State of Florida, Dept. of Highway etc. v. Joseph P. Wiggins ( 2014 )


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  •                                        IN THE DISTRICT COURT OF APPEAL
    FIRST DISTRICT, STATE OF FLORIDA
    STATE OF FLORIDA,                      NOT FINAL UNTIL TIME EXPIRES TO
    DEPARTMENT OF HIGHWAY                  FILE MOTION FOR REHEARING AND
    SAFETY AND MOTOR                       DISPOSITION THEREOF IF FILED
    VEHICLES,
    CASE NO. 1D13-2471
    Petitioner,
    v.
    JOSEPH P. WIGGINS,
    Respondent.
    _____________________________/
    Opinion filed September 4, 2014.
    Petition for Writ of Certiorari—Original Jurisdiction.
    Kimberly A. Gibbs, Orlando, for Petitioner.
    David M. Robbins and Susan Z. Cohen, Jacksonville, for Respondent.
    MAKAR, J.
    The Department of Highway Safety and Motor Vehicles seeks review of a
    circuit court order overturning a hearing officer’s administrative order, which had
    upheld the suspension of Joseph P. Wiggins’s driver’s license. The narrow but
    important issue presented is whether the circuit court, acting in its appellate
    capacity, erred by concluding that its independent review and assessment of events
    on a video of the traffic stop trumped the hearing officer’s factual findings, which
    were based on the arresting officer’s testimony and report. We hold that it did and
    grant the petition for certiorari.
    I.
    In August 2011, Deputy J.C. Saunders initiated a traffic stop of Mr.
    Wiggins, who was driving his pickup truck down Blanding Boulevard, a main
    thoroughfare in Clay County, Florida. A camera mounted on the dashboard of the
    deputy’s vehicle recorded the movement of Mr. Wiggins’s vehicle from the time
    the deputy first observed it, while Mr. Wiggins pulled into a gas station parking lot,
    and for approximately twelve minutes thereafter.
    During the stop, Deputy Saunders requested that Mr. Wiggins perform a
    field sobriety test, but he declined. Deputy Saunders then arrested Mr. Wiggins for
    DUI and transported him to the county jail where, again, Mr. Wiggins declined to
    submit to a sobriety test. Due to these refusals, the Department placed an
    administrative suspension on Mr. Wiggins’s driver’s license.
    Mr. Wiggins requested a formal review hearing to demonstrate that probable
    cause did not exist for the stop of his vehicle. Deputy Saunders and Robert Burch,
    the breath test operator, testified at the hearing and the arrest and booking report
    was admitted in evidence. The video of the stop was entered in evidence and was a
    focus of a portion of the proceeding, which consisted primarily of Mr. Wiggins’s
    2
    attorney examining Deputy Saunders. Throughout the examination, Deputy
    Sanders testified while referring to the video. The hearing officer controlled and
    played the DVD player, starting and stopping the video player as necessary to view
    the portions related to the deputy’s testimony. During this examination, counsel for
    Mr. Wiggins only once specifically asked Deputy Saunders whether his written
    report was consistent with what appeared on the video. The deputy confirmed that
    his entire report as written was supported by the video, pointing out where the
    vehicle’s movement and pattern corresponded to what he said in his report with a
    few limited exceptions. One was that when he first saw Mr. Wiggins’s vehicle and
    became suspicious about its driving pattern, the vehicle was within his eyesight but
    beyond the capabilities of the camera to capture (“the video doesn’t always show
    everything I can see as far as at a distance”). Another was when Deputy Saunders
    voluntarily pointed out (before counsel asked him to do so) that his report erred in
    one respect by saying that his police cruiser at one point changed lanes first when it
    was Mr. Wiggins’s vehicle that did so. The final was when Deputy Saunders
    thought Mr. Wiggins put his hands on his truck as he exited to maintain balance,
    which Mr. Wiggins’s counsel noted did not actually happen.
    Based upon the testimony and evidentiary record that included the video, the
    hearing officer made the following findings of fact:
    On August 19, 2011, at approximately 2:10 a.m. Deputy J. C.
    Saunders of the Clay County Sheriff’s Office observed a vehicle
    3
    swerving within the lane, almost striking the right side curb on
    several occasions, and then braking erratically for no apparent
    reason. He also paced the vehicle and determined that it was
    traveling 30 MPH in a 45-MPH zone. Suspecting that the driver
    might be impaired, Deputy Saunders conducted a traffic stop.
    Deputy Saunders observed the driver, Mr. Joseph Bryant Wiggins,
    Sr., to have an extremely strong odor of an alcoholic beverage
    coming from his breath, bloodshot, glassy eyes, a flushed face, and
    his movements were slow and deliberate. Mr. Wiggins admitted to
    consuming a few drinks when asked about his alcohol consumption.
    Mr. Wiggins refused to submit to field sobriety exercises and was
    placed under arrest for DUI. Based on the foregoing, I find that the
    petitioner was placed under lawful arrest for DUI. At the Clay
    County Jail, the implied consent warning was read and Mr. Wiggins
    refused to submit to the breath test.
    Based on these factual findings, the hearing officer held that probable cause existed
    to believe that Mr. Wiggins was driving under the influence; that Mr. Wiggins
    refused to submit to a urine, blood, or breath-alcohol test after being requested to
    do so; and that Mr. Wiggins was told that his refusal to submit to a sobriety test
    would result in suspension of his license. The administrative order thereby
    affirmed the suspension of Mr. Wiggins’s driver’s license.
    Mr. Wiggins then filed a petition for certiorari in circuit court, seeking
    review of the hearing officer’s order, claiming it departed from the essential
    requirements of law and was not supported by competent substantial evidence.
    Specifically, he argued that the arrest and booking report statements directly
    conflicted with events on the video of the traffic stop. The circuit court, after
    4
    independently reviewing the video, held that the administrative order was flawed
    because the video contradicted portions of the officer’s testimony and report.
    In reaching this conclusion, the trial court compared and contrasted some—
    but not all—of the information in the arrest/booking report with events on the
    video. For example, the report stated that “the vehicle was drifting and weaving in
    its own lane traveling at 30 mph in a 45 mph zone, the passenger side tires crossed
    over the fog line and nearly struck the raised curb before swerving back into the
    lane.” The court disagreed with this characterization, finding that the “video clearly
    refutes this evidence; in the video the vehicle does not drift and weave within its
    own lane. Furthermore, the passenger side tires do no not cross over the fog line
    nor do they come close to striking the raised curb.” The report also claimed that
    “after coming to flashing yellow lights at the intersection . . . [Mr. Wiggins] braked
    for no reason and then accelerate [sic].” Contrarily, the trial court found that the
    video showed Mr. Wiggins “did brake slightly when coming to the flashing yellow
    lights” but that he slowly accelerated after passing the lights, compared to the
    report, which stated he “braked for no reason and then accelerated.” The court
    acknowledged that Mr. Wiggins momentarily braked, but disagreed that Mr.
    Wiggins swerved to the right and almost hit the curb as he passed through an
    intersection. Finally, the report claimed that Mr. Wiggins “drifted into a turn lane”
    and “[w]hile making a wide left turn he had to realign his truck as he straightened
    5
    out.” Disagreeing once again, the trial court reviewed the video and concluded that
    Mr. Wiggins deliberately changed lanes and the turn into the intersection was
    normal.
