8/9/15 – Update: Skip to the end of this article to read the comments. I also added a recent case discussing the formal review hearing to contest a suspension for medical reasons to the end of this article.
5/22/14 – Update: I finally received a copy of these forms from the DHSMV. I’m providing these forms for informational purposes only. DHSMV Form – Medical Report DHSMV Form – Crash Report Questionnaire DHSMV Form – Alcohol and or Drug Usage Questionnaire
What happens when someone reports that a citizen is unable to safely operate or drive a motor vehicle as a result of a some physical condition, mental impairment, medical condition or addiction to alcohol or drugs? The Florida Department of Transportation provides funding for Florida’s Medical Review Process. Allegations of unsafe driving often involve:
- a variety of different types of medical conditions;
- vision problems;
- substance abuse;
- medication that affects the ability to drive safely;
- reckless or poor driving as a result of medical issues;
- observations of dings, dents or scratches that might have resulted because of a medical condition;
- observations of a citizen acting confused or getting lost while driving in familiar areas and thinking there may be a possible medical cause for the behavior.
Florida law allows the reports to be kept strictly confidential. In fact, no civil or criminal action may be brought against any physician, person or agency for providing this information. The HSMV Form 72190 that was last revised in July of 2013 can be found at http://www.flhsmv.gov/forms/72190.pdf. The Medical Reporting Form Used in Florida According to the Medical Reporting Form, physical or mental disabilities that could lead to being unable to safely operate or drive a motor vehicle could include, but are not limited to, any of the following:
- Alcohol Addiction;
- Drug Addiction;
- Psychiatric Disturbance;
- Dementia/Memory Defects;
- Epilepsy with recent “Petit mal” or absence seizures and partial seizures with complex symptomatology or even isolated seizure with a normal encephalogram;
- Severe Cardiac Condition;
- Loss of Consciousness;
- Uncontrollable Diabetes
- Severe Visual Defect; or
- Sleep Disorders.
Once a report is made using Florida’s Medical Reporting Form, the DHSMV conducts an investigation of the accusation of being medically unsafe to drive. If the Department finds that “cause” is found, then the driver receives notice that he or she is under medical review. The driver is asked to provide medical information from their physician to the Florida Department of Highway Safety and Motor Vehicles. Florida’s DHSMV’s Medical Advisory Board The information is also provided to the Florida DHSMV’s Medical Advisory Board. After reviewing the information, the Florida DHSMV’s Medical Advisory Board provides a recommendation regarding the citizen’s ability to drive. The recommendation may do one of the following:
- Require the driver to provide additional information;
- Require the driver to re-take the driving test; or
- Revoke or deny the driver of a driver’s license or privilege to drive in the State of Florida.
Florida Statute Section 322.126 Florida Statute Section 322.126 (2), (3), provides that “Any physician, person, or agency having knowledge of any licensed driver’s or applicant’s mental or physical disability to drive…is authorized to report such knowledge to the Department of Highway Safety and Motor Vehicles… The reports authorized by this section shall be confidential… No civil or criminal action may be brought against any physician, person or agency who provides the information herein.
Administrative Hearings in the Medical Review Process If the Florida DHSMV takes any action to deny or revoke the driver’s license then the driver should demand an administrative hearing to appeal the decision. During the administrative hearing the driver can present evidence and testimony that he is capable of driving and may bring witnesses to testify on his behalf. If you need an experienced attorney for a Medical Review investigation and administrative hearing, then give us a call to discuss the case.
Read more about a recent decision upholding a sustained suspension of driving privileges. I deleted the petitioner’s name so that it would not show up in the search engines:
________, Petitioner, vs. STATE OF FLORIDA, DEPARTMENT OF HIGHWAY SAFETY AND MOTOR VEHICLES, Respondent. Circuit Court, 20th Judicial Circuit (Appellate) in and for Collier County, Civil Action. Case No. 13-2534CA. May 19, 2015. James R. Shenko, Judge. Counsel: Natalia Costea, DHSMV, Legal Department, Lake Worth, for Respondent.
ORDER DENYING PETITIONFOR WRIT OF CERTIORARITHIS CAUSE comes before the Court on Petitioner’s “Amended Petition for Writ of Certiorari,” filed February 12, 2014, pursuant to Fla. Stat. § 322.221 and Fla. Stat. § 322.31. Having reviewed the petition with appendix, the response, and the applicable law, the Court finds as follows:
1. Petitioner, _______, is challenging Respondent’s order issued after a review hearing in which the Hearing Officer sustained the suspension of her driving privilege.
2. In May of 2013, after receiving information regarding Petitioner’s ability to operate a motor vehicle safely, the Department of Highway Safety and Motor Vehicles (“Respondent”) sent Petitioner a letter requesting him to submit to a medical examination by his own physician. Additionally, Petitioner was to send Respondent the results of such examination directly to the Respondent’s Medical Advisory Board, who would review the results. A determination of Petitioner’s ability to drive safely would follow. If the Petitioner did not comply with Respondent’s request, Respondent would revoke Petitioner’s driving privileges. Petitioner did not submit to the requested medical examination. Instead, he requested information and copies of the allegations concerning his ability to operate a motor vehicle. Respondent stated that Petitioner’s request could not be honored due to the confidentiality of the information requested. Also, Petitioner requested a Records Review Hearing pursuant to Fla. Stat. §322.31. In the meant time, Respondent sent Petitioner a letter, revoking his license until the requested medical examination was performed and a report of such examination was submitted to Respondent.
