Petition for Writ of
Certiorari to Review Quasi-Judicial Action, Department of Highway Safety and
Motor Vehicles: DRIVER’S LICENSES – lawful arrest for DUI –
evidence – there must be evidence that driver was lawfully arrested for DUI, in
violation of Florida Statutes, § 316.193, to support license suspension for
refusing to submit to breath test – since there was no evidence that driver was
ever lawfully arrested for DUI, there is not competent substantial evidence to
support license suspension – Petition granted.
Difante v. Dept. of Highway Safety and Motor Vehicles, No.
IN THE CIRCUIT COURT FOR THE SIXTH JUDICIAL CIRCUIT
vs. Appeal No. 05-0031AP-88A
DEPARTMENT OF HIGHWAY SAFETY AND
MOTOR VEHICLES, STATE OF
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.
Petitioner, Domenic Difante (Difante), seeks review of the Final Order of
License Suspension, entered March 9, 2005, in which the hearing officer for the
Respondent, Department of Highway Safety and Motor Vehicles (Department),
concluded that Difante’s driving privilege was properly suspended for a period
of twelve months for driving under the influence (DUI). In reviewing the Final Order and the
administrative action taken by the Department, this Court must determine whether
Difante was afforded procedural due process, whether the essential requirements
of law were observed, and whether the Department’s findings and judgment are
supported by competent substantial evidence.
See Vichich v. Department of Highway Safety and Motor Vehicles,
799 So.2d 1069, 1073 (
The record shows that on January 23,
2005, Difante was involved in a one-car accident which resulted in him being
transported, via Bayflite, to
On appeal, Difante argues that the Final Order should be quashed as the criteria for requesting a blood test were not met and that there is not competent substantial evidence in the record to support the finding that Trooper Espinola had probable cause to believe that Difante was in actual physical control of a motor vehicle under the influence of alcohol. The Court need not address these issues, both of which may have merit, as there is a more fundamental error in the Final Order; that is, there is nothing in the record to show that Difante was ever lawfully arrested and charged with a violation of Florida Statutes, § 316.193, DUI. See e.g. State v. Osvath, 661 So.2d 1252, 1254 (Fla. 3d DCA 1995)(explaining that an appellate court may notice on its own a fundamental error which goes to the foundation of the case or merits of the cause of action).
Pursuant to Florida Statutes, §
322.2615(7)(b), in a formal review of a license suspension for a driver’s refusal
to submit to a breath, blood, or urine test, the hearing officer must determine,
by a preponderance of the evidence, four issues including whether the person
has been placed under lawful arrest for a violation of § 316.193. Since there is nothing in the record to show
that Difante was ever placed under arrest for DUI, or any other crime, there is
not competent substantial evidence to support the hearing officer’s decision to
sustain Difante’s license suspension. See
e.g. State, Department of Highway Safety and Motor Vehicles v.
Whitley, 846 So.2d 1163, 1167 (
ORDERED AND ADJUDGED that the Petition for Writ of Certiorari is granted and the Final Order of License Suspension is quashed.
AND ORDERED in Chambers, at
JOHN A. SCHAEFER
Circuit Judge, Appellate Division
LAUREN C. LAUGHLIN JAMES R. CASE
Circuit Judge, Appellate Division Circuit Judge, Appellate Division
Copies furnished to:
Timothy W. Weber, Esquire
Post Office Box 41100
Carlos J. Raurell, Assistant General Counsel
Dept. of Highway Safety & Motor Vehicles
Bureau of Administrative Reviews