5th District Court of Appeal Overturns Circuit Court Order Allowing Request for Writ of Certiorari

In the case of Florida Department of Highway Safety and Motor Vehicles v. Dellacava, the District Court of Appeal granted the Florida DHSMV appeal and granted the petition to quash the circuit court's ruling quashing the order by the administrative hearing officer|the administrative hearing officer's ruling} affirming defendant's license suspension. In 2010, the defendant was arrested for driving under the influence of alcohol. Defendant provided a breath sample on the Intoxilyzer 8000. That specific Intoxilyzer unit was utilizing software version 8100.27. The test results showed that defendant's breath-alcohol level was 0.08 or higher. The result mandated a drivers license suspension pursuant to section 322.2615(1)(a), Florida Statutes. The defendant asked for a formal administrative hearing. Defendant contended that the Intoxilyzer using the software version 8100.27 was not properly approved in the State of Florida. The hearing officer ruled that by a preponderance of the evidence standard, that sufficient cause was present to uphold defendant's suspension. Defendant alleged for the 1st time in his reply brief that the record did not establish that the breathalyzer software version 8100.27 had been evaluated. The circuit court, sitting in its appellate capacity, granted the petition. The Fifth District Court of Appeal reversed the circuit court's ruling, finding the DHSMV was not provided with due process when the circuit court granted certiorari relief on an issue raised for the 1st time in defendant's reply brief, as the DHSMV did not have the opportunity to respond to defendant's new argument.

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