evidence is defined as evidence which tends to prove or disprove a material fact. (7) The hearing officer shall determine whether the suspension or disqualification is supported by a preponderance of the evidence. (a) The scope of the review shall be limited to the issues delineated in Section 322.2615(7), 322.2616(8) or 322.64(7), F.S....

...(9) The hearing officer may question any witness. (Emphasis added). The Legislature has made it clear that Florida’s Administrative Procedure *1007 Act (Chapter 120) is inapplicable to the formal review of a driver’s license suspension. Instead, the applicable procedures are outlined in section 322.2615 and in the administrative regulations adopted by the Department in Chapter 15A-6.013 of the Florida Administrative Code. Pursuant to those provisions, a formal review may be conducted without any witnesses at all, and a hearing officer’s decision may be based solely upon the documents submitted by the arresting agency. See § 322.2615(11), Fla....

...not be sufficient in itself to support a finding unless it would be admissible over objection in civil actions. (Emphasis added). The arrest affidavit was prepared by Officer Rodriguez and was admitted into evidence without objection and pursuant to section 322.2615(2) and (11), and Chapter 15A-6.013(2)....

...That arrest affidavit included Officer Wheeler’s statements to Officer Rodriguez that he (Officer Wheeler) observed Saxlehner driving the vehicle and that he (Officer Wheeler) stopped Saxleh-ner’s vehicle. The arrest affidavit and its contents were admissible evidence in a formal review hearing conducted pursuant to section 322.2615 and Chapter 15A-6.013....

...riving or in actual physical control of the vehicle. 8 However, as we have discussed, the Legislature expressly provided that a formal hearing to review a license suspension under section 822.2615 is not subject to the provisions of Chapter 120. See § 322.2615(12), Fla....

...In adopting rules for the conduct of reviews, the Department did not prohibit the admission or consideration of hearsay evidence; nor did the Department require that hearsay evidence be corroborated by non-hearsay evidence. Neither Spicer nor Chapter 120 applies to the formal review process under section 322.2615 and should not have been relied upon by the circuit court. In relying upon the hearsay provision of section 120.57(l)(c) instead of the relevant provisions of section 322.2615 and Chapter 15A-6.013, the circuit court failed to apply the correct law, thus departing from the essential requirements of law....

...inding unless it would be admissible over objection in civil actions.” See § 120.57, Fla. Stat. (2010). As we discuss, infra, however, a hearing to review a driver’s license suspension is expressly exempt from the provisions of Chapter 120. See § 322.2615(12), Fla....

...As noted earlier, Officers Rodriguez and Perez appeared, and testified, at the hearing. Saxlehner's counsel subpoenaed Officer Wheeler for the hearing, but he did not appear. The hearing officer offered Saxlehner’s counsel a ten-day continuance to seek enforcement of the subpoena as provided in section 322.2615(6)(c), but counsel declined to do so....

...y the writ. This is a case of first impression which poses the issue of whether a circuit court has the authority to stay the administrative suspension of a driver's license, pending certiorari review by the circuit court. The Department argues that section 322.2615(13) and section 322.272 prohibit the circuit court from staying the suspension order, pending certiorari review. Section 322.2615(13) states that "an appeal shall not stay the suspension," and section 322.272 provides "[t]he filing of a petition for certiorari to the circuit court does not itself stay the enforcement of the suspension, revocation, or cancellation of license....

...ourt, we think the Department failed to establish an abuse of discretion or departure from the essential requirements of the law. Thus, we deny the writ. Petition for Writ of Certiorari DENIED. DAUKSCH and GOSHORN, JJ., concur. NOTES [1] Pursuant to section 322.2615(13), Fla....

...The Department of Highway Safety and Motor Vehicles seeks second-tier certiorari review to determine whether the circuit court, sitting in an appellate capacity, properly quashed a Department of Highway Safety and Motor Vehicles' administrative order suspending Jose Wejebe's driver's license under section 322.2615, Florida Statutes (2005)....

...05-CT-3306-K (Fla. Monroe Cty. Ct. Jan. 18, 2006). Apart from the criminal charges pending against Wejebe, the Department of Highway Safety and Motor Vehicles ("DHSMV") administratively suspended *1247 Wejebe's driver's license at the time of his arrest. See § 322.2615, Fla. Stat. (2005). Wejebe sought formal review of this six-month suspension, as provided by section 322.2615, Florida Statutes....

...28 made certain factual findings, and based on these factual findings, the hearing officer determined that a preponderance of the record evidence supported an affirmance of the administrative suspension pursuant to section 322.2615(8)(a), Florida Statutes....

...ng officer’s findings that the stop and arrest were lawful. The Department asserted, in response, that there was competent substantial evidence in the record to support the hearing officer’s findings as made in the order and that, pursuant to section 322.2615(13), the circuit court was not permitted to conduct a de novo review of the issues from the administrative hearing....

...OR NO CONTEST TO A TRAFFIC INFRACTION ON WHICH THE STATE WILL RELY TO PROVE AN ELEMENT OF THE CRIMINAL TRAFFIC OFFENSE? WHETHER THE DOUBLE JEOPARDY CLAUSE BARS TRIAL ON AN OFFENDER WHO HAS PREVIOUSLY HAD HIS DRIVING PRIVILEGES SUSPENDED PURSUANT TO § 322.2615? We accepted jurisdiction pursuant to rule 9.160, Florida Rules of Appellate Procedure....

...28 made certain factual findings, and based on these factual findings, the hearing officer determined that a preponderance of the record evidence supported an affirmance of the administrative suspension pursuant to section 322.2615(8)(a), Florida Statutes....

...ng officer’s findings that the stop and arrest were lawful. The Department asserted, in response, that there was competent substantial evidence in the record to support the hearing officer’s findings as made in the order and that, pursuant to section 322.2615(13), the circuit court was not permitted to conduct a de novo review of the issues from the administrative hearing....

...e officer has reasonable and probable grounds to believe that the person has committed any offense under the provisions of this chapter or chapter 322 in connection with the crash. (Emphasis added.) The HO concluded that the Department had satisfied section 322.2615, Florida Statutes, 1 and denied *817 Williams’ claim that the arrest was unlawful....

driving privilege for one year pursuant to section 322.2615. Leonard sought formal review with the Department

contrary notwithstanding, (emphasis added) .Section 322.2615(10)(a) provides: A person whose driver’s license

...00 utilizing 8100.26 software. The test results revealed a blood alcohol level in excess of 0.08. As a result, Berne’s driver’s license was administratively suspended. Berne subsequently requested and received a formal review hearing pursuant to section 322.2615(6)(a), Florida Statutes (2005)....

...2007. Florida law requires that you surrender all driver licenses. If you have a license in your possession, please mail it to the address listed above. We note, parenthetically, that the hearing officer complied with the proper scope of review. See § 322.2615(7)(a), Fla....

...5th DCA 2000); Conahan v. Dep’t of Highway Safety & Motor Vehicles, 619 So.2d 988, 989 (Fla. 5th DCA 1993). In a formal review hearing,; the Department is only required to establish an unlawful blood-alcohol level by a preponderance of the evidence. § 322.2615(7)(a)3., Fla....

...Specifically, rules 11D-8.002 through 8.007 incorporate FDLE’s approved techniques and methods and govern how the breath testing machines must be approved, maintained, and tested. FDLE has also promulgated forms for use in implementing the implied consent law. Fla. R. Admin. Code R. 11D-8.017. Section 322.2615(11), Florida Statutes (2005), specifically provides that the formal review hearing may be conducted by the hearing officer based upon a review of the documents relating to the administration of the breath test....

...Karizma Kirpalani's license was suspended after she submitted to a breath test that yielded results exceeding the legal limit of .08 grams of alcohol per 100 milliliters of blood. She filed for formal review of the suspension with the Department of Highway Safety and Motor Vehicles pursuant to section 322.2615(6), Florida Statutes (2007)....

...tomatically [] suspended for one year for a first refusal and 18 months if she had previously refused the test." The hearing officer overruled her objections. The hearing officer sustained the suspension of Kirpalani's driving privilege. Pursuant to section 322.2615(7)(a), Florida Statutes (2007), the hearing officer found that Deputy Maris had probable cause to believe that Kirpalani was driving a motor vehicle while under the influence of alcohol and that her blood alcohol level was .08 or higher....

suspension was conducted in Lee County, Florida. Section 322.2615(13), Florida Statutes (1995), provides for

...ension of his driver’s license. We deny the petition because DHSMV has not established that the circuit court failed to afford the parties procedural due process or applied the incorrect law. Stevens’ driver’s license was suspended pursuant to section 322.2615(l)(a) of the Florida Statutes (1999) after a citation was issued to him for driving with an unlawful blood alcohol level. Stevens requested a formal review of his suspension as provided for in section 322.2615(6) of the Florida Statutes....

...vehicles-and-the officer must rely on the statements of witnesses for all -details and identifications; and other stops are made by a “fellow officer’’-who turns- it over to another-officer for the final -ar-rest. 1990 Amendment; Enactment of Section 322.2615 (Fla.Stat.1989) provided for -Implied-Consent Hearings to be conducted-hy the Department.of- Highway Safety — and Motor Vehicles,-Bureau of Driver Improvement, — Enactment-of this statute-removed jurisdiction from the county cour...

...Dep’t of Highway Safety & Motor Vehicles v. Fernandez, 114 So. 3d 266 (Fla. 3d DCA 2013); Dep’t of Highway Safety & Motor Vehicles v. Stewart, 625 So. 2d 123, 124 (Fla. 5th DCA 1993). Likewise, DHS is correct that Florida Administrative Code Rules 15A-6.013(2) and section 322.2615(2), Florida Statute (2015) provide the means by which the videotape could have been authenticated by Canalejo in the 4 absence of the live appearance of any officer at the hearing....

...of Transportation, 152 Pa. Cmwlth. 384, 391, 618 A.2d 1258, 1261 (1992), and that Hinman failed to show how he would be prejudiced by testifying at the administrative hearing, citing Nordvick v. Commissioner of Public Safety, 610 N.W.2d 659 (Minn.Ct.App.2000). Section 322.2615(l)(a), Florida Statutes, authorizes the Department to suspend a person’s driver’s license when it determines the. person was arrested for DUI. The person may request formal review of the suspension decision, which includes an evidentiary hearing. See § 322.2615(6)(a), Fla....

...Stat. Florida Administrative Code Rule 15A.6013(5) provides: The driver shall have the right to present evidence relevant to issues, to cross-examine opposing witnesses, to impeach any witness and to rebut any evidence presented against the driver. Section 322.2615(14), Florida Statutes, provides: [T]he decision of the department under this section shall not be considered in any trial for a violation of s....

