                                              IN THE DISTRICT COURT OF APPEAL
                                              FIRST DISTRICT, STATE OF FLORIDA
DEPARTMENT OF HIGHWAY
SAFETY    AND   MOTOR                         NOT FINAL UNTIL TIME EXPIRES TO
VEHICLES,                                     FILE MOTION FOR REHEARING AND
                                              DISPOSITION THEREOF IF FILED
      Petitioner,
                                              CASE NO. 1D14-2688
v.

ERIC HIRTZEL,

      Respondent.

_____________________________/

Opinion filed March 3, 2015.

Petition for Writ of Certiorari – Original Jurisdiction.

Stephen D. Hurm, General Counsel, and Kimberly A. Gibbs, Senior Assistant
General Counsel, Department of Highway Safety & Motor Vehicles, Orlando, for
Petitioner.

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




BENTON, J.

      Eric Hirtzel’s driver’s license was administratively suspended after his

involvement in a single-vehicle accident on grounds that he was driving while
under the influence of alcohol, and had a breath alcohol level above 0.08. At a

formal review hearing, Mr. Hirtzel denied being intoxicated at the time he was

driving his vehicle, claiming that he consumed alcohol only after the accident

occurred.

      Finding otherwise based on the evidence before him, the Department of

Highway Safety and Motor Vehicles (Department) hearing officer upheld the

suspension of Mr. Hirtzel’s driver’s license. On certiorari review, however, the

circuit court quashed the license suspension, ruling there was no competent,

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. When Officer C.R. Deal arrived

he found Mr. Hirtzel sitting on the ground next to a Chevrolet Trail Blazer lying on

its (passenger) side.    Fortunately not seriously hurt, Mr. Hirtzel was visibly

intoxicated: his speech was slurred; his face was red; his eyes were bloodshot; and

his breath smelled of alcohol. Law enforcement officers observed all these indicia

                                         2
of intoxication a full hour after the accident.      Mr. 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. Stat. (2010).

      Moments before the accident, the officers were told, Mr. Hirtzel was

speeding through the apartment complex parking lot, yelling an obscenity at a

resident. Mr. Hirtzel himself told officers that he was driving his “truck” when he

hit a speed bump or pot hole, which caused the vehicle to flip onto its side. Based

on a witness’s account, however, the investigating officers concluded that Mr.

Hirtzel’s vehicle had in fact flipped when he drove it into a wooden post, not a

speed bump or pot hole.

      Significantly, when officers asked Mr. Hirtzel whether he had been drinking

alcohol, Mr. Hirtzel answered, “Yes.” Presumably aware of the officers’ interest

in how and why the accident had occurred, Mr. Hirtzel said nothing to them to

indicate that it was only after the accident that he began to consume alcohol. Not

one of the three law enforcement officers who testified at the formal review

hearing, nor any of their reports received in evidence, reflected that Mr. Hirtzel had

in any way qualified his affirmative answer that he had been drinking alcohol.

      Nevertheless, at the formal review hearing, Mr. Hirtzel testified that he had

abstained from drinking alcohol before the accident, and claimed that it was only

                                          3
after flipping his vehicle that he drank “hunch punch,” an alcoholic beverage

purportedly offered to him by somebody (he did not say whom) socializing at the

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. Stat. (2010). Upon Mr. Hirtzel’s petition for

writ of certiorari, however, the circuit court quashed the suspension and concluded

that there was no competent, substantial evidence in the record that Mr. Hirtzel was

impaired by alcohol at the time he was driving his vehicle. The Department now

seeks review of the circuit court’s order.

      On first tier certiorari review of a hearing officer’s decision, the circuit court

had to decide whether procedural due process was accorded, whether the essential

requirements of law were observed, and 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.

                                             4
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).

