Dhsmv Formal Review Waiver Determination of Eligibility 2018
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| Video in DUI Example Does Non Prevarication |
The Video in DUI Case Does Non Lie – So Says the Florida Supreme Court. A hearing officer most ignored discrepancies betwixt a video and the reports and the testimony of a law enforcement officer. The courtroom called shenanigans on the lack of body camera recording that could accept been produced, but was non. Below are a few passages from this example, the complete Case is below.
"bear witness which is totally contradicted and totally negated and refuted by video evidence of record, is non competent, substantial evidence. "
The Video on YouTube in this of import case is embedded below. The cop cruises along for over xiv minutes and the driving looks fine. Cop drives by a couple of his buddies in the median and activates his overhead lights. The cop is out of the car and in the video for less that 2 minutes. Video is almost a half-60 minutes long and nosotros never see the citizen out of the machine to see or hear if he even appeared or sounded impaired. One of our sources says a Court, "applies right law by rejecting officer testimony equally being competent, substantial evidence when that testimony is contrary to and refuted by objective real-time video evidence . . . ." Florida Law Weekly.
You tin skip to most 12:00 minutes to see what the video shows about this allegation of impaired driving. There is no audio in the original (court has fabricated information technology bachelor here DUI in-car Video of Traffic Terminate ) – judge the declared bad driving for yourself.
DUI Video Instance Excerpts:
"show which is totally contradicted and totally negated and refuted by video evidence of record, is non competent, substantial evidence. "
"failed to activate his body photographic camera and microphone during his direct contact"
"Every case involving a license suspension contains a 4th Amendment analysis of whether at that place was reasonable suspicion to stop the vehicle or probable cause to believe that the driver was in physical command of the vehicle while under the influence of booze"
"the existent-fourth dimension video of the events contradicts and refutes the exact description"
Supreme Court of Florida
____________
No. SC14-2195
____________
JOSEPH B. WIGGINS
Petitioner,
vs.
FLORIDA DEPARTMENT OF HIGHWAY SAFETY AND MOTOR VEHICLES
Respondent.
[January 31, 2017]
LEWIS, J.
This instance is earlier the Court to review the decision of the First Commune Court of Appeal in Florida Section of Highway Prophylactic & Motor Vehicles v. Wiggins, 151 Then. 3d 457 (Fla. 1st DCA 2014). Here, the Commencement Commune certified a question of not bad public importance, which we rephrase as follows:
WHETHER A Circuit Court CONDUCTING FIRST- TIER CERTIORARI REVIEW Under Section 322.2615, FLORIDA STATUTES, APPLIES THE CORRECT Constabulary BY REJECTING OFFICER TESTIMONY AS COMPETENT, SUBSTANTIAL Bear witness WHEN THAT TESTIMONY IS CONTRARY TO VIDEO Evidence.
This certified question presents a pure question of law and is, therefore, subject to de novo review. Meet Jackson-Shaw Co. v. Jacksonville Aviation Auth., 8 And then. 3d 1076, 1084-85 (Fla. 2008). Nosotros have jurisdiction. Art. V, § iii(b)(iv), Fla. Const.
We answer the rephrased certified question in the affirmative and hold that in this context of section 322.2615 offset-tier review, a excursion court must review and consider video prove of the events which are of record every bit function of its competent, substantial evidence analysis. Farther, we hold in this limited context that evidence which is totally contradicted and totally negated and refuted by video evidence of record, is not competent, substantial bear witness.
Statutory Background
Section 322.2615, Florida Statutes, provides for the suspension of one's driving privilege for driving under the influence (DUI). Specifically, the statute authorizes a law enforcement officer to suspend one's driving privilege when that person is driving or in physical control of a vehicle and has a blood- or breath-alcohol level of .08 or higher. Alternatively, a police force enforcement officer may also suspend the driving privilege of one who refuses to submit to a urine, breath, or blood-alcohol examination. § 322.2615(1)(a), Fla. Stat. (2011). If the driver refuses to perform a lawfully requested urine, breath, or blood test, the officer must notify the driver that his or her license will be suspended for a year, or xviii months if the driver has previously had his or her license suspended for failure to submit to such tests. § 322.2615(1)(b)one.a. Section 322.2615 is to exist read in pari materia with section 316.1932, Florida Department of Highway Rubber & Motor Vehicles v. Hernandez, 74 So. 3d 1070, 1076 (Fla. 2011), every bit revised on denial of rehearing (Nov. x, 2011), a statute which provides that the requested sobriety tests "must exist incidental to a lawful arrest" and that the officer must accept "reasonable cause to believe such person was driving or was in actual physical control of the motor vehicle within this country while nether the influence of alcoholic beverages." § 316.1932(1)(a)ane.a., Fla. Stat. (2015). Once the license is suspended, the driver may request review by the Department of Motor Safety and Vehicles (Section) through an administrative hearing before the Department within ten days after issuance of the notice of suspension. § 322.2615(1)(b)iii. The statute farther provides that the review hearing will essentially office every bit a trial before the Section:
Such formal review hearing shall be held before a hearing officer designated by the department, and the hearing officeholder shall exist authorized to administer oaths, examine witnesses and take testimony, receive relevant evidence, issue subpoenas for the officers and witnesses identified in documents [submitted for review], regulate the class and behave of the hearing, question witnesses, and make a ruling on the suspension.
§ 322.2615(6)(b).
During a formal review hearing for license suspension, the hearing officer is express to the following questions, which must exist established by a preponderance of the evidence:
i. Whether the law enforcement officer had probable cause to believe that the person whose license was suspended was driving or in actual physical control of a motor vehicle in this state while under the influence of alcoholic beverages or chemical or controlled substances.
2. Whether the person whose license was suspended refused to submit to whatsoever such test afterwards being requested to exercise so by a constabulary enforcement officer or correctional officer.
3. Whether the person whose license was suspended was told that if he or she refused to submit to such test his or her privilege to operate a motor vehicle would exist suspended for a menses of 1 year or, in the case of a second or subsequent refusal, for a period of xviii months.
§ 322.2615(7)(b).