3. On September 11, 2013, the Bureau of Administrative Reviews Office held a medical hearing before a Hearing Officer. At the medical hearing, Petitioner’s counsel and the Hearing Officer were in attendance. At this hearing, Petitioner’s counsel argued that such hearing was legally insufficient to meet the requirements of an Administrative Review in accordance with Fla. Stat. §120. The Hearing Officer concluded that Petitioner needed to submit the medical form completed by his physician, as previously requested. This request had not been fulfilled at the time of the hearing. The evidence, submitted and reviewed by the Hearing Officer and the Medical Review Board, was forwarded to the chairman of the Medical Advisory Board. Upon review, the chairman and the board denied Petitioner’s request to reinstate his driving privileges. A final order of revocation was submitted by Respondent on October 23, 2013, denying Petitioner’s reinstatement of his driving privileges.
4. The applicable standard of review by a circuit court presiding over a decision of an administrative agency is limited to: (1) whether procedural due process was accorded; (2) whether the essential requirements of law have been observed; and (3) whether the administrative findings and judgment are supported by competent substantial evidence. Dep’t of Highway Safety & Motor Vehicles v. Kurdziel, 908 So. 2d 607, 609 (Fla. 2d DCA 2005) [30 Fla. L. Weekly D1963a]; see also Haines City Community Development v. Heggs, 658 So. 2d 523, 530 (Fla. 1995) [20 Fla. L. Weekly S318a]. The Court is not entitled to reweigh the evidence, to reevaluate the credibility of the evidence, or to substitute its judgment for that of the agency. Haines City Community Development at 530.
5. The Petitioner alleges that this Court should direct Respondent to reinstate Petitioner’s driving privileges until Respondent has provided documentation that created the basis of the revocation of his driving privileges. Further, Petitioner alleges that this Court should direct Respondent to hold a “proper” Administrative Hearing in regards to the merits of the complaint, after disclosure of the records and complaint. Under Florida law, however, the Respondent is authorized to suspend the driver’s license of any person without preliminary hearing upon showing of its records or other sufficient evidence that the driver is incompetent to drive a motor vehicle. Fla. Stat. § 322.27 (2014). Under Fla. Stat. §322.221, Respondent can require Petitioner “to submit medical reports regarding his or her physical or mental condition to the [Respondent]’s medical advisory board for its review and recommendation” when the department has reason to believe Petitioner is incompetent to operate a motor vehicle safely. Fla. Stat. §322.221. Respondent’s reason to believe that Petitioner is incompetent to operate a motor vehicle can be supported by information authorized to come from “any physician, person, or agency having knowledge of [Petitioner’s] mental or physical disability to drive.” Fla. Stat. §322.27. Such reports, which are used “for the purpose of determining the qualification of any person to operate a motor vehicle on the highways of this state,” are confidential by statute and are not subject to Petitioner’s inspection. Fla. Stat. §322.126; see also Fla. Const. Art. I, § 24.
6. Petitioner has failed to demonstrate any evidence that supports his claim that he has the right to petition into the allegations that triggered the Respondent’s request, which Respondent by statute is authorized to make, for a medical examination and report from Petitioner. Petitioner did not submit himself to any medical examination, as requested by Respondent. Instead, he petitioned Respondent for allegations that triggered Respondent’s request which statutorily are confidential. Petitioner has not demonstrated with competent evidence that he was denied procedural due process since, under Fla. Stat. §322.27(1)(c)(2), Respondent is authorized to suspend Petitioner’s driving privileges based on its records which in this case included a report, stating the potential that Petitioner’s disability may pose a danger to the public on the roads of this State. Respondent was strictly complying with the statutory requirements by requesting a medical examination from petitioner based on the report it received. As a requirement of Florida law, Respondent revoked Petitioner’s driver privileges for non-compliance with the request, and kept confidential the information it based its decision on to request a medical report from Petitioner.
7. Lastly, Respondent’s administrative findings and judgment are supported by competent substantial evidence that Petitioner’s driver privileges should have been revoked because Petitioner did not submit to the requested medical examination required by the Respondent, who by statute, has the authority to require such examination should it have reason to believe Petitioner is incompetent to operate a motor vehicle safely. In this case, upon receipt of information regarding Petitioner’s ability to operate a motor vehicle, the Respondent complied with the statute when they requested a medical examination and report, maintaining at the same time the information it based its request on confidential.
8. Accordingly, having considered the record, and being mindful of the limited scope of review, this Court accordingly finds that Petitioner has failed to demonstrate that the essential requirements of law have not been observed. The record does contain competent substantial evidence to support the decision of the Hearing Officer on the issue involving Petitioner’s motion to invalidate.
It is, therefore,
ORDERED AND ADJUDGED that the Petition for Certiorari is DENIED.
* * *