Petition for Writ of Certiorari to Review Quasi-Judicial Action, Department of Highway Safety and Motor Vehicles:  DRIVER’S LICENSES – Blood tests – Florida Statutes, §316.1932(1)(c) sets forth 3 criteria for when a driver is deemed to have given his consent for a blood test:  (1) if there is reasonable cause to believe the person was driving or in actual physical control of a motor vehicle while under the influence of alcohol; (2) the person appears for treatment at a hospital, clinic or other medical facility; and (3) the administration of a breath test is impractical or impossible – the first 2 criteria were met - no competent substantial evidence to show 3rd criteria was met, that the administration of a breath test was impractical or impossible  - Petition granted.  Curry v. Dept. of Highway Safety and Motor Vehicles, No. 04-0061AP-88B (Fla. 6th Cir. App. Ct. November 22, 2004).

 

 

IN THE CIRCUIT COURT FOR THE SIXTH JUDICIAL CIRCUIT

IN AND FOR PINELLAS COUNTY, FLORIDA

APPELLATE DIVISION

 

 

JONATHAN A. CURRY,

                        Petitioner,

 

vs.                                                                                               Appeal No. 04-0061AP-88B

                                                                                                   UCN522004AP000061XXXXCV

 

FLORIDA DEPARTMENT OF

HIGHWAY SAFETY AND MOTOR VEHICLES,

                        Respondent.

____________________________________________/

 

 

ORDER GRANTING PETITION FOR WRIT OF CERTIORARI 

            THIS CAUSE came before the Court on the Petition for Writ of Certiorari, the Response and the Reply.  Upon consideration of the same, the record and being otherwise fully advised, the Court finds that the Petition must be granted as set forth below.

            The Petitioner, Jonathan A. Curry (Curry), seeks review of the Final Order of License Suspension, entered July 20, 2004, in which the hearing officer for the Respondent, Department of Highway Safety and Motor Vehicles (Department), concluded that Curry’s driving privilege was properly suspended for a period of one year for driving under the influence (DUI).  In reviewing the Department’s order, this Court must determine (1) whether procedural due process had been accorded, (2) whether the essential requirements of law had been observed, and (3) whether the administrative findings and judgment were supported by competent substantial evidence.  See Vichich v. Department of Highway Safety and Motor Vehicles, 799 So.2d 1069, 1073 (Fla. 2d DCA 2001)(setting forth the standard of review for administrative action taken by the Department).

            The record shows that on June 12, 2004, at approximately 6:00 p.m., Trooper Halliday responded to a motor vehicle accident on Interstate 4 in Polk County.  Two witnesses at the scene informed Trooper Halliday that Curry failed to maintain a single lane and struck another vehicle causing the accident.  The fire department transported Curry to a local hospital for evaluation; Curry subsequently refused all medical treatment.  While at the scene of the accident, Trooper Halliday contacted the fire department personnel who informed Trooper Halliday that Curry had the smell of alcohol.  Trooper Halliday observed several open beer bottles in Curry’s vehicle around the driver’s door.  Upon arriving at the hospital, Trooper Halliday observed Curry resisting a police officer.   Trooper Halliday also detected a strong odor of alcohol from Curry and noticed that Curry’s eyes were glassy and that his face was flushed.  Trooper Halliday informed Curry that he was conducting a DUI investigation and requested that Curry submit to a blood test, which Curry refused.   Curry was arrested for DUI and, after being discharged from the hospital, was transported to the Polk County Jail.   

            Curry argues on appeal is that the Department erred in sustaining his license suspension as there was not a lawful basis to request a blood test from him.  There are two statutory provisions that determine the validity of a blood request from a law enforcement officer, Florida Statutes, § 316.1933(1)(a), and Florida Statutes, § 316.1932(1)(c).  There is no dispute that

§ 316.1933(1)(a) is inapplicable to this case since there was not “serious bodily injury” as a result of the accident.  In applying § 316.1932(1)(c), the Court finds that a driver is deemed to have given his consent to submit to a blood test if three criteria are met: (1) if there is reasonable cause to believe the person was driving or in actual physical control of a motor vehicle while under the influence of alcohol; (2) the person appears for treatment at a hospital, clinic, or other medical facility; and (3) the administration of a breath or urine test is impractical or impossible. 

            While the Court finds that there is competent substantial evidence to support the first two criteria, there is no evidence in the record to support the third criteria that the administration of a breath or urine test was impractical or impossible.  In response to this argument, the Department speculates that immediate transportation to a breath testing facility would have placed an undue burden on law enforcement, would have interfered with Curry’s possible treatment, and that a breath test was impractical since it would be “subject to dissipation over time.”  However, assuming these factors support a finding that a breath or urine test would have been impractical or impossible, there is no evidence to support the Department’s argument.  See Department of Highway Safety and Motor Vehicles v. Trimble, 821 So.2d 1084, 1087 (Fla. 1st DCA 2002)(providing that findings must be based on something more than mere probabilities, but rather on evidence in the record that supports a reasonable foundation for the conclusion reached).

            As recently explained by the Second District Court of Appeal in State v. Serrago, 875 So.2d 815, 819 (Fla. 2d DCA 2004), blood tests, which the law has historically treated differently from breath and urine tests, are limited by § 316.1932(1)(a) to those situations in which a breath or urine test is impossible or impractical.  Such situations include if the person is unconscious or in shock or on the operating table of a hospital.  See e.g. State v. Kliphouse, 771 So.2d 16, 22 (Fla. 4th DCA 2000)(explaining the legislative intent for administering blood tests pursuant to § 316.1932).  The facts of this case simply do not show such an impossible or impractical situation that would support Trooper Halliday’s request for a blood test.  Accordingly, since one of the three criteria for requesting a blood test was not met, the Department’s finding that Curry was lawfully arrested for DUI is not supported by competent substantial evidence. 

            Therefore, it is,

            ORDERED AND ADJUDGED that the Petition for Writ of Certiorari is granted and the Final Order is quashed.

            DONE AND ORDERED in Chambers, at Clearwater, Pinellas County, Florida this ________ day of November 2004.

 

 

 

                                                                        ___________________________________

                                                                        DAVID A. DEMERS

                                                                        Circuit Judge, Appellate Division

 

 

 

 

                                                                        ___________________________________

                                                                        IRENE SULLIVAN

                                                                        Circuit Judge, Appellate Division

 

 

 

 

                                                                        ___________________________________

                                                                        FRANK QUESADA

                                                                        Circuit Judge, Appellate Division

 

 

 

Copies furnished to:

Bruce G. Howie, Esquire

5720 Central Avenue

St. Petersburg, FL  33707

 

Heather Rose Cramer, Assistant General Counsel

Fla. Dept. of Highway Safety & Motor Vehicles

6801 Lake Worth Road, #230

Lake Worth, FL  33467

 

Bureau of Administrative Reviews

2814 East Hillsborough Avenue

Tampa, FL  33610-4479