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. June 16, 2021 PER CURIAM. Rishi Saraiya Muchhala seeks second-tier review of a decision of the circuit court sitting in its appellate 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). Muchhala argues section 322.2615(11) requires the appearance of a subpoenaed breath technician in all formal review hearings and makes no distinction between a case where the driver refuses a breath test and a case where the driver takes a breath test. However, when read in its entirety it appears that “breath technician” refers to the “person who administered or analyzed a breath . . . test.” In its entirety section 322.2615(11) states: 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 2 subpoena as provided in subsection (6), the department shall invalidate the suspension. Here, not only did the hearing officer and circuit court apply the correct law, they correctly interpreted the law. Section 322.2615(11) does not require the suspension be invalidated in this case. Because Muchhala refused to take the breath test there was no one “who administered or analyzed a breath or blood test.” Therefore, section 322.2615(11) does not apply to the subpoena of Officer McDonald. * DENIED. RAY, C.J., and 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. _____________________________ * While we find that the circuit court’s order did not violate a clearly established principle of law resulting in a miscarriage of justice, this holding does not mean that a petitioner has no remedy if a subpoenaed technician who did not administer a breath or blood test fails to appear at a formal review hearing. In such a case, section 322.2615(6)(c) applies. This section states that “failure of a subpoenaed witness to appear at the formal review hearing is not grounds to invalidate the suspension,” but allows the petitioner to “seek enforcement of a subpoena . . . by filing a petition for enforcement in the circuit court . . . or by filing a motion for enforcement in any criminal court case . . . that gave rise to the suspension under this section.” The record does not reflect that Muchhala made any such attempt to enforce the subpoena of Officer McDonald. 3 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. Christie S. Utt, General Counsel, and Mark L. Mason, Assistant General Counsel, Department of Highway Safety and Motor Vehicles, Tallahassee, for Respondent. 4