The hearing officer's authorization to determine the "lawfulness of the cease" is built into the provision of the essential element of whether probable cause existed. Schwartz v. Fla. Dep't of Highway Safe & Motor Vehicles, 920 So. 2nd 664, 665 (Fla. 3d DCA 2005) (quoting Fla. Dep't of Highway Safety & Motor Vehicles five. DeShong, 603 So. 2d 1349, 1351 (Fla. 2d DCA 1992)). Finally, the hearing officeholder'due south decision may be reviewed past an Article 5 judge or judges in a excursion court past a writ of certiorari. § 322.2615(13).
Facts and Procedural Background
The facts surrounding the case before united states concern the stop and abort of Joseph B. Wiggins for driving under the influence of alcohol. Because there is a
conflict between the facts every bit reported by the arresting officeholder and the facts as demonstrated past the real-time video evidence of the event, we will present both versions of the facts.
Arrest Report and Testimony
According to the oral testimony of the officer based on his report, on the night of the stop, at that place was no surrounding traffic. Upon his offset observation of Wiggins' truck, Officer Saunders wrote in the arrest report that the vehicle "appeared to swerve from one lane to some other." Both Saunders and Wiggins were driving in the aforementioned direction, but Wiggins drove in the correct lane while Saunders followed in the left lane. Saunders farther reported that Wiggins drifted within his lane, traveled thirty miles per hour in a 40-five mile per hour zone, and crossed over the outside lane line—nearly hitting a right-side curb earlier swerving dorsum into his lane. Saunders stated that, as they approached an intersection, Wiggins "braked hard for no apparent reason and then accelerated back to about 30 miles per 60 minutes," continued to migrate over the line, and nearly striking the adjourn once more. As he entered another intersection, Wiggins reportedly "braked hard again and swerved right" and about hit the curb. Wiggins then "made a quick lane change into the left lane in front of [Saunders]" and tapped his brakes. The report further states that as they approached some other traffic light, Wiggins passed the opening for a left plough lane and then slowly drifted over the line to enter the lane. Wiggins then
"made a very wide left turn and had to realign his truck as he straightened out." Believing Wiggins to be impaired, Saunders activated his emergency lights. Wiggins reportedly continued in a directly path and made a sharp right turn into a drug store parking lot. Wiggins then drove through the marked parking spaces and stopped, partially obstructing the travel lane.
Thereafter, Saunders reported that he approached Wiggins, who already had his driver'south license and registration in hand, and explained the reason for the stop. Saunders noticed a strong odor of booze and observed that Wiggins' optics were bloodshot and glassy. In addition, Saunders noted that "[h]is movements were slow and deliberate." When asked if he had been drinking any alcoholic beverages, Wiggins reportedly replied that he had consumed a few drinks. Wiggins was then asked to perform field sobriety exercises only refused. Saunders informed Wiggins that his refusal to participate in field sobriety exercises would exist used against him in courtroom and asked Wiggins to exit the vehicle. After Wiggins refused, Saunders advised him that he was being arrested for driving nether the influence. Eventually, Saunders convinced Wiggins to go out the vehicle. Wiggins was subsequently transported to the Dirt Canton Jail, where Saunders requested a breath test.
Subsequently his arrest, Wiggins requested a formal hearing earlier the Section pursuant to section 322.2615. During the hearing, Saunders acknowledged that it was the sheriff'southward standing general social club to also record contact with a person that an officeholder believes to be impaired. All the same, Saunders failed to activate his body camera and microphone during his direct contact with Wiggins. Therefore, the video recording available at the hearing was a real-time video taken from Saunders' dashboard camera with no audio.
Saunders likewise admitted that there were inconsistencies betwixt his arrest report and the video. Specifically, the report stated that Wiggins quickly inverse lanes in forepart of Saunders, while the video indicated that Saunders was the one who had changed lanes to get behind Wiggins, and Wiggins so inverse into the vacant lane. Otherwise, Saunders continued to insist that Wiggins weaved in and out of his lane, well-nigh hit the curb, braked erratically, and made a wide turn.
Actual Video
Due to the dissent's representations, we embed a copy of the actual video in this opinion.1 The dashboard camera on Saunders' vehicle recorded Wiggins' driving pattern from the fourth dimension Saunders first saw the vehicle to the time Wiggins was stopped. As Saunders trailed Wiggins' vehicle that night, the video showed Wiggins driving totally inside the proper lines. Wiggins did non cross any lines,
i. To access the entire real-fourth dimension video of the events, come across https://efactssc-public.flcourts.org/CaseDocuments/2014/2195/DashVideo.wmv .
nor did he almost hit the curb. Wiggins did alter lanes only one time in an apparent endeavor to clear the lane for Saunders, but he utilized his plough signal before doing so. Wiggins then activated his turn signal to move into a left plow lane, braked in preparation to turn at a traffic light, and made a normal left plough in one case the traffic calorie-free turned dark-green. As Wiggins turned left, Saunders activated his emergency lights. Upon activation of the police force emergency lights, Wiggins made a normal right turn into an empty drug store parking lot. The area was nighttime and Wiggins came to a stop and parked in front of the building. Saunders later on exited his vehicle and approached Wiggins' vehicle with another officer.
Nevertheless that the real-fourth dimension video testify totally contradicted and refuted the testimony and abort study of Officer Saunders, the hearing officer affirmed the suspension of Wiggins' license. The dissent has attempted to incorrectly transform the appellate posture of this instance into a de novo factual dispute, contrary to all concepts of appellate procedure.
Circuit Courtroom Opinion and Society
Subsequent to the Department's authoritative hearing determination, Wiggins filed a Petition for Writ of Certiorari in the Fourth Judicial Circuit Court pursuant to section 322.2615, Florida Statutes. The first level of review in the circuit court was limited to whether Wiggins was accorded procedural due process, whether the essential requirements of the police had been observed by the Section, and
whether the administrative findings and judgment of the Section were supported by competent, substantial bear witness. The court recognized that, as a circuit court conducting get-go-tier certiorari review, it was non permitted to totally reweigh the show de novo. However, the court reasoned that the objectivity and neutrality of the video evidence placed the circuit court in the same position equally the hearing officer when reviewing the evidence, and that as an Article V judge, the court had an obligation to review the evidence to determine whether competent, substantial show had been presented.
