Florida's Supreme Court Rules Dhsmv Administrative Hearing Officers Must Rule On Legality Of Dui Arr

By Author: Malcom Bloczynski
Total Articles: 4
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Pursuant to Florida Law, an individual who is legally arrested for a DUI must submit to a breath test at the request of the arresting officer. If an individual refuses to submit, that individual's license to drive will be suspended for one year for a first refusal. The obligation to take a breath test is predicated upon the arrest being a legal arrest. In order to challenge the suspension a driver must petition the Florida Department of Highway Safety and Motor Vehicles for an administrative hearing.

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

The Florida Supreme Court, addressing certified questions out of the First & 5th Districts, held a driver's license suspension can be based on a refusal to submit ...
... to a breath test, but only as long as the refusal is incident to lawful arrest. Resolving a conflict involving the 1st & the 2nd Districts, the court also ruled that a driver whose license was suspended must be able to challenge whether the refusal was incident to lawful arrest in proceedings before a hearing officer, who's reviewing the validity of the suspension.

The supreme 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 lawful arrest?
Answer: No.

(2) Is the problem of whether or not the refusal was incident to a lawful arrest inside the allowable scope of review of a DHSMV hearing officer within a hearing to see if adequate cause exists to sustain the suspension of a driver's license pursuant to section 322.2615, Florida Statutes, for refusal to submit to a chemical test?
Answer: Yes.

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

(1) Florida law doesn't require someone to take a breath alcohol-detection test just because that person possesses a driver's license. The obligation to submit to breath-alcohol testing emanates in section 316.1932, Florida Statutes (2006), generally known as the implied consent law. The law provides that the breath test must be incidental to a lawful arrest and provided at the request of a law enforcement officer who's reasonable suspicion to think such person was driving or was in actual physical control of a motor vehicle in this state at the same time as under the influence of alcoholic beverages. Accordingly, the legislature approved administration of the breath test only if it is incident to a legal arrest and based on probable cause to believe that the individual driving was under the influence of alcoholic beverages.

Under the implied consent law, the individual has to be advised of the punishment (license suspension) for refusing to submit to a breath test. The law in front of the court in this case governing suspension of an individual's driver's license & the right to review of such a suspension, allows a law enforcement officer, on behalf of DHSMV, to suspend the driver's license of any person who refuses to take a legal breath test.

The only definition of a lawful breath test under section 322.2615 is within section 316.1932(1)(a). The statutes have to be read in pari materia. Section 316.1932 is the one law that defines parameters of a legal breath-alcohol test in section 322.2615. If the statutes are not read in pari materia, it follows that there isn't a notice regarding when individuals are required to take a test or else be subject to a suspension of their driver's licenses. For that reason, a lawful test under section 322.2615, Florida Statutes, is one that is requested incident to a legal arrest, as laid out in section 316.1932, Florida Statutes.
(2) The second rephrased certified question is related to the 1st question and concerns the manner of challenging a driver's license suspension for a refusal to take a breathalyzer test. The court explained that, after a person's driver's license is suspended pursuant to section 322.2615 for refusing to submit to a breath test pursuant to section 316.1932, that section allows a driver to demand a formal or informal review of the validity regarding the suspension. Inside the past version of the law, the hearing officer's scope of review included consideration of the extra issue of whether the person was placed under lawful arrest for a violation of s. 316.193. Since the legislature deleted this statutory language and made additional deletions within the amended statute, the DHSMV argues that the matter of whether a person was put under a lawful arrest is not a issue in the suspension process.

As noted by the circuit court in another case, though the legislature's removal of the legal arrest requirement from section 322.2615(7) seems clear, the legislature left that condition within the implied consent law. Section 322.2615 can't be read in isolation but needs to be read as one with section 316.1932, which defines the scope of the driver's obligation to submit to a breathalyzer test. Section 322.2615 doesn't establish any obligation on the part of the driver to take a breath test on the request of law enforcement; it merely establishes consequences for a refusal. Section 316.1932 is what creates and defines the scope of the obligation, & its mandate is clear: the breath test has to be incident to a legal arrest. These statutes must be considered in pari materia.

Subsection 322.2615(7) purports to restrict the scope of an administrative hearing to three issues. The first matter, probable cause, is an idea that is often inextricably intertwined with the legality of the detention as it is in this case. The 2nd matter directs the hearing officer to deal with whether or not the driver refused to take any such test. Any such test refers to a lawful test that a suspension is required to be pursuant to.

The last topic, the provision of notice, relates towards the form of notice required by the same law, which also refers to a legal test. This so-called limitation on the hearing officer's scope of review doesn't nullify the statute's directive that the hearing officer determine whether or not sufficient cause exists in order to sustain, amend, or invalidate the suspension. A driver whose license to drive is illegally suspended is required to have a method in order to challenge that driver's license suspension, & the only method through which the driver is able to challenge suspension of his or her license to drive for refusal to take a a breathalyzer test is through section 322.2615. Whether denominated a right or a privilege, the loss of a driver's license is definitely an extreme hardship.

The analysis urged by DHSMV would permit DHSMV to suspend a driver's license with no reasonable notice and no possibility of a meaningful method to evaluate the legality 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 & allow the hearing officer to review whether the test was provided incident to a legal arrest. Once section 322.2615 & section 316.1932 are interpreted jointly, it becomes clear that under the statutory scheme, sufficient cause to maintain the suspension according to section 322.2615(7) and whether the person whose license was suspended refused to submit to any such test require that the hearing officer make the determination of whether the breathalyzer test was provided incident to a lawful arrest, as is required by section 316.1932, Florida Statutes.

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