    The trial court conceded that Deputy Saunders’s testimony coupled with the
    report supported the factual findings of the hearing officer. Nonetheless, it held
    that “this testimonial evidence is flatly contradict [sic] by the objective evidence on
    the videotape.” It concluded that in “[v]iewing the entire record evidence, neither
    the testimony of Deputy Saunders nor the arrest and booking report constitutes
    competent substantial evidence on which the hearing officer could rely.”
    Acknowledging that it could not reweigh the evidence or substitute its judgment
    for that of the hearing officer, it supported its approach by relying on Julian v.
    Julian, 
    188 So. 2d 896
    (Fla. 2d DCA 1966), for the proposition that “where the
    evidence is objective and there is not a determination of credibility, the reviewing
    court is in the exact same position as the hearing officer.” Apparently believing it
    was “in the exact same position as the hearing officer” as to the evidence, the trial
    court concluded that it “was unreasonable as a matter of law for the hearing officer
    to accept Deputy Saunders [sic] report and testimony after this evidence was
    shown to be erroneous and flatly contradicted by the objective images of the
    videotape.” As a result, the trial court’s order overturned the hearing officer’s order
    and the administrative suspension of Mr. Wiggins’s driver’s license, as well.
    6
    II.
    Review of the circuit court’s order entails second tier certiorari review, by
    which two limited questions are posed: whether the circuit court afforded
    procedural due process and applied the correct law. Haines City Cmty. Dev. v.
    Heggs, 
    658 So. 2d 523
    , 530 (Fla. 1995); Dep’t of High. Saf. & Motor Veh. v.
    Trimble, 
    821 So. 2d 1084
    , 1086 (Fla. 1st DCA 2002). This level of review is
    narrower than a circuit court’s first tier certiorari review, which reviews an
    administrative agency’s decision for three components: (1) whether procedural due
    process was accorded, (2) whether the essential requirements of law were
    observed, and (3) whether the factual findings are supported by competent
    substantial evidence. Educ. Dev. Ctr, Inc. v. City of W. Palm Beach Zoning Bd. of
    Appeals, 
    541 So. 2d 106
    , 108 (Fla. 1989).
    At issue in this case is only whether the circuit court applied the correct law.
    The Department argues it did not, pointing out that the trial court’s only job was to
    determine whether the hearing officer’s findings of fact were supported by
    competent substantial evidence as announced in Dusseau Metropolitan Dade
    County Board of County Commissioner, 
    794 So. 2d 1270
    , 1275-76 (Fla. 2001) and
    prior similar precedents. By conducting what amounted to a de novo review of the
    evidence and impermissibly reweighing of it, the circuit court departed from the
    well-established legal principle that it was without authority to do so. Mr. Wiggins
    7
    counters that the deputy’s testimony and report upon which the hearing officer
    relied was not competent substantial evidence in light of the video. He argues that
    the trial court was entitled to conclude that the video objectively demonstrated that
    the report and the deputy’s testimony were erroneous and thereby not competent
    substantial evidence; he asserts the trial court’s methodology was not prohibited
    under any clearly established caselaw, including Dusseau, to which we now turn.
    A. Dusseau as Clearly Established Law
    Whether Dusseau is clearly established law applicable in this case requires
    an examination of what rule of law our supreme court established or reaffirmed. 1
    In Dusseau, a Baptist congregation owned acreage in Miami-Dade County upon
    which it sought to build a large church. Over the objections of a nearby
    homeowner, the county commission approved the application after holding an
    evidentiary hearing on the matter at which evidence from both sides of the disputed
    matter was 
    presented. 794 So. 2d at 1272
    . In its appellate capacity, the circuit
    court—after reviewing all the evidence submitted by both sides—reversed, finding
    no competent substantial evidence that the proposed church construction met the
    requisite criteria for a special exception; to the contrary, the circuit court held that
    1
    See Dep’t of High. Saf. & Motor Veh. v. Edenfield, 
    58 So. 3d 904
    , 906 (Fla. 1st
    DCA 2011) (“Clearly established law can be derived not only from case law
    dealing with the same issue of law, but also from an interpretation or application of
    a statute, a procedural rule, or a constitution provision.”).
    8
    competent substantial evidence existed showing the church did not meet requisite
    criteria. 
    Id. On second
    tier certiorari review, the Third District made two rulings. First, it
    held that the “circuit court departed from the essential requirements of law when it
    reweighed evidence and completely ignored evidence that supports the
    Commission's ruling.” 
    Id. at 1275.
    Second, it said that its own “review of the
    evidence clearly demonstrates that the Commission’s ruling was supported by
    competent substantial evidence[.]” 
    Id. The supreme
    court, after reviewing principles of first and second tier
    certiorari, upheld the district court’s first ruling but reversed its second (the latter
    because it is not a district court’s job to review the record and make its own merits
    ruling). As to the first ruling, the supreme court affirmed as “proper” the district
    court’s conclusion that the trial court “departed from the essential requirements of
    law when it reweighed evidence and completely ignored evidence” supporting the
    Commission’s ruling. 
    Id. Setting the
    tone that nomenclature does not matter, it
    began by noting that “[a]lthough the circuit court phrased its reversal in terms of
    ‘competent substantial evidence,’ the plain language of its order shows that the
    court in fact reweighed the evidence, at length.” 
    Id. It is
    not the label a circuit court
    uses to describe its analysis that matters; instead, it is whether the circuit court
    applied the established and limited methodology of looking only for whether
    9
    competent substantial evidence existed in support of the challenged administrative
    decision. The supreme court described the circuit court’s erroneous approach as
    follows:
    Instead of simply reviewing the Commission’s decision 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 evidence. The circuit court then substituted its
    judgment for that of the Commission as to the relative weight of the
    conflicting evidence. The circuit court thus usurped the fact-finding
    authority of the agency.
    
    Id. Given the
    circuit court’s improper approach to evaluating the record evidence,
    the supreme court sided with the district court, holding that it was a departure from
    the essential requirements of law—and an application of the “wrong law”—for the
    circuit court to review and reweigh the evidence, essentially deciding “anew the
    merits” of the case. 
    Id. As the
    supreme court explained, the circuit court applied
    the “wrong law” by engaging in the type of evidence review/fact-finding that is to
    be done by an agency or administrative hearing officer (the so-called Irvine2
    standard); instead, the circuit court was to engage in the far more limited approach
    on first tier review, which is a search of the record for the existence of competent
    substantial evidence in support of the decision.
    2
    See 
    Dusseau, 794 So. 2d at 1273
    (discussing Irvine v. Duval Cnty. Planning
    Comm’n, 
    495 So. 2d 167
    (Fla. 1986)).
    10
    This clearly established legal principle in Dusseau—that a circuit court
    applies the “wrong” or “incorrect” law when it reweighs or reevaluates conflicting
    evidence and decides the merits of the underlying dispute anew—was previously
    well-established. As the supreme court pointed out in Dusseau, its previous
    precedents had announced such a rule. 