Here, the court concluded that the video testify refuted both the arrest report and Saunders' testimony. Specifically, the court found that the vehicle in the video did not swerve within its lane, did not cantankerous over the lane line, did not nearly strike the curb, nor did it brake for no reason. Furthermore, the court adamant that the video depicted Wiggins intentionally irresolute lanes into the turn lane with proper signals and thereafter making a normal left hand turn, as opposed to making a wide turn.
Based on these clearly revealed contradictions, the circuit court ended that the abort report and Saunders' testimony based on that incorrect study failed to constitute competent, substantial bear witness. Thus, the circuit court held it was unreasonable equally a matter of law for the hearing officer to accept the report and the testimony as true despite the objective and neutral images of the real-fourth dimension video show of the event.
First Commune Court of Appeal
Post-obit the excursion court's decision, the Department sought review in the Starting time Commune Court of Appeal. The district courtroom's second-tier review of the excursion courtroom's order was farther limited to just 2 questions: (1) whether the circuit courtroom afforded Wiggins procedural due process and (two) whether the circuit court applied the correct law, Wiggins, 151 So. 3d at 461-62, a principle consistently violated in the dissenting opinion.
Although the circuit courtroom based its order on its finding that the report and the testimony which were opposite to the existent-fourth dimension video bear witness did not corporeality to competent, substantial bear witness, the First District concluded that the circuit courtroom essentially reweighed the evidence and conducted a de novo review in violation of this Court's opinion in Dusseau v. Metropolitan Dade County Lath of County Commissioners, 794 So. 2d 1270 (Fla. 2001). Wiggins, 151 So. 3d at 462-63. Specifically, the First District opined that Dusseau established that a excursion court is limited to a determination of whether an bureau'south decision was supported past competent, substantial evidence. Id. at 463. Accordingly, the district courtroom concluded that the circuit court in the instant example should have concluded its review when it found evidence in the abort study and testimony that supported the agency'due south determination. Id. at 464.
Further, the courtroom reasoned that the hearing officer's factual findings should accept been accorded deference because she is experienced on such matters and heard the alive testimony herself. Id. at 465.
The First District granted the Department'southward petition, quashed the excursion courtroom's order, and remanded with directions to use the law. Id. at 471. Finally, taking into consideration the prevalence of video evidence, the First Commune certified the following question of great public importance for this Courtroom'due south review:
WHETHER A CIRCUIT Courtroom FAILS TO Use THE CORRECT LAW By REJECTING AS Non-CREDIBLE THE ENTIRETY OF AN ARRESTING Officeholder'South TESTIMONY AND REPORT Apropos A TRAFFIC STOP, UPON WHICH THE HEARING OFFICER'Southward FACTUAL FINDINGS RELIED, BASED SOLELY ON THE Circuit Courtroom'S Ain INDEPENDENT REVIEW AND Assessment OF EVENTS ON THE VIDEO OF A TRAFFIC Stop?
Id. at 471.
In his dissent, Judge Van Nortwick disagreed that Dusseau required a culling through the record simply for whatever facts supported the administrative hearing lodge. Id. at 474 (Van Nortwick, J., dissenting). Otherwise, the competent, substantial evidence standard would be rendered useless. Id. at 474. In the opinion of Judge Van Nortwick, evidence that is unreliable is not competent, substantial evidence. Id. at 476.
Analysis
As explained on numerous occasions, a circuit court conducting start-tier certiorari review of an administrative decision is limited to determining (1) whether due procedure was accorded, (two) whether the essential requirements of the law were observed, and (3) whether the administrative findings and judgment were supported past competent, substantial evidence.2 Nader v. Fla. Dep't of Highway Safety & Motor Vehicles, 87 So. 3d 712, 723 (Fla. 2012) (quoting Haines City Cmty. Dev. v. Heggs, 658 So. 2d 523, 530 (Fla. 1995)); Broward Cty. v. G.B.V. Int'l, Ltd., 787 So. 2nd 838, 843 (Fla. 2001) (quoting Metropolis of Deerfield Beach v. Vaillant, 419 So. 2d 624, 626 (Fla. 1982)). The second-tier certiorari review is more narrowly express to (i) whether the lower tribunal afforded procedural due process and (2) whether the lower tribunal applied the correct law. Heggs, 658 And then. second at 530.
2. It is important to distinguish the functions of the common law writ of certiorari and starting time-tier certiorari review. The mutual law writ of certiorari allows an upper courtroom to direct a lower tribunal to inform the upper court of the events below in a pending case so that the upper court can review the proceedings for regularity. Broward Cty. v. G.B.5. Int'l, Ltd., 787 And so. 2nd 838, 842 (Fla. 2001).
Further, "[t]he [common law] writ functions equally a safety internet and gives the upper court the prerogative to reach down and halt a miscarriage of justice where no other remedy exists." Id. This discretionary common law writ is non intended to redress mere legal error, but rather to fill the gaps between directly entreatment and other prerogative writs. Id. This Court has emphasized that the common law writ functions as an extraordinary remedy, not as a 2nd entreatment. Id. In contrast, first-tier certiorari review is not a discretionary writ, but a thing of correct more than similar to a plenary entreatment. Id. at 843.
This Courtroom has deferred to the findings of an bureau fact-finder in the context of zoning and policy determinations, as the bureau fact-finder in theory has the requisite experience, skill, and perspective to adequately adjudicate specialized proceedings. Come across Dusseau, 794 And so. 2nd at 1276. In the spirit of deferring to the agency fact-finder in some special cases, this Court has further concluded that when determining whether the administrative determination was founded on competent, substantial bear witness, the circuit court may simply look for facts in the record that back up the bureau fact-finder's conclusions. Run across, e.g., G.B.5. Int'50, 787 So. 2nd at 845 (concerning review of a zoning decision); Dusseau, 794 And so. 2d at 1275-76 (also zoning); Florida Ability & Calorie-free Co. v. City of Dania, 761 So. 2d 1089, 1093 (Fla. 2000) (also zoning); Educ. Dev. Ctr., Inc. five. City of W. Palm Beach Zoning Bd. of Appeals, 541 And then. 2d 106, 108 (Fla. 1989) (also zoning); De Groot v. Sheffield, 95 And then. 2d 912, 916 (Fla. 1957) (concerning removal of an employee of the Duval Canton School Board).