...him or her in any such trial. The statute provides protection from the use of a person’s written statements against him or her, in subsequent proceedings. However, it is silent regarding the subsequent use of testimony given orally at the hearing. Section 322.2615, Florida Statutes, took effect October 10, 1990.....

...The Department argues that because a defendant is not required to testify at the administrative hearing, no Fifth Amendment violation is involved. Further, the Department claims the testimony could not be used against Hinman at a subsequent criminal trial because his testimony is part of the hearing officer’s decision. Section 322.2615(14) provides “the decision of the department under this section shall- not be considered in any trial for a violation of s....

...THIS CAUSE came before the Court upon the plaintiff’s Complaint for Injunc-tive and Declaratory Relief under Titles 42 U.S.C. § 1983 and 28 U.S.C. §§ 2201 , 1331, and 1343. The plaintiff is an attorney who represents drivers whose licenses have been affected by a new Florida state stat *693 ute, specifically F.S. § 322.2615....

...cal issues and neither side intends to present any evidence subsequent to this hearing. The Court grants the plaintiff’s request for preliminary injunctive relief as to certain portions of the “Decorum Rule” but denies it as to Florida Statute § 322.2615....

...Morley, 867 F.2d 1381 (11th Cir.1989); Northeastern Florida Chapter v. Jacksonville, Fla. 896 F.2d 1283 at 1287. n. 1 (11th Cir.1990) (C.J. Tjoflat’s concurring opinion). Although the plaintiff has raised strong arguments of constitutional dimension related to Florida Statute § 322.2615, and the defendants and the intervenor have addressed strong policy arguments for the validity and need of such statute, this Court has a duty to resist the temptation to discuss such issues where the plaintiff has no standing....

...l result in the suspension of the person’s privilege to operate a motor vehicle.... (Emphasis added.) Mr. Carrizosa’s alcohol level proved to be over the legal limit. As a result, DHSMV suspended his driver’s license for six months pursuant to section 322.2615(1), Florida Statutes (2010): 322.2615....

...or a period of 6 months for a first offense or for a period of 1 year if his or her driving privilege has been previously suspended under this section. Mr. Carrizosa requested an administrative hearing to challenge the license suspension pursuant to section 322.2615(6) and (7): (6)(a) If the person whose license was suspended requests a formal review, the department must schedule a hearing to be held within 30 days after such request is received by the department and must notify the person of the date, time, and place of the hearing....

...cause to believe that Mr. Carrizosa was driving or in actual physical control of a motor vehicle while under the influence of alcoholic beverages or chemical or controlled substances and whether Mr. Carrizosa had an unlawful blood-alcohol level. See § 322.2615(6), (7)....

...The petitioner was arrested for DUI and transported to Central Breath Testing, where he submitted to a breath test with the following results: .174 g/210L and .187 g/210L. [[Image here]] I find that all elements necessary to sustain the suspension for driving with an unlawful breath or blood alcohol level 3 under section 322.2615 of the Florida Statutes are supported by a preponderance of the evidence....

...Carrizosa sought certiorari review of the hearing officer’s order in the circuit court. He argued that the hearing officer departed from the essential requirements of law by failing to invalidate the suspension because the vehicle stop was unlawful. See § 322.2615(13); Fla. R. App. P. 9.100(c)(1). The circuit court denied relief, holding that section 322.2615(7)(a) did not allow the hearing officer to review the lawfulness of the stop....

...Carrizosa’s petition, the circuit court relied on Department of Highway Safety & Motor Vehicles v. Escobio, 6 So.3d 638 (Fla. 2d DCA 2009). Es-cobio, like this case, involved a license suspension after a breath test showed an unlawful alcohol level. We held that section 322.2615(7)(a) limited the scope of administrative review to two issues only: “(1) whether the arresting officer had probable cause to believe the person was driving or in actual physical control of -the vehicle while under the influence of...

...Carrizosa’s administrative hearing, the. supreme court decided Florida Department of Highway Safety & Motor Vehicles v. Hernandez, 74 So.3d 1070 (Fla.2011). Hernandez addressed two certified questions: Can the DHSMV suspend a driver’s license under section 322.2615, Florida Statutes, for refusal to submit to a breath test if the refusal is not incident to a lawful arrest? [[Image here]] Is the' issue of whether the refusal was incident to a lawful arrest within the allowable scope of review of a DHSMV hearing officer in a proceeding to determine if sufficient cause exists to sustain the suspension of a driver’s license under section 322.2615, Florida Statutes, for refusal to submit to a breath test? 74 So.3d at 1073 ....

...Department of Highway Safety & Motor Vehicles, 107 So.3d 1129 (Fla. 2d DCA 2012), is factually similar to Mr. Carrizosa’s case. Ms. Rudolph challenged the suspension of her license for failing a breath test after an allegedly illegal stop. Id. at 1130 . The administrative hearing officer, pursuant to section 322.2615(7)(a), refused to consider the lawfulness of the stop, and the State nolle prossed her driving-under-the-influence charge before she could challenge the stop in criminal court....

...nder section 316.1932(7)(b)(l) is "often inextricably intertwined with the lawfulness of the detention,” (2) whether the driver "refused to submit to any such test” reviewed under section 316.1932(7)(b)(2) refers to the "lawful" test required by section 322.2615(l)(b)(l)(a)," and *1022 (3) " 'sufficient cause' to sustain the suspension under section 322.2615(7) "require[s] that the hearing officer make the determination ■ of whether the test was administered incident to a lawful arrest.” Hernandez, 74 So.3d at 1078, 1079 (citation omitted). The language of sections 316.1932 and 322.2615, Florida Statutes (2007), applied in Hernandez is the same as the 2010 version applied here for purposes of this decision.

sobriety checkpoint in Santa Rosa County, Florida. § 322.2615(1), Fla.Stat. Guthrie challenged the suspension

...Pursuant to rule 9.160(e)(2), Florida Rules of Appellate Procedure, we accept jurisdiction. The questions are: WHETHER THE DOUBLE JEOPARDY CLAUSE BARS TRIAL OF AN OFFENDER WHO HAS PREVIOUSLY HAD HIS DRIVING PRIVILEGES SUSPENDED PURSUANT TO FLORIDA STATUTES SECTION 322.2615? and WHETHER THE DOUBLE JEOPARDY CLAUSE BARS TRIAL OF AN OFFENDER ON A CRIMINAL TRAFFIC OFFENSE WHERE THE OFFENDER HAS PREVIOUSLY ENTERED A PLEA OF GUILTY TO A TRAFFIC INFRACTION ON WHICH THE STATE WILL RELY TO PROVE AN ELEMENT OF TH...

...However, as we did in Robinson , we certify the following question of great public importance to the supreme court pursuant to Florida Rule of Appellate Procedure 9.030(a)(2)(A)(v): WHEN A SUSPENDEE SEEKS FORMAL REVIEW OF A DRIVER’S LICENSE SUSPENSION PURSUANT TO SECTION 322.2615(a), FLORIDA STATUTES, IS IT A VIOLATION OF DUE *1145 PROCESS TO SUSPEND THE LICENSE AFTER A SUBPOENAED WITNESS FAILS TO APPEAR AND THE SUSPENDEE CANNOT ENFORCE THE SUBPOENA WITHIN THE STATUTORILY MANDATED THIRTY-DAY PERIOD FOR FORMAL...

...competent substantial evidence. The breath alcohol test affidavit is not notarized. The refusal affidavit is merely signed. The Florida legislature established the procedure for suspending a driver’s license. (Fla. Sta. Section 322.2615)....

...‘Clearly established law’ can derive from a variety of legal sources, including controlling case law, rules of court, statutes, and constitutional law.” Dep’t of Highway Safety & Motor Vehicles, Bureau of Admin. Review v. Fernandez, 114 So. 3d 266, 270 (Fla. 3d DCA 2013) (internal citations omitted). Section 322.2615 (2)(a), Florida Statutes (2014), provides: (2)(a) Except as provided in paragraph (1)(a), the law enforcement officer shall forward to the department, within 5 days after issuing the notice of suspension, the dri...

...tment of Highway Safety (“the Department”). The controlling statutory provision is clear: “If the arresting officer ..-. fails to appear [at the formal review hearing] pursuant to subpoena ... the department shall invalidate the suspension.” § 322.2615(11), Fla....

...BACKGROUND FACTS Objio was stopped by Officer Dúrih and ultimately arrested by Officer Fowler 'for driving under the influence of alcohol. A breath test administered by Ray Garcia revealed that Objio’s blood alcohol level exceeded 0.08 percent. Pursuant to section 322.2615, Florida Statutes (2014), Ob-jio’s driver’s license was suspended, and he was issued a temporary business-only driving permit. In accordance with section 322.2615(6), Objio sought a formal review of the suspension....

...Subpoenas were issued and timely served on Dunn, Fowler, and Garcia. The subpoenas required them to attend the formal review hearing scheduled by the Department. When Officer Fowler did riot appear at the hearing, Objio moved for invalidation of the suspension pursuant to section 322.2615(11), which provides that “[i]f the arresting officer ......

...ounsel questioned Dunn and Garcia. Although the hearing officer stated that he would be'willing to continue the case and would extend the duration of Objio’s temporary driving permit, Objio’s counsel declined.' Objio reiterated his position that section 322.2615(11) was absolute in its terms and required the hearing officer to invalidate the suspension....

...At this point, the hearing officer asked whether Objio would object to a continuance; when Objio’s counsel did not provide an immediate answer, the hearing officer said he would check back with him later. The hearing officer wanted time to consider this issue because section 322.2615(11) was recently revised, so he informed Objio’s counsel that they would reconvene by recorded telephone call to complete the argu-mént and ruling on this specific issue....

...(9) provides that a temporary driving “permit may not be issued to a person who sought and obtained a continuance of the hearing.” The hearing officer entered a written order that denied Objio’s request for invalidation of the suspension under section 322.2615(11); and sustained'the license suspension....

...circuit, court by petition for certiorari. The circuit court noted that Fowler timely submitted a written request for continuance of Objio’s formal review hearing. However, no continuance was ever ordered by the hearing officer. A Department rule, that predates the revision of section 322.2615(11), provides that a properly subpoenaed witness who fails to appear at a scheduled hearing may submit a written statement showing just cause fpr the....

...The circuit court agreed with the Department that the arresting officer did not “[fail] to appear” at the hearing since he had sought a continuance, rather than simply, not showing up. The circuit court reasoned that Fowler’s absence did not trigger the mandatory invalidation provision of section 322.2615(11) and found that Objio could not avoid the consequences of license suspension by refusing to accept the hearing officer’s initial offer of a continuance. The circuit court upheld the hearing officer’s order sustaining the suspension of Objio’s license and noted that there seemed to be a conflict between sections 322.2615(6) and (11)....

