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
THE STATE OF
OF HIGHWAY SAFETY AND MOTOR
VEHICLES, Case No: 512007CA4337ES Respondent.
A.R. Mander, III, Esq.
Thomas C. Mielke, Esq.
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
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.
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);
He also argues that the stay is unconstitutional.
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 (
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
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.