However, this Court and others have voiced concerns with fairness and due process specifically in the context of hearings held before Department hearing officers under section 322.2615. See, due east.g., Hernandez, 74 And so. 3d at 1079 (stating that a petitioner seeking review of a license break under section 322.2615 must exist afforded reasonable notice and meaningful review of the lawfulness of the pause); Forth 5. Dep't of Highway Prophylactic & Motor Vehicles, 148 And so. 3d 781,
782 (Fla. 2d DCA 2014) (quashing the circuit courtroom's conclusion to remand to the Department after information technology was found that the hearing officer was not impartial); Fla. Dep't of Highway Prophylactic & Motor Vehicles five. Griffin, 909 So. second 538, 543 (Fla. 4th DCA 2005) ("While we meet no constitutional infirmity in non-lawyers serving equally hearing officers nether section 322.2615, we do strongly circumspection those hearing officers that they must take extraordinary intendance to be as impartial and neutral as the members of the judiciary are required to be."); Fla. Dep't of Highway Safety v. Dean, 662 And then. 2d 371, 373 (Fla. 5th DCA 1995), cause dismissed, 667 So. 2d 774 (Fla. 1996) ("The frequency with which conscientious trial judges of this country consequence decisions that take the effect of providing more than procedural safeguards to licensees in these revocation hearings suggests a standing concern virtually the fairness of this statutory procedure."); Dep't of Highway Safety & Motor Vehicles v. Stewart, 625 So. 2d 123, 124 (Fla. fifth DCA 1993) (reasoning that although the process under section 322.2615 is expeditious and facially valid, "[l]ower courts may find, under the facts of a specific instance, that a suspendee's rights have not been respected"). Today, nosotros accost those concerns.
The substance of cases that involve special issues of zoning or policy decisions greatly differ from those that involve license suspensions for DUI. A court conducting section 322.2615 first-tier certiorari review faces constitutional questions that practise non normally arise in other administrative review settings. Every instance involving a license pause contains a Quaternary Amendment analysis of whether at that place was reasonable suspicion to stop the vehicle or probable cause to believe that the driver was in physical command of the vehicle while nether the influence of alcohol. § 322.2615(seven)(b)1. With that, first-tier review under this particular statute demands a shut review of the factual record to determine whether the hearing officer's findings were supported by competent, substantial show and whether the essential requirements of the law were applied. Nader, 87 Then. 3d at 723. Some consideration of the show is inescapable in the competent, substantial evidence determination. These are legal questions that phone call for an unbiased review, rather than being solely left to the discretion of a hearing officeholder who is actually employed by the Department. While a policy that provides deference to the agency fact-finder may be appropriate in special areas such as zoning or policy decisions, which involve concepts that require a certain level of expertise that can be provided by a nonlawyer, the same does non concur true for the questions of ramble law that arise under department 322.2615. It is no wonder, then, that the Legislature created a statute to tailor review for this narrow situation.
The kind of show presented in the context of a license suspension hearing is also distinguishable from that presented in the context of zoning or policy decisions. With the advancement of technology, video prove has become increasingly prevalent in the arena of constabulary enforcement.
Officers are now equipped with dashboard and body cameras to record traffic incidents. Whereas prior to the development of this engineering science officers were limited to what their homo retentivity could remember along with express reports, an officer tin can now revisit the outcome without the distractions or stress that may ascend when one is in the nowadays moment. Dissimilar testimonial bear witness based on a written report, the objective nature of video evidence allows it to exist viewed by the Article 5 judicial officer on first-tier certiorari without the need for interpretations of the hearing officer.
We respect the authority and expertise of constabulary enforcement officers, and thus rely on an officer's retentivity when necessary. But nosotros would be remiss if nosotros failed to acknowledge that at times, an Every example involving a license suspension contains a Quaternary Amendment analysis of whether at that place was reasonable suspicion to stop the vehicle or probable cause to believe that the driver was in physical control of the vehicle while nether the influence of alcohol. This is the reality of human imperfection; we cannot expect officers to retain information every bit if he or she were a figurer. Therefore, a estimate who has the do good of reviewing objective and neutral video show forth with officer testimony cannot be expected to ignore that video bear witness simply because it totally contradicts the officer's recollection. Such a standard would produce an absurd result. Yet, the reasoning of the Section and the dissent would require exactly that.
We disagree with the First District that the excursion court's refusal to accept the officeholder'due south testimony equally competent, substantial evidence constituted a reweighing
of the evidence. Notably, in some other case involving department 322.2615 review, the Beginning District concluded that documents that are hopelessly in conflict could not corporeality to competent, substantial evidence. Dep't of Highway Condom & Motor Vehicles v. Trimble, 821 And then. 2nd 1084, 1086 (Fla. 1st DCA 2002). Here, not only is the evidence hopelessly in conflict, but the circuit courtroom had the benefit of having objective and neutral video show available for review of the bodily issue, every bit opposed to two conflicting documents that announced equally reliable. We will not ask circuit courts conducting license suspension review to ignore this benefit.
We find the dissenting opinion of Judge Van Nortwick below to be far more compatible with the police of legal review under these facts. Relying on this Court's opinion in Tibbs v. State, 397 So. second 1120, 1123 (Fla. 1981), Judge Van Nortwick aptly pointed out that the weight and sufficiency of evidence are two separate concepts. Specifically, sufficiency tests the capability and credibility of the bear witness, whereas weight refers to the balance of the evidence. Encounter Wiggins, 151 So. 3d at 476 (Van Nortwick, J., dissenting). In the case before u.s.a., the officer's testimony that there was reasonable suspicion to stop Wiggins is flatly contradicted and refuted by video evidence of record. Contrary to the officer'south testimony, the video indicates that Wiggins did non veer out of his lane, did not weave inside his lane, did not brake erratically, did not brand a wide plough, or do annihilation else to elicit reasonable suspicion. The Department contends that the circuit court
reweighed the evidence in terminal that the video refuted the testimony of the officeholder. Nosotros disagree. The circuit judge hither did not engage in a reweighing of the prove, but rather, adamant that the contradicted testimony of the officer was non sufficient to amount to competent, substantial evidence.