      On second tier certiorari, our review is limited to whether the circuit court

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. Stat. (2010); Dusseau v. Metro. Dade Cnty. Bd.

of Cnty. Comm’rs, 794 So. 2d 1270, 1275 (Fla. 2001); Wiggins, 151 So. 3d at 463;

see also Dep’t of Highway Safety & Motor Vehicles v. Favino, 667 So. 2d 305,

309 (Fla. 1st DCA 1995) (“By failing to apply the correct standard of review, the

circuit court failed to apply the correct law.”).      Mere citation of the correct

standard of review does not insulate a circuit court’s order from review. See

Wiggins, 151 So. 3d at 463 (“It is not the label a circuit court uses to describe its

analysis that matters; instead, it is whether the circuit court applied the established

and limited methodology of looking only for whether competent substantial

                                          5
evidence existed in support of the challenged administrative decision.”) (discussing

Dusseau, 794 So. 2d at 1275).

      The present case resembles Favino, where we set aside an order quashing a

license suspension in similar circumstances. There, Favino rear-ended another

vehicle, left the scene of the accident, and drove to his house, where officers found

him approximately twenty-five minutes later. See Favino, 667 So. 2d at 307. The

officers testified that Favino showed signs of intoxication and was drinking

grapefruit juice when they arrived. See id. Favino ultimately refused to submit to a

breath alcohol test, but the hearing officer upheld the suspension of Favino’s

license, concluding that officers had probable cause to believe that he was

intoxicated at the time he was involved in the accident. See id.

      Like Mr. Hirtzel, Favino then petitioned the circuit court for a writ of

certiorari, arguing that there was no direct evidence he drank alcohol prior to the

accident, and the circuit court quashed the license suspension on the ground that

the hearing officer’s decision was not supported by competent, substantial

evidence. See id. at 308. On second tier certiorari review, however, the hearing

officer’s findings of fact were given appropriate deference, and the circuit court’s

order was quashed. See id. at 309.

      The Favino court contrasted the question before the hearing officer—

whether officers had probable cause to believe Favino was driving while

                                          6
intoxicated—with the question before the circuit court—whether there was

competent, substantial evidence to support the hearing officer’s finding of probable

cause.     See id. at 308–09.   We explained that probable cause may rest on

reasonable inferences, and that the facts constituting probable cause “‘need not

meet the standard of conclusiveness and probability required of the circumstantial

facts upon which conviction must be based.’” Id. at 309 (quoting State v. Riehl,

504 So. 2d 798, 800 (Fla. 2d DCA 1987)). As a result, we reasoned that, in order

to conclude there was no evidence giving probable cause to believe that Favino

was driving under the influence of alcohol, one had to “ignore the obvious

implications of the facts and circumstances made known to the officer. Clearly,

the facts and circumstances were sufficient for a reasonable person to conclude that

Favino operated his motor vehicle while under the influence of alcohol . . . .” Id.

         We concluded in Favino that the circuit court necessarily reweighed the

evidence when it rejected the hearing officer’s findings, despite competent,

substantial evidence in the record that supported the findings. See id. In those

circumstances, indistinguishable from the posture of the case now before us, the

Favino court held that the circuit court failed to apply the correct law and that

certiorari relief should be granted to the Department. See id.; see also Dep’t of

Highway Safety & Motor Vehicles v. Rose, 105 So. 3d 22, 24 (Fla. 2d DCA 2012)

(“By ignoring or overlooking the evidence of [impairment] and the hearing

                                          7
officer’s findings in that regard, the circuit court improperly reweighed the

evidence and therefore applied the incorrect law.”).

      The circuit court in the present case was tasked with searching the record for

competent, substantial evidence supporting the hearing officer’s finding of

probable cause. See Wiggins, 151 So. 3d at 464. Although the circuit court stated

the correct standard of review, its order demonstrated that, rather than applying the

correct standard of review, the circuit court reweighed the evidence and substituted

its view of the evidence for that of the hearing officer. The circuit court’s order did

not address the evidence that supported the hearing officer’s finding of probable

cause, omitting any mention of the officers’ testimony that Mr. Hirtzel admitted to

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; and that Mr. Hirtzel was seen speeding and

shouting moments before the accident.

