Petition for Writ of Certiorari to Review Quasi-Judicial Action, Department of Highway Safety and Motor Vehicles: DRIVER’S LICENSES ––implied consent- petition granted where the only evidence before the hearing officer was that the officer read the Refusal Affidavit to petitioner which asks for breath, urine, or blood test-- --no substantial competent evidence that the implied consent read to the petitioner complied with the statute. Petition granted. Fallin v. Department of Hwy Safety and Motor Vehicles, 512007CA3787ES (Fla. 6th Cir. App. Ct. June 27, 2008).
IN THE CIRCUIT COURT OF THE SIXTH JUDICIAL CIRCUIT
THE STATE OF
v. Case No: 512007CA3787ES
OF HIGHWAY SAFETY AND MOTOR
VEHICLES , BUREAU OF DRIVER
A.R. Mander, III, Esq.
Attorney for Petitioner.
Jason Helfant, Esq.
Attorney for Respondent.
ORDER AND OPINION
THIS CAUSE came before the Court on the Petition for Writ of Certiorari , Response, Reply and Oral Argument. Upon consideration of the same, the record, and being otherwise fully advised, the Court finds that the Petition must be granted.
Petitioner was arrested for DUI and requested a formal administrative review regarding his license suspension. At the hearing, several documents were entered into evidence. The DUI traffic citation, (DDL-1); two Florida Uniform Citations, (DDL-2); and (DDL-3); the complaint affidavit, (DDL-4); the alcohol drug influence report (DDL-5); the multipurpose form (DDL-6); property and evidence receipt (DDL-7); computer printout (DDL-8) and Refusal Affidavit;  (DDL-9). Counsel for petitioner objected to the entire procedure, and he made a blanket objection that the new statutes and rules are unconstitutional, denying petitioner due process. He also objected to the HGN and the refusal affidavit because the seal on the bottom left hand was not filled out. The blanket objection to the entire procedure was overruled, the hearing officer stated that the HGN test would not be considered, and the objection to the affidavit was overruled.
At the hearing, Deputy Metzer testified that he saw petitioner do an illegal u-turn in the middle of an intersection with oncoming traffic. Metzer testified that after stopping petitioner, he suspected petitioner was under the influence of alcohol and so he called for a STEP unit, (Deputy Shaw) while conducting his investigation. He testified that petitioner was not free to go.
Deputy Shaw testified that he saw petitioner in the driver’s seat but did not see him driving the vehicle. He testified that he did not see petitioner at the time he was stopped because he arrived at the scene shortly after the stop. At some point, the deputy requested petitioner get out of the car. He testified that petitioner expressly stated to him that he did not want to do any field sobriety tests. Shaw acknowledged that at that point, he did conduct a HGN test. Shaw testified that he read petitioner implied consent and filled out the affidavit.
The hearing officer found that petitioner was stopped for making an illegal u-turn and had the odor of an alcoholic beverage on his breath, bloodshot and glassy eyes, slurred speech, he swayed and admitted drinking. The hearing officer also found that implied consent was read and petitioner refused to submit to a breath test. The hearing officer concluded that the law enforcement officer had probable cause to believe petitioner was driving or in actual physical control of a motor vehicle in this state while under the influence of alcoholic beverages or chemical or controlled substances; and that petitioner refused to submit to any such test after being requested to do so by a law enforcement officer; and petitioner was told that if he refused to submit to such test his privilege to operate a motor vehicle would be suspended for a period of one year or in the case of a second or subsequent refusal, for a period of 18 months.
316.1932(1)(a)(1) provides that a person who accepts the privilege of operating
a motor vehicle in this state is deemed to have consented to a breath test to
determine alcohol in the blood. The statute requires a law enforcement officer
who reasonably believes a driver is under the influence of alcohol to advise
the driver that refusal to submit to a breath test will result in the
suspension of the driver’s license. The record in this case reveals that the
hearing officer had only two pieces of evidence regarding implied consent. The
first piece of evidence was the non-specific Complaint Affidavit which reads,
in part, “…[t]he defendant was placed under arrest for
DUI and read implied consent. The defendant refused to submit to a breath test.
. ….” The second piece of the evidence
was the Refusal Affidavit, which specifically states “I
did request said person to submit to a breath, urine, or blood test ….” Accordingly,
the only single piece of evidence that specifies what the officer read was the
Refusal Affidavit. The issue before this
Court is whether or not there was substantial competent
evidence that the implied consent read to the petitioner complied with the
statute. Pursuant to State of
The circuit court,
when acting in its appellate capacity, must follow the precedent of another
district court of appeal where that court has decided the legal issue facing
the circuit court and its own district court of appeal has not yet ruled on the
issue. Omni Ins. Co. v. Special Care Clinic, Inc., 708 So. 2d 314 (Fla. 2d DCA 1998). As in
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
Primary Appellate Judge
Daniel D. Diskey
Copies furnished to;
A.R. Mander, III, Esq.
Jason Halfont, Esq.
 The affidavit states “Dep Metzler stopped the def….after observing the def make an illegal u-turn. Upon  contact with the def I detected the odor of alcohol coming from his breath and he advised that he drank three or four beers. I also noticed the def’s eyes were glassy and bloodshot. The def also had a distinct sway while I was checking his eyes. I requested the def submit to field sobriety task and he refused The def was placed under arrest for DUI and read implied consent. The def refused to submit to a breath test. A drivers license check was conducted and it showed the def has a prior refusal to submit to a breath test.”
 The Refusal Affidavit states in part..”I did request said person to submit to a breath, urine, or blood test..”
 Florida Statute 316.1932(1)(a)(1) : Any person who accepts the privilege extended by the laws of this
state of operating a motor vehicle within this state is, by so operating such
vehicle, deemed to have given his or her consent to submit to an approved
chemical test or physical test including, but not limited to, an infrared light
test of his or her breath for the purpose of determining the alcoholic content
of his or her blood or breath if the person is lawfully arrested for any
offense allegedly committed while the person was driving or was in actual
physical control of a motor vehicle while under the influence of alcoholic
beverages. The chemical or physical breath test must be incidental to a
lawful arrest and administered at the request of a law enforcement officer who
has reasonable cause to believe such person was driving or was in actual
physical control of the motor vehicle within this state while under the
influence of alcoholic beverages. The administration of a breath test does not
preclude the administration of another type of test. The
person shall be told that his or her failure to submit to any lawful test of
his or her breath will result in the suspension of the person's privilege to
operate a motor vehicle for a period of 1 year for a first refusal, or for a
period of 18 months if the driving privilege of such person has been previously
suspended as a result of a refusal to submit to such a test or tests, and shall
also be told that if he or she refuses to submit to a lawful test of his or her
breath and his or her driving privilege has been previously suspended for a
prior refusal to submit to a lawful test of his or her breath, urine, or blood,
he or she commits a misdemeanor in addition to any other penalties. The
refusal to submit to a chemical or physical breath test upon the request of a
law enforcement officer as provided in this section is admissible into evidence
in any criminal proceeding.
 The Court pointed out that Section
Florida Statutes (2006) provides that a person who accepts the privilege of
operating a motor vehicle in this state is deemed to have consented to a breath
test to determine alcohol in the blood. The statute requires a law enforcement
officer who reasonably believes a driver is under the influence of alcohol to
advise the driver that a refusal to submit to a breath test will result in the
suspension of the driver's license. The Court also discussed the other statutory
provisions at issue in
 As an aside, this
Court finds it necessary to address State of