Dep't of Highway Safety & Motor Vehicles v. Dellacava

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Docket Number

No. 5D12–2313.

Attorney(S)

Stephen D. Hurm, General Counsel, and Richard M. Coln, Assistant General Counsel, Department of Highway Safety and Motor Vehicles, Orlando, for Petitioner. Stuart I. Hyman, of Stuart I. Hyman, P.A., Orlando, for Respondent.

Judges

PER CURIAM.

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Smart Summary

Factual and Procedural Background

In 2010, Gino Dellacava was arrested for driving under the influence of alcohol. He submitted to a breath test using the Intoxilyzer 8000 with software version 8100.27, which showed a breath-alcohol level of 0.08 or higher. Consequently, his driver's license was suspended pursuant to Florida Statutes section 322.2615(1)(a) (2009). Dellacava requested a formal administrative review of the suspension under section 322.2615(1)(b)3. At the administrative hearing, Dellacava challenged the approval status of the Intoxilyzer 8000 with software version 8100.27. The hearing officer found by a preponderance of the evidence that sufficient cause existed to sustain the suspension.

Dellacava sought certiorari review in the circuit court, raising multiple arguments but focusing on the claim that the software version 8100.27 was not approved for use in Florida. The Department relied on a prior decision, Department of Highway Safety & Motor Vehicles v. Berne, 49 So.3d 779 (Fla. 5th DCA 2010), which held that the relevant administrative rule required only that the software be evaluated by the Florida Department of Law Enforcement (FDLE), not necessarily be subject to an approval study. Dellacava argued in reply that the software version in his case (8100.27) differed from that in Berne (8100.26) and that the record did not establish evaluation of version 8100.27.

The circuit court granted the petition for writ of certiorari, quashing the administrative hearing officer's decision on the basis that the record lacked evidence that software version 8100.27 had been evaluated by FDLE, resulting in a deprivation of procedural due process.

The Department then sought second-tier certiorari review from the District Court of Appeal, arguing that the circuit court's ruling was based on an issue raised for the first time in Dellacava's reply brief, denying the Department an opportunity to respond.

Legal Issues Presented

Whether the circuit court afforded procedural due process in granting certiorari relief based on an issue not raised in the initial petition or briefed below.
Whether the circuit court applied the correct legal standard regarding the approval and evaluation of the Intoxilyzer 8000 software version 8100.27 under Florida law.

Arguments of the Parties

Petitioner (Department of Highway Safety and Motor Vehicles)

The Department argued that the Intoxilyzer 8000 software only needed to be evaluated by FDLE, not subject to an approval study, relying on the precedent set in Department of Highway Safety & Motor Vehicles v. Berne.
The Department contended that the circuit court violated due process by granting certiorari relief on an issue first raised in Dellacava's reply brief, depriving the Department of a fair opportunity to respond.

Respondent (Gino Dellacava)

Dellacava argued that the Intoxilyzer 8000 software version 8100.27 was not approved for use in Florida because the record did not show it had been evaluated by FDLE.
He distinguished his case from Berne by noting that the software version in Berne was 8100.26, whereas his case involved version 8100.27.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Department of Highway Safety & Motor Vehicles v. Berne, 49 So.3d 779 (Fla. 5th DCA 2010)	Administrative rule requires software for breath test machines to be evaluated by FDLE, not necessarily subject to an approval study.	The court relied on Berne to affirm that software evaluation by FDLE suffices for approval, distinguishing the software versions involved.
Broward Cnty. v. G.B.V. Int'l, Ltd., 787 So.2d 838, 843 (Fla.2001)	Second-tier certiorari review requires determining if the circuit court afforded procedural due process and applied the correct law.	The court applied this standard to evaluate the circuit court’s decision.
City of Deerfield Beach v. Vaillant, 419 So.2d 624, 626 (Fla.1982)	Standard for second-tier certiorari review concerning due process and correct application of law.	Referenced to support the standard for reviewing the circuit court’s ruling.
J.A.B. Enters. v. Gibbons, 596 So.2d 1247, 1250 (Fla. 4th DCA 1992)	An issue not raised in an initial brief is deemed abandoned and may not be raised for the first time in a reply brief.	Used to conclude that the circuit court erred by granting relief on an issue raised first in a reply brief.
United Auto. Ins. Co. v. Hollywood Injury Rehab Ctr., 27 So.3d 743, 744 n.1 (Fla. 4th DCA 2010)	Issues raised for the first time in a reply brief during certiorari proceedings will not be considered.	Supported the Department’s argument that the circuit court should not have considered the new issue.
Florida Rule of Appellate Procedure 9.210(d)	The reply brief shall contain argument in response and rebuttal to the argument presented in the answer brief.	Referenced to underscore procedural rules regarding briefing and issue preservation.

Court's Reasoning and Analysis

The court explained that second-tier certiorari review requires examining whether the circuit court afforded procedural due process and applied the correct law. The circuit court granted certiorari relief based on an issue—the non-approval of software version 8100.27—that was first raised in Dellacava’s reply brief, without prior notice to the Department. This deprived the Department of a fair opportunity to respond, violating due process principles. The court also noted that the record contained evidence, through a transcript attachment, that the software version 8100.27 had been evaluated by FDLE, undermining Dellacava’s claim. Therefore, the circuit court’s reliance on the absence of evidence was misplaced. The District Court of Appeal granted the Department’s petition and quashed the circuit court’s order, restoring the administrative hearing officer’s decision to sustain the suspension.

