Department of Highway Safety and Motor Vehicles v. Perry, 5D99-3632.

• Decision Date: 17 March 2000
• Docket Number: No. 5D99-3632.,5D99-3632.
• Citation: 751 So.2d 1277
• Parties: DEPARTMENT OF HIGHWAY SAFETY AND MOTOR VEHICLES, Petitioner, v. Beverly PERRY, Respondent.
• Court: Florida District Court of Appeals

751 So.2d 1277

DEPARTMENT OF HIGHWAY SAFETY AND MOTOR VEHICLES, Petitioner, v. Beverly PERRY, Respondent.

No. 5D99-3632.

District Court of Appeal of Florida, Fifth District.

March 17, 2000.

Enoch J. Whitney, General Counsel, and Heather Rose Cramer, Assistant General Counsel, Department of Highway Safety and Motor Vehicles, West Palm Beach, for Petitioner.

Steven G. Mason of Law Offices of Steven G. Mason, Orlando, for Respondent.

W. SHARP, J.

The Department of Highway Safety and Motor Vehicles petitions this court for a writ of certiorari to quash the circuit court's order rendered in its appellate review capacity. Perry, the respondent, had her driver's license suspension sustained by the Department after it found she refused to take a breathalyzer test following her arrest for driving under the influence of alcoholic beverages. See generally § 316.1932(1)(a), Fla. Stat. (1999). Perry sought review of this determination in the circuit court by filing a petition for certiorari.¹ The circuit court held the suspension should not have been sustained because the record failed to include an affidavit of refusal pursuant to section 322.2615(2), Florida Statutes (1999). Under the circumstances of this case, we issue the writ and quash the ruling of the circuit court.

The record in this case establishes that on December 4, 1998, at 9:00 p.m., Trooper Ikeguchi of the Florida Highway Patrol responded to the scene of a hit and run crash. He interviewed the victim and she identified Perry as the driver of the vehicle that had hit her and then left the scene of the crash. He contacted Perry and noticed the odor of alcohol on her breath, that she had blood shot eyes, and that she was slurring her speech.

Trooper Ikeguchi told Perry he had completed his crash investigation and was conducting a criminal investigation for DUI. He read Perry the Miranda warnings and requested that she perform field sobriety exercises. Perry refused to perform them. He then placed Perry under arrest for DUI and read her the implied consent warnings.² Perry refused to take the intoxilyzer test.

Perry was transported to the Seminole County Jail where she was again informed of the implied consent warnings. She again refused to submit to a breath alcohol test. Accordingly, Trooper Ikeguchi issued Perry a DUI citation and informed her that her driving privilege was suspended for one year because of her refusal to take the requested test.

Perry requested a formal review of her driver's license suspension. It was conducted by a departmental hearing officer. He determined that the preponderance of the evidence, which included the facts contained in the arresting officer's affidavit, supported the suspension of Perry's driver's license.

Perry filed a petition for writ of certiorari in the Circuit Court of the Eighteenth Judicial Circuit in and for Seminole County, Florida. The circuit court quashed the administrative order on the ground that section 322.2615(2), Florida Statutes (1999) requires law enforcement officers to forward both an arrest report affidavit and an affidavit of refusal to the Department within five days of the arrest. The record in this case did not include an affidavit of refusal, which the court ruled was fatal to the Department's case.

In reviewing a final order rendered in a circuit court proceeding sitting in its appellate capacity, this appellate court is limited to determining whether the circuit court afforded procedural due process and applied the correct law. See Conahan v. Department of Highway Safety and Motor Vehicles, 619 So.2d 988 (Fla. 5th DCA 1993)

. We think the circuit court in this case misread section 322.2615(2), Florida Statutes (1999). That section provides in pertinent part:

... the law enforcement officer shall forward to the department, within 5 days after the date of arrest, a copy of the notice of suspension, the driver's license of the person arrested, and a report of the arrest, including an affidavit stating the officer's grounds for belief that the person arrested was in violation of section 316.193; the results of any breath or blood test or an affidavit stating that a breath, blood or urine test was requested by a law enforcement officer or correctional officer and that the person arrested refused to submit....

The Department developed a refusal affidavit form for use by law enforcement to ensure compliance with the procedures of the implied consent statute.³ When properly executed, this affidavit is evidence that the implied consent warnings were given, including notice of the automatic suspension of driving privileges for one year to eighteen months for refusing to take a blood, breath or urine test, and that the driver was requested to submit to one of those tests, but refused to submit. In this case, the affidavit form was not admitted in evidence because it was not signed.

At a review hearing, the Department hearing officer must determine by a preponderance of the evidence whether sufficient cause exists to sustain the driver's license suspension. The issues in the...