                                              IN THE DISTRICT COURT OF APPEAL
                                              FIRST DISTRICT, STATE OF FLORIDA
DEPARTMENT OF HIGHWAY
SAFETY    AND   MOTOR
VEHICLES,

      Petitioner,
                                              CASE NO. 1D14-2688
v.

ERIC HIRTZEL,

      Respondent.

_____________________________/

Opinion filed May 12, 2015.

Petition for Writ of Certiorari – Original Jurisdiction.

Stephen D. Hurm, General Counsel, and Nicholas A. Merlin, Assistant General
Counsel, Department of Highway Safety & Motor Vehicles, Tallahassee, for
Petitioner.

David M. Robbins and Susan Z. Cohen of Epstein & Robbins, Jacksonville, for
Respondent.




                       ON MOTION FOR CERTIFICATION


PER CURIAM.

      By motion for certification, respondent Eric Hirtzel has asked us to certify,

as a question of great public importance, “the question of whether a circuit court
should review the entire record to determine whether the hearing officer’s order is

based on competent substantial evidence in the record or whether the circuit court

is limited to a review for any evidence in the record without regard to the

competent and/or substantial nature of the evidence.” We can fairly be said to

have passed on this question when we ruled:

                   On first tier certiorari review of a hearing officer's
            decision, the circuit court had to decide whether . . . the
            hearing officer's factual findings are supported by
            competent, substantial evidence. State, Dep't of Highway
            Safety & Motor Vehicles v. Wiggins, 151 So.3d 457, 462
            (Fla. 1st DCA 2014), review granted, 2014 WL 7251666
            (Fla. Dec. 17, 2014). The competent, substantial evidence
            standard requires the circuit court to defer to the hearing
            officer's findings of fact, see id. at 465, unless there is no
            competent evidence of any substance, in light of the
            record as a whole, that supports the findings. See
            Universal Camera Corp. v. N.L.R.B., 340 U.S. 474, 488,
            71 S.Ct. 456, 95 L.Ed. 456 (1951) (“The substantiality of
            evidence must take into account whatever in the record
            fairly detracts from its weight.”). Compare Miller v.
            State, Div. of Ret., 796 So.2d 644, 646 (Fla. 1st DCA
            2001) (concluding that the decision below did not rest on
            a finding of fact unsupported by competent, substantial
            evidence in the record), with Arnold v. Florida's Blood
            Ctrs., Inc., 949 So.2d 242, 246–47 (Fla. 1st DCA 2007)
            (determining that evidence, although competent, was not
            substantial).

But the present case differs from the decision in Dep’t of Highway Safety & Motor

Vehicles v. Wiggins, 151 So. 3d 457, 470 (Fla. 1st DCA 2014) review granted sub

nom. Wiggins v. Dep’t of Highway Safety & Motor Vehicles, No. SC14-2195,

2014 WL 72516666 (Fla. Dec. 17, 2014), on the basis of which respondent urges
                                          2
certification. There the panel certified the following question:

                  WHETHER A CIRCUIT COURT FAILS TO
             APPLY THE CORRECT LAW BY REJECTING AS
             NON–CREDIBLE     THE    ENTIRETY OF  AN
             ARRESTING     OFFICER'S   TESTIMONY AND
             REPORT CONCERNING A TRAFFIC STOP, UPON
             WHICH THE HEARING OFFICER'S FACTUAL
             FINDINGS RELIED, BASED SOLELY ON THE
             CIRCUIT COURT'S OWN INDEPENDENT REVIEW
             AND ASSESSMENT OF EVENTS ON THE VIDEO
             OF A TRAFFIC STOP?

The certified question in Wiggins could have been redrafted to ask whether a video

clearly depicting events testified to differently by a witness could render the

witness’s testimony insubstantial in light of the record as a whole, but even in that

event would not have posed a question that could make a difference in Mr.

Hirtzel’s case.

      As we noted in our original opinion, the circuit court's order in the present

case failed to take into account ample, competent evidence supporting the hearing

officer's finding of probable cause, including law enforcement officers' testimony

that Mr. Hirtzel answered yes when asked if he had been drinking alcohol; “that

Mr. Hirtzel stated his vehicle flipped after hitting a pot hole or speed bump when,

in fact, it overturned after he hit a wooden post, according to the officers who

investigated the crash;” that he was seen speeding and shouting moments before

the accident, and that he was still visibly intoxicated when they arrived to

investigate. The hearing officer did not believe his story—told for the first time at
                                          3
the hearing—that he decided to have a drink in the parking lot after the accident,

and there is little in the circuit court’s order—and no video or anything else in the

record—to explain why the circuit court disregarded the competent, substantial

evidence supporting the hearing officer’s findings of fact.

      The motion for certification is denied.

BENTON and BILBREY, JJ., CONCUR; CLARK, J., DISSENTS WITHOUT
OPINION.




                                          4
