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

OF THE STATE OF FLORIDA, IN AND FOR PASCO COUNTY

APPELLATE DIVISION

 

 

JOHN FALLIN,

                        Petitioner,

v.                                                                                             Case No: 512007CA3787ES

                                                                                                                                               

STATE OF FLORIDA, DEPARTMENT

OF HIGHWAY SAFETY AND MOTOR

VEHICLES , BUREAU OF DRIVER

IMPROVEMENT,                                                    

                        Respondent.                                       

_______________________________/

 

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,[1] (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; [2] (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.

Florida Statute 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.[3]  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 Florida, DHSMV v. Clark, 974 So. 974 So.2d 416 (Fla. 4th DCA 2007),  this Court finds that it did not.

In Clark, as in this case, petitioner challenged her license suspension because the warning given her by the officer erroneously informed her that her driving privileges would be suspended if she refused to submit to a breath, blood or urine test. The administrative hearing officer concluded that her license was properly suspended. The Circuit Court reversed the license suspension, finding that where the officer’s warning did not comply with the statute, Clark’s license could not be suspended under the statute. [4]  The State petitioned for certiorari review in the District Court of Appeal, and the District Court agreed that petitioner’s license could not be suspended because the implied consent warning did not comply with the statute.

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 Clark, this Court finds that the error may have misled Fallin into thinking that he would have to submit to a more invasive test than was authorized by the state. Therefore, this Court finds the order below must be quashed. [5]

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, Pasco County, Florida this ________ day of June, 2008.

 

                                                                                    ______________________

                                                                                    W. Lowell Bray, Circuit Judge

                                                                                    Primary Appellate Judge

 

                                                                                   

                                                           

                                                                                    __________________

                                                                                    Daniel D. Diskey

                                                                                    Circuit Judge

 

                                                                                    ______________________

                                                                                    Stanley R. Mills

                                                                                    Circuit Judge

 

 

Copies furnished to;

 

A.R. Mander, III, Esq.

Jason Halfont, Esq.

 

 

 

 

 

 



[1] 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.”

[2] The Refusal Affidavit states in part..”I did request said person to submit to a breath, urine, or blood test..”

[3] 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.


[4] The Court pointed out that Section 316.1932(1)(a)1.a., 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 Clark, such as section 316.1932(1)(c) (medical condition precludes breath test) or section 316.1933(1) (impaired driver caused serious injury or death) authorize blood withdrawal; and made a finding those sections were not applicable under the facts of the case.



[5] As an aside, this Court finds it necessary to address State of Florida, DHSMV v. Pelham, 979 So. 2d 304 (Fla. 5th DCA 2008), a case brought to this Court’s attention by petitioner. In Pelham, the court held that a suspension may not be predicated on refusal to take a test that is the product of an unlawful arrest. Although Florida Statute 322.2615(7)(b)(2), says otherwise, this court finds that if there must be a lawful arrest, as suggested in Pelham, there was competent substantial evidence in this case that the stop and detention were lawful.