    See 794 So. 2d at 1273-75
    (discussing
    Florida Power & Light Co. v. City of Dania, 
    761 So. 2d 1089
    (Fla. 2000) and City
    of Deerfield Beach v. Vaillant, 
    419 So. 2d 624
    (Fla. 1982)). Indeed, the court
    explained as follows:
    Under Vaillant, the district court was required to determine whether
    the circuit court applied the correct law. As noted above, according to
    the plain language of its order, the circuit court reweighed the
    evidence and decided anew the merits of the special exception
    application. The circuit court thus applied the wrong law (i.e., instead
    of applying the Vaillant standard of review, the court reapplied the
    Irvine standard of proof), and this is tantamount to departing from the
    essential requirements of law (as the district court 
    ruled). 794 So. 2d at 1275
    (quoting Florida Power & 
    Light, 761 So. 2d at 1093
    ) (emphasis
    added)). In light of the many commanding precedents on this point of law, this
    Court cited Dusseau for the following statement:
    [O]ne ‘clearly established principle of law’ is that, on first-tier
    certiorari review, a circuit court is limited to determining whether the
    administrative findings and judgment are supported by competent
    substantial evidence. Whether the record also contains competent
    substantial evidence that would support some other result is irrelevant.
    11
    Clay Cnty. v. Kendale Land Dev., Inc., 
    969 So. 2d 1177
    , 1181 (Fla. 1st DCA
    2007). We now turn to whether the circuit court’s approach in this case conformed
    to these clearly-established principles in Dusseau and like precedents.
    B. Applying Dusseau to This Case
    As Dusseau explained, a circuit court is only permitted to determine whether
    an agency’s decision was supported by competent substantial 
    evidence. 794 So. 2d at 1275
    (“the court should review the record to determine simply whether the
    Commission's decision is supported by competent substantial evidence.”). Stated
    differently, this limited review boils down to a single-focused inquiry:
    The sole issue before the court on first-tier certiorari review is
    whether the agency’s decision is lawful. The court’s task vis-a-vis the
    third prong of Vaillant is simple: The court must review the record to
    assess the evidentiary support for the agency’s decision. Evidence
    contrary to the agency’s decision is outside the scope of the inquiry at
    this point, for the reviewing court above all cannot reweigh the “pros
    and cons” of conflicting evidence. While contrary evidence may be
    relevant to the wisdom of the decision, it is irrelevant to the
    lawfulness of the decision. As long as the record contains competent
    substantial evidence to support the agency’s decision, the decision is
    presumed lawful and the court’s job is ended.
    
    Id. at 1276
    (emphasis added). The emphasized language—as applied to this case—
    shows how the circuit court went beyond the specific analytical parameters of
    Dusseau and its progeny, thereby applying the incorrect law.
    The circuit court—in reaching its ultimate legal judgment—focused
    exclusively on the video, which both Wiggins and the court deemed to be
    12
    “evidence contrary to the agency’s decision.” That was error. The sole starting
    (and ending) point is a search of the record for competent substantial evidence
    supporting the decision. The proper approach is narrow here, focusing on whether
    the officer’s testimony, the arresting/booking report, or the video—or portions
    thereof—support the hearing officer’s factual findings. See City of Jacksonville
    Beach v. Car Spa, Inc., 
    772 So. 2d 630
    , 631-32 (Fla. 1st DCA 2000) (“[I]t is clear
    that . . . rather than reviewing the entire record to determine whether the Planning
    Commission's decision was supported by competent substantial evidence, the
    circuit court considered only portions of the record, and reweighed the evidence,
    substituting its judgment for that of the Planning Commission as to the relative
    weight of that evidence.”). The existence of inconsistencies or contradictions in the
    overall evidentiary record does not negate a hearing officer’s findings; an
    evidentiary record need not have one-sided purity to prevail. 
    Id. Besides that,
    putting contrary evidence on the judicial scales is “outside the scope of the
    inquiry” at the circuit court level and amounts to a pros/cons approach that
    Dusseau prohibits.
    Within its analysis, the trial court tacitly conducted the type of review
    envisioned by Dusseau because it explicitly said that “[s]tanding alone, the arrest
    and booking report and the testimony by Deputy Sander would support the
    findings of the hearing officer.” Its inquiry at that point—as explained in
    13
    Dusseau—was thereby 
    “ended.” 794 So. 2d at 1276
    . Whatever misgivings it may
    have had about possible conflicts between the video and the officer’s
    testimony/report were “outside the scope of the inquiry” as Dusseau holds. If
    portions of the report, or portions of the officer’s testimony, or portions of the
    video, or some combination of the three, provided evidentiary support for the
    hearing officer’s findings, judicial labor was at its end.
    Beyond the clarity of Dusseau and its progeny on this legal point, good
    policy reasons support the narrowing of the scope of certiorari review of
    administrative factual findings. One is that appellate litigants are not entitled to
    duplicative plenary review of factual findings as the appellate ladder is traversed.
    Instead, litigants get one opportunity to make an evidentiary record and to persuade
    the fact-finder to one of their competing views of the evidence; they cannot appeal
    to a circuit court and obtain such detailed review again. In this regard, it is
    noteworthy that the circuit court conducted—in large part—essentially the same
    type of review done by the hearing officer (with several important limitations
    discussed below). By comparing the video to the officer’s report, and making
    judgments about whether they were sufficiently in lockstep with each other, the
    circuit court repeated almost the exact same exercise that the hearing officer had
    already performed in the hearing room. But circuit courts are not to do so; doing so
    14
    would impermissibly provide the “second bite at the apple” that first tier certiorari
    review precludes.
    A second policy point is one of deference to the administrative hearing
    officer, who heard the live testimony, saw the video firsthand interactively with the
    officer’s testimony, and is experienced on licensure suspension matters. The
    supreme court made this point in Dusseau, reiterating that “the ‘competent
    substantial evidence’ standard cannot be used by a reviewing court as a mechanism
    for exerting covert control over the policy determinations and factual findings of
    the local agency.” 
    Dusseau, 794 So. 2d at 1275-76
    (emphasis added). Instead, the
    “standard requires the reviewing court to defer to the agency’s superior technical
    expertise and special vantage point in such matters.” 
    Id. at 1276
    (emphasis added).
    The two highlighted passages underscore that a primary principle of Dusseau is
    first tier deference to (rather than “control over”) administrative factual findings
    because of the hearing officer’s “special vantage point” in the process; Dusseau
    cannot be dismissed as merely an “agency expertise” case.
    For like reasons, important limitations undercut the circuit court’s re-review
    of the evidentiary record. As just mentioned, the hearing officer heard firsthand
    from the officer, who was questioned about and explained alleged inconsistencies
    between the video and the report; the circuit court had no contextual explanation
    upon which to rely other than the transcript of the officer’s testimony, which
    15
    concededly supports the hearing officer’s findings. Unlike the circuit court, the
    hearing officer could evaluate the credibility of the officer 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. 3 While the video
    alone might appear as thin evidence for the stop, when viewed in conjunction with
    the officer’s testimony, if believed, the evidence as a whole explains why the
    officer was led to believe the vehicle’s driver might be impaired (impairment being
    a multi-factored judgment call). For this reason, the circuit court’s belief that the
    “hearing officer was in no better position to evaluate the probative value of [the
    video] than is this Court” was mistaken; the hearing officer was in a far better
    position to evaluate the overall evidence, the “special vantage point” emphasized
    in Dusseau.
