120 S. Olive Ave., Suite 402
West Palm Beach, FL 33401

Writ of Cert Florida DUI Criminal Case

dui-attorney-in-west-palm-beach-9Hiring a criminal defense lawyer who knows the Administrative rules of the Department of Motor Vehicles is the key to winning a DUI, Driving Under The Influence, Criminal Case in the State of Florida. Palm Beach County Florida Criminal Defense Attorney, Andrew D. Stine, knows the DMV Rules and the Administrative code as he has perfected many winning arguments not only at the DMV level but also at the Appellate Level. If you lose at the DMV level the proper jurisdiction for review is the Circuit Court in which the County where the DMV hearing was heard. The proper appellate motion to review the DMV hearing Officer’s judgment or decision is through a Writ of Cert.

NOTE: The following Writ was filed and perfected by experienced Criminal Lawyer Andrew D. Stine. The Writ is posted for educational purposes only. The copying of the Writ is strictly prohibited. If you need a lawyer to assist you with a DUI in the State of Florida hire the lawyer with the experience in not only the Law but also the Administrative Code.
IN THE CIRCUIT COURT FOR THE 15TH JUDICIAL CIRCUIT

PALM BEACH COUNTY, FLORIDA.

APPELLATE DIVISION

CLIENT, Case Number:

Petitioner,

v.

STATE OF FLORIDA, DEPARTMENT

OF HIGHWAY SAFETY AND MOTOR

VEHICLES,

Respondent.

PETITION FOR WRIT OF CERTIORARI

Petitioner, CLIENT, pursuant to Fla.R.App.P. 9.100 and Florida Statute §322.31 petitions this Honorable Court for a writ of certiorari to review Respondent’s Final Order denying early reinstatement of driving privileges and in support thereof submits follows:

BASIS FOR INVOKING JURISDICTION

Article V§5(b) of the Florida Constitution grants Circuit Courts in the State of Florida the power to issue writs of certiorari to final orders of administrative agencies. Additionally, Florida Statute §322.31 specifically states “that the final orders and rulings of the Department of Highway Safety and Motor Vehicles that deny a person a license … shall be reviewable in the manner and within the time provided by the Florida Rules of Appellate Procedure only by a writ of certiorari issued by the circuit court in the county wherein such person shall reside, in the manner prescribed by the Florida Rules of Appellate Procedure”. Fla. Stat. §322.31.

STATEMENT OF THE FACTS

On December 11, 2002, the Department of Highway Safety and Motor Vehicles (hereinafter DHSMV) permanently revoked Petitioner’s driver’s license after he was convicted of his fourth offense of driving under the influence of alcohol (DUI). His prior convictions for DUI occurred on March 28, 1988, November 14, 1995 (North Carolina), and May 20, 2002. Petitioner was also incarcerated after his 4th DUII conviction and served 9 months in jail in Palm Beach County, Florida. He was released from custody in March, 2004.

On January 22, 2013 Petitioner obtained a reinstatement of his driver’s license for the purposes of traveling to and from work pursuant to Florida Statute §322.271(5). Petitioner enrolled in a DHSMV approved DUI program offered by Pride Integrated Services, Inc. Pursuant to the Pride’s DUI Program and in accordance with §322.271(5), Petitioner was required to report to the program for supervision and education at least four times a year or more for the remainder of the revocation period. Petitioner missed a required report date in May, 2013 because he was in Philadelphia, Pennsylvania, taking care of his elderly father who had just had hip replacement surgery. Petitioner constantly communicated with Pride while he was in Pennsylvania. Nevertheless, Pride notified the DHSMV that Petitioner missed a report date. DHSMV subsequently rescinded the license reinstatement because Petitioner missed a report date.

Petitioner was afforded a revocation hearing on June 10, 2013. Petitioner candidly admitted to all of his DUI related offenses and driver’s license suspensions.