Holding and Implications

Holding: The District Court of Appeal granted the Department’s petition for second-tier certiorari and quashed the circuit court's order that had quashed the administrative hearing officer’s decision.

Implications: This decision reinstates the administrative hearing officer’s suspension of Dellacava’s driver’s license and underscores the importance of procedural due process in appellate review, particularly the prohibition against raising new issues for the first time in reply briefs. The ruling does not establish new precedent beyond reaffirming established procedural standards and the proper application of prior case law regarding breath test software evaluation.

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DEPARTMENT OF HIGHWAY SAFETY AND MOTOR VEHICLES, Petitioner, v. Gino DELLACAVA, Respondent.

PER CURIAM.

Stephen D. Hurm, General Counsel, and Richard M. Coln, Assistant General Counsel, Department of Highway Safety and Motor Vehicles, Orlando, for Petitioner. Stuart I. Hyman, of Stuart I. Hyman, P.A., Orlando, for Respondent.
PER CURIAM.

Petitioner, Department of Highway Safety and Motor Vehicles (“the Department”), seeks second-tier certiorari review of the circuit court's order quashing the decision of an administrative hearing officer that sustained the driver's license suspension of Respondent, Gino Dellacava, after he was arrested for driving under the influence of alcohol. We grant the petition and quash the circuit court's order.

In 2010, Dellacava was arrested for driving under the influence of alcohol. Upon arrest, Dellacava submitted to a breath test on the Intoxilyzer 8000 utilizing software version 8100.27. The test results revealed that Dellacava's breath-alcohol level was 0.08 or higher. As a result, his driver's license was suspended pursuant to section 322.2615(1)(a), Florida Statutes (2009). Dellacava then requested a formal administrative review of the suspension pursuant to section 322.2615(1)(b) 3., Florida Statutes. At the administrative hearing, Dellacava argued that the Intoxilyzer 8000 utilizing software version 8100.27 was not properly approved for use in Florida. The hearing officer determined by a preponderance of the evidence that sufficient cause existed to sustain Dellacava's suspension.

Dellacava sought certiorari review of the hearing officer's finding in the circuit court. Although Dellacava raised numerous arguments in his petition, only one argument is pertinent to the disposition of this petition. Again, Dellacava argued the Intoxilyzer 8000 utilizing software version 8100.27 was not approved for use in Florida. In its response, the Department relied on Department of Highway Safety & Motor Vehicles v. Berne, 49 So.3d 779 (Fla. 5th DCA 2010), in which this Court held that the administrative rule governing breath test machines required only that software be evaluated by the Florida Department of Law Enforcement rather than be subject to an approval study. See id. at 784. In his reply to the response to the petition, Dellacava argued that the Intoxilyzer 8000 software used in Berne was version 8100.26, whereas the software used in his case was version 8100.27. Dellacava then argued for the first time in his reply that the record did not establish that software version 8100.27 had been evaluated.

The circuit court granted the petition for writ of certiorari, stating:

In order to meet petitioner's allegation that the Intoxilyzer 8000 utilized herein is not an approved instrument the department has cited the case of Department of Highway Safety and Motor Vehicles [ v. Berne], 49 So.3d 779 ( [Fla. 5th DCA] 2010), rev. denied, , 37 Fla. L. Weekly S161 (Fla.2012), which reversed the Circuit Court of Orange County and held that the Intoxilyzer 8000 was an approved instrument if it is used with software evaluated by FDLE in accordance with Instrument Evaluation Procedures FDLE/ATP Form 34; however, that case also held that the record before the department hearing officer included testimony from a department inspector for FDLE that the Software version 8100.26 used with that particular intoxilyzer machine had been properly evaluated in accordance with the rule. Here the record is devoid of any evidence that the Software version 8100.27 used in conjunction with this Intoxilyzer 8000 machine has been similarly evaluated by the Florida Department of Law Enforcement. The result is a depravation of procedural due process from the lack of any evidence in the record from which the hearing officer could have concluded that the test offered was in compliance with the statute.

The Department sought second-tier certiorari review, arguing it had been denied due process when the circuit court granted the petition for writ of certiorari on an issue that was not raised in the petition filed in the circuit court or otherwise briefed below. We agree.

When a party seeks review of the circuit court's ruling on an administrative action, the district court conducts what is known as “second-tier” review and must determine “[1] whether the circuit court afforded procedural due process and [2] applied the correct law.” Broward Cnty. 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)). Here, the Department was denied due process when the circuit court granted certiorari relief on an issue raised for the first time in Dellacava's reply, as the Department lacked an opportunity to respond to the new argument. J.A.B. Enters. v. Gibbons, 596 So.2d 1247, 1250 (Fla. 4th DCA 1992) (“[A]n issue not raised in an initial brief is deemed abandoned and may not be raised for the first time in a reply brief.”); see also United Auto. Ins. Co. v. Hollywood Injury Rehab Ctr., 27 So.3d 743, 744 n. 1 (Fla. 4th DCA 2010) (noting issue raised for first time in reply brief during certiorari proceedings will not be considered); Fla. R.App. P. 9.210(d) (“The reply brief shall contain argument in response and rebuttal to the argument presented in the answer brief.”).

We also note that an attachment to Dellacava's response to the petition refutes his claim that the software has not been evaluated. Dellacava attached a transcript from an unrelated hearing during which Roger Skipper, an inspector for FDLE, testified that software version 8100.27 was evaluated in October 2006.

PETITION GRANTED; ORDER QUASHED. ORFINGER, C.J., COHEN and BERGER, JJ., concur.
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