    Another limitation is that the circuit court concluded that the video nullified
    the officer’s testimony and the report in their entirety. This too was mistaken. By
    concluding it “was unreasonable as a matter of law for the hearing officer to accept
    Deputy Sanders report and testimony” in their entirety, the circuit court failed to
    follow Dusseau, which requires culling through the record for whatever bits and
    3
    An example is that the circuit court erroneously relied upon a portion of the
    report dealing with a lane change that the officer on his own accord had voluntarily
    admitted was an error. The hearing officer—who actually heard the officer make
    this correction—was in the superior position to pass judgment on this factual point;
    indeed, it made no finding of fact on the lane change issue, it playing no role in the
    hearing officer’s order.
    16
    pieces of evidence that support an administrative order’s factual findings. Here,
    that meant separating out those portions of the officer’s testimony, his report and
    the video itself that are supportive of the hearing officer’s findings, leaving
    contrary or inconsistent evidence on the cutting room floor. Viewed in this light,
    the video—consistent with relevant portions of the testimony and report—shows
    the vehicle appeared to weave somewhat, slowed to 30 mph in a 45 mph zone, and
    braked within an intersection for no apparent reason—all at 2:10 am. The officer
    also testified that his initial observation of the vehicle’s driving pattern, from a
    distance the video was unable to capture fully, caught his attention by appearing to
    swerve and flash its taillights in an odd way. This evidence, which the circuit court
    otherwise deemed competent and substantial, cannot be ignored simply because the
    circuit court disagreed with portions of testimony and report that it deemed
    conflicted with the video.
    A final, but related, policy point is that circuit courts are required to put
    aside their factual correctness meters, as difficult as that may be. As the supreme
    court in Dusseau said, the issue to be decided “is not whether the agency’s decision
    is the ‘best’ decision or the ‘right’ decision or even a ‘wise’ decision” under the
    circumstances. 
    Id. at 1276
    . It can be a difficult task to review a factually-close case
    and yield to a deferential appellate standard of review, particularly where a video
    exists that may paint a visually divergent picture from the report or memory of a
    17
    testifying official. Judges reviewing the video, along with the report and the
    hearing transcript, are likely to make differing judgments; just as hearing officers
    seeing the video, reading the report, and hearing the testimony of the actual officer
    might come away with different conclusions in this case. The legal point is that in
    factually-close cases, such as this one, the judicial thinking cap must be switched
    from “What do I believe is true?” to “What evidence supports what the hearing
    officer believes is true?”
    Appellate second-guessing of the fact-finder’s judgment goes against the
    legally-required deference that promotes judicial economy and finality, which are
    lost if circuit courts can utilize videos as a means to negate all other record
    evidence. As the United States Supreme Court has noted, the “[d]uplication of the
    trial judge’s efforts in the court of appeals would very likely contribute only
    negligibly to the accuracy of fact determination at a huge cost in diversion of
    judicial resources.” Anderson v. City of Bessemer City, N.C., 
    470 U.S. 564
    , 574-
    75 (1985) (“[T]he parties to a case on appeal have already been forced to
    concentrate their energies and resources on persuading the trial judge that their
    account of the facts is the correct one; requiring them to persuade three more
    judges at the appellate level is requiring too much.”).
    Of course, instances may exist where video evidence can operate to
    contradict all other evidence on a discrete factual point (versus an overall
    18
    assessment of the evidence). A video that unmistakably shows a vehicle running a
    red light can nullify testimony and reports to the contrary. But the quality and
    context of a video, like that in this case, may not capture or explain the finer
    nuances that the human eye of a trained (though here relatively inexperienced)
    DUI officer may perceive. Which explains why the officer said he picked up on
    some unusual movement of the vehicle or its taillights at a distance (“a good ways
    back at that point”) that the camera could not fully capture because the “video isn’t
    always the best.” What the officer believed he saw, unless entirely inconsistent
    with the video, is to be credited. The officer’s eyes were multi-tasking: watching
    the road to safely operate the patrol car while intermittently observing the vehicle’s
    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 drift quite that far—but 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.
    Yet videos are increasingly becoming a part of the appellate record, raising
    issues about the degree of deference to be given factual findings in different
    contexts. Some commentators argue for less deference—and greater appellate
    authority to rely on video evidence—where the interest at stake, such as a criminal
    sentence of death or life imprisonment, hangs in the balance.
    19
    In most garden-variety appeals . . . deference by a reviewing court to
    trial court determinations may be justified by policy values other than
    necessity, such as finality and judicial economy. No technological
    advance is likely to endanger traditional standards of review in that
    context. In less than routine cases, however, such as when a
    defendant’s life is at stake, videotaped records may provide some
    opportunity for much-needed improvement in appellate oversight of
    state court proceedings.
    Robert C. Owen & Melissa Mather, Thawing Out the “Cold Record”: Some
    Thoughts on How Videotaped Records May Affect Traditional Standards of
    Deference on Direct and Collateral Review, 2 J. App. Prac. & Process 411, 433
    (2000). Others pragmatically urge for incremental change, allowing broader
    appellate reliance on videos establishing insular facts that need little contextual
    explanation, but generally defaulting to existing standards of review because many
    facts—such as a person’s mental state—require more complex initial assessments
    of evidence.
    Discrete questions of fact, often binary in nature, are usually simple
    and rarely conflict with an explicit finding of the trial judge; they are
    thus proper candidates for video review. Questions requiring
    behavioral interpretation are marked by the interpretation of behavior
    in the courtroom; the category includes credibility but extends also to
    situations that similarly implicate the interests of deference, finality,
    efficiency, and the superiority of actual courtroom presence. Such
    complex questions should remain outside the purview of appellate
    review. The video record may “speak for itself,” but it does not and
    cannot speak for the visual input a judge observes and interprets that
    falls outside the scope of the camera, nor does it filter events and
    behavior through his or her experience and expertise. This
    fundamental reasoning behind deference should form the backbone of
    a theoretical framework for integrating the video record into
    American jurisprudence.
    20
    Bernadette Mary Donovan, Deference in A Digital Age: The Video Record and
    Appellate Review, 
    96 Va. L
    . Rev. 643, 676 (2010). We need not resolve the extent
    to which an appellate court may point to video evidence in overturning a lower
    tribunal’s factual findings. In the context of this case, we need only conclude that
    the trial court applied the “wrong law” by not sifting through the record for
    evidence supporting the administrative order’s factual findings.
    C. Trimble is Inapplicable
    Our review is not complete without consideration of this Court’s decision in
    Trimble, which Mr. Wiggins says allowed the circuit court to reject entirely the
    officer’s testimony and report. His theory is that the circuit court at worst
    misapplied Trimble, a case he claims is “correct law” in the context of this case.
    See 
    Edenfield, 58 So. 3d at 906
    (“[A] misapplication or an erroneous interpretation
    of the correct law does not rise to the level of a violation of a clearly established
    principle of law.”) (internal citations and quotations omitted).
    The trial court, however, did not rely upon or even mention Trimble.
