87 So.3d 712 (Fla. 2012), SC09-1533, Nader v. Florida Dept. of Highway Safety and Motor Vehicles

Docket Nº:SC09-1533.
Citation:87 So.3d 712, 37 Fla. L. Weekly S 130
Opinion Judge:PARIENTE, J.
Party Name:Susan NADER, Petitioner, v. FLORIDA DEPARTMENT OF HIGHWAY SAFETY AND MOTOR VEHICLES, et al., Respondents.
Attorney:Eilam Isaak, Tampa, FL, for Petitioner. Stephen D. Hurm, General Counsel, and Damaris Esperanza Reynolds, Assistant General Counsel Florida Department of Highway Safety and Motor Vehicles, Lake Worth, FL, for Respondents. Michael A. Catalano, P.A., Miami, FL, on behalf of the Florida Association ...
Judge Panel:CANADY, C.J., and QUINCE, POLSTON, LABARGA, and PERRY, JJ., concur. LEWIS, J., dissents with an opinion. LEWIS, J., dissenting.
Case Date:February 23, 2012
Court:Supreme Court of Florida
 
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Page 712

87 So.3d 712 (Fla. 2012)

37 Fla. L. Weekly S 130

Susan NADER, Petitioner,

v.

FLORIDA DEPARTMENT OF HIGHWAY SAFETY AND MOTOR VEHICLES, et al., Respondents.

No. SC09-1533.

Supreme Court of Florida.

February 23, 2012

Rehearing Denied May 4, 2012.

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Eilam Isaak, Tampa, FL, for Petitioner.

Stephen D. Hurm, General Counsel, and Damaris Esperanza Reynolds, Assistant General Counsel Florida Department of Highway Safety and Motor Vehicles, Lake Worth, FL, for Respondents.

Michael A. Catalano, P.A., Miami, FL, on behalf of the Florida Association of Criminal Defense Lawyers, as Amicus Curiae.

PARIENTE, J.

In this case before us, Department of Highway Safety and Motor Vehicles v. Nader, 4 So.3d 705 (Fla. 2d DCA 2009), the Second District Court of Appeal determined two distinct but related issues: the first involving the administrative suspension of a driver's license for refusal to submit to a breath test, and the second involving the scope of certiorari review by an appellate court of the circuit court's decision concerning the administrative suspension. In its decision in Nader, the Second District passed upon the two questions involving these issues, which it certified to be of great public importance:

1. DOES A LAW ENFORCEMENT OFFICER'S REQUEST THAT A DRIVER SUBMIT TO A BREATH,

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BLOOD, OR URINE TEST, UNDER CIRCUMSTANCES IN WHICH THE BREATH-ALCOHOL TEST IS THE ONLY REQUIRED TEST, VIOLATE THE IMPLIED CONSENT PROVISIONS OF SECTION 316.1932(1)(A)(1)(a) SUCH THAT THE DEPARTMENT MAY NOT SUSPEND THE DRIVER'S LICENSE FOR REFUSING TO TAKE ANY TEST?

2. MAY A DISTRICT COURT GRANT COMMON LAW CERTIORARI RELIEF FROM A CIRCUIT COURT'S OPINION REVIEWING AN ADMINISTRATIVE ORDER WHEN THE CIRCUIT COURT APPLIED PRECEDENT FROM ANOTHER DISTRICT COURT BUT THE REVIEWING DISTRICT COURT CONCLUDES THAT THE PRECEDENT MISINTERPRETS CLEARLY ESTABLISHED STATUTORY LAW?

Id. at 711. As more fully discussed below, we answer the first question in the negative and answer the second question in the affirmative.1

FACTS

The facts in this case arise from an arrest after the driver, Susan Nader, failed a roadside sobriety test and then had her license suspended based on the refusal to submit to a breath test:

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.[ 2]

Nader, 4 So.3d at 706. The record reflects that she refused to take a breath test and thus her license was suspended.

Nader requested an administrative hearing, during which she argued that the implied consent warning given was improper because she was requested to submit to a " breath, blood, or urine" test when the law requires only a breath test. After the hearing officer upheld the license suspension, Nader appealed the decision to the circuit court pursuant to a statutory provision that provides for the method of review by a circuit court.

