JOSEPH B. WIGGINS Petitioner,
FLORIDA DEPARTMENT OF HIGHWAY SAFETY AND MOTOR VEHICLES Respondent.
FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION, AND IF
for Review of the Decision of the District Court of Appeal -
Certified Great Public Importance First District - Case No.
1D13-2471 (Duval County)
M. Robbins and Susan Helen Cohen of Epstein & Robbins,
Jacksonville, Florida, for Petitioner.
Stephen Decatur Hurm, General Counsel, and Jason Helfant,
Senior Assistant General Counsel, Department of Highway
Safety and Motor Vehicles, Lake Worth, Florida, for
case is before the Court to review the decision of the First
District Court of Appeal in Florida Department of Highway
Safety & Motor Vehicles v. Wiggins, 151
So.3d 457 (Fla. 1st DCA 2014). Here, the First District
certified a question of great 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 LAW BY REJECTING OFFICER TESTIMONY AS COMPETENT,
SUBSTANTIAL EVIDENCE WHEN THAT TESTIMONY IS CONTRARY TO VIDEO
certified question presents a pure question of law and is,
therefore, subject to de novo review. See Jackson-Shaw
Co. v. Jacksonville Aviation Auth., 8 So.3d 1076,
1084-85 (Fla. 2008). We have jurisdiction. Art. V, §
3(b)(4), Fla. Const.
answer the rephrased certified question in the affirmative
and hold that in this context of section 322.2615 first-tier
review, a circuit court must review and consider video
evidence of the events which are of record as part of its
competent, substantial evidence analysis. Further, 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 evidence.
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 law enforcement officer may also suspend the
driving privilege of one who refuses to submit to a urine,
breath, or blood-alcohol test. § 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 eighteen months if the driver has previously
had his or her license suspended for failure to submit to
such tests. § 322.2615(1)(b)1.a. Section 322.2615 is to
be read in pari materia with section 316.1932,
Florida Department of Highway Safety & Motor Vehicles
v. Hernandez, 74 So.3d 1070, 1076 (Fla. 2011),
as revised on denial of rehearing (Nov. 10, 2011), a statute
which provides that the requested sobriety tests "must
be incidental to a lawful arrest" and that the officer
must have "reasonable cause to believe such person was
driving or was in actual physical control of the motor
vehicle within this state while under the influence of
alcoholic beverages." § 316.1932(1)(a)1.a., Fla.
Stat. (2015). Once the license is suspended, the driver may
request review by the Department of Motor Safety and Vehicles
(Department) through an administrative hearing before the
Department within ten days after issuance of the notice of
suspension. § 322.2615(1)(b)3. The statute further
provides that the review hearing will essentially function as
a trial before the Department:
Such formal review hearing shall be held before a hearing
officer designated by the department, and the hearing officer
shall be 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 course and
conduct of the hearing, question witnesses, and make a ruling
on the suspension.
a formal review hearing for license suspension, the hearing
officer is limited to the following questions, which must be
established by a preponderance of the evidence:
1. 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 any such test after being requested to do so by a
law 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 be suspended for a
period of 1 year or, in the case of a second or subsequent
refusal, for a period of 18 months.
§ 322.2615(7)(b). The hearing officer's
authorization to determine the "lawfulness of the
stop" is built into the provision of the essential
element of whether probable cause existed. Schwartz v.
Fla. Dep't of Highway Safety & Motor Vehicles,
920 So.2d 664, 665 (Fla. 3d DCA 2005) (quoting Fla.
Dep't of Highway Safety & Motor Vehicles v.
DeShong, 603 So.2d 1349, 1351 (Fla. 2d DCA 1992)).
Finally, the hearing officer's decision may be reviewed
by an Article V judge or judges in a circuit court by a writ
of certiorari. § 322.2615(13).
and Procedural Background
facts surrounding the case before us concern the stop and
arrest of Joseph B. Wiggins for driving under the influence
of alcohol. Because there is a conflict between the facts as
reported by the arresting officer and the facts as
demonstrated by the real-time video evidence of the event, we
will present both versions of the facts.
Report and Testimony
to the oral testimony of the officer based on his report, on
the night of the stop, there was no surrounding traffic. Upon
his first observation of Wiggins' truck, Officer Saunders
wrote in the arrest report that the vehicle "appeared to
swerve from one lane to another." Both Saunders and
Wiggins were driving in the same direction, but Wiggins drove
in the right lane while Saunders followed in the left lane.
Saunders further reported that Wiggins drifted within his
lane, traveled thirty miles per hour in a forty-five mile per
hour zone, and crossed over the outside lane line-nearly
striking a right-side curb before swerving back 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 hour,
" continued to drift over the line, and nearly hit the
curb again. As he entered another intersection, Wiggins
reportedly "braked hard again and swerved right"
and almost 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 another traffic light, Wiggins passed the opening
for a left turn 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 straight
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.