    Instead, it anchored its legal ruling—that an appellate court is in the “exact same
    position” as a hearing officer in reviewing “objective” evidence involving no
    credibility determinations—on the Second District’s fifty-year-old decision in
    Julian v. Julian, 
    188 So. 2d 896
    (Fla. 2d DCA 1966). But the context and holding
    of Julian are of no relevance here. Julian was a child custody case in which the trial
    21
    court was presented with only a paper record consisting of pleadings, transcripts,
    and exhibits; no live witnesses testified and no video evidence was offered. In that
    evidentiary context, the Second District said:
    It is our view that, as the case comes here, there is no presumption, or
    at best, only a slight presumption, in favor of the correctness of the
    custody provision. Where a trial Judge bases his Final Decree upon
    the written pleadings and transcribed testimony and exhibits, the
    Appellate Court is in the same position in examining the record as is
    the Trial Judge, and a presumption as to determination of evidentiary
    matters in not as strong as when the Judge, as the trier of the facts,
    personally hears the witnesses.
    
    Id. at 898
    (emphasis supplied). The italicized portions demonstrate how far afield
    Julian is from this case. First, the hearing officer in Mr. Wiggins’s case did not
    base her findings on an entirely paper record, as occurred in Julian; she heard live
    testimony and was in a position to make credibility determinations; and no video
    was involved in Julian. Second, the court in Julian abandoned the notion that an
    appellate court is “in the same position” as the trial court in situations where that
    court “personally hears the witnesses.” Whatever presumption of correctness
    applied to trial courts’ rulings on paper-only records was deemed “not as strong”
    when a trial court “personally hears the witnesses.” On its face, Julian simply has
    no application here. It follows that the application of an irrelevant case, such as
    Julian, is the application of the “wrong law”—not a misapplication of the correct
    law.
    22
    Because the trial court applied the “wrong law” in making its ruling, no need
    exists to delve further into the metaphysical question of what law it might have
    applied. 
    Dusseau, 794 So. 2d at 1276
    (“As long as the record contains competent
    substantial evidence to support the agency’s decision, the decision is presumed
    lawful and the court’s job is ended.”). Nonetheless, we address Trimble to point
    out that its context and narrow holding likewise make it an inapplicable precedent.
    One year after Dusseau was decided, this Court in Trimble reviewed the
    Department’s administrative suspension of Ms. Trimble’s Florida driver’s license
    for refusing to submit to a sobriety 
    test. 821 So. 2d at 1085
    . A formal
    administrative hearing was held, her suspension was upheld, and she petitioned the
    circuit court, which set aside the suspension. The circuit court found no competent
    substantial evidence that Ms. Trimble was given an implied consent warning prior
    to her refusal because the Department’s documents 4 “were hopelessly in conflict
    and the discrepancies on the critical facts went unexplained.” 
    Id. at 1086.
    As in
    Julian, the contested factual issue was based solely on a paper-only record.
    The Department sought second tier review, arguing the circuit court
    reweighed the evidence. 
    Id. at 1085.
    This Court affirmed, holding that the circuit
    4
    The Department submitted an affidavit stating that Trimble was arrested at 11:40
    p.m. but inconsistently stating that a request and warning was given to Trimble at
    12:45 a.m.; a printout from the Breathalyzer that reflected a refusal occurred at
    12:47 a.m.; and an officer’s report said a warning was given at 12:50 a.m. 
    821 So. 2d
    at 1086.
    23
    court did not reweigh the evidence; instead, it applied well-established law on what
    constitutes competent substantial evidence, stating the “hearing officer’s finding
    that Trimble was given a consent warning before her refusal could have rested as
    much on the flip of a coin as on the documentary evidence submitted.” 
    Id. The petition
    was denied on that limited basis.
    If this case involved a wholly paper record, consisting of a handful of
    documents that were “hopelessly” conflicting on a single discrete fact—with no
    other evidence supportive of the hearing officer’s order—then Trimble could
    apply. It does not, however. Unlike the paper-only coin-flipping conundrum in
    Trimble, 5 the evidentiary profile in Mr. Wiggins’s case is entirely different—live
    testimony of the arresting officer, an arrest/booking report, and the video—making
    Trimble inapplicable. No commonality or parallelism exists. Like Julian, Trimble
    falls in “wrong law” category.
    What underlies much of the confusion is differentiating between a
    misapplication of the “correct law” and the application of the “wrong law.” As two
    commentators have noted, “in many cases only a Zen master could distinguish
    between a misapplication of the law and an application of the wrong law,” making
    5
    See also Dep’t of High. Saf. & Motor Veh. v. Colling, 39 Fla. L. Weekly D1195
    (Fla. 5th DCA June 6, 2014) (hearing officer’s decision between two documents
    with inconsistent blood alcohol readings “amounted to nothing more than a ‘flip of
    a coin’ under the most favorable interpretation of the record” rendering it an
    “arbitrary choice of one document over another [that] does not meet the
    substantial, competent evidence test.”) (citing Trimble).
    24
    the task much like telling identical twins apart. Chris W. Altenbernd & Jamie
    Marcario, Certiorari Review of Nonfinal Orders: Does One Size Really Fit All?
    Part I, Fla. B.J., Feb. 2012, at 23. In a universal sense, any case could be dubbed
    the “correct law” so long as it has not been overturned. But to be considered
    “correct law” for purposes of certiorari review, a precedent must be “relevant law”
    in the sense that it directly pertains to some issue in the case at hand. If not, a
    circuit court could simply apply an irrelevant case and thereby immunize its ruling
    from review as a “misapplication” of a “correct law.” For this reason, the “correct
    law” for purposes of second tier certiorari review must, at a minimum, at least have
    a direct and relevant application to the issue at hand. Viewed in this way, even if
    the trial court had cited to Trimble and attempted to apply it as a basis for its
    ruling, doing so would not insulate its ruling from certiorari review as a
    “misapplication of correct law.”
    D. “Miscarriage of Justice”
    Not applying the correct law must also result in a “miscarriage of justice” as
    the supreme court has explained.
    In granting writs of common-law certiorari, the district courts of
    appeal should not be as concerned with the mere existence of legal
    error as much as with the seriousness of the error. Since it is
    impossible to list all possible legal errors serious enough to constitute
    a departure from the essential requirements of law, the district courts
    must be allowed a large degree of discretion so that they may judge
    each case individually. The district courts should exercise this
    25
    discretion only when there has been a violation of a clearly
    established principle of law resulting in a miscarriage of justice.
    Combs v. State, 
    436 So. 2d 93
    , 95-96 (Fla. 1983). Expanding upon Combs, the
    court noted that the standard of second tier certiorari “while narrow, also contains a
    degree of flexibility and discretion. For example, a reviewing court is drawing new
    lines and setting judicial policy as it individually determines those errors
    sufficiently egregious or fundamental to merit the extra review and safeguard
    provided by certiorari. This may not always be easy since the errors in question
    must be viewed in the context of the individual case.” Haines City Cmty. 
    Dev., 658 So. 2d at 530-31
    (footnote omitted).
    Based upon these principles, which require not only a “sufficiently egregious
    error or fundamental” error but also a restrained exercise of judicial discretion, we
    conclude that the context of this case warrants relief. Failing to apply the
    applicable standard of certiorari review, while perhaps understandable in light of
    the circuit court’s view of the primacy of the video, meets this standard. See Clay
    
    County, 969 So. 2d at 1181
    . And although this case involves only Mr. Wiggins’s
    suspension, the Department says that many similar cases currently exist; and if the
    circuit court’s method of review is permitted, that the proverbial floodgates will
    open by giving the green light to circuit courts to independently review and
    second-guess the evidentiary weight to be placed on video evidence. Under these
    26
    circumstances, where no relief is otherwise available to the Department to curtail
    this practice, the context of this case warrants relief.
