Department of Highway Safety v. Nader

• Citation: 4 So.3d 705
• Decision Date: 20 February 2009
• Docket Number: No. 2D08-1047.,No. 2D08-1082.,2D08-1047.,2D08-1082.
• Parties: DEPARTMENT OF HIGHWAY SAFETY AND MOTOR VEHICLES, Petitioner, v. Susan NADER, Respondent. Department of Highway Safety and Motor Vehicles, Petitioner, v. Deborah McIndoe, Respondent.
• Court: Court of Appeal of Florida (US)

4 So.3d 705

DEPARTMENT OF HIGHWAY SAFETY AND MOTOR VEHICLES, Petitioner, v. Susan NADER, Respondent.

Department of Highway Safety and Motor Vehicles, Petitioner, v. Deborah McIndoe, Respondent.

No. 2D08-1047.

No. 2D08-1082.

District Court of Appeal of Florida, Second District.

February 20, 2009.

Robin Lotane, General Counsel, Tallahassee, and Damaris E. Reynolds, Assistant General Counsel, Miami, for Petitioner.

Eilam Isaak, Tampa, for Respondent Susan Nader.

No appearance by Respondent Deborah McIndoe.

ALTENBERND, Judge.

The Department of Highway Safety and Motor Vehicles seeks certiorari review of circuit court orders entered in two separate cases. In each case, the circuit court granted a driver's petition for writ of certiorari and quashed the Department's order suspending the driver's license for refusing to submit to a breath-alcohol test. Because each case presents the identical issue, we have consolidated the cases on our own motion for purposes of this opinion. We grant the Department's petition for writ of certiorari in both cases and quash the circuit court opinions.

We hold that the Department may validly suspend a driver's license for a driver's refusal to submit to a breath-alcohol test when a law enforcement officer offers the driver the option of taking a breath test, a blood test, or a urine test. The fact that the officer provides the driver with additional alternative tests that may be more invasive but more accurate does not negate the fact that the officer asked the driver to take the required test. We further hold that as a district court, we have the authority to grant common law certiorari relief from a circuit court opinion that applied or obeyed existing precedent from another district court if we conclude that the other district court's opinion misinterpreted clearly established statutory law.

I.

On August 26, 2007, at approximately 1:30 a.m., Susan Nader was stopped by a Tampa police officer because she was driving with only her parking lights on and had stayed at an intersection through more than one cycle of the traffic lights. After she failed a roadside sobriety test, she was arrested and transported to a breath test center operated by the Hillsborough County Sheriff's Office. The standard report prepared at that center, identified on the form as "HSMV 78054 (Rev. 06/02)S," reflects that the deputy handling the case asked her "to submit to a breath, urine, or blood test to determine the content of alcohol in his or her blood or breath." She refused.

On September 1, 2007, a deputy sheriff stopped Deborah McIndoe when she failed to stop at a DUI checkpoint and instead drove through the safety check lane at a speed of 43 miles per hour. When Ms. McIndoe was stopped, she failed a roadside sobriety test. She was arrested and transported to a breath test center operated by the Hillsborough County Sheriff's Office. The standard report prepared at that center, identified on the form as "HSMV 78054 (Rev. 03/03)S," reflects that the deputy handling the case requested her "to submit to a breath, urine, or blood test to determine the content of alcohol in his or her blood or breath." She refused.

Thus, in each of these cases, the standard report form indicated that the investigating officer explained the implied consent law¹ to the driver and asked her whether she would submit to a "breath, blood, or urine" test. Because each woman refused, the Department sought to suspend each woman's driver's license for a period of one year. See §§ 316.1932(1)(a)(1)(a), 322.2615(1), Fla. Stat. (2007).

Both Ms. Nader and Ms. McIndoe sought an administrative hearing. They both argued that the implied consent warnings were improper in that the officers asked if they would submit to a "breath, blood, or urine" test, when the only test lawfully required by the implied consent law was a breath test. In each case, it appears neither the driver nor the relevant deputy sheriffs testified; the argument was based entirely on the language of the two standard forms used by the deputies in the breath test centers. The hearing officer rejected this argument in both cases and sustained the suspensions. Both women then sought certiorari review in the circuit court, see § 322.2615(13), arguing again that the implied consent warnings given were improper and that the license suspensions were thus invalid.

