       Third District Court of Appeal
                                State of Florida

                         Opinion filed September 16, 2015.
          Not final until disposition of timely filed motion for rehearing.

                                ________________

                                No. 3D15-1199
                          Lower Tribunal No. 15-184-K
                              ________________


         State of Florida, Department of Highway Safety, etc.,
                                     Petitioner,

                                         vs.

                                Joseph S. Baird,
                                    Respondent.


     A Writ of Certiorari to the Circuit Court for Monroe County, Timothy J.
Koenig, Judge.

     Stephen D. Hurm, General Counsel, Department of Highway Safety and
Motor Vehicles, and Natalia Costea, Assistant General Counsel, for petitioner.

      Robertson & Hunter and Dustin S. Hunter (Key West), for respondent.


Before SUAREZ, C.J., and EMAS and FERNANDEZ, JJ.

      SUAREZ, C.J.

      The Department of Highway Safety and Motor Vehicles (“DHS”) petitions

for a writ of certiorari to quash the trial court’s reversal of the suspension of
Respondent Joseph S. Baird’s driver’s license. We grant the petition finding that

the trial court, acting in its appellate capacity, applied the wrong law and

substituted its judgment for that of the hearing officer. Miami-Dade County v.

Omnipoint Holdings, Inc., 863 So. 2d 195, 199 (Fla. 2003), quoting, Haines City

Cmty. Dev. v. Heggs, 658 So., 2d 523, 530 (Fla. 1995); Dep’t of High. Saf. Motor

Veh. v. DeGroot, 971 So. 2d 237 (Fla. 2d DCA 2008).

FACTS

      Respondent was arrested for driving under the influence in October 2014

after driving 50 mph in a 30-mph zone. He requested a formal administrative

hearing, but elected not to appear at the hearing. Several documents were admitted

at the hearing, including the arrest report, a breath alcohol test affidavit, and an

affidavit of refusal to submit to a breath, urine or blood test. The refusal affidavit

states that Respondent refused to take a breath test at 3:40 a.m. The DUI check

sheet reflects refusals at 3:41 a.m. and 3:52 a.m.

      Two officers testified at the hearing. One officer testified that during the 20-

minute observation period he asked Respondent if he would take a breath test and

Respondent declined. In response to questions from Respondent’s counsel the

officer stated that he did not recall advising Respondent that the breath test was

optional, but that it was possible. The officer testified that he asked Respondent to

take the test “at least twice” and that Respondent “did say that he understood the



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consequences of refusing to provide the breath test and that he did refuse the breath

test.”

         At the close of the hearing, counsel argued that because Respondent was told

that the breath test was “optional” it was implied that there was a “safe harbor” in

refusing to take the test, so Respondent’s refusal to take the test was not voluntary.

Respondent also argued that the check sheet and affidavit were inconsistent and it

was not clear if the refusal was before or after he was given warnings of the

consequences of his refusal. According to the Hearing Officer’s Findings of Fact

and Conclusions of Law, at the end of the hearing, “Counsel requested Hearing

Officer to review video” and “Hearing officer reviewed the video per Counsel’s

request.”     The video of the discussion between the officer and Respondent

regarding the breath test shows the following exchange:

         OFFICER: I am now requesting that you submit to a breath test.

         RESPONDENT: Is that an option?

         OFFICER: Yes, it is optional, but there are consequences.

The video shows that the officer then read Respondent that portion of his driver’s

license which notifies all Florida drivers that “Operation of a motor vehicle

constitutes consent to any sobriety test required by law.” Immediately thereafter

the officer read Respondent that portion of the consent form which states “If you

fail to submit to the test I have requested of you, your privilege to operate a motor

vehicle will be suspended for a period
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of one (1) year for a first time refusal, of eighteen (18) months if your privilege has

been previously suspended as a result of a refusal to submit to a lawful test of your

breath, urine or blood.”      When the officer completed reading the form to

Respondent, Respondent refused to take the breath test.

      At the end of the 20-minute waiting period Respondent was again asked if

he would take the breath test. After Respondent refused to take the breath test a

second time, he was read his Miranda rights and no other conversations occurred.

      The hearing officer sustained the suspension of Respondent’s license and

Respondent filed a petition for certiorari to the circuit court. In granting the

petition the circuit court found:

             [T]he language used by [the officer] informing
             [Respondent] that the breath test was optional created a
             ‘safe harbor’ of refusal for [Respondent.] …
             [Respondent] believed the breath test was optional based
             on the statement of [the officer]. Although [Respondent]
             was read implied consent prior to declining the breath
             test, that was insufficient to erase the taint of the
             misinformation given to [Respondent] by [the officer].

The circuit court found that “[Respondent] believed the breath test was optional

based on the statement of [the officer],” but there is no citation to what evidence

supported that conclusion. The circuit court also found that there were “critical

discrepancies with respect to the time of refusal within the documentary evidence.”