He also testified that he needed a hardship license because he needs transportation to and from his job. Petitioner advised the Hearing Officer that he resides in Palm Beach Gardens, Florida and that he is employed at the Palm Beach Kennel Club, which is about 20 minutes from his home. He advised the Hearing Officer that he works 8 to 9 hours a day. He further testified that although his wife is a licensed driver, she cannot take him to work because she has to take one of their two children to school.

Petitioner also testified that he completed DUI School. During his attendance he learned of several staggering DUI statistics. He also testified that he was heavily impacted by the many lecturers all of which had been convicted of DUI that had caused a death.

Petitioner further testified that in order to say sober he attends AA meeting 4 to 5 times a week and that he is presently being treated by a relapse therapist once a week. He candidly advised the hearing officer that he had relapsed April 10, 2013 by having some beer and vodka after suffering from great stress and a several day argument with his wife. Petitioner also advised the Hearing Officer that he promptly returned to AA after his relapse and obtained treatment from the relapse therapist. Prior to his one day relapse, Petitioner was clean and sober for 6 straight years.

Finally, Petitioner testified that he had installed an ignition interlock device in his vehicle as required by Florida Statute 322.271.

After Petitioner testified, the Hearing Officer advised Petitioner that he could not be reinstated because he had consumed alcohol. The Hearing Officer also advised Petitioner that she had no discretion in the matter and that the law mandated the denial of reinstatement of his driver’s license.

NATURE OF RELIEF SOUGHT

Petitioner seeks the issuance of a writ of certiorari quashing and/or reversing the Department’s Final Order Denying Early Reinstatement and reinstating Petitioner’s driving privileges solely for the purpose of traveling to and from work.

STANDARD OF REVIEW

Circuit Court review of an administrative agency is governed by three-part standard of review: whether procedural due process is accorded; whether essential requirements of law have been observed; and whether administrative findings and judgment are supported by competent substantial evidence. Fla.R.App.P. 9.030(c) (3); Haines City Cmty. Dev. v. Heggs, 658 So. 2d 523 (Fla. 1995).

ARGUMENT

DHSMV’s Final Order Denying Early Reinstatement should be quashed and a writ of certiorari should be issued because the Department deviated from the essential requirements of law. Specifically, the Department concluded that it had no choice but to deny reinstatement of the driver license because he drank alcohol less than 5 years before his final hardship hearing. The Department deviated from the essential requirements of law because Florida Statute §322.271(5) does not require abstinence from alcohol as a prerequisite for issuance of a hardship license.

Effective October 1, 2010, the State of Florida corrected an injustice. The Florida policy of issuing a lifetime revocation to DUI offenders with no possibility of reinstatement changed. See Florida Statute 322.271. Since 2011, drivers who have been permanently revoked because of four or more DUI convictions can apply for reinstatement after 5 years. Florida Statute 322.271(5) sets out the criteria for those who have been permanently revoked due to having 4 DUI convictions to get their driver’s license reinstated. In a nut shell in order to be reinstated the applicant must:

1. Not have been arrested for a drug-related offense for five years before application. Fla. Stat.§322.271(5)(a) 1;

2. Not have driven a motor vehicle for five years before hearing, Fla.Stat. 322.271(5)(a)2

3. Be drug free for five years before hearing. Fla.Stat. §322.271(5)(a)3 and

4. Have completed a DUI education program licensed by the Department. Fla.Stat. 322.271(5) (a) 4.

 

If reinstated, the applicant must do the following:

1. Have an Ignition Interlock installed for at least five years, Fla.Stat. 322.271;

2. be restricted to employment driving only for at least one year; Fla.Stat.322.271(5)(b)1 and

3. Be supervised by a DUI program which requires reporting at least 4 times per year and includes evaluation, education and referral to treatment if necessary. Fla.Stat.322.271(5)(b)2;

If the applicant is convicted of an offense requiring a license revocation after reinstatement, then the license is revoked and the five year revocation starts again. Fla.Stat. §322.271(5) (d).

