Petition for Writ of Certiorari to Review
Quasi-Judicial Action, Department of Highway Safety and Motor Vehicles: DRIVER’S LICENSES –– hearing officer departed
from the essential requirements of law and petitioner’s right to
due process by validating the suspension of the petitioner’s driving privileges
based on an affidavit of refusal improperly admitted into the record-although
the requirements were present in the Affidavit of Refusal form, that form was
not sworn to by the officer. Petition
granted. Humes v.
IN THE CIRCUIT COURT FOR THE SIXTH JUDICIAL CIRCUIT
OF THE STATE OF
APPELLATE DIVISION
EDWARD PATRICK HUMES,
Petitioner,
Appeal No.512007CA856WS/P
v.
STATE OF
DEPARTMENT OF HIGHWAY
SAFETY & MOTOR VEHICLES,
Respondent.
________________________________/
ORDER GRANTING PETITION FOR WRIT OF CERTIORARI
THIS CAUSE came before
the Court on the Petition for Writ of Certiorari , Response, and 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, EDWARD PATRICK HUMES seeks review of the Final Order of License
Suspension, entered January 23, 2007, in which the hearing officer for the
Respondent, Department of Highway Safety and Motor Vehicles (Department),
concluded that Humes's driving privilege was properly suspended. 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 (
Petitioner was arrested on December 23, 2006, for suspicion of driving under the influence of alcohol. He was issued a uniform traffic citation which informed him that his driving privilege was suspended for refusing to submit to a lawful breath, blood or urine test pursuant to F.S. 322.2615.
The petitioner raises four issues for review, only one of which has merit. Specifically, petitioner argues that the Department violated the essential requirements of law and petitioner’s right to due process by validating the suspension of the petitioner’s driving privileges based on an affidavit of refusal improperly admitted into the record. This Court agrees.
At the hearing, the hearing officer reviewed and the marked the following documents:
Florida DUI traffic citation
Alcohol Influence Report
Breath Tests and Report
Breath Test Result Affidavit [2]
Affidavit of Refusal [3]
The petitioner objected to the Refusal Affidavit being reviewed and marked by the hearing officer because it was unsigned.
In this case, there is no evidence to show that the Department met all of the requirements contained in Florida Statute 322.2615(7)(b). Although the requirements were present in the Affidavit of Refusal form, that form was not sworn to by the officer. Furthermore, although the officer stated that he read implied consent to the petitioner in the probable cause affidavit, there is no evidence that the officer told him the consequences of refusing. Section 322.2615(7)(b) specifically requires that the hearing officer find that the petitioner was told that “if he refused to submit to such test his or her privilege to operate a motor vehicle would be suspended….” . That the arresting officer makes a general statement that he read implied consent does not satisfy the department’s burden to prove that petitioner specifically received the warning. There is no record evidence to support what the arresting officer may have meant by “implied consent” or that it matched the warning petitioner is entitled to receive.
As argued by petitioner, the Department violated the essential requirements of law and petitioner’s right to due process by validating the suspension of the petitioner’s driving privileges based on an affidavit of refusal improperly admitted into the record. Section 322.2615(2), Florida Statutes and Rule 15A-6.013(2), Florida Administrative Code, mandate that an affidavit stating that a breath, blood, or urine test was requested by a law enforcement officer and that the person arrested refused to submit to the test.
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 New
Port Richey,
______________________
Primary Appellate Judge
__________________
Daniel D. Diskey
Circuit Judge
______________________
Circuit Judge
Copies furnished to;
A.R. Mander, III, Esq.
Jason Halfont, Esq.
Department
of Highway
Safety & Motor Vehicles
[1] The affidavit stated: “Your affiant had the occasion to meet Edward Patrick Humes (Def) after Dep. J. Wilson was dispatched to the Beef O’ Brady’s at [ ] Bruce B. Downs for an individual (the def) who was attempting to drive away under the influence. Dep. J. Wilson first made contact with the Def. who was seated behind the wheel of a 2006 Dodge Sprinter Van, white in color, . . . .. and the ignition key was in the ignition. Upon my arrival the def was still sitting behind the wheel with the ignition key still in the ignition. I took myself and Cpl Roger Fortney to assist the def the def. in getting out of his vehicle. . .. “. The deputy then goes on to describe the petitioner’s signs of impairment and the fact that he refused to perform field sobriety tests. The affidavit went on to state that after he was arrested he read him implied consent and he refused to submit to the breath test. It was signed by the deputy.
[2] The Affidavit is filled out and indicates two tests at 0.000. This document was signed by Deputy Clegg without a notary.
[3] Signed by Deputy Clegg.