Finally, the circuit court found that without the evidence of the refusal, there was




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no competent substantial evidence to uphold the suspension.               This Petition

followed.



                                     ANALYSIS

       We agree with DHS that in reaching its conclusions the circuit court applied

the wrong law and improperly reweighed the evidence. Controlling case law is

clear that the circuit court was not permitted to scour the record for evidence which

contradicted the hearing officer’s conclusion. Dep’t of High. Saf. & Motor Veh. v.

Porter, 791 So. 2d 32 (Fla. 2d DCA 2001). In that case the circuit court reversed a

suspension because the hearing officer had “improperly” found probable cause

based on the “fellow officer rule.” In reversing the circuit court, the Second

District stated:

              Controlling law dictates that when a party is entitled as a
              matter of right to seek a circuit court's review of
              administrative action, the circuit court's inquiry is limited
              to three issues: (1) whether the agency furnished
              procedural due process; (2) whether the agency observed
              the essential requirements of law; and (3) whether the
              agency's findings and judgment are supported by
              competent substantial evidence. … We conclude the
              court failed in the latter regard in several ways. One of
              them derived from the court's focus on whether the
              hearing officer's application of the fellow officer rule was
              supported by his written finding that Deputy Cox had
              related to Deputy Watson the ‘circumstances surrounding
              the traffic stop.’ In its certiorari review of the suspension
              the circuit court was not called upon to assess whether
              the wording of a particular finding supported the result.
              Rather, as mentioned, the court was required to
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             determine whether the hearing officer's findings and
             judgment were supported by competent substantial
             evidence. … If the circuit court had observed the correct
             scope of review, it could not have found the hearing
             officer's order deficient in this regard. By basing its
             decision on matters outside the permissible scope of
             review, the court applied incorrect law.

Id. at 34-35, emphasis added.

      Similarly in Department of Highway Safety & Motor Vehicle v. Wiggins,

151 So. 3d 457 (Fla. 1st DCA 2014), rev. granted, Wiggins v. Department of

Highway Safety & Motor Vehicle, No. SC14-2195 (Fla. Dec. 17, 2014), a hearing

officer issued a suspension order, but the circuit court reversed “after

independently reviewing the [officer’s car’s] video” and holding “that the

administrative order was flawed because the video contradicted the officer’s

testimony and report.” The circuit court “conceded” that the officer’s testimony

coupled with his report supported the factual findings of the hearing officer, but

concluded that “neither the testimony of [the officer] nor the arrest and booking

report constitute[d] competent substantial evidence on which the hearing officer

could rely.” Id. at 461.

      On appeal, the First District concluded that the circuit court had erred,

stating:

             The narrow but important issue presented is whether the
             circuit court, acting in its appellate capacity, erred by
             concluding that its independent review and assessment of
             events on a video of the traffic stop trumped the hearing
             officer's factual findings, which were based on the
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             arresting officer's testimony and report. We hold that it
             did and grant the petition for certiorari.

Id. at 457. After finding that Dusseau v. Metropolitan Dade County Board of

County Commissioners, 794 So. 2d 1270, 1275-76 (Fla. 2001) constituted clearly

established law, the First District also concluded that “[t]his clearly established

legal principle in Dusseau—that a circuit court applies the ‘wrong’ or ‘incorrect’

law when it reweighs or reevaluates conflicting evidence and decides the merits of

the underlying dispute anew—was previously well-established. As the supreme

court pointed out in Dusseau.” Id. at 463. In finding that the circuit court had

erred, the court stated:

             As Dusseau explained, a circuit court is only permitted to
             determine whether an agency's decision was supported
             by competent substantial evidence. 794 So.2d at 1275
             (“the court should review the record to determine simply
             whether the Commission's decision is supported by
             competent substantial evidence.”). Stated differently, this
             limited review boils down to a single-focused inquiry:

                    The sole issue before the court on first-tier
             certiorari review is whether the agency's decision is
             lawful. The court's task vis-a-vis the third prong of
             Vaillant is simple: The court must review the record to
             assess the evidentiary support for the agency's decision.
             Evidence contrary to the agency's decision is outside
             the scope of the inquiry at this point, for the reviewing
             court above all cannot reweigh the ‘pros and cons’ of
             conflicting evidence. While contrary evidence may be
             relevant to the wisdom of the decision, it is irrelevant
             to the lawfulness of the decision. As long as the
             record contains competent substantial evidence to
             support the        agency's decision, the decision is
             presumed lawful and the court's job is ended.
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Id. at 1276 (emphasis added). The emphasized
language—as applied to this case—shows how the circuit
court went beyond the specific analytical parameters of
Dusseau and its progeny, thereby applying the incorrect
law.

