Department of Highway Safety and Motor Vehicles v. Silva, 2D01-696.

• Decision Date: 09 January 2002
• Docket Number: No. 2D01-696.,2D01-696.
• Citation: 806 So.2d 551
• Parties: DEPARTMENT OF HIGHWAY SAFETY AND MOTOR VEHICLES, Petitioner, v. Donald SILVA, Respondent.
• Court: Florida District Court of Appeals

806 So.2d 551

DEPARTMENT OF HIGHWAY SAFETY AND MOTOR VEHICLES, Petitioner, v. Donald SILVA, Respondent.

No. 2D01-696.

District Court of Appeal of Florida, Second District.

January 9, 2002.

Rehearing Denied February 12, 2002.

Enoch J. Whitney, General Counsel, and Kathy A. Jimenez, Assistant General Counsel, Department of Highway Safety and Motor Vehicles, Miami, for Petitioner.

Jacqulyn Mack of The Mack Law Firm, Englewood, for Respondent.

STRINGER, Judge.

The Department of Highway Safety and Motor Vehicles (Department) seeks review of a circuit court order granting respondent, Donald Silva's, petition for writ of certiorari and quashing its administrative order suspending Silva's driver's license. We have jurisdiction. See Haines City Comm. Dev. v. Heggs, 658 So.2d 523 (Fla. 1995). Because the circuit court applied the incorrect law in reviewing the ruling on the license suspension, we grant the petition.

The record discloses that on August 1, 2000, at approximately 7:20 p.m., Florida Highway Patrol Trooper Patrick Bock was dispatched to the intersection of State Road 35 and Washington Loop in Punta Gorda, Florida, to investigate a single-vehicle accident. Trooper Bock arrived at the scene and observed a black Harley Davidson motorcycle lying on the shoulder, with damage to the right side and front fender. Silva was lying in the grass next to the motorcycle. Deputies at the scene advised Trooper Bock that Silva had refused medical treatment, stating he was not injured. Upon making contact with Silva, Trooper Bock detected the odor of alcohol on his breath. Trooper Bock also observed that Silva's eyes were bloodshot and his speech slurred.

After Trooper Bock completed his accident investigation, he advised Silva that he was beginning a criminal DUI investigation. Silva indicated he understood. Trooper Bock did not read Silva a Miranda¹ warning at that time. Trooper Bock requested, and Silva agreed to perform, field sobriety exercises. Silva was unsteady on his feet, and Trooper Bock asked if he had any injuries that would prevent him from performing the exercises. Silva replied that he did not but that "his right calf was sore from the crash." Silva's performance was indicative of impairment, and Trooper Bock placed him under arrest for DUI. He was transported to the Charlotte Regional Medical Center for treatment of his calf injury, and from there he was taken to a breath-testing facility at the Charlotte County jail. Silva's breath test results exceeded the legal limit, and subsequently his driving privilege was suspended. The Charlotte County deputy who administered the breath test timely filed his paperwork with the Department pursuant to section 322.2615(2), Florida Statutes (1999), and Florida Administrative Code Rule 15A-6.013, including, inter alia, the DUI traffic citation, intoxilyzer print card, and the probable cause affidavit.

Silva sought administrative review of the suspension. At the review hearing, Silva objected to the Department's use of the crash report, alleging it was privileged under section 316.066(4), Florida Statutes (2000).² Silva also objected to the probable cause affidavit, which he alleged disclosed his statements made during the crash investigation. Silva argued that the hearing officer should not have considered the affidavit based on Trooper Bock's failure to give him a Miranda warning. The hearing officer sustained the objection, as to the crash report, and said that she would not consider any of Silva's statements which appeared in other documents, including the probable cause affidavit. Following the hearing, Silva's license suspension was upheld by the Department's Bureau of Administrative Reviews. Among its findings of fact, the final order of suspension notes Silva's refusal of medical treatment, indicating that the hearing officer did in fact consider the privileged statement in reviewing the license suspension.

Silva's subsequent petition for writ of certiorari was granted by the circuit court. In granting the petition, the circuit court made the following findings:

There was no competent, substantial evidence to support the Hearing Officer's finding that Mr. Silva was driving or in actual physical control of a motor vehicle in violation of 316.193, Fla. Stat., on or about August 1, 2000. Statements made by Mr. Silva should not have been admitted without evidence of Miranda warnings. Although there was clearly suspicion that Mr. Silva was the driver, the circumstances did not rise to the level of probable cause.

On certiorari review of agency action, the circuit court must determine 1) whether the agency afforded the parties procedural due process, 2) whether the essential requirements of the law were observed, and 3) whether the agency's action is supported by competent, substantial evidence. See Haines City, 658 So.2d at 530; Dep't of Highway Safety & Motor Vehicles v. Haskins, 752 So.2d 625, 626-27 (Fla. 2d DCA 1999). This court's review of a circuit court's ruling on a petition requires that we determine whether the circuit court afforded procedural due process and applied the correct law. See658 So.2d at 530. With respect to the second prong of our inquiry, we find that the circuit court erred by applying the incorrect law....