    III.
    The circuit court did not comply with Dusseau, which sets out the clearly-
    established manner in which first tier certiorari review is conducted in determining
    whether competent substantial evidence exists in support of an administrative fact-
    finding. In light of the circuit court’s order, which says the officer’s testimony and
    arrest/booking report by themselves would support the hearing officer’s factual
    findings, it might seem that a reversal is in order. But Dusseau says that a district
    court should not independently review the record and pass upon whether
    competent substantial evidence exists in support of a challenged administrative
    order; that is for the circuit court to do. As such, we grant the petition, quash the
    circuit court’s order, and remand with directions to apply the correct law. Because
    the issue presented arises more frequently due to the ubiquity of video evidence,
    we certify the following question of great public importance for possible 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 STOP?
    PETITION GRANTED.
    27
    LEWIS, C.J., CONCURS. VAN NORTWICK, J., DISSENTS.
    VAN NORTWICK, J., dissenting.
    It is clear from this record that the circuit court’s order did not improperly
    reweigh the record evidence but, rather, it ruled on the credibility of the evidence
    in the record in determining whether the hearing officer relied on competent
    substantial evidence. Thus, the circuit court did not apply the incorrect law. 6 As a
    result, I would deny the petition and respectfully dissent. I concur in the certified
    question.
    Factual and Procedural Background
    As described by the majority, Wiggins was arrested for DUI and refused the
    arresting law enforcement officer’s request to submit to breath-alcohol testing.
    After the placement of an administrative refusal suspension on Wiggins’ driver’s
    license, Wiggins requested and was granted a formal administrative suspension
    review hearing. At the hearing, Wiggins placed into evidence a DVD recording
    which was viewed at the hearing and showed the entire period from when he was
    first observed by Deputy Saunders through the arrest. At the conclusion of the
    evidentiary portion of the review hearing, Wiggins’ counsel argued that both the
    stop of the vehicle and the DUI arrest were unlawful.           Based on the record
    documents and the testimony offered in the review hearing, the hearing officer
    6
    There is no argument that the circuit court denied procedural due process.
    28
    made certain factual findings, and based on these factual findings, the hearing
    officer determined that a preponderance of the record evidence supported an
    affirmance of the administrative suspension pursuant to section 322.2615(8)(a),
    Florida Statutes.     Wiggins’ motions to invalidate the administrative suspension
    were denied.
    Wiggins then filed a petition for writ of certiorari in the circuit court of the
    Fourth Judicial Circuit.      In the petition, Wiggins argued, as he had at the
    administrative review hearing, that the stop and arrest were unlawful and that there
    was no competent substantial evidence to support the hearing officer’s findings
    that the stop and arrest were lawful. The Department asserted, in response, that
    there was competent substantial evidence in the record to support the hearing
    officer’s findings as made in the order and that, pursuant to section 322.2615(13),
    the circuit court was not permitted to conduct a de novo review of the issues from
    the administrative hearing. The circuit court granted Wiggins’ petition and found
    that the record failed to contain competent substantial evidence to support the
    lawfulness of the stop. The circuit court explained its ruling, as follows:
    According to the arrest and booking report “the vehicle
    was drifting and weaving in its own lane traveling at 30
    mph in a 45 mph zone, the passenger side tires crossed
    over the fog line and nearly struck the raised curb before
    swerving back into the lane.” The video clearly refutes
    this evidence; in the video the vehicle does not drift and
    weave within its own lane. Furthermore, the passenger
    29
    side tires do not cross over the fog line nor do they come
    close to striking the raised curb.
    The arrest and booking report further states “after coming
    to the flashing yellow lights at the intersection of Long
    Bag Road and Blanding Boulevard, the Petitioner braked
    for no reason and then accelerate. (sic)” The Petitioner
    did brake slightly when coming to the flashing yellow
    lights and subsequent to passing the flashing yellow
    lights slowly accelerated. The arrest and booking report
    then describes the vehicle as “braking hard again and
    swerved right as he entered the intersection with Everett
    Avenue.” The Petitioner did slightly apply the brakes
    momentarily. However Petitioner did not swerve to the
    right and almost hit the curb as he was passing through
    the intersection with Everett Avenue.
    The arrest and booking report further describes the
    driving pattern as “continued south on Blanding
    Boulevard toward County Road 218 and drifted into the
    turn lane. While making a wide left turn he had to
    realign his truck as he straightened out.” This evidence is
    refuted by the video that shows that the petitioner (sic)
    did continue driving southbound on Blanding Boulevard.
    However, the Petitioner deliberately switched lanes into
    the left turn lane as opposed to drifting. The turn upon
    leaving the intersection was normal and did not result in
    the Petitioner having to straighten out the vehicle to
    complete the turn.
    Standing alone, the arrest and booking report and
    testimony by Deputy Saunders would support the
    findings of the hearing officer. However, this testimonial
    evidence is flatly contradicted by the objective evidence
    on the videotape. The images on the videotape are clear
    and contain adequate lighting. The hearing officer was in
    no better position to evaluate the probative value of this
    objective evidence than is this court. Viewing the entire
    record evidence, neither the testimony of Deputy
    Saunders nor the arrest and booking report constitutes
    30
    competent substantial evidence on which the hearing
    officer could rely. In De Groot v. Sheffield, 
    95 So. 2d 912
    , 916 (Fla. 1957), the court described competent
    substantial evidence as that “sufficiently relevant and
    material that a reasonable mind would accept it as
    adequate to support the conclusion reached. To this
    extent the ‘substantial’ evidence should also be
    ‘competent.’”
    It was unreasonable as a matter of law for the hearing
    officer to accept Deputy Saunders report and testimony
    after this evidence was shown to be erroneous and flatly
    contradicted by the objective images of the videotape.
    Accordingly, the circuit court granted the petition for a writ of certiorari and
    quashed the Department’s order. The Department seeks review of this order by
    petition for writ of certiorari. As noted, I would deny the petition.
    Standard of Review
    In considering a petition for writ of certiorari on second-tier review of a
    circuit court’s order reviewing an administrative order, the various standards of
    review are a necessary starting point in the analysis. In certiorari proceedings
    concerning an administrative action, the circuit court is required to apply a three-
    pronged analysis and determine (1) whether procedural due process was accorded,
    (2) whether the essential requirements of law have been observed, and (3) whether
    the administrative findings and judgment are supported by competent substantial
    evidence. Haines City Cmty Dev. v. Heggs, 
    658 So. 2d 523
    , 530 (Fla. 1995);
    Educ. Dev. Ctr., Inc. v. City of W. Palm Beach Zoning Bd. of Appeals, 
    541 So. 2d 31
    106, 108 (Fla. 1989). When exercising its certiorari review power, the circuit court
    is not permitted to reweigh the evidence or substitute its judgment for that of the
    agency. Educ. Dev. 
    Ctr., 541 So. 2d at 108
    .
