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. 05-0031AP-88A (Fla. 6th Cir. App. Ct. Sept. 7, 2005); reh. denied, Dec. 16, 2005.









vs.                                                                                               Appeal No. 05-0031AP-88A








            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, 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 (Fla. 2d DCA 2001)(setting forth the standard of review for administrative action taken by the Department).

            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 Bayfront Medical Center.  Trooper Espinola, of the Florida Highway Patrol, was dispatched to the scene of the accident.  Trooper Espinola conferred with Deputy Stembroski who provided information on Difante and one witness.  Trooper Espinola went to the hospital and made contact with Difante.  Trooper Espinola noted that Difante had a strong odor of alcohol and his speech was slurred.  Difante was unable to perform field sobriety exercises as he was lying on a gurney in a neck brace.  After informing Difante of the implied consent law, Trooper Espinola requested a blood draw from Difante which he refused.  Trooper Espinola then issued Difante citations for violating Florida Statutes, § 316.185, for failing to drive with “due care”, and Florida Statutes, § 316.1932(1), for refusing to submit to a blood test.  Trooper Espinola gave the citations to a family member at Difante’s bedside.

            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 (Fla. 5th DCA 2003)(explaining the elements of a lawful arrest and finding arrest must precede requested breath test).  Therefore, it is,         

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

            DONE AND ORDERED in Chambers, at Clearwater, Pinellas County, Florida this ________ day of August 2005.



                                                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

St. Petersburg, FL  33743


Carlos J. Raurell, Assistant General Counsel

Dept. of Highway Safety & Motor Vehicles

2515 West Flagler Street

Miami, FL  33135


Bureau of Administrative Reviews

4585 140th Avenue North, Suite 1002

Clearwater, FL  33762