Evidence that is confirmed untruthful or nonexistent is non competent, substantial evidence. Competent, substantial bear witness must be reasonable and logical. Gonci v. Panelfab Prods., Inc., 179 So. 2d 856, 858 (Fla. 1965). It follows that a competent, substantial evidence analysis demands an honest look at the testify available. Otherwise, we are asking judges to simply parrot the findings of the hearing officer, thus reducing the chore of a constitutional judge to providing a predetermined postage of approval. To concur that a judge on first-tier certiorari review must accept testimony that, equally here, is clearly contradicted and totally refuted past objective video show, would be an injustice to Florida drivers. The law under department 322.2615 is not designed to protect the decision of the hearing officer, simply to preserve due process and justice. The Legislature conspicuously intended that the circuit court deport a meaningful review of the record. Whether a right or a privilege, driving is no incertitude an important facet in the lives of Florida citizens. Encounter Hernandez, 74 So. 3d at 1078 (noting that regardless of whether driving is a right or a privilege, "the loss of a driver's license is most definitely an extreme hardship"). The law is designed and intended to protect that significant interest,
non exploit information technology. Had the bear witness in conflict been but documentary or testimonial, as we frequently run into in the context of other administrative hearings, mayhap more deference could be afforded to the hearing officeholder. In the context of section 322.2615 starting time-tier certiorari, however, objective and neutral video show is ofttimes available to confirm the true facts.
We practise not disregard drunk driving past any means, but we cannot encourage application of our laws in a manner that upholds stops without reasonable suspicion. Hither, the Department asks us to stretch our imaginations to a situation where the officer would take reasonable suspicion to deport a finish, even though there is clear, objective, neutral, and overwhelming video evidence of the opposite. This would not be a correct application of the police. Such an interpretation of the law would permit a hearing officer to arbitrarily choose evidence without an incentive to listen and evaluate for competent, substantial show. This would be an absurd result that we cannot back up.
The dissent attempts to improperly transform the decision process and standard of review in this Courtroom in this context into an absolute de novo factual dispute as if we were the circuit court, and nosotros were operating in a higher place and beyond the first-tier certiorari review. This attempted transformation is a foundational flaw which causes the entire dissent to be misdirected.
It is crucial to recognize that there is a true and important distinction between the standards of review conducted by circuit courts upon first-tier certiorari review and that of district courts upon 2nd-tier certiorari review. This Court has repeatedly explained that upon first-tier certiorari review of an authoritative decision, the circuit court is limited to determining (1) whether due process was accorded, (ii) whether the essential requirements of the law were observed, and (3) whether the administrative findings and judgment were supported by competent, substantial bear witness. Due east.g., Nader, 87 So. 3d at 723 (quoting Heggs, 658 So. second at 530); K.B.V. Int'50, 787 So. 2nd at 843 (quoting Vaillant, 419 And then. 2d at 626); Dusseau, 794 So. 2d at 1274 (quoting Vaillant); Florida Ability & Light, 761 So. second at 1092 (quoting Vaillant); Educ. Dev. Ctr., 541 So. 2d at 108 (quoting Vaillant). In presenting this three-function standard of review for the excursion court, this Court has farther emphasized that "[a]south a case travels up the judicial ladder, review should consistently become narrower, non broader." Heggs, 658 So. 2nd at 530 (accent supplied). Therefore, when conducting second-tier certiorari review, both the district courtroom and this Court are more narrowly limited to determining whether the circuit court (1) "afforded procedural due process" and (two) "applied the correct law." Nader, 87 So. 3d at 717 (citations omitted); run across also 1000.B.V. Int'l, 787 So. 2d at 843 (quoting Vaillant, 419 Then. 2d at
626) Dusseau, 794 And so. 2d at 1274 (quoting Vaillant); Florida Power & Light, 761 So. 2nd at 1092 (quoting Vaillant); Heggs, 658 So. 2d at 530.
We have previously recognized that while both standards are similar in that they require determinations of due process and proper awarding of the police force, a primal difference between first-tier review and second-tier review lies in the competent, substantial show prong. Florida Power & Calorie-free, 761 And so. 2d at 1092-93. Notably, the competent, substantial evidence prong is absent from the 2nd-tier standard. Id. Upon making this observation, this Courtroom in Florida Power & Light explicitly ended that "the district court on second-tier certiorari review may not review the tape to determine whether the agency decision is supported by competent substantial prove." Id. at 1093 (emphasis in original). Here, the excursion courtroom in the initial pace of the review properly performed a competent, substantial prove analysis and adamant that the officer's testimony did not constitute competent, substantial evidence in light of the conflicting video show.
Notwithstanding overwhelming jurisprudence to the opposite, however, the district court below and the dissent here accept attempted to incorrectly extend review to the competent, substantial evidence prong and accept effectively placed themselves far to a higher place the position of a circuit courtroom conducting first-tier review. This amounts to absolute de novo review, which necessarily violates the limited,
two-pronged standard of review required past courts conducting second-tier review. Run across One thousand.B.V. Int'l, 787 So. 2d at 845 (explaining that the district court is limited to a ii-pronged standard of review, not de novo review).
Additionally, with the expanded development of technology and the very apropos societal experiences, the use of and request for real-time video of government-citizen confrontational events have moved consideration beyond governmental words purporting to describe events into a broad, more authentic, off-white consideration of the actual events as captured on video. Fifty-fifty if it were proper to become engaged in a factual dispute, which it is non on this 2nd-tier review, the dissent would conclude that mere words of the authorities are sacrosanct and can be used to punish citizens fifty-fifty where totally contradicted by the actual facts captured on video. The dissent presents an arroyo which is the antithesis of a fair and reasonable system. A government organization that would punish its citizens with the use of false prove of its officers contradicted by existent-time video evidence is a system in danger at all-time.