    The standard of review applicable to the district court of appeal reviewing
    the circuit court’s order is more restricted. While engaged in a so-called second-
    tier review, the appellate court is limited to a two-pronged analysis determining (1)
    whether the circuit court afforded procedural due process, and (2) whether the
    circuit court applied the correct law. 
    Heggs, 658 So. 2d at 530
    (holding that the
    administrative phrase “applied the correct law” is synonymous with the civil and
    criminal phrase “observing the essential requirements of law” and, therefore, there
    is “no justifiable reason for adopting different standards for district court review in
    such cases”); Educ. Dev. 
    Ctr., 541 So. 2d at 108
    ; Dep’t of Highway Safety &
    Motor Vehicles v. Edenfield, 
    58 So. 3d 904
    , 906 (Fla. 1st DCA 2011). Pursuant to
    Florida Rule of Appellate Procedure 9.030(b)(2)(B), this second-tier review is
    necessarily narrower than the circuit court’s review. Educ. Dev. 
    Ctr., 541 So. 2d at 108
    . This court, unlike the circuit court, may not review the record to determine
    whether the Department’s decision was supported by competent substantial
    evidence, see Dusseau v. Metropolitan Dade County Board of County
    Commissioners, 
    794 So. 2d 1270
    , 1274 (Fla. 2001), because second-tier certiorari
    is not a means of granting a second appeal. Further, the district court cannot grant
    32
    certiorari relief simply because it disagrees with the outcome of the circuit court’s
    decision. Nader v. Fla. Dep’t of Highway Safety & Motor Vehicles, 
    87 So. 3d 712
    , 726 (Fla. 2012). As will be seen from the discussion which follows, the
    majority misunderstands this court’s responsibility in determining whether the
    circuit court “applied the correct law.”
    With respect to determining whether the circuit court applied the correct
    law, the district court should grant second-tier certiorari relief “only when there has
    been a violation of a clearly established principle of law resulting in a miscarriage
    of justice.” Custer Med. Ctr. v. United Auto. Ins. Co., 
    62 So. 3d 1086
    , 1092 (Fla.
    2010) (emphasis added). This court has emphasized the limited nature of this
    review:
    Clearly established law can be derived not only from case
    law dealing with the same issue of law, but also from an
    interpretation or application of a statute, a procedural
    rule, or a constitution provision. When the established
    law provides no controlling precedent, however,
    certiorari relief cannot be granted because without such
    controlling precedent, a district court cannot conclude
    that a circuit court violated a clearly establish principle of
    law. Further, a misapplication or an erroneous
    interpretation of the correct law does not rise to the level
    of a violation of a clearly established principle of law.
    Dep’t of Highway Safety & Motor Vehicles v. 
    Edenfield, 58 So. 3d at 906
    (internal
    citations and quotations omitted).
    Application of the Correct Law
    33
    Relying on Dusseau, the Department argues and the majority agrees that the
    circuit court did not apply the correct law because it reweighed the evidence and
    substituted its judgment for that of the hearing officer’s. In Dusseau, the Florida
    Supreme Court discussed the applicable case law which governs first- and second-
    tier reviews. The Supreme Court differentiated between a “competent substantial
    evidence” standard of proof, which is applied by the government agency in the first
    instance, and a “competent substantial evidence” standard of review, which is
    applied by the circuit court upon its first-tier 
    review. 794 So. 2d at 1274
    . The
    Dusseau court explained that, when the circuit court reweighs the evidence and
    decides the merits of an agency order, the circuit court applies the wrong law
    because it applies the competent substantial evidence standard of proof rather than
    the competent substantial evidence standard of review. 
    Id. at 1275
    (citing Florida
    Power & Light Co. v. City of Dania, 
    761 So. 2d 1089
    (Fla. 2000)). The court
    further explained in Dusseau that
    [t]he sole issue before the court on first-tier certiorari
    review is whether the agency’s decision is lawful. The
    court’s task vis-à-vis the third prong of [City of Deerfield
    Beach v. Vaillant, 
    419 So. 2d 624
    (Fla. 1982)] is simple:
    The court must review the record to assess the
    evidentiary support for the agency’s decision. Evidence
    contrary to the agency’s decision is outside the scope of
    the inquiry at this point, for the reviewing court above all
    cannot reweigh the “pros and cons” of conflicting
    evidence. While contrary evidence may be relevant to
    the wisdom of the decision, it is irrelevant to the
    34
    lawfulness of the decision.
    
    Id. at 1276
    .
    Dusseau did not put forth a new understanding of the competent substantial
    evidence standard of review.      That is, in describing first-tier review, the Dusseau
    court does not require, as the majority states, that reviewing the record in support
    of the findings of fact involves “culling through the record for whatever bits and
    pieces of evidence that support an administrative order’s factual findings” while
    “separating out those portions [of a matter of record] that are supportive of the
    hearing officer’s findings, leaving contrary or inconsistent evidence on the cutting
    room floor.” Majority op. at 16-17. Instead, an item of evidence can be rejected as
    a whole by the circuit court on first-tier review because it is not legally competent
    evidence, even though a sentence or phrase within that item might support a
    finding of fact. Courts employing a competent substantial evidence standard of
    review, as this court routinely does, are not obliged to disassemble or deconstruct
    matters submitted into evidence.        To so construe the competent substantial
    evidence standard would essentially render it a meaningless standard, for certainly
    there is almost always some passing phrase or minor reference in the record
    evidence which could be seen as support for a finding of fact, even when an item
    of evidence, when viewed in context as a whole, plainly does not support a finding
    of fact.
    35
    For instance, Dusseau nowhere requires a circuit court on first-tier review to
    find support for a finding of fact on a single sentence in a document when that
    document as a whole plainly does not support the finding. To my mind, that is
    what the majority is here insisting upon: that a circuit court accept parts of a
    discrete item of record while ignoring that item as a whole. Indeed, the majority
    says as much when it holds that the circuit court must have found support for a
    finding of fact made by the hearing officer if “portions of the report, or portions of
    the officer’s testimony, or portions of the video, or some combination of the three,
    provided evidentiary support for the hearing officer’s findings. . . .” Majority op. at
    14. Dusseau says no such thing. To mandate a Chinese menu approach to the
    competent substantial evidence determination in first-tier review will lead to
    absurd results. Therefore, in my view, the majority reads Dusseau too broadly.
    It is certainly true that a reviewing court on first-tier review may not reweigh
    the competent evidence already weighed by the finder of fact. 
    Dusseau, 794 So. 2d at 1273
    -74.    However, as noted, a court on first-tier review is charged with
    determining whether findings of fact and the resulting judgment are supported by
    competent substantial evidence, which means the court of first-tier review is to
    determine whether there is “legally sufficient evidence.” 
    Id. at 1274
    (citing Florida
    Power & 
    Light, 761 So. 2d at 1092
    ).
    36
    I do not agree with the Department that, contrary to the requirements of
    Dusseau, the circuit court here engaged in a reweighing of the record evidence. As
    I read the circuit court’s order, the circuit court properly reviewed the record
    evidence to determine whether the evidence on which the hearing officer relied
    was sufficiently credible to constitute competent substantial evidence. As noted,
    the trial court concluded that the arrest and booking report as well as the testimony
    of Deputy Sanders “were flatly contradicted by objective evidence on the
    videotape.”   That is, the trial court concluded that the arrest and booking report,
    as well as the trial testimony of the officer, were not sufficiently credible to
    constitute competent substantial evidence.
