Florida Supreme Court Rules Dhsmv Hearing Officers Must Rule On Legality Of The Arrest In Dui Cases

Under Florida Laws, a person who is lawfully arrested for a DUI must submit to a breath test at the request of the arresting officer

. If that person refuses to submit to the test, that person's driver's license will be suspended for one year for a first refusal. The requirement to take a chemical test is based upon the arrest being a lawful arrest. To challenge the license suspension the individual is required to petition the Florida Department of Highway Safety & Motor Vehicles for an administrative hearing.

The Florida legislature attempted to prevent the administrative hearing officers from considering whether the arrest was lawful. The statute, as it had been written, stated that the DHSMV was only permitted to determine whether or not the driver was arrested and if the driver refused a breath test. The Florida Supreme Court addressed this problem in the case of Florida Department of Highway Safety and Motor Vehicles vs. Hernandez.

The Florida Supreme Court, addressing certified questions out of the 1st & Fifth Districts, held a driver's license suspension can be based on a refusal to submit to a chemical test, but only as long as the refusal is incident to lawful arrest. Resolving a conflict involving the 1st & the Second Districts, the court additionally held that a driver whose driver's license was suspended ought to be able to challenge whether the refusal was incident to a lawful arrest within the proceedings before a hearing officer, who is reviewing the legality of the suspension.

The court rephrased the certified questions as follows:

(1) Can the DHSMV suspend a driver's license based upon section 322.2615, Florida Statutes, for a refusal to submit to a breath test if the refusal is not incident to a legal arrest?

Answer: No.

(2) Is the problem of whether the refusal was incident to a lawful arrest inside the allowable scope of review of a DHSMV hearing officer in a proceeding to determine if sufficient reason exists to sustain the suspension of a driver's license under section 322.2615, Florida Statutes, for refusal to submit to a breath test?

Answer: Yes.

The supreme court majority decision presented this analysis of the questions:

(1) Florida law doesn't require an individual to submit to a breath alcohol-detection test just because that individual possesses a driver's license. The requirement to submit to breath-alcohol testing emanates from section 316.1932, Florida Statutes (2006), generally called the implied consent law. The statute provides that a test has to be incidental to a lawful arrest and provided at the request of a law enforcement officer who has reasonable suspicion to believe such person was driving or otherwise was in actual physical control of a automobile inside this state while under the influence of alcoholic beverages. Appropriately, the legislature authorized administration of the breath test only if it is incident to a lawful arrest & based upon probable cause to believe that the person driving was under the influence of alcoholic beverages.

Under the implied consent law, the individual must be advised of the punishment (license suspension) for refusing to take a test. The statute before the court in this matter governing suspension of an individual's license to drive & the right to review of such a driver's license suspension, permits a law enforcement officer, on behalf of DHSMV, to suspend the license of any individual who refuses to take a lawful breath test.

The only definition of a lawful breath test based on section 322.2615 is found in section 316.1932(1)(a). The statutes must be read in pari materia. Section 316.1932 is the one statute that defines parameters of a lawful breath-alcohol test in section 322.2615. If the statutes are not read in pari materia, it follows that there is no notice concerning when individuals are required to submit to the test or else be subject to a suspension of their driver's licenses. For that reason, a lawful test predicated on section 322.2615, Florida Statutes, is one which is requested incident to a legal arrest, as laid out in section 316.1932, Florida Statutes.

(2) The 2nd rephrased certified question is related to the first question & concerns the method of challenging a driver's license suspension for refusal to submit to a breath test. The court explained that, after an individual's license to drive is suspended predicated on section 322.2615 for refusing to take a breath test pursuant to section 316.1932, that section entitles the driver to demand a formal or informal review of validity regarding the driver's license suspension. Inside the past version of the law, the hearing officer's scope of review included consideration of the other concern of whether the individual was put under lawful arrest for a violation of s. 316.193. Because the legislature deleted this statutory language and made further deletions within the amended bill, the DHSMV argues that the issue of whether an individual was put under a lawful arrest is not a factor in the suspension process.

As noted by the supreme court in another matter, though the legislature's removal of the legal arrest requirement from section 322.2615(7) seems clear, the legislature left that prerequisite within the implied consent laws. Section 322.2615 can't be read in isolation but has to be read together together with section 316.1932, which defines the scope of a driver's obligation to submit to a breath test. Section 322.2615 does not create any obligation on the part of the driver to take a chemical test upon the request of law enforcement; it only establishes consequences for refusal. Section 316.1932 is what creates and defines the scope of the obligation, & its mandate is certain: the test is required to be incident to a legal arrest. These statutes have to be considered in pari materia.

[randimg]

Subsection 322.2615(7) purports to limit the scope of the administrative hearing to three issues. The 1st topic, probable cause, is an idea that is often inextricably intertwined when considering the lawfulness of the detention as it is with this matter. The second matter directs the hearing officer to address whether a driver refused to take any such test. Any such test refers to a lawful test the driver's license suspension is required to be pursuant to.

The final subject, the provision of notice, relates towards the form of notice mandated by the same statute, which too refers to a legal test. This so-called limitation on the hearing officer's scope of review does not nullify the law's directive that the hearing officer conclude whether sufficient cause is present in order to sustain, amend, or otherwise invalidate the suspension. A driver whose driver's license is illegally suspended must have a way in order to challenge that driver's license suspension, and the only method through which a driver is able to challenge suspension of his or her license due to refusal to take a a breath test is through section 322.2615. Even if denominated a right or a privilege, the loss of a driver's license is an extreme hardship.

The analysis urged by DHSMV would permit DHSMV to suspend a driver's license to drive without reasonable notice & no possibility of a meaningful method to review the lawfulness of the driver's license suspension. The only interpretation of the law that avoids an unreasonable & unconstitutional result is to construe sections 322.2615 and 322.1932 in pari materia and allow the hearing officer to review whether or not the breathalyzer test was provided incident to a lawful arrest. As soon as section 322.2615 & section 316.1932 are read together, it becomes clear that under the statutory scheme, sufficient cause to sustain the driver's license suspension pursuant to section 322.2615(7) & whether the person whose license to drive was suspended refused to submit to any such test require that the hearing officer reach the determination of whether or not the chemical test was given incident to a lawful arrest, as is mandated by section 316.1932, Florida Statutes.

by: renc84idla

POST COMMENT

Mesothelioma Legal Help Personal Injury Attorney In Indianapolis Is All About Offering Legal Help Finding The Best Legal Cost Draftsman Charlotte Nc Bail Bondsman Providing Best Legal Help All Legal Problems Can Be Resolved Within A Blink With The Help Of The Chicago Attorneys Resolve Your Legal Cases With The Help Of Columbus Ohio Lawyers Get Out Of Timeshare Legally Legal Help From The Criminal Lawyers In London Importance Of Professional Legal Services In Criminal Matters Online Legal Services & Legal Documentation Preparation: A Comparison To Solve Your Legal Case, Hire A Fresno Lawyer New Jersey Attorneys Can Get Out Of Your Legal Problems Walnut Creek Attorneys Are Swift Enough To Get You Out Of Any Legal Case