Saunders reported that he approached Wiggins, who already had
his driver's license and registration in hand, and
explained the reason for the stop. Saunders noticed a strong
odor of alcohol and observed that Wiggins' eyes 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
but refused. Saunders informed Wiggins that his refusal to
participate in field sobriety exercises would be used against
him in court and asked Wiggins to exit the vehicle. After
Wiggins refused, Saunders advised him that he was being
arrested for driving under the influence. Eventually,
Saunders convinced Wiggins to exit the vehicle. Wiggins was
subsequently transported to the Clay County Jail, where
Saunders requested a breath test.
his arrest, Wiggins requested a formal hearing before the
Department pursuant to section 322.2615. During the hearing,
Saunders acknowledged that it was the sheriff's standing
general order to also record contact with a person that an
officer believes to be impaired. However, 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.
also admitted that there were inconsistencies between his
arrest report and the video. Specifically, the report stated
that Wiggins quickly changed lanes in front of Saunders,
while the video indicated that Saunders was the one who had
changed lanes to get behind Wiggins, and Wiggins then changed
into the vacant lane. Otherwise, Saunders continued to insist
that Wiggins weaved in and out of his lane, almost hit the
curb, braked erratically, and made a wide turn.
the dissent's representations, we embed a copy of the
actual video in this opinion. The dashboard camera on
Saunders' vehicle recorded Wiggins' driving pattern
from the time Saunders first saw the vehicle to the time
Wiggins was stopped. As Saunders trailed Wiggins' vehicle
that night, the video showed Wiggins driving totally within
the proper lines. Wiggins did not cross any lines, nor did he
nearly hit the curb. Wiggins did change lanes only once in an
apparent attempt to clear the lane for Saunders, but he
utilized his turn signal before doing so. Wiggins then
activated his turn signal to move into a left turn lane,
braked in preparation to turn at a traffic light, and made a
normal left turn once the traffic light turned green. As
Wiggins turned left, Saunders activated his emergency lights.
Upon activation of the police emergency lights, Wiggins made
a normal right turn into an empty drug store parking lot. The
area was dark and Wiggins came to a stop and parked in front
of the building. Saunders subsequently exited his vehicle and
approached Wiggins' vehicle with another officer.
that the real-time video evidence totally contradicted and
refuted the testimony and arrest report of Officer Saunders,
the hearing officer affirmed the suspension of Wiggins'
license. The dissent has attempted to incorrectly transform
the appellate posture of this case into a de novo factual
dispute, contrary to all concepts of appellate procedure.
Court Opinion and Order
to the Department's administrative hearing decision,
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 law had
been observed by the Department, and whether the
administrative findings and judgment of the Department were
supported by competent, substantial evidence. The court
recognized that, as a circuit court conducting first-tier
certiorari review, it was not permitted to totally reweigh
the evidence de novo. However, the court reasoned that the
objectivity and neutrality of the video evidence placed the
circuit court in the same position as 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 evidence had been
the court concluded that the video evidence 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 cross over the lane
line, did not nearly strike the curb, nor did it
brake for no reason. Furthermore, the court determined that
the video depicted Wiggins intentionally changing lanes into
the turn lane with proper signals and thereafter making a
normal left hand turn, as opposed to making a wide turn.
on these clearly revealed contradictions, the circuit court
concluded that the arrest report and Saunders' testimony
based on that incorrect report failed to constitute
competent, substantial evidence. Thus, the circuit court held
it was unreasonable as 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-time
video evidence of the event.
District Court of Appeal
the circuit court's decision, the Department sought
review in the First District Court of Appeal. The district
court's second-tier review of the circuit court's
order was further limited to only two questions: (1) whether
the circuit court afforded Wiggins procedural due process and
(2) whether the circuit court applied the correct law,
Wiggins, 151 So.3d at 461-62, a principle
consistently violated in the dissenting opinion.
the circuit court based its order on its finding that the
report and the testimony which were contrary to the real-time
video evidence did not amount to competent, substantial
evidence, the First District concluded that the circuit court
essentially reweighed the evidence and conducted a de novo
review in violation of this Court's opinion in
Dusseau v. Metropolitan Dade County Board 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 circuit court is limited to a determination of whether an
agency's decision was supported by competent, substantial
evidence. Id. at 463. Accordingly, the district
court concluded that the circuit court in the instant case
should have ended its review when it found evidence in the
arrest report and testimony that supported the
agency's decision. Id. at 464. Further, the
court reasoned that the hearing officer's factual
findings should have been accorded deference because she is
experienced on such matters and heard the live testimony
herself. Id. at 465.