The circuit court, in two separate opinions written by Judge James M. Barton, II, granted each woman's petition but expressed some reluctance. The circuit court concluded it was bound by the Fourth District's opinion in State, Department of Highway Safety & Motor Vehicles v. Clark, 974 So.2d 416 (Fla. 4th DCA 2007). Judge Barton noted in each of the opinions, "But for the Clark opinion, the Court would deny the instant petition. The only test which [the driver] was specifically offered was the breath test. There is no indication that [the driver] felt that she was also obligated to take either or both of the other two tests."

In Clark, as in these two cases, the investigating officer informed Ms. Clark that her driving privileges would be suspended if she refused to submit to a "breath, blood, or urine test" under circumstances where the breath test was the only required test. 974 So.2d at 417. Ms. Clark refused, and the Department suspended her license. The circuit court, however, granted Ms. Clark's petition for writ of certiorari and quashed the Department's order, finding the warning given was improper because it included the reference to a blood or urine test. The Fourth District then denied the Department's petition for writ of certiorari. Noting that the error in the implied consent warning "may have misled Ms. Clark into thinking that she would have to submit to a more invasive test," the court concluded, "[T]he circuit court did not depart from the essential requirements of the law in holding that, where the officer's warning did not comply with the statute, Ms. Clark's license could not be suspended under the statute." Id. at 418.

From the short opinion in Clark, we cannot determine precisely what the officer told the driver that may have "misled" her. The opinion at least implies that the officer merely gave the driver the option of a breath, blood, or urine test. It is entirely possible that Clark is also based on the language of a standard form used in a breath test center. To the extent Clark suggests that the request to submit to a "breath, blood, or urine" test is insufficient to comply with the statute and thereafter prevents the suspension of the driver's license for refusing to submit to a breath-alcohol test, we disagree with the opinion in Clark. We also conclude that a circuit court's opinion quashing a license suspension on this basis is a departure from the essential requirements of the law meriting common law certiorari relief.

II.

Section 316.1932(1)(a)(1)(a), which is commonly referred to as the "Implied Consent Law," provides:

Any person who accepts the privilege extended by the laws of this state of operating a motor vehicle within this state is, by so operating such vehicle, deemed to have given his or her consent to submit to an approved chemical test or physical test including, but not limited to, an infrared light test of his or her breath for the purpose of determining the alcoholic content of his or her blood or breath if the person is lawfully arrested for any offense allegedly committed while the person was driving or was in actual physical control of a motor vehicle while under the influence of alcoholic beverages. The chemical or physical breath test must be incidental to a lawful arrest and administered at the request of a law enforcement officer who has reasonable cause to believe such person was driving or was in actual physical control of the motor vehicle within this state while under the influence of alcoholic beverages. The administration of a breath test does not preclude the administration of another type of test. The person shall be told that his or her failure to submit to any lawful test of his or her breath will result in the suspension of the person's privilege to operate a motor vehicle for a period of 1 year for a first refusal, or for a period of 18 months if the driving privilege of such person has been previously suspended as a result of a refusal to submit to such a test or tests, and shall also be told that if he or she refuses to submit to a lawful test of his or her breath and his or her driving privilege has been previously suspended for a prior refusal to submit to a lawful test of his or her breath, urine, or blood, he or she commits a misdemeanor in addition to any other penalties....

Section 322.2615 then provides:

(1)(a) A law enforcement officer or correctional officer shall, on behalf of the department, suspend the driving privilege of ... a person who has refused to submit to a urine test or a test of his or her breath-alcohol or blood-alcohol level....

(b) The suspension under paragraph (a) shall be pursuant to, and the notice of suspension shall inform the driver of, the following:

(1)(a) The driver refused to submit to a lawful breath, blood, or urine test and his or her driving privilege is suspended for a period of 1 year for a first refusal or for a period of 18 months if his or her driving privilege has been previously suspended as a result of a refusal to submit to such a test....

An officer who has suspended the driver's license under this statute must forward appropriate documents supporting the suspension to the Department. At that point, the driver may seek an informal or formal review hearing. Under section 322.2615(7)(b), a formal review hearing requires the hearing officer to consider

1. Whether the law enforcement officer had probable cause to believe that the person whose license was suspended was driving or in actual physical control of a motor vehicle in this state while under the influence of alcoholic...