    In the seminal case of De Groot v. Sheffield, 
    95 So. 2d 912
    , 916 (Fla. 1957),
    the term competent substantial evidence is defined:
    Substantial evidence has been described as such
    evidence as will establish a substantial basis of
    fact from which the fact at issue can be
    reasonably inferred. We have stated it to be such
    relevant evidence as a reasonable mind would
    accept as adequate to support a conclusion. In
    employing the adjective “competent” to modify
    the word “substantial,” we are aware of the
    familiar rule that in administrative proceedings
    the formalities in the introduction of testimony
    common to the courts of justice are not strictly
    employed. We are of the view, however, that the
    evidence relied upon to sustain the ultimate
    finding should be sufficiently relevant and
    37
    material that a reasonable mind would accept it as
    adequate to support the conclusion reached. To
    this extent the “substantial” evidence should also
    be “competent.”
    After the De Groot decision, the Florida Supreme Court further refined the
    definition of competent substantial evidence by explaining:
    Although the terms “substantial evidence” or
    “competent substantial evidence” have been
    variously defined, past judicial interpretation
    indicates that an order which bases an essential
    finding or conclusion solely on unreliable
    evidence should be held insufficient.
    Fla. Rate Conference v. Fla. R.R. & Pub. Utils. Comm’n, 
    108 So. 2d 601
    , 607 (Fla.
    1959) (emphasis added). In short, evidence which is incredible or unreliable is not
    competent substantial evidence.
    A determination that evidence is not competent substantial evidence does
    not involve a reweighing of the evidence. As the Florida Supreme Court explained
    in Tibbs v. State, 
    397 So. 2d 1120
    , 1123 (Fla. 1981), the “weight and the
    sufficiency of evidence are, in theory, two distinct concepts. . . .” As the Supreme
    Court explained further, “[s]ufficiency is a test of adequacy. Sufficient evidence is
    ‘such evidence, in character, weight, or amount, as will legally justify the judicial
    or official action demanded.’” 
    Id. at 1123
    (quoting Black's Law Dictionary 1285
    (5th ed. 1979)). In Florida Power & Light, the Florida Supreme Court reiterated
    38
    that the consideration as to whether a finding is supported by competent substantial
    evidence necessarily entails a consideration of whether evidence is “legally
    
    sufficient.” 761 So. 2d at 1092
    ; see 
    Dusseau, 794 So. 2d at 1273
    -74. In contrast,
    the “weight of the evidence” is the “balance or preponderance of evidence.” 
    Tibbs, 397 So. 2d at 1123
    (quoting Black's Law Dictionary 1429 (5th ed. 1979)). That is,
    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.” 
    Id. (Emphasis added).
    Here, the circuit court concluded that the “testimonial evidence” of the officer was
    not credible, and thus, that testimonial evidence was properly rejected. The trial
    court did not engage in a weighing of credible evidence against other credible
    evidence. Accordingly, the trial court did not exceed its proper scope of first-tier
    review.
    This understanding of first-tier review was reaffirmed by this court in
    Department of Highway Safety & Motor Vehicles v. Trimble, 
    821 So. 2d 1084
    (Fla. 1st DCA 2002). 7 In Trimble, the circuit court set aside a driver’s license
    suspension order based upon its determination that no competent substantial
    evidence supported the hearing officer’s decision that Trimble had been given an
    7
    On appeal, the Department argues that Trimble conflicts with Dusseau and that
    Trimble was wrongly decided. I disagree. As explained in the text, Trimble does
    not conflict with Dusseau. Further, I do not agree that Trimble was wrongly
    decided.
    39
    implied consent warning of her right to refuse a breath, urine or blood test before
    she declined to take the test. 
    Id. at 1085.
    On second-tier review, this court
    concluded that the circuit court had not misapplied the law. We explained that
    [i]n the case before us, the circuit court concluded that
    the documentary evidence presented by the Department,
    which was the only evidence submitted to prove its case,
    was legally insufficient to constitute CSE on the
    warning issue, because the documents were hopelessly in
    conflict and the discrepancies on the critical facts went
    unexplained.
    
    Id. at 1086
    (emphasis added). This court described the dispositive issue before it:
    The question before us is whether the circuit court’s
    ruling constitutes impermissible reweighing of
    conflicting evidence, and thus is a misapplication of the
    law, or whether it is a proper application of the law. The
    resolution of this issue turns on the meaning and force
    of the inference derived from the evidence submitted.
    
    Id. (emphasis added).
    This court concluded in Trimble that the circuit court did
    not engage in a reweighing of evidence, which it was not permitted to do, when it
    rejected incredible evidence, which it was permitted to do. As we explained,
    Florida courts have long required that findings must be based “on evidence in the
    record that supports a reasonable foundation for the conclusion reached.” 
    821 So. 2d
    at 1087. Put another way, findings must be based on evidence “having fitness
    to induce conviction.” 
    Id. (quoting Fla.
    Rate Conference v. Fla. R.R. & Pub. Utils.
    Comm’n, 
    108 So. 2d 601
    , 607 (Fla. 1959)).
    40
    The majority argues Trimble is not applicable as the evidence submitted in
    that case consisted only of “paper,” whereas Deputy Wiggins gave live testimony
    before the hearing officer. This distinction is of no consequence. The recognition
    by this court in Trimble that the evidence relied upon by the hearing officer gave
    equal support to inconsistent inferences had nothing to do with the documentary
    character of the evidence. This court’s refusal in Trimble to grant certiorari relief
    instead was solely dependent on the evidence being so inclusive as to amount to a
    “flip of a coin,” 
    821 So. 2d
    at 1087, as the circuit court therein had properly
    concluded.
    In conclusion, while the majority asserts that the circuit court applied the
    “wrong law,” I must disagree. The circuit court’s consideration of whether the
    hearing officer relied on competent substantial evidence is an inquiry compelled by
    Dusseau and Trimble. Accordingly, the circuit court applied the correct law in
    determining whether the administrative findings and judgment were supported by
    competent substantial evidence. See Haines City Cmty. 
    Dev., 658 So. 2d at 530
    ,
    and Educ. Dev. 
    Ctr., 541 So. 2d at 108
    . Even the majority recognizes that Dusseau
    requires a circuit court, on first-tier review, to determine whether a hearing
    officer’s finding is supported by “competent substantial evidence.” Majority op. at
    7. That is all the circuit court did here. Respectfully, it seems to me that the
    majority here simply disagrees with the circuit court that the testimony of and
    41
    report from Deputy Saunders were not competent evidence. That is not, however,
    the issue before us on second-tier review.8 In fact, by rejecting the circuit court’s
    conclusion that the hearing officer’s findings were not based on competent
    substantial evidence, it is the majority which is applying the incorrect law.
    Accordingly, I would deny the petition for writ
    8
    As noted, this court, unlike the circuit court, may not review the record on
    second-tier review to determine whether the Department’s decision was supported
    by competent substantial evidence. 
    Dusseau, 794 So. 2d at 1274
    (Fla. 2001).
    Further, this court cannot grant second-tier certiorari review simply “because it
    disagrees with the outcome of the circuit court’s decision.” 
    Nader, 87 So. 3d at 726
    .
    42