Petitioner candidly admitted to having some beer and vodka on or about April 10, 2013. DHSMV’s final order denying reinstatement and rescinding his driving privileges cites his use of alcohol as the sole basis for the decision. The Hearing Officer specifically stated that despite having been sober for the more than 6 years, his single relapse prevented her from reinstating his license.

The fact is that the Hearing Officer was incorrect in her application of the law. Florida Statute §322.271 does not contain or mention a requirement of abstinence from alcohol anywhere. Instead the statute requires abstinence from the use of drugs. The specific language used in the statute is “drug-free”.

This term “drug-free” is not defined within Florida Statute §322.271. Under Florida law, “statutory analysis” is guided by “legislative intent.” Johnson v. Fla., 78 So.3d 1305, 1310 (Fla.2012); Tasker v. Fla., 48 So.3d 798, 804 (Fla.2010); Fla. Dep’t of Children & Family Servs. v. P.E., 14 So.3d 228, 234 (Fla.2009)). Legislative intent is determined primarily from the text’ of the statute.” Johnson, 78 So.3d at 1310 (quoting Continental Cas. Co. v. Ryan Inc. Eastern, 974 So.2d 368, 374 (Fla.2008)). Where the statute’s language is clear or unambiguous, courts do not need to employ principles of statutory construction to determine and effectuate legislative intent. Fla. Dep’t of Children & Family Servs., 14 So.3d at 234. The statute “must be given its plain and obvious meaning. Bennett v. St. Vincent’s Med. Center, Inc., 71 So.3d 828, 838–39 (Fla.2011) Kephart v. Hadi, 932 So.2d 1086, 1091 (Fla.2006) If the language of a statute is clear and unambiguous, the legislative intent must be derived from the words used without involving rules of construction or speculating as to what the legislature intended. Thus, the Florida Supreme Court directs that any statutory analysis must begin “with careful consideration of the text of the statutes at issue. Johnson, 78 So.3d at 1310.

Applying these principles, the statutory language is clear as day. “Drug-free” is not the same as “alcohol free”. The former refers to illegal drugs absent a prescription by a licensed pharmacist. The latter refers to a substance that is not illegal in and of itself. Surely if the legislature intended the applicant to be “alcohol-free’ for 5 years prior to the hearing it would have stated so and not caused one to guess whether “drug-free” also meant “alcohol free”.

A reasonable person reading the statute should not have to guess. To that extent based upon the statutory language, a member of John Q Public who reads the statute would surely conclude that since he did not use drugs within the past five years he could apply for a hardship license if he met the other requirements. Why should he think any different based upon the language of the statute?

Perhaps most persuasive of the proper interpretation of “drug-free” can be found in the Department’s own Rules and Regulations. Rule 15A-1.019 of the Florida Administrative Code is entitled “Reinstatement, Hardship.” The rule specifically distinguishes abstaining from drinking and drugs. When discussing reinstatement of a revoked license for some offense, “abstention from drinking” is required.

The same abstention does not apply to a permanent revocation for four or more DUI Convictions. Rule 15A-1.09 states in pertinent part:

(5) Exceptions to reinstatement on a limited restricted basis:

(c) Persons revoked for five (5) years for two (2) convictions of driving under the influence or driving with an unlawful blood alcohol level within five (5) years, must serve twelve (12) months of the revocation period, complete a Department approved substance abuse course, be under the supervision of a DUI school, abstain from drinking, and abstain from driving for a one (1) year period prior to applying for reinstatement on a restricted basis.

(d) Persons revoked for ten (10) years for three (3) convictions of driving under the influence or driving with an unlawful blood alcohol level within a ten (10) year period, must serve twenty-four (24) months of the revocation period, complete a substance abuse course, be under the supervision of a DUI school, and abstain from drinking, and abstain from driving for a one (1) year period prior to application for a restricted driver’s license.

