Opinion
Case No. 3D05-511 Consolidated: 3D04-2386.
Opinion filed August 10, 2005.
On Petition for Writ of Certiorari to the Circuit Court for Miami-Dade County, Arthur L. Rothenberg, Bernard S. Shapiro, and Maynard A. Gross, Judges, Lower Tribunal Case No. 04-436AP.
Enoch J. Whitney and Jason Helfant, for petitioner.
George T. Pallas, for respondent.
Before LEVY, FLETCHER, and RAMIREZ, JJ.
The Department of Highway Safety and Motor Vehicles [DMV] seeks a writ of certiorari and quashal of the circuit court's final order, rendered in its appellate capacity, denying the DMV's motion for rehearing. We deny the writ of certiorari.
The appellee, Rafael Gonzalez-Zaila [Gonzalez] has a driving record that reflects five convictions for driving under the influence. After his final conviction in 1997, Gonzalez' license was permanently suspended. In June 2003, Gonzalez applied for license reinstatement, and in November 2003, the DMV issued Gonzalez a hardship license for employment purposes. On July 28, 2004, the DMV ordered Gonzalez to install an ignition interlock device in his car within thirty days or risk the cancellation of his license.
Gonzalez filed a petition for writ of certiorari in the circuit court. In addition, he filed an emergency motion to stay license cancellation. The circuit court granted a thirty-day stay, and later Gonzalez sought an extension of that stay, which was denied. The DMV sought review in this court of the non-final order, which this court treated as a writ of certiorari under case number 3D04-2386.
The circuit court then granted Gonzalez' petition and quashed the DMV's order requiring installation of the ignition interlock device because the DMV did not have a court order requiring installation. The DMV moved for rehearing which was denied. The DMV filed the instant petition for writ of certiorari and this court consolidated both proceedings under case number 3D05-511.
Under section 316.1937, Florida Statutes (2004), "the court may require that any person who is convicted of driving under the influence . . . shall not operate a motor vehicle unless that vehicle is equipped with a functioning ignition interlock device certified by the [DMV]." § 316.1937(1), Fla. Stat. (2004). The statute further indicates that if the court were to impose the use of the device on an individual, the court would have to "stipulate on the record the requirement for, and the period of, the use of a certified ignition interlock device." § 316.1937(2)(a), Fla. Stat. (2004). This statute, by its literal meaning, gives the courts the sole power of determining, through the sentencing process, whether the ignition interlock device will be required in the car of the individual convicted of driving under the influence.
The DMV argues that section 322.271(2)(d) allows them to require use of an ignition interlock device upon reviewing Gonzalez' application for license reinstatement since Gonzalez' multiple convictions for driving under the influence qualify him for the requirement under section 316.1937. § 322.271(2)(d), Fla. Stat. (2004).
This argument fails for two reasons.
First, the DMV could only have required installation of the device upon a court order. This court ruled recently that the DMV lacked the authority to require the installation of a device absent a court order. Dickenson v. Aultman, 30 Fla. L. Weekly D674 (Fla. 3d DCA March 9, 2005). The legislature has not expressly authorized the DMV to impose criminal penalties, leaving the responsibility of sentencing solely to the state courts. See Art. I, § 18, Fla. Const. ("No administrative agency . . . shall impose a sentence of imprisonment, nor shall it impose any other penalty except as provided by law.");Pearson v. Moore, 767 So. 2d 1235, 1239 (Fla. 1st DCA 2000) (Sentencing is a power, obligation and prerogative of the courts, not of an administrative agency.); Fuston v. State, 838 So. 2d 1205 (Fla. 2d DCA 2003) ("The DMV has no authority to impose a more onerous sentence upon a prisoner than the sentence actually imposed by the trial court.").
Second, even if the court required the installation of the ignition interlock device, the statute provides that the DMV could only implement this requirement when reviewing the licensee's application for reinstatement. § 322.271(2)(d), Fla. Stat. (2004). The DMV cannot reinstate Gonzalez' licensewithout requiring the interlock device and then months later require him to install the device under the threat of cancelling his hardship license. Such a requirement, first imposed via a court order upon initial revocation of driving privileges, would have to be redetermined by the DMV upon a person's application for reinstatement of those privileges. Once the restricted license is reinstated, the DMV cannot later impose additional requirements or restrictions.
The DMV additionally claims that pursuant to section 316.193(2)(a)(3), the circuit court was required to order that an interlock device be installed in Gonzalez' car for at least a year. The DMV reasons that, since the circuit court did not implement the interlock requirement, the DMV had the discretion to require the device to be installed. We disagree. As we have previously held, the court has the sole discretion of imposing such restrictions upon sentencing. Aultman, 20 Fla. L. Weekly at D674. If the court does not implement the required sanction at sentencing, the State may at that time (sentencing) move to modify the sentence to include the ignition interlock device requirement. We emphasize that the DMV does not have the power to impose additional criminal penalties through license requirements absent a court order. See Aultman, 20 Fla. L. Weekly at D674;See also Fuston, 838 So. 2d at 1205. As in Aultman, if the sentencing judge here failed to impose upon Gonzalez the mandated ignition interlock device requirement pursuant to section 316.193(2)(a)(3), the State should have taken action at that time to correct the sentencing error. As we find the DMV does not have the express authorization to impose a criminal penalty other than one ordered by a court, and only then at the time it reviews and grants a license reinstatement application, the DMV's petition for a writ of certiorari is denied.
NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DISPOSED OF.