Department of Highway Safety and Motor etc. v. Eric Hirtzel

IN THE DISTRICT COURT OF APPEAL
FIRST DISTRICT, STATE OF FLORIDA
DEPARTMENT OF HIGHWAY
SAFETY AND MOTOR
VEHICLES,
Petitioner,
CASE NO. 1D14-2688
v.
ERIC HIRTZEL,
Respondent.
_____________________________/
Opinion filed May 12, 2015.
Petition for Writ of Certiorari – Original Jurisdiction.
Stephen D. Hurm, General Counsel, and Nicholas A. Merlin, Assistant General
Counsel, Department of Highway Safety & Motor Vehicles, Tallahassee, for
Petitioner.
David M. Robbins and Susan Z. Cohen of Epstein & Robbins, Jacksonville, for
Respondent.
ON MOTION FOR CERTIFICATION
PER CURIAM.
By motion for certification, respondent Eric Hirtzel has asked us to certify,
as a question of great public importance, “the question of whether a circuit court
should review the entire record to determine whether the hearing officer’s order is
based on competent substantial evidence in the record or whether the circuit court
is limited to a review for any evidence in the record without regard to the
competent and/or substantial nature of the evidence.” We can fairly be said to
have passed on this question when we ruled:
On first tier certiorari review of a hearing officer's
decision, the circuit court had to decide whether . . . the
hearing officer's factual findings are supported by
competent, substantial evidence. State, Dep't of Highway
Safety & Motor Vehicles v. Wiggins, 151 So. 3d 457, 462
(Fla. 1st DCA 2014), review granted, 2014 WL 7251666
(Fla. Dec. 17, 2014). The competent, substantial evidence
standard requires the circuit court to defer to the hearing
officer's findings of fact, see id. at 465, unless there is no
competent evidence of any substance, in light of the
record as a whole, that supports the findings. See
Universal Camera Corp. v. N.L.R.B., 340 U.S. 474, 488,
71 S. Ct. 456, 95 L. Ed. 456 (1951) (“The substantiality of
evidence must take into account whatever in the record
fairly detracts from its weight.”). Compare Miller v.
State, Div. of Ret., 796 So. 2d 644, 646 (Fla. 1st DCA
2001) (concluding that the decision below did not rest on
a finding of fact unsupported by competent, substantial
evidence in the record), with Arnold v. Florida's Blood
Ctrs., Inc., 949 So. 2d 242, 246–47 (Fla. 1st DCA 2007)
(determining that evidence, although competent, was not
substantial).
But the present case differs from the decision in Dep’t of Highway Safety & Motor
Vehicles v. Wiggins, 151 So. 3d 457, 470 (Fla. 1st DCA 2014) review granted sub
nom. Wiggins v. Dep’t of Highway Safety & Motor Vehicles, No. SC14-2195,
2014 WL 72516666 (Fla. Dec. 17, 2014), on the basis of which respondent urges
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certification. There the panel certified the following question:
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?
The certified question in Wiggins could have been redrafted to ask whether a video
clearly depicting events testified to differently by a witness could render the
witness’s testimony insubstantial in light of the record as a whole, but even in that
event would not have posed a question that could make a difference in Mr.
Hirtzel’s case.
As we noted in our original opinion, the circuit court's order in the present
case failed to take into account ample, competent evidence supporting the hearing
officer's finding of probable cause, including law enforcement officers' testimony
that Mr. Hirtzel answered yes when asked if he had been drinking alcohol; “that
Mr. Hirtzel stated his vehicle flipped after hitting a pot hole or speed bump when,
in fact, it overturned after he hit a wooden post, according to the officers who
investigated the crash;” that he was seen speeding and shouting moments before
the accident, and that he was still visibly intoxicated when they arrived to
investigate. The hearing officer did not believe his story—told for the first time at
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the hearing—that he decided to have a drink in the parking lot after the accident,
and there is little in the circuit court’s order—and no video or anything else in the
record—to explain why the circuit court disregarded the competent, substantial
evidence supporting the hearing officer’s findings of fact.
The motion for certification is denied.
BENTON and BILBREY, JJ., CONCUR; CLARK, J., DISSENTS WITHOUT
OPINION.
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