First District granted the Department's petition, quashed
the circuit court's order, and remanded with directions
to apply the law. Id. at 471. Finally, taking into
consideration the prevalence of video evidence, the First
District certified the following question of great public
importance for this Court's review:
WHETHER A CIRCUIT COURT FAILS TO APPLY THE CORRECT LAW BY
REJECTING AS NON-CREDIBLE THE ENTIRETY OF AN ARRESTING
OFFICER'S TESTIMONY AND REPORT CONCERNING A TRAFFIC STOP,
UPON WHICH THE HEARING OFFICER'S FACTUAL FINDINGS RELIED,
BASED SOLELY ON THE CIRCUIT COURT'S OWN INDEPENDENT
REVIEW AND ASSESSMENT OF EVENTS ON THE VIDEO OF A TRAFFIC
Id. at 471.
dissent, Judge Van Nortwick disagreed that Dusseau
required a culling through the record only for whatever facts
supported the administrative hearing order. 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.
explained on numerous occasions, a circuit court conducting
first-tier certiorari review of an administrative decision is
limited to determining (1) whether due process was accorded,
(2) whether the essential requirements of the law were
observed, and (3) whether the administrative findings and
judgment were supported by competent, substantial
evidence. 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.2d 838, 843 (Fla. 2001) (quoting
City of Deerfield Beach v. Vaillant, 419 So.2d 624,
626 (Fla. 1982)). The second-tier certiorari review is more
narrowly limited to (1) whether the lower tribunal afforded
procedural due process and (2) whether the lower tribunal
applied the correct law. Heggs, 658 So.2d at 530.
Court has deferred to the findings of an agency fact-finder
in the context of zoning and policy determinations, as the
agency fact-finder in theory has the requisite experience,
skill, and perspective to adequately adjudicate specialized
proceedings. See Dusseau, 794 So.2d 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 decision was founded on competent,
substantial evidence, the circuit court may only look for
facts in the record that support the agency fact-finder's
conclusions. See, e.g., G.B.V. Int'l,
787 So.2d at 845 (concerning review of a zoning decision);
Dusseau, 794 So.2d at 1275-76 (also zoning);
Florida Power & Light Co. v. City of Dania, 761
So.2d 1089, 1093 (Fla. 2000) (also zoning); Educ. Dev.
Ctr., Inc. v. City of W. Palm Beach Zoning Bd. of
Appeals, 541 So.2d 106, 108 (Fla. 1989) (also zoning);
De Groot v. Sheffield, 95 So.2d 912, 916 (Fla. 1957)
(concerning removal of an employee of the Duval County School
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, e.g., Hernandez, 74 So.3d at 1079
(stating that a petitioner seeking review of a license
suspension under section 322.2615 must be afforded reasonable
notice and meaningful review of the lawfulness of the
suspension); Forth v. Dep't of Highway Safety &
Motor Vehicles, 148 So.3d 781, 782 (Fla. 2d DCA 2014)
(quashing the circuit court's decision to remand to the
Department after it was found that the hearing officer was
not impartial); Fla. Dep't of Highway Safety &
Motor Vehicles v. Griffin, 909 So.2d 538, 543 (Fla. 4th
DCA 2005) ("While we see no constitutional infirmity in
non-lawyers serving as hearing officers under section
322.2615, we do strongly caution those hearing officers that
they must take extraordinary care 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 So.2d 371, 373 (Fla. 5th DCA 1995), cause
dismissed, 667 So.2d 774 (Fla. 1996) ("The
frequency with which conscientious trial judges of this state
issue decisions that have the effect of providing more
procedural safeguards to licensees in these revocation
hearings suggests a continuing concern about the fairness of
this statutory procedure."); Dep't of Highway
Safety & Motor Vehicles v. Stewart, 625 So.2d 123,
124 (Fla. 5th DCA 1993) (reasoning that although the
procedure under section 322.2615 is expeditious and facially
valid, "[l]ower courts may find, under the facts of a
specific case, that a suspendee's rights have not been
respected"). Today, we address those concerns.
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 do not normally arise in other administrative
review settings. Every case involving a license suspension
contains a Fourth Amendment analysis of whether there was
reasonable suspicion to stop the vehicle or probable cause to
believe that the driver was in physical control of the
vehicle while under the influence of alcohol. §
322.2615(7)(b)1. With that, first-tier review under this
particular statute demands a close review of the factual
record to determine whether the hearing officer's
findings were supported by competent, substantial evidence
and whether the essential requirements of the law were
applied. Nader, 87 So.3d at 723. Some consideration
of the evidence is inescapable in the competent, substantial
evidence determination. These are legal questions that call
for an unbiased review, rather than being solely left to the
discretion of a hearing officer 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 not hold true for the questions of
constitutional law that arise under section 322.2615. It is
no wonder, then, that the Legislature created a statute to
tailor review for this narrow situation.
kind of evidence 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 evidence has become
increasingly prevalent in the arena of law enforcement.
Officers are now equipped with dashboard and body cameras to
record traffic incidents. Whereas prior to the development of
this technology officers were limited to what their human
memory could recall along with limited reports, an officer
can now revisit the event without the distractions or stress
that may arise when one is in the present moment. Unlike
testimonial evidence based on a written report, the objective
nature of video evidence allows it to be viewed by the
Article V judicial officer on first-tier certiorari without
the need for interpretations of the hearing officer.
respect the authority and expertise of law enforcement
officers, and thus rely on an officer's memory when
necessary. But we would be remiss if we failed to acknowledge
that at times, an officer's human recollection and report
may be contrary to that which actually happened as evinced in
the real time video. This is the reality of human
imperfection; we cannot expect officers to retain information
as if he or she were a computer. Therefore, a judge who has
the benefit of reviewing objective and neutral video evidence
along with officer testimony cannot be expected to ignore
that video evidence simply because it totally ...