...Objio does not claim that he was denied procedural due process, so we only need to decide if the circuit court applied the correct law in reaching its decision. APPLICABLE LAW The applicable law regarding the consequences of the failure of an arresting officer to appear at a review hearing is section 322.2615(11). When it comes to a. formaL review hearing, section 322.2615 treats the non-attendance of subpoenaed arresting officers differently than the nonattendance of other subpoenaed witnesses....

...Section 822.26!5(6)(e) provides that “failure of a subpoenaed witness to appear at the formal review hearing is not grounds to invalidate suspension.” (emphasis added). Even a driver’s failure to appear at his own hearing .will be excused unless “the hearing officer finds such failure to be without just cause.” Id. § 322.2615(6)(b). However, in a situation such as this, where no continuance is ordered, section 322.2615(11) is absolute, mandatory, and quite clear when it states that “[i]f the arresting officer ......

...explanation or definition, such as Florida Administrative Code Rule 15A-6.015, which was discussed above. Thus, when the arresting officer, Fowler, failed to appear at the hearing after being duly subpoenaed, the hearing officer was required, under section 322.2615(11), to invalidate the suspension of Objio’s driver’s license.. The circuit court did not apply section 322.2615(11), and thus, it did not apply the correct law in reaching its decision....

...Upon arrest, Dellacava submitted to a breath test on the Intoxilyzer 8000 utilizing software version 8100.27. The test results revealed that Dellacava’s breath-alcohol level was 0.08 or higher. As a result, his driver’s license was suspended pursuant to section 322.2615(l)(a), Florida Statutes (2009)....

...t of Highway Safety & Motor Vehicles v. Edenfield, 58 So.3d 904 (Fla. 1st DCA 2011). First, Florida Administrative Code rules 15A-6.012(6) and (7) permit hearing officers to amend, strike, or quash subpoena requests. In accordance with the Code, section 322.2615(6)(b), Florida Statutes (2013), authorizes an administrative hearing officer to issue subpoenas for police officers and witnesses, and grants the hearing officer the power to otherwise regulate and conduct the hearing. Furthermore, section 322.2615(6)(c), Florida Statutes (2013), states that “[t]he failure of a subpoenaed witness to appear at the formal review hearing is not grounds to invalidate the suspension.” Given these powers, it is reasonably inferable that the Flori...

...w. We, therefore, grant DHSMV’s petitions for certiorari and quash the orders under review. All respondents had been arrested for violating section 316.193, Florida Statutes, the DUI statute, and had their driver’s licenses suspended pursuant to section 322.2615....

the defendants were suspended pursuant to section 322.2615, Florida Statutes (1997), which provides in

...the use of a breath testing machine that had not been properly approved pursuant to FDLE Rule 11D-8.003, Florida Administrative Code. The hearing officer denied each of Klinker’s written subpoena requests by writing the word “Denied” and “F.S. 322.2615” across the the top of each request....

...On August 6, 2010, the hearing officer entered a written order sustaining Klinker’s license suspension. Klinker next sought to challenge the hearing officer’s decision to sustain his driver’s license suspension by filing a first-tier petition for writ of certiorari in the Orange County circuit court. See *838 § 322.2615(13), Fla....

...See Fla. Admin. Code Rs. 15A-6.013(1); 15A-6.002(3). The formal review process is initiated when a law enforcement officer, on behalf of the DHSMV, issues an administrative suspension to a driver for driving with an unlawful breath alcohol level. See § 322.2615(l)(a), Fla. Stat. (2010). Once this occurs, the officer is provided five days within which he or she must provide certain documentation to the DHSMV, including “the results of any breath or blood test,” which support the officer’s determination. § 322.2615(2), Fla....

...vehicle in the state while under the influence of alcoholic beverages or chemical or controlled substances, and; 2. Whether the person whose license was suspended had an unlawful ... breath-alcohol level of 0.08 or higher as provided in s. 316.193. § 322.2615(7), Fla....

...s requested by the driver at the formal administrative hearing. However the scope of the hearing officer’s subpoena-issuing power in this regard is strictly limited to “the officers and witnesses identified in documents in subsection (2) ....” § 322.2615(6)(b); Fla. Stat. (2010); Fla. Admin. Code R. 15A-6.012(1). 3 See also § 322.2615(11), Fla....

...However, as provided in subsection (6), the driver may subpoena the officer or any person who administered or analyzed a breath ... test.”). As noted above, in the present case the record demonstrates that the only documents submitted by Trooper Ramirez to the DHSMV pursuant to his section 322.2615(2) responsibilities were Klinker’s driver’s license, Trooper Ramirez’ arrest affidavit, the breath alcohol test affidavit prepared by Orange County Sheriffs Office employee Jimmy Burke, the Agency Inspection Report for the util...

...Accordingly, on the face of the record it is clear that the only individuals for whom Klinker would have the right to seek subpoenas would be Burke, Melville, and Trooper Ramirez, as these were the only “officers and witnesses identified in documents in subsection (2).” See § 322.2615(6)(b), Fla....

...Skipper has affixed his signature to numerous FDLE Inspection Reports (FDLE/ATP Form 41) as the certifying official. Thus, a key question presented in the instant case is whether an FDLE Inspection Report would qualify as a document that law enforcement must submit to the DHSMV pursuant to section 322.2615(2). If it is determined to be such a document, then it would necessarily follow that Klinker would have a statutory right to subpoena the author of that document (presumably Roger Skipper) pursuant to the express language of section 322.2615(6)(b). We conclude, however, that an FDLE Inspection Report (FDLE/ATP Form 41) is not a document which is contemplated in the language of section 322.2615(2). 4 First, a review of the language of section 322.2615(2) reveals that an FDLE Department Inspection Report could only qualify under the language of that section if it was determined to constitute “the results of any breath or blood test or an affidavit stating that a breath, blood, or...

...While it is true that a report related to “the maintenance of a breath testing instrument” is a document that the Florida Administrative Code expressly states that a hearing officer “may” consider, see Fla. Admin. Code R. 15A-6.013(2) 5 , we find that such mainte *841 nance reports do not fall within the language of section 322.2615(2), such that a law enforcement officer must provide it to the DHSMV within five days of the issuance of a notice of suspension. Moreover, since we conclude that FDLE Inspection Reports do not fall within the purview of section 322.2615(2), it follows that a driver has no right to request that a subpoena be issued for any individuals identified in such a report. See § 322.2615(6)(b), Fla....

...We conclude that such challenges to the approval process of the Intoxilyzer machine are simply beyond the scope of a formal driver’s license review proceeding. We are buttressed in this conclusion by the restrictive statutory language located in sections 322.2615(2) and 322.2615(6)(b), which require law enforcement officers to produce to the DHSMV documentation related only to the “results” of the actual breath test at issue, and which limits a hearing officer’s subpoena powers to only the individuals identified in the documents provided pursuant to section 322.2615(2)....

...consider certain pieces of documentation, such as reports related to the maintenance of a breath testing instrument, where once such consideration was required. 7 PETITION DENIED. SAWAYA, JACOBUS and BERGER, JJ., concur. . The pertinent language of section 322.2615(2), Florida Statutes (2010) is as follows: [T]he law enforcement officer shall forward to the department, within 5 days after issuing the notice of suspension, the driver’s license; an affidavit stating the officer’s grounds for...

...is facially valid.” Dep’t of Hwy. Safety & Motor Vehicles v. Stewart, 625 So.2d 123, 124 (Fla. 5th DCA 1993). . While these rules only provide a driver the right to obtain subpoenas for those individuals identified in the documents listed in section 322.2615(2), Florida Statutes, it should be noted that the hearing officer is still provided with the discretion to issue subpoenas for other witnesses he or she deems relevant to the proceedings....

...he driver.”). . Like our sister Court in Yankey v. Department of H'wy Safety & Motor Vehicles, 6 So.3d 633, 638 (Fla. 2d DCA 2009), we express no view on whether an Agency Inspection Report (FDLE/ATP Form 40) is contemplated in the language of section 322.2615(2)....

...Likewise, we find that the hearing officer correctly rejected the subpoena requests for Laura Barfield, and Jennifer Keegan. There is simply no reason to believe that either of these two individuals appeared on any of the documents submitted by law enforcement to the DHSMV pursuant to section 322.2615(2)....

...In addition, Gurry challenged the hearing officer’s qualifications to preside because he is not an attorney. The hearing officer rejected Gurry’s challenges and upheld the license suspension. Gurry then sought certiorari review in the circuit court, pursuant to section 322.2615(13), Florida Statutes....

...or not the defendant had actual notice of the suspension and the basis for it. Department of Highway Safety and Motor Vehicles v. Nikollaj, 780 So.2d 943 (Fla. 5th DCA 2001). The citation indicated Gurry’s license was suspended for a violation of section 322.2615, Florida Statutes....

...We also agree with the circuit court that Gurry’s final argument that the hearing officer had to be a lawyer is without merit. There is no statutory or constitutional requirement, that we are aware of, that requires hearing officers for the Department be attorneys. Section 322.2615(6)(b), Florida Statutes, provides: “Such formal review hearing shall be held before a hearing officer employed by the department, and the hearing officer shall be authorized to administer oaths.......

...The test results reflected a blood alcohol level between .129 and .137. The administrative hearing in this case was held on October 13, 2010. At that hearing, the hearing officer specifically refused to consider Ms. Rudolph’s challenge to the lawfulness of her stop by the Port Authority officer pursuant to section 322.2615(7)(a), Florida Statutes (2010), which provides that the hearing officer in a *1131 formal review hearing shall consider only whether the officer had probable cause to believe that the person whose license was suspended was driving or...

...els of .100 and .102. The citation Petitioner was issued indicated he was arrested for driving with an unlawful blood alcohol level, and that his license was suspended for that reason. Petitioner requested formal review of the suspension pursuant to section 322.2615, Florida Statutes (2003)....

...tive suspension of Petitioner's driver's license, finding he had an unlawful alcohol level of .08 or higher. Petitioner sought certiorari review in the circuit court. In essence, Petitioner made the following two arguments: (1) the plain language of section 322.2615(7)(a)3, Florida Statutes (2003), required the ALJ to determine whether Petitioner had an unlawful blood alcohol level, and the only evidence presented was his breath alcohol test results, which did not constitute proof of an unlawful...

...Statutory Construction A basic tenet of statutory construction compels a court to interpret a statute so as to avoid a construction that would lead to an absurd or ridiculous result. See State v. Atkinson, 831 So.2d 172 (Fla. 2002). It is evident that in enacting section 322.2615, Florida Statutes, the legislature intended to suspend the driver's licenses of persons arrested for driving with an unlawful breath or blood alcohol level....

paper work with the Department pursuant to section 322.2615(2), Florida Statutes (1999), and Florida Administrative

...Moreover, we find no provision in the pertinent statute and rule that authorizes invalidation of a DUI license suspension because a witness did not provide the hearing officer with a good reason for failing to bring evidence pursuant to a subpoena duces tecum. See § 322.2615, Fla....

