Petition for Writ of Certiorari-Department of Highway Safety and Motor Vehicles:  DRIVER’S LICENSES – Breath Test – county court did not have jurisdiction to enter an order requiring the Department  to amend an eleven year old driver's license suspension-defendant  did not request a hearing within time allotted -therefore, the Department 's determination to suspend defendant's  driver's license was merely a ministerial function and not a judicial determination pursuant to a hearing-county court was without authority and lacked jurisdiction to rule on defendant's suspension.   Petition granted. DHSMV v. Savelli, 05153CFAES, (Fla. 6th Cir. App. Ct., January 31, 2006).

 

 

IN THE CIRCUIT COURT FOR THE SIXTH JUDICIAL CIRCUIT

OF THE STATE OF FLORIDA IN AND FOR PASCO COUNTY, FLORIDA

APPELLATE DIVISION

 

 

 

STATE OF FLORIDA,                                                                                                         

DEPARTMENT  OF HIGHWAY

SAFETY AND MOTOR VEHICLES,                                   

                        Petitioner, 

                                                                                    Appeal No.05-153CFAES

v.

 

JOHN NICHOLAS SAVELLI,

                        Respondent.

________________________________/

 

ORDER AND OPINION

            THIS MATTER is before the Court on the State of Florida Department  of Highway and Safety and Motor Vehicles' Petition for Writ of Certorari in which the Department  seeks to quash the Order of the trial court.  After reviewing the Petition, Response to Petition, and Reply to Response, and being otherwise advised in the premises, this Court quashes the Order below.  

            Petitioner has filed a petition in which petitioner requests this Court review the county court's Amended Order Vacating Refusal to Submit to Breath, Urine, or Blood Test entered December 17, 2004. The December 17, 2004 order amended a previous order entered  September 3, 2004.  The petitioner filed a Notice of Appeal January 10, 2005.[1]

            On  July 3, 1993, Savelli was arrested for driving under the influence in violation of section 316.193, Florida Statutes.  According to the arresting officer's arrest affidavit and refusal affidavit from the arrest, Savelli "was instructed as how to blow properly into the instrument" and he "would not give proper blows." Savelli's breath samples were low sample volumes.  The arresting officer therefore labeled Savelli a refusal because he "failed on both samples to give a proper breath blow." Accordingly, the arresting officer issued Savelli a DUI citation for refusal and suspended his driving privilege pursuant to section 322.2615(1)(a).  The citation also served as a notice of suspension and informed Savelli that he had the right to challenge the suspension at a formal or informal review before the Bureau of Administrative reviews by requesting such within ten days.  Savelli did not challenge the suspension at either a formal or informal review.  Accordingly, the January 1, 1993 suspension remained on his driving record.

            On July 29, 2004, respondent  filed a Motion to Vacate Refusal to Submit to Breath, Urine, or Blood Test.  In the motion, respondent  alleged that on January 1 , 1993, when respondent  was 19 years old he submitted to a breathalyser test and blew a .135 and .136.  The motion further alleged that a probable cause affidavit was signed by the arresting officer stating that the respondent  did not give proper breath samples; however, respondent  alleged that the video tape made during the test contradicts the probable cause affidavit. respondent  alleged in the motion that when he asked the officer if it was okay, the officer replied that it was. This breath test was entered into evidence at a subsequent proceeding in the county court during the criminal proceedings.  In July 2004, respondent  was again arrested for driving under the influence, in Hernando County. Respondent  argued that  Bureau of Administrative Review erred in its decision to enter a Final Order of License Suspension, in 2004, for a period of 18 months, based on the erroneous refusal of January 1, 1993. The Department  was not served and not represented by counsel.  A hearing was held, and the Office of the State Attorney appeared. The court held in its order that the Refusal to Submit to Breath, Urine or Blood Test dated January 1, 1993, was vacated nunc pro tunc to June 23, 1993.  The clerk of the circuit court was ordered to correct the record and notify the Department that the order entered June 23, 2003 was vacated.

