State v. Freeman
Decision Date | 20 April 2011 |
Docket Number | Lower Tribunal No. 09-487 AP,No. 3D11-107,3D11-107 |
Parties | State of Florida, Department of Highway Safety and Motor Vehicles, Petitioner, v. Roy Freeman, Respondent. |
Court | Court of Appeal of Florida (US) |
Not final until disposition of timely filed motion for rehearing.
A Writ of Certiorari to the Circuit Court for Miami-Dade County, William Johnson, Marcia Caballero, and Gladys Perez, Judges.
Stephen D. Hurm, General Counsel, and Jason Helfant, Assistant General Counsel (Lake Worth), for petitioner.
Nelson T. Pena, for respondent.
Before GERSTEN, WELLS, and SALTER, JJ.
The Department of Highway Safety and Motor Vehicles (Department)petitions for a writ of certiorari regarding a circuit court decision vacating the administrative suspension of the respondent's driver's license following his refusal to consent to a breath test incident to his arrest for driving under the influence (DUI). We grant the writ, finding that the circuit court's reliance on an earlier circuit court decision regarding Florida's implied consent law, 1 Trauth v. Department of Highway Safety & Motor Vehicles, 15 Fla. L. Weekly Supp. C871a (Fla. 11th Cir. Ct. July 3, 2008) ("Trauth I"), has been overtaken by more persuasive district court precedent—specifically, Department of Highway Safety & Motor Vehicles v. Nader, 4 So. 3d 705 (Fla. 2d DCA 2009), review granted, 36 So. 3d 84 (Fla. 2009).2
At about 2:40 a.m. on a Saturday morning in May 2009, a Hialeah police sergeant observed the respondent driving his vehicle in an erratic fashion, drifting and jerking from one side of the lane to the other. A traffic stop followed. The police officer's report and later testimony included observations that the respondent had an odor of alcoholic beverages on his breath, a flushed face, slurred speech, and poor responses to the field sobriety test.
The police officer then asked the respondent to take a breath test, and therespondent refused to do so. The officer gave implied consent warnings, but the respondent continued to refuse to take the test. After submission of DUI arrest paperwork, including the officer's sworn affidavit regarding the respondent's refusal to submit to a breath test, the Department suspended the respondent's driver's license. The respondent requested and was afforded an administrative hearing regarding the suspension. The respondent testified that the implied consent warning was not properly administered and that it left him with the impression that he was being asked to consent to all three tests (breath, urine, and blood). The respondent said he refused the tests because "I don't do needles at all."
The police officer had initially marked one of the implied consent forms to indicate that the respondent agreed to take a breath test, but the respondent refused to sign that form. The officer's affidavit and testimony at the administrative hearing established that ultimately the respondent refused a breath test. The respondent also moved to invalidate the suspension based on circuit court interpretations of the implied consent law as in Trauth I. The Department's field hearing officer sustained the suspension of the respondent's license under the implied consent statute.
The respondent then sought review by the circuit court appellate division.
The circuit court followed Trauth I, noted our opinion in "Trauth II"3 to the effect that the propriety of warnings under the implied consent law "involves a close question of law," and quashed the administrative order suspending the respondent's license. The Department's petition to this court followed.
Conflicting circuit court decisions within our district were further complicated because of conflicting district court decisions among the Second, Fourth, and Fifth Districts. As noted, the conflict in decisions is presently pending before the Supreme Court of Florida. In the interim, DUI arrests will continue and the circuit court is entitled to know which of the conflicting analyses should be followed.
The threshold question, however, is whether this case is appropriate for "second-tier" certiorari under the standards articulated by the Supreme Court of Florida in Custer Medical Center v. United Automobile Insurance Co., 35 Fla. L. Weekly S640 (Fla. Nov. 4, 2010):
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