Petition for Writ of Certiorari to Review Quasi-Judicial Action, Department of Highway Safety and Motor Vehicles:  DRIVER’S LICENSE – Implied consent warning. Florida Statute 322.2615(2) does not require that the Affidavit recount the specific information set forth in the Department’s promulgated form or that the complete text of the implied consent warnings be quoted verbatim in the arresting officer’s affidavit Petition for writ of certiorari denied. Avery v. State DHSMV,  No. 51-2007-CA-5838WST (Fla. 6th Cir. App. Ct.  July 23, 2009).

 

NOT FINAL UNTIL TIME EXPIRES FOR REHEARING

AND, IF FILED, DETERMINED

 

 

 

IN THE CIRCUIT COURT SIXTH JUDICIAL CIRCUIT

IN AND FOR PASCO COUNTY, FLORIDA

CRIMINAL JUSTICE APPELLATE DIVISION

 

JONATHAN AVERY

 

                        Petitioner                                Appeal Case No. 51-2007-CA-5838WS T

                           

Vs                                                                                                       

 

STATE OF FLORIDA

DEPARTMENT OF HIGHWAY

SAFETY AND MOTOR VEHICLES

           

                        Respondent

______________________________/

 

 

ORDER DENYING PETITION FOR WRIT OF CERTIORARI

 

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

            The Petitioner, Jonathan Avery, seeks review of the Findings of Fact, Conclusions of Law and Decision of the Department of Highway Safety and Motor Vehicles (Department) entered on October 16, 2007.  The Department concluded by the Order of October 16, 2007, that Avery’s driving privilege was properly suspended.  In reviewing the Department’s Order, this Court must determine (1) whether procedural due process had been accorded, (2) whether the essential elements 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 So2d 1069, 1073 (Florida Second DCA 2001). 

            The Petitioner herein was arrested on August 5, 2007, for suspicion of driving under the influence of alcohol.  He was issued a uniform traffic citation which informed him that his driving privilege was suspended for refusing to submit to a lawful breath, blood or urine test pursuant to Fl. St. 322.2615.  The refusal section of the traffic citation was marked by the arresting officer and stated “This suspension is for a period of one year if there is a first refusal or 18 months if previously suspended for this offense…”

            Petitioner requested and was granted a formal review hearing pursuant to Fl. Stat. Section 322.2615 before hearing officer Cindy VanDunk on October 9, 2007.  Although the arresting officer, officer Kirkpatrick, was subpoenaed to testify, officer Kirkpatrick was previously scheduled to testify at another court hearing and the Petitioner elected to proceed in the absence of officer Kirkpatrick. 

            At the formal review hearing, hearing officer VanDunk accepted into evidence officer Kirkpatrick’s documentation, including a Complaint Affidavit (probable Cause Affidavit), the aforementioned uniform traffic citation, the office’s worksheet, and the officer’s investigation case report.  As part of the record herein, the Petitioner includes the State of Florida Department of Highway Safety and Motor Vehicles Affidavit of Refusal to Submit to Breath, Blood, or Urine tests.  This document is unsigned.  Because this Court has received no transcript of the actual formal review hearing, the Court cannot determine whether or not the unsigned refusal form was accepted into evidence by the hearing officer.  The Petitioner asserts in his Writ Certiorari that the admission of the Refusal Affidavit into evidence was vigorously objected to because it was not signed by the officer.  The Petitioner further asserts that he moved to invalidate the suspension on the grounds that the Refusal Affidavit was legally insufficient, and consequently, there was no credible evidence to support the conclusion that the Petitioner was told of the legal consequences of his refusal.  The Department does not contest the Petitioner’s assertion that the Affidavit of Refusal to Submit to Breath, Blood, or Urine tests was not properly attested to or sworn.  However, the Department specifically asserts that the hearing officer did accept into evidence and review the Complaint Affidavit of the officer.  It is without question that the Complaint Affidavit is properly signed, sworn and/or attested to by the arresting officer.  The Complaint Affidavit specifically states “Defendant was placed under arrest.  Affiant requested the defendant submit to a breath test.  Post implied consent warning the defendant refused.” 

            The Petitioner asserts that this Court has established precedence by its ruling in Edward Humes v State of Florida Department of Highway Safety and Motor Vehicles (Pasco County Appeal No. 51-2007-CA-856 WS P).  In Humes, the Petitioner objected to his driver’s license suspension on the grounds that the Refusal Affidavit was unsigned.   This Court did specifically state that “although the requirements were present in the affidavit of refusal form, that form was not sworn to by the officer.  Furthermore, although the officer stated that he read implied consent to the Petitioner in the Probable Cause Affidavit, there is no evidence that the officer told him the consequences of refusing.  Section 322.2615 (7)(b)specifically requires that the hearing officer find that the Petitioner was told that if he refused to submit to such test, his or her privilege to operate a motor vehicle would be suspended…”  This Court further stated that the fact that the arresting officer makes a general statement that he read implied consent does not satisfy the Department’s burden to prove that Petitioner specifically received the necessary warning. 

            In Humes, supra, this Court was not presented with nor did it distinguish the case of the Department of Highway Safety and Motor Vehicles v Beverly Perry, 751 So2nd 1277 (Fl 5th DCA 2000).  The Department herein asserts that Perry, supra, is controlling legal precedent and this Court agrees.  Beverly Perry was arrested and charged with driving under the influence.  She was informed of the implied consent warnings by the arresting trooper and she refused to take the breath test.  Perry requested a formal review of her driver’s license suspension and after hearing, the Department determined that the suspension of Perry’s driver’s license was valid.   Perry filed a Writ for Petition of Certiorari in the Circuit Court of the Eighteenth Judicial Circuit in and for Seminole County, Florida, and the Circuit Court quashed the administrative Order on the grounds that the record did not include a property executed Affidavit of Refusal.  The Department appealed the Circuit Court’s ruling to the Fifth District Court of Appeals.  The Fifth DCA held that the Department developed a refusal affidavit form for the use by law enforcement to insure compliance with Florida Statute 322.2615(2), however, that the Statute did not require the submission of the refusal form into evidence but only required an Affidavit stating that the breath, blood or urine test was requested by law enforcement officer, and that implied consent warnings were given, and that the arrested refused to submit.  The Fifth DCA went on to state that “like the Miranda warnings, the implied consent warnings are standard instructions which can be identified in an affidavit by simple reference.”  Therefore, Florida Statute 322.2615(2) does not require that the Affidavit recount the specific information set forth in the Department’s promulgated form or that the complete text of the implied consent warnings be quoted verbatim in the arresting officer’s affidavit. 

            In the case at bar, officer Kirkpatrick’s sworn to Complaint Affidavit (Probable Cause Affidavit) states that the defendant was placed under arrest and refused to take a breath test after given the implied consent warnings.  This Court sees no distinction between the facts at bar and Perry, supra, therefore, Petitioner’s Writ for Petition of Certiorari is hereby DENIED.

            DONE AND ORDERED in Chambers, New Port Richey, Pasco County, Florida, this _____ day of July, 2009.

 

 

 

                                                            ____________________________________

                                                            Stanley R. Mills

                                                            Primary Appellate Judge

 

                                                            _________________________________

                                                            W. Lowell Bray, Jr.

                                                            Circuit Court Judge

 

                                                            _____________________________________

                                                            Daniel D. Diskey

                                                            Circuit Court Judge

 

 

Cc:  Department of Highway Safety

          And Motor Vehicles

        Dale Brewster, Esq.