...2d DCA 2002); Dep’t of Highway Safety & Motor Vehicles v. Scinta, 828 So.2d 486, 488 (Fla. 2d DCA 2002); Moore v. Palilla, 739 So.2d 1228, 1229 (Fla. 1st DCA 1999). We GRANT the petition for writ of cer-tiorari and QUASH the order below. BARFIELD, KAHN, and PADOVANO, JJ., concur. . Section 322.2615(6)(c) and rule 15A-6.013(5) authorize a party to enforce a subpoena duces tecum in circuit court when a witness has failed to comply....

...The respondent, Kathy Peterson, was arrested for driving under the influence of alcohol in violation of section 316.193, Florida Statutes (1999), on July 9, 1999. Her driver’s license was suspended for one year for refusing to submit to a blood, breath or urine test, pursuant to section 322.2615, Florida Statutes (1999)....

...to believe the person was driving under the influence; whether the driver was lawfully arrested; whether the driver refused to take the test after being requested to do so; and whether the driver was told that refusal would result in suspension. See § 322.2615(7)(b)(l)-(4), Fla....

...The court concluded that a driver’s license “may only be suspended for refusal to take a valid breath test” and that “once a defendant establishes that a valid or approved test was not available, her refusal can carry no consequences under F.S. 322.2615.” We conclude that the Department has met the standard for certiorari relief in this court on two grounds....

A DRIVER’S LICENSE SUSPENSION PURSUANT TO SECTION 322.2615(a), FLORIDA STATUTES, IS IT A VIOLATION OF

...Ramnarine, 104 So.3d 1144 (Fla. 2d DCA 2012), we certify the following question of great public importance to the supreme court pursuant to Florida Rule of Appellate Procedure 9.030(a)(2)(A)(v): WHEN A SUSPENDEE SEEKS FORMAL REVIEW OF A DRIVER’S LICENSE SUSPENSION PURSUANT TO SECTION 322.2615(a), FLORIDA STATUTES, IS IT A VIOLATION OF DUE PROCESS TO SUSPEND THE LICENSE AFTER A SUBPOENAED WITNESS FAILS TO APPEAR AND THE SUSPENDEE CANNOT ENFORCE THE SUBPOENA WITHIN THE STATUTORILY MANDATED THIRTY-DAY PERIOD FOR FORMAL ADMINISTRATIVE REVIEW? Petition denied....

...substantial evidence in the record to establish that Mr. Hirtzel was impaired by alcohol at the time he was driving. Because the circuit court conducted, in essence, a de novo review of the hearing officer’s factual findings and reweighed the evidence in violation of section 322.2615(13), Florida Statutes (2010), we grant the Department’s petition. According to the evidence presented to the hearing officer, three law enforcement officers responded to a report of a single-vehicle accident in an apartment complex, although not simultaneously....

...Hirtzel refused to attempt standard field sobriety exercises but did take a breath test. The results of the breath alcohol test were 0.196 and 0.185 grams of alcohol per 210 liters of breath, far above 0.08, the legal limit. §§ 316.193(1)(c); 322.2615(1)(a), Fla....

...pool shared by residents of the apartment complex. Unsurprisingly, the hearing officer concluded from the foregoing evidence that there was “sufficient cause . . . to sustain . . . the suspension” of Mr. Hirtzel’s driver’s license. § 322.2615(7), Fla....

...afforded procedural due process and whether the circuit court applied the correct law. Wiggins, 151 So. 3d at 461–62. The circuit court applies the incorrect law when it reweighs evidence and ignores evidence that supports the hearing officer’s decision. See § 322.2615(13), Fla....

...utes (2007), which concerns “the operation, inspection, and registration of breath test instruments utilized under the driving ... under the influence provisions ... [of] chapter[ ] 322.” The hearing officer denied petitioner’s request, citing section 322.2615(6)(b), Florida Statutes (2007). That subsection authorizes a hearing officer to “issue subpoenas for the officers and witnesses identified in documents in subsection (2).” See § 322.2615(2) & (6)(b), Fla....

...placement of the inspection reports into evidence, and further moved to invalidate the suspension of his driver’s license on the basis of the hearing officer’s failure to issue the subpoenas. The hearing officer denied both motions, again citing section 322.2615(6)(b), and ruling that the inspection reports are not among the specific documents listed in section 322.2615(2) in connection with which hearing officers may issue subpoenas....

...istrative hearing. The circuit court denied the petition, concluding that the failure to issue subpoenas did not constitute a denial of due process. Petitioner now seeks from us a writ of certiorari to quash the circuit court’s ruling. Pursuant to section 322.2615, Florida Statutes (2007), petitioner was entitled to a full administrative review of the department’s suspension of his driver’s license....

...However, as petitioner pointed out at the hearing, the department’s inspection report contains handwritten alterations. According to the department’s own rules, the procedural due process rights *757 afforded a driver when seeking review of a license suspension pursuant to section 322.2615 include “the right to present evidence relevant to the issues, to cross-examine opposing witnesses, to impeach any witness, and to rebut the evidence presented against the driver.” See Fla. Admin. Code R. 15A-6.013(5). When formal review is requested, section 322.2615(6)(b) authorizes the hearing officer “to administer oaths, examine witnesses and take testimony, receive relevant evidence, issue subpoenas for the officers and ivitnesses identified in documents in subsection (2), regulate the cou...

...Notwithstanding s. 316.066(7), the crash report shall be considered by the hearing officer. In denying petitioner’s request to issue subpoenas for the individuals who inspected the breath test instrument, the hearing officer necessarily construed the reference in section 322.2615(6)(b) to “documents in subsection (2)” to mean only those listed documents that must be submitted by the law enforcement officer within five days after issuing the notice of suspension, the videotape of the field sobriety test and the accident report, if any....

...The circuit court obviously agreed with that interpretation. We, however, agree with petitioner that the clear language of subsection (2) refers not only to the foregoing explicitly named materials but also, by its express terms, to “any evidence submitted at or prior to the hearing.” See § 322.2615(2) (emphasis added)....

...ng officer.” Therefore, for the hearing officer to consider the inspection reports on the department’s behalf but deny petitioner the right meaningfully to cross-examine the individuals who prepared those reports not only evinces a misreading of section 322.2615(2), but violates the basic principles of due process to which petitioner was entitled in this proceeding, as clearly reflected in the previously mentioned applicable statutory sections and department rules....

..., therefore, due process applies to its denial, quoting Mackey v. Montrym, 443 U.S. 1, 10-11 , 99 S.Ct. 2612 , 61 L.Ed.2d 321 (1979)). In its order, the circuit court likewise concluded that the hearing officer did not have the authority pursuant to section 322.2615(6)(b) to issue the requested subpoenas....

...f law resulting in a miscarriage of justice.’ ” Clay County, 969 So.2d at 1180 (quoting Combs v. State, 436 So.2d 93, 96 (Fla.1983)). As noted above, however, by generally referring to “documents” without further specification or limitation, section 322.2615(6)(b) unambiguously contemplates that a hearing officer may issue subpoenas for the officers and witnesses identified not only in the documents actually named in subsection (2), but also in “any [documentary] evidence submitted at...

...ehicle would be suspended for a period of 1 year or, in the case of a second or subsequent refusal, for a period of 18 months. I find that all elements necessary to sustain the suspension for refusal to submit to a breath, blood, or urine test under section 322.2615 of the Florida Statutes are supported by a preponderance of the evidence. (Emphasis added). Ms. Cherry then sought first-tier certio-rari review in the circuit court for the Ninth Judicial Circuit. See § 322.2615(13), Fla....

...Cherry] did not complete the test (within the judgment of the breath technician) should not be considered as evidence of a refusal to submit to a breath-alcohol test within contemplation of the statutes. Accordingly, the Department failed to meet its burden as to the required element under section 322.2615(7)(b)2., Florida Statutes, because it did not show by a preponderance of the evidence that [Ms....

...Whether the person whose license was suspended was told that if he or she refused to submit to such test his or her privilege to operate a motor vehicle would be suspended for a period of 1 year or, in the case of a second or subsequent refusal, for a period of 18 months. § 322.2615(7)(b), Fla. Stat. (2010) (emphasis added). “The hearing officer shall determine by a preponderance of the evidence whether sufficient cause exists to sustain, amend, or invalidate the suspension.” § 322.2615(7), Fla....

...ber of valid breath samples constitutes a refusal to submit to the breath test,” it follows that there was competent, substantial evidence to support the hearing officer’s determination that Ms. Cherry had refused to submit to a breath test. See § 322.2615(11), Fla....

...dayman read the Implied Consent Warnings and requested that respondent submit to a breath and urine test, but respondent refused again. His driver’s license was thereafter suspended for failure to submit to a breath test. Pursuant to Chapter 15A-6, Florida Administrative Code, and section 322.2615, Florida Statutes (2010), respondent timely requested an administrative hearing....

...er stopping his vehicle for speeding. After Robinson refused to submit to a breath-alcohol test, his license was suspended. Robinson requested a formal administrative review hearing within thirty days to challenge the suspension of his license under section 322.2615(6)(a), Florida Statutes (2010)....

...e, Robinson’s counsel moved to invalidate the suspension. The hearing officer denied the request to invalidate the license suspension due to Giordano’s absence, but offered to continue the hearing so that counsel could enforce the subpoena under section 322.2615(6)(c)....

...Vaillant, 419 So.2d 624, 626 (Fla. 1982). “Applying the correct law incorrectly does not warrant certiorari review.” Stranahan House, Inc. v. City of Fort Lauderdale, 967 So.2d 1121, 1125 (Fla. 4th DCA 2007) (citing Ivey v. Allstate Ins. Co., 774 So.2d 679 (Fla.2000)). Section 322.2615(6) outlines the administrative review procedures for a formal review of a driver’s license suspension....

...dicial circuit in which the person failing to comply with the subpoena resides. A failure to comply with an order of the court shall result in a finding of contempt of court. However, a person is not in contempt while a subpoena is being challenged. § 322.2615(6)(a), (b), (c)....

...on received. The DHSMV contends that the circuit court has improperly broadened the due process standard to include a violation of due process when a subpoenaed witness fails to appear despite Robinson’s failure to enforce the subpoena pursuant to section 322.2615(6)(c)....

...ed to appear. However, the circuit court found that the suspension was not a due process violation since the witness’ failure to appear was not the result of any action of the hearing officer and the sus-pendee failed to enforce the subpoena under section 322.2615(6)(c)....

