Department of Highway Safety & Motor Vehicles v. Auster
52 So. 3d 802
Fla. Dist. Ct. App.2010Background
- Auster was arrested for DUI on July 29, 2008 and license suspension followed under 322.2615(1)(a) for refusal to submit to a breath test.
- Auster requested a formal review hearing, held August 27, 2008, and sought a subpoena for breath technician Osvaldo Caner.
- The hearing officer denied the subpoena requests, initially and on renewal at the hearing.
- The hearing officer upheld the suspension after reviewing the citation, arrest affidavit, work sheet, and refusal affidavit, finding probable cause, a valid refusal, and the statutory consequences of refusal.
- The circuit court granted Auster’s petition for writ of certiorari, quashed the order, and criticized the hearing officer for not issuing Caner’s subpoena; the court relied on Amodeo, which this court rejects as non-precedential.
- The Fifth DCA agrees the subpoena should have been issued where testimony is relevant to the limited review issues, and that Auster’s breath technician testimony was potentially non-cumulative and within scope.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the hearing officer erred by denying the subpoena for the breath technician | Auster | Auster | Yes; denial was error and subpoena should be issued when relevant to issues within scope |
| Whether the hearing officer’s discretion to grant subpoenas is properly bounded | Auster | Auster | Subpoena discretion is limited and must be exercised to serve due process when witness testimony is relevant |
| Whether the breath technician’s testimony was within the scope of the limited review and not clearly cumulative | Auster | Auster | Yes; it was within the scope and not clearly cumulative, so subpoena should be issued |
Key Cases Cited
- Dep’t of Highway Safety & Motor Vehicles v. Amodeo, 711 So.2d 148 (Fla. 5th DCA 1998) (denial of certiorari; lack of precedential value)
- Dep’t of Highway Safety & Motor Vehicles v. Chamizo, 753 So.2d 749 (Fla. 3d DCA 2000) (subpoena discretion; testimony relevance limited to issues; harmless error where quashed)
- Larmer v. Dep’t of Highway Safety & Motor Vehicles, 522 So.2d 941 (Fla. 4th DCA 1988) (rescission of refusal timing after initial refusal while in presence of officers)
- Lee v. Department of Highway Safety & Motor Vehicles, 4 So.3d 754 (Fla. 1st DCA 2009) (subpoenas under 322.2615(6)(b) not limited to witnesses named in documents)
- Department of Legal Affairs v. Dist. Court of Appeal, 434 So.2d 310 (Fla. 1983) (non-precedential discussion regarding agency appellate review)