The circuit court—in reaching its ultimate legal
judgment—focused exclusively on the video, which both
Wiggins and the court deemed to be ‘evidence contrary
to the agency's decision.’ That was error. The sole
starting (and ending) point is a search of the record
for competent substantial evidence supporting the
decision. The proper approach is narrow here,
focusing on whether the officer's testimony, the
arresting/booking report, or the video—or portions
thereof—support the hearing officer's factual
findings. (e.s.) See City of Jacksonville Beach v. Car
Spa, Inc., 772 So.2d 630, 631–32 (Fla. 1st DCA 2000)
(‘[I]t is clear that ... rather than reviewing the entire
record to determine whether the Planning Commission's
decision was supported by competent substantial
evidence, the circuit court considered only portions of the
record, and reweighed the evidence, substituting its
judgment for that of the Planning Commission as to the
relative weight of that evidence.’). The existence of
inconsistencies or contradictions in the overall
evidentiary record does not negate a hearing officer's
findings; an evidentiary record need not have one-sided
purity to prevail. Id. Besides that, putting contrary
evidence on the judicial scales is ‘outside the scope of the
inquiry’ at the circuit court level and amounts to a
pros/cons approach that Dusseau prohibits.

Within its analysis, the trial court tacitly conducted the
type of review envisioned by Dusseau because it
explicitly said that ‘[s]tanding alone, the arrest and
booking report and the testimony by Deputy Sander
would support the findings of the hearing officer.’ Its
inquiry at that point—as explained in Dusseau—was
thereby ‘ended.’ 794 So.2d at 1276. Whatever misgivings
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             it may have had about possible conflicts between the
             video and the officer's testimony/report were ‘outside the
             scope of the inquiry’ as Dusseau holds. If portions of the
             report, or portions of the officer's testimony, or portions
             of the video, or some combination of the three, provided
             evidentiary support for the hearing officer's findings,
             judicial labor was at its end.

Id. at 464-465. See also, Broward Cnty. v. G.B.V. Int'l, Ltd., 787 So.2d 838, 845

(Fla. 2001) (In this case, the circuit court reweighed the evidence, which was

beyond the scope of its certiorari review.”); Dep’t High. Saf. & Motor Veh. v.

Kurdziel, 908 So. 2d 607 (Fla. 2d DCA 2005) (where the circuit court was reversed

for improperly reweighing the evidence where it rejected the hearing officer’s

conclusion that the evidence showed the driver had been pulled over because the

officer suspected the driver was ill, tired or under the influence. In reversing, the

appellate court stated: “When a circuit court applies an improper standard of

review, ‘this is tantamount to departing from the essential requirements of law

[.]’”); Dep’t of High. Saf. & Motor Veh. v. Swegheimer, 847 So. 2d 545, 546 (Fla.

5th 2003) (where the court found that the circuit court had applied the wrong law

when it found that the officer had failed to establish that the events occurred in the

jurisdiction “while ignoring the probable cause affidavit which constituted

competent substantial evidence of jurisdiction.”); and Dep’t of High. Saf. & Motor

Veh. v. Cochran, 798 So. 2d 761, 763 (Fla. 5th DCA 2001) (“We disagree that [a]

possible defect in the affidavit alone is a sound basis to overturn the hearing

officer's findings which support the          license suspension.”).
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      As in the above-cited cases, the circuit court here improperly conducted an

independent review of the video tape and reweighed the evidence provided by that

video tape. This was error.

      The circuit court also cited to Jackson v. State, 832 So. 2d 932 (Fla. 3d DCA

2002)1 for the proposition that “the inquiry in this case turns on the defendant’s

state of mind, not the investigator’s, and the potential effect on defendant of the

words used.” However, that case is not applicable because evidence was provided

as to the impact on the defendant’s state of mind of the misleading statement. In

this case, the time lapse between the statement “it is optional” and the reading of

the actual consequences was less than 10 seconds and there was nothing offered to

support the argument that such a de minimus time lag had any impact on

Respondent.2

      In summary, the record before the hearing officer supported his findings of

fact and conclusions of law and the circuit court erred when it not only scoured the


1 The circuit court’s actual citation is to Jackson v. State, 545 So. 2d 260 (Fla.
1989), but that citation must be a typographical error as the quoted language is
from the above-cited case.
2 On the issue of contradiction in the record, the circuit court relied on Department
of Highway Safety & Motor Vehicle v. Trimble, 821 So. 2d 1084, 1086-87 (Fla.
1st DCA 2002), but that case is likewise inapplicable because the only evidence
submitted there was documentary evidence that gave “equal support to inconsistent
inferences.” In this case the hearing officer also had the officer’s testimony which
explained the existence of two different time entries for refusal to take the breath
test.

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record for contrary evidence, but also reweighed the evidence. Consequently we

grant the petition, quash the circuit court order, and remand for further

proceedings.




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