...ue. Accordingly, we certify the following question of great public importance to the supreme court pursuant to Florida Rule of Appellate Procedure 9.030(a)(2)(A)(v): WHEN A SUSPENDEE SEEKS FORMAL REVIEW OF A DRIVER’S LICENSE SUSPENSION PURSUANT TO SECTION 322.2615(a), FLORIDA STATUTES, IS IT A VIOLATION OF DUE PROCESS TO SUSPEND THE LICENSE AFTER A SUBPOENAED WITNESS FAILS TO APPEAR AND THE SUSPENDEE CANNOT ENFORCE THE SUBPOENA WITHIN THE STATUTORILY MANDATED THIRTY-DAY PERIOD FOR FORMAL ADMIN...

their driving privileges suspended pursuant to section 322.2615, Florida Statutes (1995). See State v. Henn

...ear Sheriff Cannon: You have asked for my opinion on substantially the following questions: 1. Is a document that is verified by the written declaration described in section 92.525 (1)(b) and (2), Florida Statutes, an "affidavit" within the scope of section 322.2615 (2), Florida Statutes, if the document is not attested to before an officer authorized to administer oaths? 2....

...tes? In sum: 1. A document that contains the written declaration set forth in section 92.525 (2), Florida Statutes, and that has not been attested to before an officer authorized to administer oaths does not constitute an "affidavit" for purposes of section 322.2615 , Florida Statutes....

...Thus, when a statute, administrative rule, or order of court requires that a document be verified, the terms of section 92.525 , Florida Statutes, provide a form for that verification. Section 92.525 , Florida Statutes, does not purport to convert a document into an affidavit by inclusion of the verification language. Section 322.2615 , Florida Statutes, is the administrative driver's license suspension statute....

...as requested by a law enforcement officer or correctional officer and that the person arrested refused to submit; a copy of the citation issued to the person arrested; and the officer's description of the person's field sobriety test, if any. (e.s.) Section 322.2615 (2), Florida Statutes, by its terms, specifically requires the submission of affidavits rather than permitting the use of verified documents pursuant to section 92.525 . A suspended driver may contest the suspension of driving privileges either informally pursuant to section 322.2615 (4) or formally under subsection (6)....

...s and take testimony, receive relevant evidence, issue subpoenas, regulate the course and conduct of the hearing, and make a ruling on the suspension." The Department of Highway Safety and Motor Vehicles has adopted administrative rules implementing section 322.2615 ....

...Therefore, it is my opinion that a document with a written declaration as provided in section 92.525 , Florida Statutes, but without attestation by an officer authorized to administer oaths, does not constitute an "affidavit" required for administrative driver's license suspensions under section 322.2615 , Florida Statutes....

...Padilla, determined that "section 92.525 contemplates that an affidavit may include such language and may be recognized as properly verified on information or belief and be sufficient to subject affiant to the penalties of perjury." 5 In that case the proof of probable cause for a driver's license suspension as required by section 322.2615 , Florida Statutes, consisted of the arresting officer's written statement to which he swore, "The above statement is correct and true to the best of my knowledge and belief." The officer had been fully and properly sworn before an authorized attesting officer....

...it was part of the documents submitted by the law enforcement officer for consideration at the formal hearing. This contention is simply incorrect and directly contradicts the statutory and administrative provisions governing formal review hearings. Section 322.2615(2), Florida Statutes (2009), provides that the only documents required to be in affidavit form are: — The officer’s statement of grounds for belief that the person was driv *1087 ing under the influence of alcoholic beverages or...

...t (setting forth the officer’s description of the driver’s performance of any field sobriety exercises); the results of any breath or blood test; a crash report or videotape of the field sobriety exercises — be in affidavit form or under oath. Section 322.2615(2) provides: Materials submitted to the department by a law enforcement agency or correctional agency shall be considered self-authenticating and shall be in the record for consideration by the hearing officer. Section 322.2615(11) provides: The formal review hearing may be conducted upon a review of the reports of a law enforcement officer ... including documents relating to the administration of a breath test or blood test or the refusal to take either test or the refusal to take a urine test. Finally, section 322.2615(12), provides that the formal hearing is “exempt from the provisions of chapter 120....

...The circuit court, in determining that the speeding citation was improperly considered or relied upon by the hearing officer to establish reasonable suspicion for the initial stop, constitutes a failure to apply the clearly-established provisions of section 322.2615 of the Florida Statutes and Chapter 15A-6.013(2) of the Florida Administrative Code....

...She was issued a DUI uniform citation, suspending her driver’s license for one year. She timely applied for a formal review hearing to challenge this suspension. At the hearing, the Department of Highway Safety and Motor Vehicles (“the Department”) relied on the reports of the arresting officer pursuant to section 322.2615(11), Florida Statutes (2013), including a Refusal Affidavit signed by the officer and attesting that he was a duly certified law enforcement officer....

...then argued that the Department had failed to present evidence that the officer was properly certified, because the original certificate had expired. The hearing officer rejected that claim, relying on the documentary evidence, and approved the license suspension under section 322.2615(1)(a), Florida Statutes (2013). Petitioner filed a petition for writ of certiorari to the circuit court....

...at he was a duly certified officer. As the hearing officer is permitted by statute to rely on such evidence, the Department carried its initial burden. See Dep’t of Highway Safety & Motor Vehicles v. Mowry, 794 So. 2d 657, 658 (Fla. 5th DCA 2001); § 322.2615(11), Fla....

...A future DUI or a refusal to take a breath test would call for consideration of the prior record, and the driver could face longer administrative penalties for each one, as well as prohibitions against issuance of a restricted driver’s license. See, e.g., §§ 322.2615(8)(a),(b) and 322.271(2)(a), Fla....

...icense rather than remand the matter to the hearing officer for further proceedings. We agree and grant the petition. In March 2013, Futch was arrested for driving under the influence (DUI). He refused to submit to a breath alcohol test. Pursuant to section 322.2615(1), Florida Statutes (2013), DHSMV placed an administrative refusal suspension on Futch’s driver’s license. Futch requested a formal administrative suspension review hearing under section 322.2615(6), Florida Statutes (2013). At the hearing, DHSMV submit *912 ted the required documents pursuant to section 322.2615(2), Florida Statutes (2013)....

...bmit to the test. Thereafter, Futch sought certiorari review in the circuit court. A hearing officer’s decision to sustain a suspension of a person’s driver’s license is reviewable in a petition for writ of certiorari in the circuit court. See § 322.2615(13), Fla....

...n given an opportunity to be heard.” Dep’t of Highway Safety & Motor Vehicles v. Corcoran, 133 So.3d 616, 620 (Fla. 5th DCA 2014). “The procedural due process rights afforded a driver when seeking review of a license suspension pursuant to section 322.2615 include ‘the right to present evidence relevant to the issues, to cross-examine opposing witnesses, to impeach any witness, and to rebut the evidence presented against the driver.’ ” Lee v....

...Robert S. Reiff, Miami, for appellee. Before RAMIREZ, SHEPHERD, and SALTER, JJ. SHEPHERD, J. The State of Florida, Department of Highway Safety and Motor Vehicles appeals a circuit court order to the Department to enforce a subpoena issued, pursuant to section 322.2615(6)(b), Florida Statutes (2010), to Miami-Dade County Police Officer Robert McGrath to appear at a formal review administrative hearing requested by Carolina Leyva to contest the suspension of her driver's license for driving under the influence of alcohol. We reverse the order under review. The procedure to enforce noncompliance by a witness with the subpoena issued pursuant to section 322.2615(6)(b) appears in the next succeeding subsection and reads as follows: (c) A party may seek enforcement of a subpoena under paragraph (b) 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. A failure to comply with an order of the court shall result in a finding of contempt of court. However, a person is not in contempt while a subpoena is being challenged. § 322.2615(6)(c) Fla....

...Appellee was arrested for driving under the influence (DUI) in violation of section 316.193, Florida Statutes (1995). After being informed of the penalties for refusing to submit to a blood test, she refused, and her license was suspended for one year pursuant to section 322.2615, Florida Statutes (1995)....

...Many questions are raised by the review being sought before this court: (1) whether the petition for stay should have been filed in the lower tribunal [1] , the DMV Bureau of Administrative Review; (2) whether a stay pending appeal may even be granted in view of the proscription of section 322.2615(13), Florida Statutes (1995); (3) whether review by this court is more appropriately sought by a petition for certiorari than by an appeal of a non-final order....

...Saylor repeatedly informed Seritchfield that he was refusing to take the test by his statement and prepared an affidavit of refusal to submit to breath, urine or blood test. Later, Seritchfield requested a formal review of the license suspension pursuant to section 322.2615(l)(b)(3), Florida Statutes (1993)....

PER CURIAM. The Department of Highway Safety and Motor Vehicles petitions this court to quash an order of the circuit court which overturned a hearing officer’s order suspending the driver’s license of respondent Gregory Lanning pursuant to section 322.2615, Florida Statutes....

and received a formal review hearing under section 322.2615, Florida Statutes (2017), challenging his

and received a formal review hearing under section 322.2615, Florida Statutes (2017), challenging his

...Lee Lockett of Stone Lockett, PA, Jacksonville Beach, for Respondent. PER CURIAM. The Department of Highway Safety and Motor Vehicles petitions this court to quash an order of the circuit court which overturned a hearing officer’s order suspending the driver’s license of respondent Gregory Lanning pursuant to section 322.2615, Florida Statutes....

...We grant certiorari and quash the Order under review thereby reinstating the suspension of respondent’s driver license. Respondent was arrested for driving under the influence and his driver license was subsequently suspended for one year for refusal to submit to a blood, breath or urine test pursuant to section 322.2615, Florida Statutes (1999)....

...orari. We find that the Circuit Court erred by entering an Order staying the suspension of respondent’s driver license pending the outcome of the certiorari review. “A court may not stay the administrative suspension of a driving privilege under s. 322.2615 or s....

...subsections of the statute detail those circumstances in which the Department must either suspend or revoke an individual’s driver’s license. Subsection (5) of the statute provides: A court may not stay the administrative suspension of a driving privilege under s. 322.2615 or s....

...We granted the certiorari petitions, finding that the orders departed from the essential requirements of law by violating section 322.28(5). Id. We explained that all the respondents had been arrested for violating section 316.193, the DUI statute, and had their licenses suspended pursuant to section 322.2615....

...2d DCA 2000) (granting the Department’s certiorari petition and holding that the order staying the suspension of the respondent’s driver’s license, which was suspended for one year for refusing to submit to a blood, breath, or urine test pursuant to section 322.2615, violated section 322.28(5)); Dep’t of Highway Safety & Motor Vehicles v. Olivie, 753 So. 2d 593, 593 (Fla. 3d DCA 2000) (noting that the respondent’s driver’s license was suspended for one year for refusing to submit to a blood, breath, or urine test pursuant to section 322.2615 and granting the petition for certiorari on the ground that the circuit court erred by entering an order staying the respondent’s driver’s license suspension pending the outcome of the certiorari review); Anderson v....