The legal issues presented to this Court and the commune courtroom below is whether real-time video of events can operate to return mere exact descriptions of purported events to exist non "competent, substantial" prove when the real-time video of the events contradicts and refutes the exact description. Information technology must likewise be remembered that the regime witness conveniently failed to video his actual personal contact with the denizen in this case, contrary to the standing orders of his superiors, and the regime witness also admitted that his written written report from which he testified was in conflict with the real-fourth dimension video of the bodily events.
Accordingly, nosotros hold that in the limited context of section 322.2615 first-tier review of a DUI license pause, a circuit court applies the correct police force past rejecting officer testimony as beingness competent, substantial evidence when that testimony is contrary to and refuted by objective existent-time video testify. That which is institute past an Commodity V approximate in this context to be totally refuted by objective, neutral real-time video evidence cannot exist accounted competent, substantial evidence.
Information technology is so ordered.
LABARGA, C.J., and PARIENTE, and QUINCE, JJ., and PERRY, Senior Justice, concur.
CANADY, J., dissents with an stance, in which POLSTON, J., concurs.
NOT FINAL UNTIL Fourth dimension EXPIRES TO FILE REHEARING MOTION, AND IF FILED, DETERMINED.
CANADY, J., dissenting.
I disagree with the bulk in two respects. Beginning, I disagree with the majority'southward interpretation of the video and its conclusion that it "flatly contradicted and refuted" Deputy Saunders' testimony. Majority op. at 17. I therefore conclude that the rephrased certified question does non accurately reflect the record before us. In my view, both Deputy Saunders' testimony and the video are competent,
substantial evidence that support the hearing officer's findings. Second, I would conclude that the circuit court went beyond the limited scope of its first-tier certiorari review, engaged in an improper reweighing of the bear witness, and therefore did not apply the correct law. The Get-go Commune properly recognized the flaws in the circuit court's conclusion. And contrary to the bulk's assertions, the commune court did not behave "accented de novo review," majority op. at 21, in violation of the standard of review applicative in second-tier certiorari reviews. Contrary to the bulk's view, this is not a example in which video evidence indisputably establishes the controlling facts. Whatever the proper dominion might exist in such a case, in this example the commune court properly recognized that the excursion court improperly reweighed the evidence presented to the trier of fact. Accordingly, I would approve the Get-go District'south decision below.
The majority states that the video shows Wiggins "driving totally within the proper lines," and non "cross[ing] any lines" or "nearly hit[ting] the curb." Bulk op. at 7-eight. Merely that is non what the video shows.3 An accurate description of what the video shows was given by Deputy Saunders as he was being examined
3. The majority also implies that Wiggins parked commonly in the drug store parking lot, but the video shows that Wiggins turned and drove through 1 row of parking spaces and halfway through another before coming to a end on an angle half in the parking spaces and half in the lane of traffic for the drug store. But this is irrelevant to the lawfulness of the stop because it took place afterward Deputy Saunders initiated the traffic end.
by Wiggins' attorney narrating the video as it played during the administrative hearing. The relevant portions of that commutation—showtime with Deputy Saunders describing his first observation of Wiggins' vehicle4—were transcribed every bit follows:
iv. Contrary to the bulk'due south suggestion, the video does non prove Wiggins' driving pattern from the time Deputy Saunders showtime saw the vehicle. Initially, the vehicle was too far away to be clearly seen on the video.
Q: I saw them. Just tell me when you lot see something.
A: Like I said, the video doesn't e'er bear witness everything I can encounter equally far every bit at a distance, but he does something in his truck that causes me to recall —
. . . .
Q: Well, how far was this truck in front of yous when y'all saw the . . . lights?
A: Aye, his — his truck's correct at that place. I don't even know at this point what — if it'due south happened or non. I just know I saw information technology.
Q: Information technology looks like information technology'south a half a mile or and then in forepart of you.
A: I don't know about one-half a mile. It's Ashton — non Ashton Forest. It's a neighborhood a couple of hundred yards earlier this lite.
Q: Are you increasing your speed at this point?
A: At this point you can see I've increased my speed. You can see his — potentially his taillights. I believe there's some other car and I'm trying to catch up to it.
Q: How fast are you traveling now?
A: I don't know. Like I say, he was doing 30 [mph in a 45-mph zone]. So I didn't have to go too much faster.
Q: Was that a traffic violation?
. . . .
A: No. At this betoken it'due south only an observation of damage.
Q: Observation of impairment.
A: You lot can run into him correct there. He'southward over on the line, on the fog line starting at the right.
Q: Yeah.
A: He's drifting a piffling. Weaving a little flake within his lane. He's riding the line correct now. That'south Long Bay right there.
Q: Yeah.
A: There's his restriction.
Q: Okay. That'southward before the intersection?
A: No, that was actually at the intersection.
Q: Okay. Didn't boring his speed downwards. That wasn't a hard brake and a stop.
A: I didn't say he stopped.
. . . .
Q: All right. Well, go ahead and play that through and so tell me where he — in that location y'all go.
A: Come across the flashing lights on Long Bay.
Q: All correct.
A: And you can come across he'south in the intersection at the time he does it.
Q: All right. Information technology looked like before to me, only go ahead and look. Flash comes on way before the intersection.
A: No. See we've already passed the intersection. It'due south a large intersection.
Q: Did he almost stop or come anywhere shut to that?
A: I didn't say he almost stopped. I said he braked hard.
Q: Braked hard. Okay.
A: See how it's a raised concrete curb on the correct.
Q: Yeah. How close is he?
A: Right now he's non close. I'm merely saying that'southward the curb I'm talking about when nosotros talk about it later on.
Q: Okay. There's a green low-cal here.
A: Yeah. Then in that location's Palmetto.
Q: He doesn't practise anything unusual or suspicious through the greenish light?
A: He's over most on the curb correct there.
Q: Well, the adjourn is right adjacent to the white line, isn't it, where you said that?