In her petition to the circuit court, Nader again argued that the implied consent warnings were improper, citing as authority the decision in State Department of Highway Safety and Motor Vehicles v. Clark, 974 So.2d 416 (Fla. 4th DCA 2007), in which the Fourth District Court of Appeal held that the circuit court could reverse a license suspension where the law enforcement officer warned the driver that her driving privileges would be suspended if she refused to submit to a breath, blood, or urine test. In its response to Nader's petition, the Florida Department of Highway Safety and Motor Vehicles (the Department) set forth all the reasons the form affidavit used in this case was in accordance with applicable statutory provisions and other appellate case law. As to

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Clark, the case relied on by Nader, the Department contended that the decision was wrongly decided because the Fourth District " overlooked and misapprehended the facts and governing law." In other words, the Department asked the circuit court to disagree with precedent from another district.

The circuit court judge concluded that he was bound by the Fourth District's decision in Clark and reluctantly granted the petition, stating, " But for the Clark opinion, the Court would deny the instant petition. The only test which Nader was specifically offered was the breath test. There is no indication that Nader felt that she was also obligated to take either or both of the other two tests."

After the circuit court granted certiorari relief, the Department petitioned the Second District for review of the circuit court's decision. See Nader, 4 So.3d at 706. The Second District explicitly disagreed with the Fourth District's holding in Clark, stating, " We cannot agree with the reasoning in Clark that this type of language in the standard report form establishes that a driver was or might have been misled into thinking that a more invasive test may be required." Id. at 709.

With regard to the certiorari issue, the Second District first acknowledged that " [c]ircuit court judges are aware of the requirement that they obey controlling precedent from other districts even if they disagree with the precedent." Id. at 709-10 (citing Pardo v. State, 596 So.2d 665, 667 (Fla.1992)). The Second District explained, however, that when the circuit court is sitting in its appellate capacity, the " only method for a party to obtain district court review of such rulings is by a petition for writ of common law certiorari," otherwise known as " second-tier" certiorari review. Id. at 710. The Second District acknowledged that in second-tier certiorari proceedings, " the district court is limited to determining whether the circuit court afforded the parties procedural due process and whether it ‘ applied the correct law’ or ‘ departed from the essential requirements of the law.’ " Id. (quoting Dep't of Highway Safety & Motor Vehicles v. Stenmark, 941 So.2d 1247, 1249 (Fla. 2d DCA 2006)).

The Second District noted the " dramatic" ramifications of failing to address the erroneous decision of Clark when read in light of the plain language of the statute:

As this case demonstrates, the " breath, blood, or urine" language is contained in a standard form used in Hillsborough County, and probably elsewhere, since at least 2003. Unless the circuit court is free to disregard Clark, every driver's license suspension based on a refusal to submit to a breath test in which a similar form is used would be overturned by the circuit courts based solely upon the decision in Clark denying certiorari relief. There would be no multi-district review and no ability for the other district courts to generate conflicting decisions.

Id. The Second District then relied on this Court's opinion in Allstate Insurance Co. v. Kaklamanos, 843 So.2d 885, 889 (Fla.2003), which held that second-tier certiorari should not be used simply to grant a second appeal; rather, it should be reserved for those situations when there has been a violation of a clearly established principle of law resulting in a miscarriage of justice. Nader, 4 So.3d at 710-11. The Second District recognized that the term " clearly established law" does not necessarily refer only to case law, but also derives from other legal sources, including rules of court, statutes, and constitutional law. See id. at 711 (quoting Kaklamanos, 843 So.2d at 890). Accordingly, the Second District held that it should grant second-tier

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certiorari based on a violation of clearly established law where a circuit court relied upon the controlling precedent of another district court, but in so doing disregarded the plain language of the applicable statute. The Second District certified the above two questions to this Court— one related to the statute, and the other related to the scope of second-tier certiorari review. Id. This review followed.

ANALYSIS

In order to answer the first certified question, we begin with the applicable statutory scheme regarding the circumstances under which a driver is required to submit to chemical testing by breath, blood, or urine and when a refusal to submit can result in a license suspension. We then explain the notice that must be given prior to a license suspension and the review process for drivers who request an administrative review regarding the license suspension. We next address the specific facts involved with Susan Nader as they apply to the legality of her license suspension.

In answering the second certified question, we first discuss the situations under which a district court may use its certiorari jurisdiction to review a circuit court's decision, including both certiorari review of nonfinal orders and second-tier certiorari. We then discuss the requirement that district courts should act only where the error is one that is a departure from the essential requirements of law. Finally, we discuss the Second District's decision in this case to determine whether the Second District properly exercised its second-tier certiorari jurisdiction.3

First Certified Question

Statutory Scheme for Florida's Implied Consent Law

Section 316.1932, Florida Statutes (2007), commonly known as Florida's implied consent law, addresses in three separate provisions the circumstances under which a driver is required to submit to chemical testing by breath, blood, or urine, and when a refusal to submit can result in a license suspension. The first...

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