...�s license, which occurred after he refused to submit to a breath, blood, or urine test, given the 1999 amendment to section 322.28 prohibiting stays). We find the Department’s reliance upon Begley misplaced as this case does not involve section 322.2615. As for section 322.28(5), that statute does not expressly apply to hardship or restricted licenses and participation in and dismissal from DUI programs. Nor does it cite to section 322.271 as it does sections 322.2615 and 322.2616....

...cation is required, this case involves subsection (5)(c) and the cancellation of a hardship license. We also find it significant that section 322.271 does not expressly prohibit stays as do section 322.28(5) and other statutes in chapter 322. See § 322.2615(13), Fla....

DWLS where the suspension was imposed under section 322.2615, Florida Statutes (1995) (providing for license

...vel. The circuit court granted Mr. Escobio’s petition for certiora-ri and quashed the Department’s order on two separate bases. First, the circuit court held that the Department departed from the essential requirements of the law by interpreting section 322.2615(6)(b), Florida Statutes (2006)* to prohibit the hearing officer from issuing a subpoena for the agency inspector responsible for maintaining the breath testing equipment used to test Mr....

...As to the circuit court’s first basis for granting the petition, in Yankey v. Department of Highway Safety & Motor Vehicles, No. 2D08-2045, 6 So.3d 633 , 2009 WL 416514 (Fla. 2d DCA Feb. 20, 2009), an opinion we issue simultaneously with this opinion, we have concluded that section 322.2615(6)(b) and related statutory *640 and administrative provisions require the Department to issue a subpoena to the agency inspector when the agency inspector is identified in documents submitted to the Department to validate the breath test results....

...of the law in concluding that the hearing officer performing the formal administrative review hearing was required to address whether Mr. Escobio was placed under lawful arrest for a violation of section 316.193, Florida Statutes (2006). Pursuant to section 322.2615(7)(a), Florida Statutes (2006), the hearing officer’s review is limited to determining only (1) whether the arresting officer had probable cause to believe the person was driving or in actual physical control of the vehicle while u...

...2) whether the person had an unlawful breath- or blood-alcohol level. 1 We therefore quash that portion of the circuit court’s order granting Mr. Escobio’s petition for writ of certiorari on this issue. This issue centers on recent amendments to section 322.2615. Prior to October 1, 2006, section 322.2615(1)(a), Florida Statutes (2005), required a law enforcement officer to “suspend the driving privilege of a person who has been airested by a law enforcement officer for a violation of s. 316.193, relating to unlawful blood-alcohol level or breath-alcohol level.” (Emphasis added.) A driver whose license was suspended in this manner could request a formal review pursuant to section 322.2615(6). Under section 322.2615(7)(a), the scope of this formal review was limited to three issues: (1) whether the arresting officer had probable cause to believe the person was driving or in actual physical control of the vehicle while under the influence of alco...

...violation of section 316.193, and (3) whether the person had an unlawful breath- or blood-alcohol level. Effective October 1, 2006, however, the Florida Legislature amended these provisions. See ch. 2006-290, §§ 45, 51, at 2957, 2965, Laws of Fla. Section 322.2615(1)(a), Florida Statutes (2006), now requires a law enforcement officer to “suspend the driving privilege of a person who is driving or in actual physical control of a motor vehicle and who has an unlawful blood-alcohol or breath-alcohol level.” The statute no longer refers to “a person who has been arrested.” More important, section 322.2615(7)(a) now limits the scope of the administrative review to two issues: (1) whether the arresting officer had probable cause to believe the person was driving or in actual physical control of the vehicle while under the influence of a...

...coholic beverages, and (2) whether the person had an unlawful breath- or blood-alcohol level. The statute no longer permits the hearing officer to consider “[wjhether the person was placed under lawful arrest *641 for a violation of s. 316.193.” § 322.2615(7)(a)(2), Fla....

...Escobio does not dispute that the amended statute applies in this case, nor does he challenge the validity of the amended statute. Rather, he argued to the circuit court and now argues to this court that the interplay of sections 316.1932, Florida Statutes (2006), and section 322.2615, as amended, continue to permit the hearing officer to consider the legality of the arrest in determining whether to sustain the administrative license suspension....

...2 In Pelham , Jesse Pelham’s license was suspended after he refused to take a breath-alcohol test. 979 So.2d at 305 . Pelham requested a formal administrative hearing and sought to challenge the legality of his arrest in that proceeding. The hearing officer refused to consider this issue in light of the 2006 amendments to section 322.2615(7)....

...erson was placed under lawful arrest for a violation of s. 316.193” when assessing whether a license was properly suspended for refusing to take a breath-alcohol test. See id. at 306 . The Fifth District acknowledged that the amended provisions of section 322.2615(7)(b) applied in Pelham ....

...It necessarily follows that an individual does not violate the Implied Consent Law when he or she refuses to take a test that is not incidental to a lawful arrest. Pelham, 979 So.2d at 305-306 . The Fifth District concluded that sections 316.1932 and 322.2615 were interde *642 pendent and had to be read in pari mate-ria....

...h the opinion. See McLaughlin v. Dep’t of Highway Safety & Motor Vehicles, 2 So.3d 988 (Fla. 2d DCA 2008). In McLaughlin , a case also involving the driver’s refusal to submit to a breath-alcohol test, we concluded that the plain language of section 322.2615(7)(b) limits the hearing officer’s scope of review and excludes any consideration of the lawfulness of the arrest and that that section could not be read in pari materia with section 316.1932 to create an ambiguity that did not exist....

...He has pointed to no authority suggesting that the manner in which his consent was obtained invalidates the consent or to any authority that would invalidate or render inadmissible the results of such a test in an administrative proceeding based upon the manner in which the consent was obtained. Rather, the plain language of section 322.2615 requires the suspension of a driver’s license when that driver is shown to have operated a motor vehicle while having an unlawful breath-alcohol level. It limits the driver’s administrative review of the suspension to these two issues. § 322.2615(1)(a), (7)(a)....

...lding that the hearing officer was required to consider the legality of Mr. Escobio’s arrest when reviewing the suspension of Mr. Escobio’s license for driving with an unlawful breath-alcohol level. The circuit court was compelled to comply with section 322.2615(7)(a), as amended effective October 1, 2006....

...ge of justice and is thus appropriate for certiorari review. Dep’t of Highway Safety & Motor-Vehicles v. Snelson, 817 So.2d 1045, 1048 (Fla. 2d DCA 2002). Petition granted in part; denied in part. CASANUEVA and WALLACE, JJ., concur. . Although section 322.2615(7)(a) limits the scope of the administrative review in this manner, the statute obviously does not affect a driver's ability to challenge the lawfulness of his arrest in a criminal proceeding arising from the same circumstances or the legality of law enforcement’s actions in a civil proceeding....

...tition filed in the circuit court, more than 30 days after the circuit court rendered its decision in the prior petition. However, because Petitioner did not request a second formal review hearing after remand and, because there is no language in section 322.2615 of the Florida Statutes which requires a second formal review hearing be scheduled within 30 days after remand, we find no error and deny the petition. I....

...BACKGROUND On May 9, 2015, Petitioner was arrested and charged with driving under the influence of alcohol. The Florida Department of Highway Safety and Motor Vehicles (“Department”) suspended his driver’s license for twelve (12) months pursuant to section 322.2615, Florida Statutes (2015), because he refused to submit to a breath alcohol test....

...the second formal hearing for March 2, 2017—which was more than thirty days after the 3 circuit court’s January 23, 2017 opinion was rendered—the circuit court was required, pursuant to sections 322.2615(6)(a) and 322.2615(9), Florida Statutes (2017), to quash his license suspension instead of remanding the matter back to the Department for a second formal review hearing....

...In support of his due process argument, Petitioner and his counsel submitted affidavits attesting that neither received notice of the March 2, 2017 hearing. On March 26, 2018, another panel of the circuit court issued an opinion specifically rejecting Petitioner’s argument that section 322.2615(6)(a) required the Department to schedule a second formal review hearing within thirty days after remand, absent a request from Petitioner....

...26, 2018).1 In so doing, the circuit court found that there is “no statutory language as to the timeline for a formal hearing to be held by the Department upon remand [from a prior petition].” Id. Accordingly, it concluded that the remedy Petitioner sought under section 322.2615(9), i.e., invalidation of his license suspension, was not available absent a renewed or new request by Petitioner....

...the instant petition. Petitioner advances two grounds on which he contends the circuit court failed to correctly apply the law: (1) its determination that invalidation of the suspension of his license was not required pursuant to sections 322.2615(6)(a), (9) 2 Pursuant to the circuit court’s March 26, 2018 opinion, the Department rescheduled a third formal review hearing for April 19, 2018, almost two months before the instant petition was filed in this court....

...To do so would be an abrogation of legislative power.” City of Homestead v. McDonough, 232 So. 3d 7 1069, 1072 (Fla. 3d DCA 2017) (emphasis omitted) (quoting Holly v. Auld, 450 So. 2d 217, 219 (Fla. 1984)). Section 322.2615(6)(a) provides that “[i]f a person whose license was suspended requests a formal review, the department must schedule a hearing within 30 days after such request is received by the department and must notify the person of the date, time, and place of the hearing.” § 322.2615(6)(a). However, we agree with the circuit court’s finding that nothing in the language of Section 322.2615 sets forth a specific period of time within which the Department is required to schedule a formal hearing upon remand. The only statutory trigger outlined in section 322.2615(6)(a) that requires the Department to schedule a formal hearing within a thirty-day time frame is when “the person whose license was suspended requests a formal review.” § 322.2615(6)(a) (emphasis added). Here, it is undisputed that Petitioner made no request for a second formal review hearing after remand. As such, we find the circuit court’s application of section 322.2615(6)(a) in Petitioner’s first-tier certiorari petition consistent with the plain language of the statute. Thus, because Petitioner made no request for a second or renewed formal review hearing after remand, the remedy Petitioner sought under section 322.2615(9), i.e., invalidation of his license suspension, was not available. 8  Further, we find no error in the circuit court’s review and acceptance of Petitioner and his counsel’s p...

...9 District’s holding and reasoning in Gordon v. Fla Dept. of Highway Safety & Motor Vehicles, 166 So. 3d 902 (Fla. 4th DCA 2015). CONCLUSION For the reasons set forth above, the circuit court correctly applied section 322.2615 in determining that Petitioner’s license suspension was not required to be invalidated thereunder....

...tition filed in the circuit court, more than 30 days after the circuit court rendered its decision in the prior petition. However, because Petitioner did not request a second formal review hearing after remand and, because there is no language in section 322.2615 of the Florida Statutes which requires a second formal review hearing be scheduled within 30 days after remand, we find no error and deny the petition. I....