A: Yes, sir, which would indicate —
Q: Well, that's what I'm saying. The curb —
A: He's on the white line. You asked for me to narrate. I'one thousand narrating.
Q: Okay.
A: Correct now he'due south riding on the white line as you can see. He's virtually striking it again.
Q: Yeah.
A: At present he's drifting back over to the left.
Q: Yeah.
A: Coming off it. I believe the next light we'll come up to is Everett.
Q: Okay.
A: You see he'southward globe-trotting further, coming back to the left a picayune bit more than.
Q: How far did he —
A: Now he's going back right.
Q: How far did he migrate?
A: I have no idea. I don't have a ruler out in that location on him. Merely as yous can see he'south —
Q: Aye.
A: — upwards over by the adjourn again. Now he's braking again.
Q: Yeah.
A: He'due south back on the line. This is where he near strikes the curb on the opposite side. Information technology's sticking out a little bit. At present he'due south come back over. Now he's actually over the line. At present he'due south coming back over it. This is where my mistake is. I actually inverse behind him, getting ready to do a traffic stop, and then he actually switches over.
This is the 2600 block of Blanding. He's going to make a left turn at the next lite.
Q: Any weaving that nosotros've seen the last quarter of mile that he's existence [sic] driving?
A: I don't know the distance but yeah, you lot can see a little bit there. He'due south weaving a little bit.
(Emphasis added.)
Based upon the testimony and evidentiary tape that included the video, the hearing officer made the following findings of fact:
On Baronial 19, 2011, at approximately 2:ten a.m. Deputy J.C. Saunders of the Dirt Canton Sheriff's Office observed a vehicle swerving within the lane, almost hitting the right side curb on several occasions, and then braking erratically for no apparent reason. He as well paced the vehicle and determined that it was traveling 30 MPH in
a 45-MPH zone. Suspecting that the commuter might exist impaired, Deputy Saunders conducted a traffic terminate.
Every bit a result, the hearing officer ended that the stop was lawful because Deputy Saunders had a reasonable suspicion that Wiggins was driving while impaired.
What Deputy Saunders described in his narration tin can be seen on the video. Wiggins was not driving within the proper lines only was repeatedly driving on or over the fog line, nigh hit the adjourn on multiple occasions, and was drifting within his lane. The video shows that Deputy Saunders observed this driving blueprint for several minutes before initiating a traffic cease. The video also clearly shows that just prior to the initiation of the traffic cease, Wiggins passed an opening for a left-turn lane and then slowly drifted over a solid white line into the turn lane earlier turning left. Additionally, Deputy Saunders testified and wrote in his report that Wiggins was driving 30 mph in a 45-mph zone and that these observations occurred at approximately two:ten a.m. Under the totality of the circumstances, Deputy Saunders had a well-founded suspicion that Wiggins was impaired—every bit the hearing officer concluded—and the video, report, and testimony provide competent, substantial evidence to support this conclusion.
The bulk criticizes this determination, asserting that "when conducting second-tier certiorari review, both the district courtroom and this Court are more than narrowly express to determining whether the circuit court (one) 'afforded procedural due process' and (2) 'applied the correct law.' " Bulk op. at xx. The bulk
cites Florida Power & Lite Co. v. City of Dania, 761 So. 2nd 1089 (Fla. 2000), for the proposition that a courtroom conducting "second-tier certiorari review may not review the record to decide whether the bureau decision is supported past competent substantial testify." Majority op. at 21 (quoting Florida Power & Lite, 761 And so. 2nd at 1093). Just the majority itself has conducted but such a review of the record in back up of its ain analysis. Although the bulk states that the "certified question presents a pure question of police," majority op. at 2, information technology nonetheless disputes the factual findings made past the hearing officer and conducts its own "de novo" review of the facts based on its interpretation of the "actual video," come across majority op. at 7-8. The majority correctly recognizes that "[s]ome consideration of the evidence is inescapable in the competent, substantial testify determination" by the circuit courtroom on kickoff-tier certiorari review. Majority op. at 15. Similarly, "[s]ome consideration of the evidence is inescapable" on second tier-certiorari review to determine whether the excursion court applied the correct law. That does non mean that the court on second-tier certiorari review makes an independent de novo determination concerning the hearing officer'southward ruling.
I would as well conclude that the excursion court engaged in an improper reweighing of the evidence in determining that the video contradicts Deputy Saunders' written report and testimony and therefore did not use the correct law. The majority defends the circuit courtroom'south activeness, stating that because "sufficiency tests
the adequacy and credibility of the show, whereas weight refers to the balance of the evidence," bulk op. at 17, the excursion courtroom "did not engage in a reweighing of the bear witness, merely rather, determined that the contradicted testimony of [Deputy Saunders] was not sufficient to amount to competent, substantial testify," majority op. at 18. I disagree.
This Court has said:
The "weight of the evidence" is the "balance or preponderance of evidence." Black's Law Dictionary 1429 (5th ed. 1979). It is a determination of the trier of fact that a greater amount of credible evidence supports one side of an issue or cause than the other. See In re Estate of Brackett, 109 And so. 2d 375 (Fla. 2nd DCA 1959).
As a general proposition, an appellate court should not retry a example or reweigh conflicting evidence submitted to a jury or other trier of fact. Rather, the business organization on appeal must exist whether, after all conflicts in the evidence and all reasonable inferences therefrom have been resolved in favor of the verdict on entreatment, there is substantial, competent bear witness to support the verdict and judgment. Legal sufficiency alone, as opposed to evidentiary weight, is the advisable business organisation of an appellate tribunal.
Tibbs v. State, 397 So. second 1120, 1123 (Fla. 1981) (footnotes omitted), aff'd, 457 U.South. 31 (1982). In affirming Tibbs, the United states of america Supreme Courtroom stated, "A reversal based on the weight of the evidence . . . draws the appellate courtroom into questions of credibility." Tibbs v. Florida, 457 U.S. 31, 37 (1982). Here, the circuit court stated that "the arrest and booking report and testimony past Deputy Sanders [sic] would support the findings of the hearing officeholder." Only in
discrediting Deputy Saunders' testimony based on its own interpretation of what the video shows, the circuit courtroom improperly reweighed the evidence.
