STATE of Florida, DEPARTMENT OF HIGHWAY SAFETY AND MOTOR VEHICLES, Petitioner, v. James BOESCH, Respondent.
No. 3D07-3145.
District Court of Appeal of Florida, Third District.
March 5, 2008.
Rehearing Denied April 18, 2008.
979 So. 2d 1024
SALTER, J.
Hal Schuhmacher, for respondent.
Before WELLS, ROTHENBERG, and SALTER, JJ.
The State of Florida, Department of Highway Safety and Motor Vehicles (“Department“) petitions for a writ of certiorari regarding a Monroe County Circuit Court order issued in a driving under the influence (“DUI“) case. The circuit court quashed an administrative hearing officer‘s suspension of the Respondent‘s driver‘s license after he refused a lawful breath test. We grant the writ and quash the circuit court order.
The respondent, James Boesch, was driving an automobile on the Overseas Highway, Plantation Key, at about 11:30 p.m. on October 23, 2006. A Monroe County Sheriff‘s deputy reported that Boesch was driving at a slow speed, crossing over the middle yellow line, and weaving. He saw Boesch‘s vehicle nearly strike an electrical pole. The officer further reported that Boesch‘s automobile struck a curb, flattening the front right tire, and ultimately stopped in front of Coral Shores High School. As the circuit court found in its order, “the deputy noticed a strong smell of alcohol coming from Mr. Boesch‘s breath, and Mr. Boesch exhibited red, bloodshot eyes, and slurred speech.” After Boesch failed roadside sobriety tests, the officer asked him to submit to a breath test. Boesch refused. He was read the applicable implied consent warning and again refused to have a breath test.
Boesch was charged with driving under the influence, and his driving privilege was
During further questioning by Boesch‘s counsel, the deputy was asked if he read from the implied consent card. Counsel “asked” the deputy: “You‘re requested to submit to breath, blood or—breath, urine or blood test, and if you refuse—[sic].” The deputy answered that he read implied consent via the card, and that he “asked [Boesch] to submit to a lawful test of the breath.” A bit later, Boesch‘s counsel asked the question: “And once, once after [sic] you read him the breath, blood1 and urine, and he refused and you marked it as a refusal, correct?” The officer answered, “Yes, sir.”
After the cross-examination was concluded, the hearing officer asked for and obtained clarification, not new or additional information:
Hearing Officer: Okay. Officer, clarify something for me. What exactly did you ask the driver to do as far as testing?
Deputy: Outside of the car, I asked him if he‘d submit to a lawful test of his breath—
Hearing Officer: Okay.
Deputy: —to determine the alcohol count.
Hearing Officer: Okay. Did you ask for anything else besides the breath?
Deputy: No, I didn‘t ask him for anything else at that time. I take [sic] him to the DUI room and then I read him implied consent.
Hearing Officer: Okay. Thank you very much, officer. Counsel, do you have any other questions for the officer?
The hearing officer sustained the suspension of Boesch‘s driver‘s license, and Boesch then sought certiorari to the Monroe County circuit court. By order entered October 12, 2007, that court granted the writ and found that:
In this case, the hearing officer departed from the role of a neutral and detached magistrate by questioning which results in the establishment of previously unestablished facts, to the benefit of one side or the other. The hearing officer‘s questioning was apparently designed to create a legally sufficient record to sustain a suspension and to counteract the questioning already conducted by [Boesch‘s counsel], in which the officer had not testified unequivocally that he had only requested the breath test. Accordingly, this Court finds that the hearing officer did impermissibly stray from her role as a neutral and detached magistrate in this case. See, DHSMV v. Pitts, 815 So. 2d 738 (Fla. 1st DCA 2002)[sic]. The failure of a judge to remain neutral is fundamental error, and is not waived by the failure to make a contemporaneous objection.
Our review of circuit court orders on petitions for certiorari from administrative
In this case, the circuit court unquestionably departed from the essential requirements of law, violated clearly established principles of law, and allowed a miscarriage of justice.
First, there is no sign that the administrative hearing officer sought anything other than clarification of the officer‘s testimony. She obtained that clarification. She did not try to repair missing elements of a prima facie case for an unprepared prosecutor2 or interpose objections and “severely limit the direct examination of witnesses” such that the “impression of impartiality” might reasonably be in doubt.3 The deputy testified repeatedly that only the breath test implied consent warning was read to Boesch—not the blood or urine test warnings.4 Boesch‘s counsel‘s questioning interjected, on a later try, the possibility that the blood test implied consent warning might have been read as well, so the hearing examiner simply sought clarification. It cannot reasonably be argued that the hearing officer took over the prosecution or elicited new information essential to one party‘s case. Florida law allows—and most would say, encourages—hearing officers and judges to seek and obtain clarification in such instances. The hearing officer is not a potted plant.
Second, the hearing officer was empowered by law to “administer oaths, examine witnesses and take testimony, receive relevant evidence . . . question witnesses, and make a ruling on the suspension.”
Third, the issue was not preserved by a contemporaneous objection or even raised in a post-hearing motion; it was raised for the first time in the circuit court review proceeding. The circuit court‘s conclusion that the hearing officer‘s two questions for clarification represent a “failure to remain neutral” and “fundamental error” is itself patently erroneous on this record.
For each of these independently sufficient reasons, we find that the circuit court violated clearly established principles of law, resulting in a miscarriage of justice.5 The circuit court orders granting Boesch‘s petition (dated October 12, 2007), and denying rehearing of that order, are hereby quashed.
Petition granted.