...BACKGROUND On May 9, 2015, Petitioner was arrested and charged with driving under the influence of alcohol. The Florida Department of Highway Safety and Motor Vehicles (“Department”) suspended his driver’s license for twelve (12) months pursuant to section 322.2615, Florida Statutes (2015), because he refused to submit to a breath alcohol test....

...the second formal hearing for March 2, 2017—which was more than thirty days after the 3 circuit court’s January 23, 2017 opinion was rendered—the circuit court was required, pursuant to sections 322.2615(6)(a) and 322.2615(9), Florida Statutes (2017), to quash his license suspension instead of remanding the matter back to the Department for a second formal review hearing....

...In support of his due process argument, Petitioner and his counsel submitted affidavits attesting that neither received notice of the March 2, 2017 hearing. On March 26, 2018, another panel of the circuit court issued an opinion specifically rejecting Petitioner’s argument that section 322.2615(6)(a) required the Department to schedule a second formal review hearing within thirty days after remand, absent a request from Petitioner....

...26, 2018).1 In so doing, the circuit court found that there is “no statutory language as to the timeline for a formal hearing to be held by the Department upon remand [from a prior petition].” Id. Accordingly, it concluded that the remedy Petitioner sought under section 322.2615(9), i.e., invalidation of his license suspension, was not available absent a renewed or new request by Petitioner....

...the instant petition. Petitioner advances two grounds on which he contends the circuit court failed to correctly apply the law: (1) its determination that invalidation of the suspension of his license was not required pursuant to sections 322.2615(6)(a), (9) 2 Pursuant to the circuit court’s March 26, 2018 opinion, the Department rescheduled a third formal review hearing for April 19, 2018, almost two months before the instant petition was filed in this court....

...To do so would be an abrogation of legislative power.” City of Homestead v. McDonough, 232 So. 3d 7 1069, 1072 (Fla. 3d DCA 2017) (emphasis omitted) (quoting Holly v. Auld, 450 So. 2d 217, 219 (Fla. 1984)). Section 322.2615(6)(a) provides that “[i]f a person whose license was suspended requests a formal review, the department must schedule a hearing within 30 days after such request is received by the department and must notify the person of the date, time, and place of the hearing.” § 322.2615(6)(a). However, we agree with the circuit court’s finding that nothing in the language of Section 322.2615 sets forth a specific period of time within which the Department is required to schedule a formal hearing upon remand. The only statutory trigger outlined in section 322.2615(6)(a) that requires the Department to schedule a formal hearing within a thirty-day time frame is when “the person whose license was suspended requests a formal review.” § 322.2615(6)(a) (emphasis added). Here, it is undisputed that Petitioner made no request for a second formal review hearing after remand. As such, we find the circuit court’s application of section 322.2615(6)(a) in Petitioner’s first-tier certiorari petition consistent with the plain language of the statute. Thus, because Petitioner made no request for a second or renewed formal review hearing after remand, the remedy Petitioner sought under section 322.2615(9), i.e., invalidation of his license suspension, was not available. 8  Further, we find no error in the circuit court’s review and acceptance of Petitioner and his counsel’s p...

...9 District’s holding and reasoning in Gordon v. Fla Dept. of Highway Safety & Motor Vehicles, 166 So. 3d 902 (Fla. 4th DCA 2015). CONCLUSION For the reasons set forth above, the circuit court correctly applied section 322.2615 in determining that Petitioner’s license suspension was not required to be invalidated thereunder....

...The two test results indicated that Wiggen had a breath-alcohol level of 0.161 and 0.163, respectively, over twice the legal limit. Kaphan arrested Wiggen for driving under the influence. DHSMV administratively suspended Wiggen’s driver’s license for six months under section 322.2615(l)(a), Florida Statutes (2011). Wiggen requested a formal administrative review before a DHSMV hearing officer under section 322.2615(l)(b)(3), Florida Statutes (2011)....

...15A-6013 (2011). These hearings are presided over by a hearing officer, who is tasked with the responsibility of “determining] whether the suspension ... is supported by a preponderance of the evidence.” Fla. Admin. Code R. 15A-6013 (2011); see also § 322.2615(7), Fla....

...motor vehicle in the state while under the influence of alcoholic beverages or chemical or controlled substances. 2. Whether the person whose license was suspended had an unlawful ... breath-alcohol level of 0.08 or higher as provided in s. 316.193. § 322.2615(7)(a)....

...Novack, of Jaeger and Blankner, Orlando, for Respondent. EVANDER, J. Petitioner, Department of Highway Safety and Motor Vehicles (DHSMV), seeks second-tier certiorari review of a decision of the circuit court sitting in its appellate capacity pursuant to section 322.2615(13), Florida Statutes (2008)....

...Although we disagree with the circuit court's analysis, we agree with the ultimate conclusion and deny DHSMV's petition. Auster was arrested for the offense of driving under the influence on July 29, 2008. Her driver's license was subsequently suspended pursuant to section 322.2615(1)(a) for refusal to submit to a test of her breath-alcohol level....

...We do agree, however, with the circuit court's conclusion that it was error for the hearing officer to refuse to issue the requested subpoena. A hearing officer is expressly authorized to issue subpoenas for officers and witnesses identified in the documents submitted by a law enforcement officer pursuant to section 322.2615(2). See § 322.2615(6)(b), Fla. Stat. (2008). Here, Caner was identified in *804 these documents. [2] Furthermore, according to DHSMV's own rules, the procedural due process rights afforded a driver seeking formal review of a license suspension under section 322.2615 include "the right to present evidence relevant to the issues, to cross-examine opposing witnesses, to impeach any witness, and to rebut the evidence presented against the driver." See Fla....

...te while under the influence of alcoholic beverages or chemical 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 section 316.193. § 322.2615(7)(a), Fla....

...due process considerations require the hearing officer to issue a subpoena if the hearing officer has the authority to do so. Unlike Chamizo, the instant case involves a defendant alleged to have refused to take a breath test. Thus, pursuant to *805 section 322.2615(7)(b), the scope of review was limited to the issues of: 1....

...ed to the lower court's decision being "affirmed." [2] Although unnecessary to the resolution of the instant case, we agree with our sister court's holding in Lee v. Department of Highway Safety & Motor Vehicles, 4 So.3d 754 (Fla. 1st DCA 2009) that section 322.2615(6)(b) does not limit a hearing officer's authority to issue subpoenas to only those witnesses identified in documents named in subsection (2).

...5th DCA 2001); Department of Highway Safety & Motor Ve *521 hicles v. Russell, 793 So.2d 1073 (Fla. 5th DCA 2001); Department of Highway Safety & Motor Vehicles v. Mowry, 794 So.2d 657 (Fla. 5th DCA 2001). The facts of Lamb’s arrest, as adduced at the formal review hearing held pursuant to section 322.2615(l)(b)(3), Florida Statutes, are that he was stopped because he could not maintain a single lane and because he was doing 48 in a 35 mile-per-hour zone....

...id not detail sufficient facts demonstrating probable cause to stop Schwartz’ car. The Circuit Court denied certiorari 1 concluding that a driver may not challenge the legality of an initial stop in an administrative license suspension proceeding. Section 322.2615 (7)(b) of the Florida Statutes (2004) expressly states that during a formal review of a license suspension, the hearing officer must determine “whether the person was placed under lawful arrest for a violation of s....

...which the Court enunciated the test to be applied in determining whether probable cause exists to support a traffic stop). The Circuit Court’s observation that the validity of a stop which ultimately leads to a DUI arrest cannot be challenged in a section 322.2615(7)(b) administrative license suspension proceeding, was therefore incorrect....

...*1173 On April 10, 2007, Ovadia Roni Elias was arrested for driving under the influence, having performed poorly on a field sobriety test and having yielded a breath alcohol level of .123 on a breath test. His driving privileges were immediately suspended as required by section 322.2615, Florida Statutes (2007), following which he requested a formal review before a Department hearing officer....

...zalez ... to issue a subpoena to Officer Kevin Millan for his appearance at a formal hearing to be scheduled within thirty (30) days of today's date. (Emphasis added). We reverse this order because the court below lacked jurisdiction to issue it. As section 322.2615 expressly provides, circuit courts are authorized to enforce or compel compliance with subpoenas issued by a Department hearing officer in license suspension review proceedings; they are not, however, authorized to issue subpoenas in...

...e a ruling on the suspension.... (c) A party may seek enforcement of a subpoena under paragraph (b) 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.... § 322.2615(6)(a)-(c), Fla....

...eks certiorari relief from the circuit court's order granting Keith Gaputis's writ of prohibition. We have jurisdiction. See Fla. R. App. P. 9.030(b)(2)(B). We deny the petition. This case involves a driver's license suspension. See § 322.2615(1), Fla. Stat. (2011). After a formal review hearing, see § 322.2615(6), the Department entered a final order upholding Mr. Gaputis's license suspension. By certiorari petition to the circuit court, Mr. Gaputis challenged the Department's final order. See §§ 322.2615(14), .31....

...Because the circuit court failed to apply the correct law by reweighing the evidence, I would grant the petition and quash the order. Following Sarmiento's arrest for driving under the influence, he requested a formal administrative review of his license suspension pursuant to section 322.2615(1)(b)3., Florida Statutes....

...28 made certain factual findings, and based on these factual findings, the hearing officer determined that a preponderance of the record evidence supported an affirmance of the administrative suspension pursuant to section 322.2615(8)(a), Florida Statutes....

...ng officer’s findings that the stop and arrest were lawful. The Department asserted, in response, that there was competent substantial evidence in the record to support the hearing officer’s findings as made in the order and that, pursuant to section 322.2615(13), the circuit court was not permitted to conduct a de novo review of the issues from the administrative hearing....

...that the traffic stop which resulted in Thompson’s arrest was lawful. We grant the state’s petition for certiorari review and quash the circuit court order. Thompson’s driver’s license was suspended because he refused to take a breath test. Section 322.2615(7)(b), Florida Statutes (1991), restricts the review of a license suspension for refusal to take a breath test to consideration of four issues: (1) whether the law enforcement officer had probable cause to believe that the person was...

...The hearing officer concluded that Thompson’s arrest was lawful. On review, the circuit court disagreed and ruled that the state failed to establish that the arrest was the result of a lawful traffic stop. The testimony at the administrative hearing held pursuant to section 322.2615(6)(a), Florida Statutes (1991), established that a Florida Highway Patrol trooper stopped Thompson at 2:50 a.m....

...Under these circumstances, there was no basis for the circuit court to re-weigh the evidence and conclude that the state had failed to carry its burden of establishing that the stop was lawful. 1 The circuit court also expressed concern regarding the constitutionality of section 322.2615; however, in Conahan v. Department of Highway Safety & Motor Vehicles, 619 So.2d 988 (Fla. 5th DCA 1993), this court ruled that section 322.2615 complies with all due process requirements necessary in an administrative proceeding to suspend the privilege of driving....