In Dusseau v. Metropolitan Dade Canton Lath of Canton Commissioners, 794 And so. 2d 1270, 1275 (Fla. 2001), we described the circuit court'due south erroneous arroyo in conducting first-tier certiorari review equally follows:
Although the excursion courtroom phrased its reversal in terms of "competent substantial evidence," the plain language of its social club shows that the court in fact reweighed the evidence, at length. Instead of but reviewing the Commission's conclusion to determine whether it was supported by competent substantial evidence, the court also reviewed the decision to determine whether it was opposed by competent substantial show. The excursion courtroom then substituted its judgment for that of the Commission equally to the relative weight of the conflicting evidence. The circuit court thus usurped the fact-finding authority of the agency.
The circuit court here took the same erroneous approach. Instead of simply determining whether at that place was competent, substantial evidence in the record to back up the hearing officer's conclusion that the finish of Wiggins was lawful—which the excursion courtroom conceded that Deputy Saunders' testimony and report provided—the circuit court applied the wrong constabulary, incorrectly concluded that the video conflicted with Deputy Saunders' testimony and report, and substituted its judgment for that of the hearing officer as to the relative weight of the supposedly conflicting evidence.
The majority has at present decided that Dusseau should not be applied to courts conducting beginning-tier certiorari review of administrative license suspensions because
section 322.2615 requires a conclusion of the lawfulness of the stop under the Fourth Amendment, which, the majority asserts, raises "legal questions that phone call for an unbiased review, rather than solely left to the discretion of a hearing officer who is actually employed by the Department" and "which involve[southward] concepts that crave a certain level of expertise that can be provided by a nonlawyer, the same does non concord true for the questions of constitutional constabulary that ascend under department 322.2615." Majority op. at 15. Only there is no dispute that if Wiggins swerved within his lane, nigh struck the adjourn on several occasions, braked erratically, and was traveling 30 mph in a 45-mph zone, the finish was lawful. The question was whether Wiggins did those things, and making such findings does not require a particular expertise in Fourth Amendment jurisprudence.
The majority also justifies its rejection of Dusseau in the context of review under section 322.2615 because information technology views video evidence equally "objective and neutral," which "allows it to be viewed by the Article 5 judicial officer on first-tier certiorari without the need for interpretations of the hearing officer." Majority op. at 16. Just as the First District aptly pointed out,
the quality and context of a video, similar that in this instance, may non capture or explicate the finer nuances that the homo center of a trained (though here relatively inexperienced) DUI officer may perceive. Which explains why the officeholder said he picked up on some unusual movement of the vehicle or its taillights at a distance ("a good ways dorsum at that point") that the camera could not fully capture because the "video isn't always the best."
What the officeholder believed he saw, unless entirely inconsistent with the video, is to exist credited. The officer'due south eyes were multi-tasking: watching the route to safely operate the patrol car while intermittently observing the vehicle'south driving pattern. He may have believed the vehicle hit the fog line at the time, but upon review of the video the vehicle did not migrate quite that far—only it drifted nonetheless. These types of contextual inconsistencies between the video and the officer's testimony/report are lost by crediting the video to the exclusion of the record as a whole.
Wiggins, 151 Then. 3d at 467. "Unlike the circuit court, the hearing officeholder could evaluate the brownie of the officeholder and make a determination, for example, that he was truthful in his explanation of what he saw, and what his report said, regarding the vehicle's driving pattern." Id. at 465. Thus, the hearing officeholder had a superior vantage point in evaluating all of the evidence, including the video. Further, the video—even as interpreted by the circuit court and the majority—does not abnegate Deputy Saunders' testimony that Wiggins drove 15 mph below the speed limit at 2:10 a.g., braked erratically, and made some erratic move when his vehicle first came into Deputy Saunders' view.
"[J]ust like any other blazon of evidence, video is subject field to conflicting interpretations." Robinson v. State, five North.E.3d 362, 366 (Ind. 2014). For instance, in Scott v. Harris, 550 U.S. 372, 380 (2007), Justice Scalia, writing for a majority of the Court, interpreted a video as showing "a Hollywood-style car chase of the about frightening sort, placing police officers and innocent bystanders alike at peachy take chances of serious injury," while Justice Stevens, in dissent, interpreted the same video as "hardly the stuff of Hollywood" and opined that it did not show "any incidents
that could fifty-fifty exist remotely characterized as 'close calls,' " id. at 392. Making a determination of what a video shows is a factual finding that does not require any particular expertise and is therefore entitled to deference by a reviewing court. Come across, due east.g., State v. Cortez, 482 Southward.West.3d 176, 181 (Tex. App. 2015) (belongings that because it was not easily discernable from a video whether accused's tires touched the fog line, the reviewing court was required to defer to the trial court's interpretation of the events captured on the video), vacated on other grounds, 501 S.W.3d 606, 610 (Tex. Crim. App. 2016). This is especially truthful when the video testify is considered in conjunction with other evidence past the lower tribunal. See In re M.Yard., 114 A.3d 107, 111 n.* (Vt. 2015) (citing cases).
For these reasons, I would approve the well-reasoned stance of the First District and concur that Dusseau is applicable in the context of outset-tier certiorari review under department 322.2615 and that a circuit court applies incorrect law when it reweighs or reevaluates alien evidence, rather than simply reviewing the tape to determine whether the lower tribunal's decision is supported by competent, substantial prove. I thus would respond the question certified by the First District in the affirmative. I dissent.
POLSTON, J., concurs.
Application for Review of the Decision of the District Court of Appeal – Certified Great Public Importance
First District – Case No. 1D13-2471
(Duval Canton)
David M. Robbins and Susan Helen Cohen of Epstein & Robbins, Jacksonville, Florida,
for Petitioner
Stephen Decatur Hurm, Full general Counsel, and Jason Helfant, Senior Assistant General Counsel, Department of Highway Condom and Motor Vehicles, Lake Worth, Florida,
for Respondent
Source: https://dui2go.com/tag/dhsmv/