Full Opinion

FIRST DISTRICT COURT OF APPEAL STATE OF FLORIDA _____________________________ No. 1D20-2365 _____________________________ RISHI SARAIYA MUCHHALA, Petitioner, v. FLORIDA DEPARTMENT OF HIGHWAY SAFETY AND MOTOR VEHICLES, Respondent. _____________________________ Petition for Writ of Certiorari—Original Jurisdiction. August 12, 2021 ON MOTION FOR PANEL REHEARING AND REHEARING EN BANC PER CURIAM. We deny appellant’s motion for rehearing and for rehearing en banc. On our own motion, we withdraw our earlier opinion and substitute the following in its place. Rishi Saraiya Muchhala seeks second-tier certiorari review of a decision of the circuit court sitting in its review capacity. The Florida Department of Highway Safety and Motor Vehicles Bureau of Administrative Review (“the Department”) upheld Muchhala’s driver’s license suspension even though the intended breath technician failed to appear at his hearing. Muchhala sought certiorari review of the decision, which the circuit court denied. We have jurisdiction pursuant to rule 9.030(b)(2)(B), Florida Rules of Appellate Procedure. We deny the petition. Muchhala’s driver’s license was suspended when he refused to submit to a breath test after being arrested for driving under the influence (DUI). He requested a formal review with the Department and subpoenas were issued to the arresting officer and to the DUI breath-test technician, Officer McDonald. When Officer McDonald failed to attend the hearing, Muchhala moved to invalidate the suspension pursuant to section 322.2615(11), Florida Statutes. The hearing officer denied the motion, finding that invalidation was not appropriate because Officer McDonald did not act as a breath technician, as Muchhala refused a breath test. The circuit court agreed. On second-tier certiorari review, the district court of appeal must determine whether the circuit court afforded procedural due process and whether it applied the correct law. See Gordon v. State, Dep’t of Highway Safety & Motor Vehicles, 166 So. 3d 902, 904 (Fla. 4th DCA 2015). This second-tier certiorari review is not used to simply grant a second appeal, but rather, is reserved for those situations when there has been a violation of a clearly established principle of law resulting in a miscarriage of justice. See Futch v. Fla. Dep’t of Highway Safety & Motor Vehicles, 189 So. 3d 131, 132 (Fla. 2016). Section 322.2615(11) reads as follows: The formal review hearing may be conducted upon a review of the reports of a law enforcement officer or a correctional officer, including documents relating to the administration of a breath test or blood test or the refusal to take either test or the refusal to take a urine test. However, as provided in subsection (6), the driver may subpoena the officer or any person who administered or analyzed a breath or blood test. If the arresting officer or the breath technician fails to appear pursuant to a subpoena as provided in subsection (6), the department shall invalidate the suspension. 2 Muchhala argues that a “breath technician” cannot refer back to a person “who administered or analyzed a breath or blood test” because that statutory phrase includes “blood test,” for which a “breath technician” is irrelevant. Muchhala makes several reasonable arguments showing that last sentence of subsection (11) does not exclude breath technicians when the driver had refused a breath alcohol test, so that the department is required to invalidate the license suspension if a subpoenaed breath technician fails to appear, even if the driver had refused the test. But our task is not to determine de novo what the statute requires; it is to determine whether the circuit court afforded procedural due process, whether it applied the correct law, and whether there has been a violation of a clearly established principle of law resulting in a miscarriage of justice. Muchhala has failed to demonstrate that his interpretation of the statute was “clearly established,” or that the circuit court violated any other “clearly established” principle of law. Nor does Muchhala claim that the circuit court proceedings were procedurally flawed. For these reasons, we find that Muchhala has failed to demonstrate that he is entitled to second-tier certiorari relief. DENIED. RAY, BILBREY, and WINOKUR, JJ., concur. _____________________________ Not final until disposition of any timely and authorized motion under Fla. R. App. P. 9.330 or 9.331. _____________________________ William J. Sheppard, Elizabeth L. White, Matthew R. Kachergus, Bryan E. DeMaggio, Jesse B. Wilkison, and Camille E. Sheppard of Sheppard, White, Kachergus, DeMaggio & Wilkison, P.A., Jacksonville, for Petitioner. 3 Christie S. Utt, General Counsel, and Mark L. Mason, Assistant General Counsel, Department of Highway Safety and Motor Vehicles, Tallahassee, for Respondent. 4