...st. The circuit court based its finding on the fact that the FDLE report was not in conformity with FDLE Form 15, a blood-alcohol analysis affidavit requiring the analyst’s signature to be notarized. We conclude that the circuit court misconstrued section 322.2615, Florida Statutes (1997), and Florida Administrative Code Rule 15A-6.013, which govern the admissibility of reports at administrative review hearings for license suspensions....

...See Haines City Community Dev. v. Heggs, 658 So.2d 523, 530 (Fla.1995); Department of Highway Safety & Motor Vehicles v. Green, 702 So.2d 584, 585 (Fla. 2d DCA 1997); State, Dep’t of Highway Safety & Motor Vehicles v. Shonyo, 659 So.2d 352, 353 (Fla. 2d DCA 1995). Section 322.2615(11) provides that a “formal review hearing may be conducted upon a review of the reports of a law enforcement officer or a correctional officer, including documents relating to the administration of a breath test or the refusal to take either test.” This provision permits the use of written reports and documents as evidence in a formal review hearing. See also § 322.2615(2) (requiring law enforcement officers to forward to the Department, within five days of the date of arrest, “the results of any breath or blood test”). It does not require the reports and documents to be in affidavit form. *814 Instead, it permits the driver to “subpoena the officer or any person who administered or analyzed a breath or blood test.” § 322.2615(2). Rule 15A-6.013(2), which implements, in part, section 322.2615, similarly provides that, in a formal administrative review proceeding, the hearing officer shall consider “any report or photocopies of such report submitted by a law enforcement officer, correctional officer or law enforcement or...

...The rule does not require the results of “any breath or blood test” to be in affidavit form. Further, it provides that “[n]o extrinsic evidence of authenticity as a condition precedent to admissibility is required” for the results. Rule 15A-6.013(2). We conclude that section 322.2615 and rule 15A-6.013 permit consideration of reports, other than Form 15, relating to the results of blood-alcohol tests that are not in affidavit form at a formal administrative review hearing....

...the results of any test of a person’s blood or breath” for admissibility at trial of a civil or criminal proceeding arising out of acts allegedly committed by a person while driving under the influence of alcohol. The circuit court misconstrued section 322.2615 and rule 15A-6.013 when it required the Department to comply with the more stringent admissibility requirements for blood-alcohol results in a civil or criminal trial, rather than the more relaxed requirements for administrative review of license suspensions....

...Arenas was driving the vehicle while under the influence of an alcoholic beverage; (2) whether Mr. Arenas refused to submit to a breath alcohol test after the deputy requested him to do so; and (3) whether Mr. Arenas was told that such refusal would result in suspension of his license for at least a year. See § 322.2615(7)(b)(l)-(S)....

...Standard of Review Mr. Arenas has properly invoked “second-tier certiorari” as his remedy because he seeks reversal of the circuit court’s decision on review of an administrative order sustaining the suspension on his driver’s license. See § 322.2615(13)....

...The supreme court took jurisdiction to settle the interdistrict conflict and rephrased the two questions of great public importance that the First District had originally posed. The two rephrased questions were: Can the DHSMV suspend a driver’s license under section 322.2615, Florida Statutes, for refusal to submit to a breath test if the refusal is not incident to a lawful arrest? and Is the issue of whether the refusal was incident to a lawful arrest within the allowable scope of review of a DHSMV hearing officer in a proceeding to determine if sufficient cause exists to sustain the suspension of a driver’s license under section 322.2615, Florida Statutes, for refusal to submit to a breath test? 74 So.3d at 1073 ....

...She thus concurred in result only. Chief Justice Canady, joined in his dissent by Justices Polston and LaBarga, preferred the reasoning of our court in McLaughlin , explaining that the “contrary view adopted by a majority of this Court effectively rewrites the text of section 322.2615(7), Florida Statutes (2006), to expand the scope of the hearing officer’s review beyond the ambit unequivocally laid down in the statute.” 74 So.3d at 1081 (Canady, C.J., dissenting)....

...a breath alcohol test because the State decided not to further proceed against him. Both misdemeanor charges were dropped. When he appealed his license suspension before the hearing officer, she limited her review to the three issues as outlined in section 322.2615(7)(b)....

...Wong Sun v. United States, 371 U.S. 471, 488 , 83 S.Ct. 407 , 9 L.Ed.2d 441 (1963). . Besides holding contrary to our decision in McLaughlin , the First District has also certified two questions of great public importance, discussed infra. . In 2006, section 322.2615(7)(b) provided as follows: (b) If the license was suspended for refusal to submit to a breath, blood, or urine test: 1....

...Farr testified that after his refusal, he requested the use of a telephone to call an attorney. However he was not permitted use of a telephone until 10:30 a.m. the next morning. After Farr refused to take the breath test, Deputy Thompson issued Farr a DUI citation for refusal and suspended his driving privilege, pursuant to section 322.2615(l)(a), Fla....

...Farr was also cited for failure to maintain a single lane, 2 possession of alcohol by a minor, 3 and for having an open container of alcohol in his vehicle. 4 With regard to the civil matters, the Deputy timely filed his paperwork with the clerk .of the Bureau of Administrative Reviews. . Pursuant to section 322.2615(l)(b)(3), Fla....

...t to an approved test of his blood alcohol level. State v. Burns, 661 So.2d 842 (Fla. 5th DCA 1995), dismissed, 676 So.2d 1366 (Fla.1996). There is no reason to think the law otherwise regarding breath tests. In a formal review conducted pursuant to section 322.2615, the hearing officer must determine by a preponderance of the evidence whether sufficient cause exists to sustain the suspension....

...ment officer. 4. ' Whether the person was told that if he refused to submit to such test his privilege to operate a motor vehicle would be suspended for a period of 1 year or, in the case of a second or subsequent refusal, for a period of 18 months. § 322.2615(7)(b), Fla....

...derogation of the statuto *553 ry scheme. See and compare Dep’t of Hwy.. Safety & Motor Vehicles v. Green, 702 So.2d 584 (Fla. 2d DCA 1997). GRANT WRIT; QUASH ORDER OF CIRCUIT COURT. THOMPSON, J. concurs. GRIFFIN, J., concurs in result only. . § 322.2615(l)(a), Fla....

...316.193 and that the person had a blood-alcohol level or breath-alcohol level of 0.08 or higher, the department shall suspend the person’s driver’s license pursuant to subsection (3).' . § 316.089, Fla. Stat. (1997). . § 562.111, Fla. Stat. (1997). . § 316.1936, Fla. Stat. (1997). . § 322.2615(13), Fla....

...The Department of Highway Safety and Motor Vehicles petitions for a writ of certiorari, asking this court to review the circuit court's certiorari opinion quashing the administrative hearing officer's order that sustained the suspension of Daniel Icaza's driver's license under section 322.2615, Florida Statutes....

...Icaza was placed under arrest for driving under the influence of alcohol. The Implied Consent Law was read to Icaza, who then refused to submit to a breath test. [1] Consequently, the officer, on behalf of the Department, suspended Icaza's license pursuant to section 322.2615(1)(a), Florida Statutes (2007). Icaza invoked his right to formal review of that suspension under section 322.2615(1)(b)(3), and the subsequent administrative hearing resulted in an order dated October 5, 2007, that sustained the suspension. We emphasize at this juncture that the provisions of the 2007 version of section 322.2615 did not require the hearing officer to address the issue of the lawfulness of the arrest because the 2006 amendment of that statute had deleted that requirement....

...otor Vehicles v. Pelham, 979 So.2d 304, 305 (Fla. 5th DCA), review denied, 984 So.2d 519 (Fla.2008). In Pelham, which was not rendered until after Icaza petitioned for review in the circuit court, this court reasoned that despite the 2006 amendment, section 322.2615 had to be read in pari materia with the provisions of section 316.1923, Florida Statutes (2007), and that any refusal to take a breath-alcohol test had to be "incidental to a lawful arrest." Hence, Pelham holds that the lawfulness of the arrest is an issue that must be addressed at the administrative hearing in order to sustain a driver's license suspension under section 322.2615....

...issue of the lawfulness of the arrest could be addressed in accordance with Pelham. [2] The circuit court refused that request and rendered the opinion that we now review, which incorrectly applied the 2005 outdated, materially different, version of section 322.2615 to Icaza's August 2007 offense....

...t therein that the circuit court applied the wrong law in refusing to remand the case to the hearing officer to make a determination regarding the lawfulness of the arrest. Despite the fact that the circuit court applied the outdated 2005 version of section 322.2615, it arrived at the correct conclusion under Pelham when it held that the lawfulness of the arrest is an issue that must be addressed....

...Dep't of Highway Safety & Motor Vehicles, 645 So.2d 113, 114 (Fla. 5th DCA 1994); see also Dep't of Highway Safety & Motor Vehicles v. Chamizo, 753 So.2d 749, 752 (Fla. 3d DCA 2000). Because the hearing officer did not have the benefit of Pelham, he relied on the provisions of section 322.2615(7), which limits the scope of review to enumerated issues that do not include the lawfulness of the arrest....

formal administrative hearing pursuant to section 322.2615(l)(b)3, Florida Statutes (1991). The hearing

...Bello was taken to a substation of the Monroe County Sheriffs Office where he read Florida’s Implied Consent Warnings. Bello refused to take a breath test. Trooper Diaz cited Bello for DUI with property damage. Bello’s driving privilege was then suspended for his refusal to take a breath test pursuant to section 322.2615, Florida Statutes (1999). 1 Bello timely filed a request with the Department for an administrative formal review of his driver’s license suspension pursuant to section 322.2615(l)(b)(3)....

...stigation begins, the accident report privilege is not applicable.”). Once the criminal investigation independently established Bello to be the driver, his refusal to submit to the breath test constituted a valid reason to suspend his license. See § 322.2615(l)(a), Fla....

...If the department then determines that the person was arrested for a violation of s. 316.193 and that the person had a blood-alcohol level or breath-alcohol level of 0.08 or higher, the department shall suspend the person’s driver’s license pursuant to subsection (3). § 322.2615(l)(a), Fla. Stat. (1999). . Section 322.2615(l)(b)(3) provides: The driver may request a formal or informal review of the suspension by the department within 10 days after the date of arrest or issuance of the notice of suspension, whichever is later....

...rizes verification solely on information and belief only where “permitted by law.” See State, Department of Highway Safety & Motor Vehicles v. Padilla, 629 So.2d 180 (Fla. 3d DCA 1993) (verification on information or belief permissible under section 322.2615(2), Florida Statutes (1991), where statute authorized affidavit stating “officer’s grounds for belief’ that person arrested had violated section 316.193), rev....