      We agree with Judge Lagoa’s opinion in Dep’t of Highway Safety & Motor

Vehicles v. Fernandez, 114 So. 3d 266, 272 (Fla. 3d DCA 2013), when she wrote:

             “An important factor to consider when determining
             whether the circuit court’s error amounts to a
             ‘miscarriage of justice’ is the adverse precedential effect
             the error might have on subsequent cases.” Dep’t of
             Highway Safety & Motor Vehicles v. Hofer, 5 So. 3d
             766, 772 (Fla. 2d DCA 2009); see also Dep’t of Highway
             Safety & Motor Vehicles v. Alliston, 813 So. 2d 141, 145
             (Fla. 2d DCA 2002). Where a circuit court’s decision
                                          8
             fails to apply the correct law and establishes “principles
             of general application binding in subsequent cases,”
             certiorari review is warranted. Hofer, 5 So. 3d at 772;
             see also Alliston, 813 So.2d at 145 (explaining that
             certiorari review is appropriate where an error “is
             pervasive or widespread in its application to numerous
             other proceedings”).

             Here, the State has a strong interest in regulating a
             citizen’s driving privilege, Dep’t of Highway Safety &
             Motor Vehicles v. Hagar, 581 So. 2d 214 (Fla. 5th DCA
             1991), and in keeping the public safe from persons that
             choose to operate vehicles while using intoxicants.
             Illinois v. Batchelder, 463 U.S. 1112, 1118, 103 S.Ct.
             3513, 77 L.Ed.2d 1267 (1983) (“The interest of the states
             in depriving the drunk driver of permission to continue
             operating an automobile is particularly strong.”).

Here, too, in the interests of public safety, we are constrained to adhere to the

precedent we have laid down in cases like the present one.

      The circuit court’s departure from clearly established law in the present case

warrants relief. See Wiggins, 151 So. 3d at 470 (“Failing to apply the applicable

standard of certiorari review . . . meets this standard.”). Accordingly, we grant the

Department’s petition, quash the circuit court’s order, and remand for application

of the correct law.

BILBREY, J., CONCURS; CLARK, J., DISSENTS WITH OPINION.




                                         9
CLARK, J., dissenting.

      Circuit courts must review a hearing officer’s findings and conclusions for

support by competent, substantial evidence. Where the circuit court undertakes

this mandated review, this Court is without authority to second-guess the answer.

Because the circuit court here correctly selected the legal question, the answer

matters not. As the majority simply finds error in the circuit court’s answer, I

dissent. Circuit courts have a mandate to independently review a hearing officer’s

findings and conclusions for competent, substantial evidence; they are not merely

rubberstamps for a hearing officer’s orders.

      The circuit court was required to review the hearing officer’s order for

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); Dep’t of Highway Safety & Motor

Vehicles v. Trimble, 821 So. 2d 1084, 1086 (Fla. 1st DCA 2002). “Substantial,”

the focus here, pertains to the weight of the evidence. Substantial evidence “will

establish a substantial basis of fact from which the fact at issue can be reasonably

inferred.” Trimble, 821 So. 2d at 1086 (quoting DeGroot v. Sheffield, 95 So. 2d

912, 916 (Fla. 1957)). Or put another way, “such relevant evidence as a reasonable

mind would accept as adequate to support a conclusion.” Id. at 1086-87 (quoting

DeGroot, 95 So. 2d at 916). The evidence must “support[] a reasonable foundation

                                         10
for the conclusion reached.” Id. at 1087. Substantial evidence is not evidence

“which merely creates a suspicion or which gives equal support to inconsistent

inferences.” Id. Further, “[s]urmise, conjecture or speculation” are not substantial.

Id. Substantial evidence requires more than “mere probabilities, guesses, whims,

or caprices.” Id.