(e) Persons permanently revoked for four (4) or more convictions of driving under the influence or DUI manslaughter, or because of a conviction of manslaughter resulting from the operation of a motor vehicle or vehicular homicide and has been convicted of driving under the influence, or DUI manslaughter may, upon the expiration of five (5) years after the date of such revocation, petition the Department for reinstatement of driving privilege. It must be demonstrated to the Department that the petitioner has not been arrested for a drug-related offense during the revocation period, not have driven a motor vehicle without a license for at least five (5) years, been drug free for at least five (5) years prior to the hearing, and has completed a court approved substance abuse driver training course. The person must be supervised under a court-approved DUI program conducting substance abuse education, and report to the program for counseling evaluation and education at least four (4) times a year, or as required by the program, for the remainder of the revocation period.

Clearly if abstention from drinking was a condition of reinstatement for one permanent license revocation it would have been specifically spelled out the same way it was spelled out in sections (5) (c) and (d) of the Rule.

The undersigned is aware of the case DHSMV v. Abbey, 745 So.2d 1024 (Fla. 2nd DCA 1999). In that case the Court held that the DHSMV acted reasonably in requiring an applicant for a hardship license to be alcohol-free for 5 years as part of being “drug-free” for 5 years even though the statute does not specifically require the applicant to be “alcohol-free”. However the decision in that case, with all due respect to the Second DCA, is wrong. There are no other District Court of Appeals opinions that address this issue.

The Abbey Court stated:

When the legislature announced that an applicant must be “drug-free,” it did not intend the applicant to refrain from the use of aspirin. Section 316.193, Florida Statutes (1997), establishes penalties for driving under the influence of certain mind-altering substances that impair a driver’s judgment and performance. That statute discusses alcohol and certain regulated drugs. The Department is interpreting section 322.271(4) to require abstinence from the same mind-altering substances, i.e. drugs that can result in an arrest for DUI. In the context of these statutes, any other interpretation would be unreasonable. State, Dept. of Highway Safety & Motor Vehicles v. Abbey, 745 So. 2d 1024, 1025 (Fla. 2d DCA 1999).

The Court while attempting to establish that drugs and alcohol are the same, namely that they are both mind altering, it failed to take into account that mind altering drugs are per se illegal and impairs one’s ability to function. Alcohol is not the same. Mind altering drugs by their very nature impair you by altering your mind. Alcohol does not have the same effect. One drink will not necessasrily alter your mind. While there is potential for alcohol to be mind altering, it is not mind altering as a matter of fact. Remember that it is not illegal to drink and drive. It only becomes illegal when one consumes enough alcohol such that he/she is over the legal limit to drive or the person’s normal faculties are impaired. In fact even the DUI statute, while treating alcohol and illegal drugs the same, distinguishes them. For example, Florida Statute §316.193 provides that “[a] person is guilty of the offense of driving under the influence and is subject to punishment … if the person is driving or in actual physical control of a vehicle within this state and: (a) The person is under the influence of alcoholic beverages, any chemical substance controlled under chapter 893, when affected to the extent that the person’s normal faculties are impaired…. If in fact they were the same there would be no need to specify alcohol and drugs.

As such the only interpretation that makes sense is the actual language of the statute, and that “drug-free” only means “drug-free” and not “alcohol free”

CONCLUSION

The writ should be issued and the Department’s final order should be quashed.

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true copy hereof has been furnished by hand delivery or mail to the Office of the Attorney General, 1515 N. Flagler Drive, West Palm Beach, Florida 33401and the Department of Motor Vehicles, Legal Office, P.O. Box 540609, Lake Worth, Florida 33454 this 10th day of July 2013.

Respectfully submitted,

______________________

Andrew D. Stine, Esq.

120 South Olive Ave

Suite 402

West Palm Beach, FL 33401

561-832-1170 Phone

561-832-1544 Fax

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