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.  McGregor v. Department of Hwy Safety and Motor Vehicles,  512007CA4337ES  (Fla. 6th Cir. App. Ct. August 14, 2008).  

 

 

IN THE CIRCUIT COURT OF THE SIXTH JUDICIAL CIRCUIT

OF THE STATE OF FLORIDA, IN AND FOR PASCO COUNTY

APPELLATE DIVISION

 

 

 

STEVEN McGREGOR,        

                        Petitioner,

v.

 

STATE OF FLORIDA, DEPARTMENT

OF  HIGHWAY SAFETY AND MOTOR

VEHICLES,                                                              Case No: 512007CA4337ES                                     Respondent.                                                  

__________________________________/

 

A.R. Mander, III, Esq. 

for Petitioner.

 

Thomas C. Mielke, Esq.    

for  Respondent.

 

 

ORDER AND OPINION

 

THIS CAUSE came before the Court on the Petition for Writ of Certiorari, the Response to Petition for Writ of Certiorari, and Reply to Response. Upon consideration of the same and being otherwise fully advised, the Court finds that the Petition must be granted as set forth below.

Following Petitioner’s arrest for driving under the influence, petitioner requested a formal administrative review. An evidentiary hearing was held. At the hearing the following documents were admitted into evidence, the DUI traffic citation, DDL-1; Citation 4491EWU, DDL-2; 4493EWU, DDL-3; 4492EWU, DDL-4; petitioner’s driver’s license, DDL-5; a Complaint Affidavit, DDL-6; the Alcohol Drug Influence Report, DDL-7; the multipurpose form, DDL-8; and the Refusal Affidavit, DDL-9.

Deputy Cross testified that all the statements in the report are true and correct. He was asked by the hearing officer if he issued the notice of suspension to petitioner for “refusal to submit to a lawful breath, blood or urine test” and he replied that he did.

On cross examination, the deputy was asked if he swears that the implied consent paragraph on the refusal affidavit was what he read to the petitioner. The deputy said it was not, he testified that he read it from a card that was issued from the Pasco County Sheriff’s Office. He was asked if he read the affidavit before he signed it. He testified that he had read it previously but not during the incident. He again stated that he read from the card. Counsel for petitioner requested that he read the affidavit again, and he did. After he read it, counsel asked if it was true and the deputy said that it was.

Counsel for petitioner then moved to invalidate the suspension based on an improper reading of implied consent. Counsel also submitted a written Motion to Invalidate Suspension Based On Improper Reading of Implied Consent. Counsel argued that the refusal affidavit improperly required petitioner to consent to a blood test in violation of state law. Counsel also submitted a Motion to Stay with Memorandum of Law, arguing that the statute which prohibits a stay in these proceedings, violates due process.

The hearing officer made the following findings:

 

…the law enforcement officer had probable cause to believe that 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 or correctional officer; and petitioner was told that if he refused to submit to such test his or her privilege to operate a motor vehicle would be suspended ….

 

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.  The record in this case reveals that the hearing officer had no evidence other than the Refusal Affidavit, which specifically states “I did request said person to submit to a breath, urine, or blood test ….” Although the Officer testified that he did not read from the Affidavit, and instead read from the Pasco County Sheriff’s Office implied consent “card,” there is no evidence as to what that card reads. 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. In State of Florida, DHSMV v. Clark, 974 So. 974 So.2d 416 (Fla. 4th DCA 2007), 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 Department suspended Clark’s license, but  the Circuit Court found and the District Court agreed that since the officer’s warning did not comply with the statute,  Clark’s license could not be suspended under the statute.   As in Clark, this Court finds that the error may have misled McGregor 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.

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 July, 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.

Thomas C. Mielke, Esq.

 

 

 

 

 

 

 

Same argument as in Fallin case: Petitioner argues that the implied consent form read to him and the refusal affidavit presented for his signature at the time of his arrest improperly required him to consent to a blood test in violation of state law.  He argues that because he was not taken to the hospital for medical treatment, and no accident, death or bodily injury occurred, there was no lawful reason for the deputy to read implied consent containing language about a ‘blood’ test and the possibility of a license suspension for refusal to submit to a ‘blood’ test. There were no grounds present to justify a blood test; accordingly, petitioner could properly refuse the unlawful blood tests.  Here, only a breath and/or a urine test could have been requested pursuant to FS 316.1932 and 316.1933. Thus, his refusal cannot support his suspension because the invocation of implied consent contained, in part, an unlawful request. State v. Slaney, 653 So. 2d 422 (Fla. 3d DCA 1995)(officer’s misrepresentation that the arrestee would lose his driver’s license if he failed to give consent to a withdrawal of blood violated the implied consent law where the administration of breath and/or urine test were not impractical or impossible); Chu v State, 521 So. 2d 330 (Fla. 4th DCA 1988).

 

He also argues that the stay is unconstitutional.

 

RESPONDENT’S ARGUMENT:

The refusal affidavit does not state that the deputy requested an improper blood test, it merely attests to the fact that a test was requested and refused.  The Department argues that the case is controlled by DHSMV v. Perry, 751 So. 2d 1277 (Fla. 5th DCA 2000). In that case, the driver was arrested for DUI and read the implied consent warnings. The driver refused to submit to testing. The circuit court quashed the administrative suspension of the driver’s license because there was no refusal affidavit. The Fifth District reversed. Specifically, the court held that the arrest affidavit could simply identify that implied consent warnings were given in order for the hearing officer to sustain the suspension. The court said F.S. 322.2615(7) does not require that the affidavit  recount the specific information set forth in the Department’s form or that the complete text of the implied consent warnings be quoted verbatim in the affidavit. They said “[l]ike the Miranda warnings, the implied consent warnings are standard instructions which can be identified in an affidavit by simple reference.”

 

Respondent argues that here, the arrest report specifically states that the petitioner “was read implied consent stated no and Miranda (constitutional rights) and wanted to answer no questions.”    Here, as in Perry, petitioner was advised of Florida’s implied consent law as is required by the statute. Moreover, it is uncontested that petitioner refused as indicated in the arrest affidavit.

 

The Fifth District explicitly recognized that the affidavit is worded in the alternative (breath, urine or blood test). The affidavit does not list the tests in the conjunctive (and) form. The affidavit meets the requirement of the standard of review of 322.2615(7)(b) that the hearing officer must determine, “[w]hether the person refused to submit to any such test after being requested to do so by a law enforcement officer……”

 

Moreover, the deputy testified that he did not read the refusal affidavit to petitioner. Instead he read from the card issued by the Pasco County Sheriff’s Office. The Refusal Affidavit is merely the deputy’s attestation that petitioner was requested to submit to testing and informed of the consequences of refusal and that petitioner persisted in his refusal. Here the deputy read the Pasco County Sheriff’s card, and so there is no evidence to suggest that the deputy requested a blood sample from petitioner.

 

Challenges to constitutionality of statutes must be in the form of original proceedings and not by way of certiorari.