Petition for Writ of
Certiorari to Review Quasi-Judicial Action, Department of Highway Safety and
Motor Vehicles: DRIVER’S LICENSES – Blood tests – Florida
Statutes, §316.1932(1)(c) sets forth 3 criteria for when a driver is deemed to
have given his consent for a blood test:
(1) if there is reasonable cause to believe the person was driving or in
actual physical control of a motor vehicle while under the influence of
alcohol; (2) the person appears for treatment at a hospital, clinic or other
medical facility; and (3) the administration of a breath test is impractical or
impossible – the first 2 criteria were met - no competent substantial evidence
to show 3rd criteria was met, that the administration of a breath test was
impractical or impossible - Petition
granted. Curry v. Dept. of Highway
Safety and Motor Vehicles, No. 04-0061AP-88B (
IN THE CIRCUIT COURT FOR THE SIXTH JUDICIAL CIRCUIT
IN AND
APPELLATE DIVISION
JONATHAN A. CURRY,
Petitioner,
vs. Appeal No. 04-0061AP-88B
UCN522004AP000061XXXXCV
FLORIDA DEPARTMENT OF
HIGHWAY SAFETY AND MOTOR VEHICLES,
Respondent.
____________________________________________/
THIS CAUSE came before
the Court on the Petition for Writ of Certiorari, the Response and the
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, Jonathan A. Curry (Curry), seeks review of the Final Order of
License Suspension, entered July 20, 2004, in which the hearing officer for the
Respondent, Department of Highway Safety and Motor Vehicles (Department),
concluded that Curry’s driving privilege was properly suspended for a period of
one year for driving under the influence (DUI).
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 (
The
record shows that on June 12, 2004, at approximately 6:00 p.m., Trooper
Halliday responded to a motor vehicle accident on Interstate 4 in
Curry argues on appeal is that the Department erred in sustaining his license suspension as there was not a lawful basis to request a blood test from him. There are two statutory provisions that determine the validity of a blood request from a law enforcement officer, Florida Statutes, § 316.1933(1)(a), and Florida Statutes, § 316.1932(1)(c). There is no dispute that
§ 316.1933(1)(a) is inapplicable to this case since there was not “serious bodily injury” as a result of the accident. In applying § 316.1932(1)(c), the Court finds that a driver is deemed to have given his consent to submit to a blood test if three criteria are met: (1) if there is reasonable cause to believe the person was driving or in actual physical control of a motor vehicle while under the influence of alcohol; (2) the person appears for treatment at a hospital, clinic, or other medical facility; and (3) the administration of a breath or urine test is impractical or impossible.
While the Court finds that there is competent substantial evidence to support the first two criteria, there is no evidence in the record to support the third criteria that the administration of a breath or urine test was impractical or impossible. In response to this argument, the Department speculates that immediate transportation to a breath testing facility would have placed an undue burden on law enforcement, would have interfered with Curry’s possible treatment, and that a breath test was impractical since it would be “subject to dissipation over time.” However, assuming these factors support a finding that a breath or urine test would have been impractical or impossible, there is no evidence to support the Department’s argument. See Department of Highway Safety and Motor Vehicles v. Trimble, 821 So.2d 1084, 1087 (Fla. 1st DCA 2002)(providing that findings must be based on something more than mere probabilities, but rather on evidence in the record that supports a reasonable foundation for the conclusion reached).
As recently explained by the Second
District Court of Appeal in State v. Serrago, 875 So.2d 815, 819 (Fla.
2d DCA 2004), blood tests, which the law has historically treated differently
from breath and urine tests, are limited by § 316.1932(1)(a) to those
situations in which a breath or urine test is impossible or impractical. Such situations include if the person is
unconscious or in shock or on the operating table of a hospital. See e.g. State v. Kliphouse,
771 So.2d 16, 22 (
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
___________________________________
DAVID
A. DEMERS
Circuit Judge, Appellate Division
___________________________________
IRENE
SULLIVAN
Circuit Judge, Appellate Division
___________________________________
FRANK
QUESADA
Circuit Judge, Appellate Division
Copies furnished to:
Bruce G. Howie, Esquire
Heather Rose Cramer, Assistant General Counsel
Bureau of Administrative Reviews