            Subsequent to the September 3, 2004 order, Respondent filed a Motion for Contempt seeking to hold the Department in Contempt for failing to comply with the lower court's September 3, 2004 order to remove the administrative suspension imposed in 1993. The trial court entered an Order to Show Cause for Contempt[2] against the Department .  A hearing was held on the motion and on December 17, 2004, the county court entered an Amended Order to Vacate Refusal to Submit to Breath, Urine or Blood Test.[3]  The court found that a breathalzyer test indicating breath test results of .135 and .136 was entered into evidence and accepted by the court in Savelli's criminal proceedings in 1993.  The court held that the Refusal to Submit to a Breath, Urine, or Blood test dated January 1, 2003 was vacated and the Department  was directed to enter a Suspension for Driving with an Unlawful Blood Alcohol Level in its place.  The Department's petition seeks to have this Court quash the Amended Order. The petition is granted.   

            As argued by the petitioner, the county court did not have jurisdiction to enter an order requiring the Department  to amend an eleven year old driver's license suspension.     

Savelli's driving privilege was suspended on January 1, 1993, pursuant to section 322.2615, Florida Statutes for refusal to submit to a breath test.  The lawful remedy to be sought in such instances is set out by the legislature in a specific procedure for seeking review of an administrative driver license suspension, as set forth in section 322.2615 Florida Statutes.  Specifically, upon issuance of a notice of suspension for refusal to submit to a breath test, the driver is afforded time to request an administrative hearing to challenge the suspension. If the hearing officer determines that the suspension is valid, an order is issued affirming the suspension.  At that point, the driver may appeal the order to the circuit court. In this case, Savelli did not request any hearing.  Therefore, the Department 's determination to suspend Savelli's driver's license was merely a ministerial function and not a judicial determination pursuant to a hearing. The Department  had a legal duty under 322.2615(1)(a) to suspend Savelli's driver's license when it received notice that Savelli was arrested for a violation of section 316.193 and refused to submit to a breath test. The criteria is specifically designated in section 322.2615(1)(a) and does not allow the Department  to exercise any discretion over its determination.

            Savelli did not request review at a hearing.  The time to review the 1993 order had long expired when he sought relief before the county court.  Savelli was confronted with this suspension as a result of a second suspension for refusal that he received as a result of a DUI arrest on June 12, 2004.  The June 12, 2004 suspension was ultimately affirmed in Savelli v. DHSMV, Case No: H-27-CA-2004-785 (Fla. 5th Cir Ct. Nov. 3, 2004).

            Accordingly, the county court was without authority and lacked jurisdiction to make a ruling on Savelli's suspension. 

            IT IS THEREFORE ORDERED that the Order of the trial court is        QUASHED   

 

DONE AND ORDERED in Chambers at New Port Richey, Pasco County, Florida this __ day of January,  2006.

                                                                                    ________________________

                                                                                     W. Lowell Bray, Circuit Judge

                                                                                    Primary Appellate Judge

 

                                                                                   

                                                           

                                                                                    ____________________

                                                                                    Daniel D. Diskey

                                                                                    Circuit Judge

 

                                                                                    ______________________

                                                                                    Stanley R. Mills

                                                                                    Circuit Judge

 

Copies furnished to:

Department of Highway Safety and Motor Vehicle

Jeffrey P. Cario, Esq.

 


[1] Respondent  filed a Motion to Dismiss alleging that the appeal was untimely and the petitioner lacked standing. The motion was denied pursuant to an order rendered by this Court September 2, 2005. 

[2] The Department  was listed in the Certificate of Service on this Order. The Department  thereafter sent the court a letter indicating that they were unable to delete the suspension from the record because "the suspension for refusal to submit to a breath/urine or blood test and the charge of driving under the influence are two separate actions."  The letter went on to state that "[t]he suspension is an administrative action. . . and the charge for driving under the influence is a court action."  The letter proceeded to explain that since Respondent  did not seek review of the suspension pursuant to Florida Statutes, the Department  did not have the authority to remove the administrative suspension. 

[3] In the Order Denying the Motion to Dismiss, this Court found that the amended order did not re-enter the September 3, 2004 order but that it changed the substance of the order.  In the September 3, 2004 order, the county court vacated Respondent 's January 1, 1993 refusal suspension.  However, in the December 17, 2004 order, the county court amended the January 1, 1993 refusal suspension to a suspension for driving with an unlawful blood alcohol level in its place.