      Accordingly, the circuit court must review whether the Department’s

evidence rose to this legal standard; i.e., the “the meaning and force of the

inference derived from the evidence submitted,” “the well-established law on what

constitutes competent substantial evidence”. See Wiggins, 151 So. 3d at 469-71;

Trimble, 821 So. 2d at 1086-87. The circuit court must analyze whether the

evidence is substantial.

      Where the circuit court analyzes this question, its answer is of zero

consequence. Gables Ins. Recovery, Inc. v. Progressive Express Ins. Co., 40 Fla.

L. Weekly D96, 2014 WL 7444598, at *1-2 & n.1 (Fla. 3d DCA Dec. 31, 2014)

(specifically disagreeing with circuit court’s legal analysis, yet still dismissing

second-tier certiorari petition because circuit court analyzed proper question);

Dep’t of Highway Safety & Motor Vehicles v. Edenfield, 58 So. 3d 904, 906 (Fla.

1st DCA 2011) (“[A] misapplication or an erroneous interpretation of the correct

law does not rise to the level of a violation of a clearly established principle of

law.”); Dep’t of Highway Safety & Motor Vehicles v. Roberts, 938 So. 2d 513,

                                         11
515 (Fla. 5th DCA 2006) (explaining that if circuit court selects correct standard, it

is not for appellate court to determine whether court applied the standard

correctly). This Court must accept the circuit court’s answer so long as the circuit

court chose the correct question.

      Here, the circuit court did not evaluate Mr. Hirtzel’s explanation against the

officer’s explanation. The court specifically paid it no weight—as it should have,

explaining that Mr. Hirtzel’s testimony was “moot.” Second, the officer gave no

direct explanation. There was a dearth of evidence. Cf. Wiggins, 151 So. 3d at

460-61 (officer testified to actually seeing errant driving); Dep’t of Highway

Safety & Motor Vehicles v. Favino, 667 So. 2d 305, 309 (Fla. 1st DCA 1995)

(“Clearly, the facts and circumstances were sufficient . . . .”). The question the

circuit court asked here was the weight of the inferences derived from surrounding

circumstances. Simply put, the entire case was a guess based on the surrounding

circumstances.

      Accordingly, the circuit court asked its mandated question:           Would a

reasonable mind accept the facts as adequate to establish a fair probability Mr.

Hirtzel was intoxicated at the time of driving? Or do the facts amount to a

suspicion, conjecture, or guess that Mr. Hirtzel was intoxicated at the time of

driving? The circuit court answered this legal question no. Circuit courts must ask




                                         12
this question, and this Court must provide complete deference to the answer—

irrespective of whether it agrees.

      Here, the majority cites circumstantial evidence and concludes it meets the

legal standard of substantial. This usurps the circuit court’s mandate by selecting a

different answer to the question of whether the circumstantial evidence met the

legal standard of substantial. Circuit courts must be permitted to err in analyzing

the correct question—the second-tier certiorari standard demands this. Taken to its

end, circuit courts become nothing more than rubberstamps.

      The circuit court acknowledged its task and understood its scope of review.

It is imperative circuit courts undertake their mandated review of whether an order

is supported by competent and substantial evidence. Circuit courts must apply “the

well-established law on what constitutes competent substantial evidence.” See

Wiggins, 151 So. 3d at 469, 469-71; Trimble, 821 So. 2d at 1086-87. And this

Court must accept the circuit court’s answer—irrespective of how much this Court

may disagree with the answer. See Edenfield, 58 So. 3d at 906; see also Gables

Ins. Recovery, Inc., 2014 WL 7444598, at *1-2 & n.1; Roberts, 938 So. 2d at 515.

      Because the majority simply substitutes its answer for that of the circuit

court’s, I dissent. The circuit court’s exercise of its mandate to review orders for

competent, substantial evidence should be affirmed, and the petition dismissed.




                                         13
