State v. Johnston

• Decision Date: 13 December 1989
• Docket Number: No. 89-00708,89-00708
• Citation: 14 Fla. L. Weekly 2848,553 So.2d 730
• Parties: 14 Fla. L. Weekly 2848 STATE of Florida, Appellant, v. Terry JOHNSTON, Appellee.
• Court: Florida District Court of Appeals

Page 730

553 So.2d 730

14 Fla. L. Weekly 2848

STATE of Florida, Appellant, v. Terry JOHNSTON, Appellee.

No. 89-00708.

District Court of Appeal of Florida,

Second District.

Dec. 13, 1989.

Robert A. Butterworth, Atty. Gen., Tallahassee and Stephen A. Baker, Asst. Atty. Gen., Tampa, for appellant.

Elliott C. Metcalfe, Jr., Public Defender and Thomas W. Kurth, Asst. Public Defender, Sarasota, for appellee.

RYDER, Judge.

The opinion filed in this cause on October 27, 1989 is withdrawn and this opinion is published in lieu thereof.

The county court of Sarasota County certified to us a question of great public importance. This court exercised its discretion to review the appeal under Florida Rule of Appellate Procedure 9.030(b)(4)(A) and accepted the question.

A Florida Highway Patrol trooper arrested appellee for driving under the influence (DUI) after appellee performed certain roadside sobriety tests. Thereafter, the trooper read to appellee his implied consent rights and requested that he submit to a chemical breath test for the purpose of determining the alcohol level in his blood. The trooper also informed appellee that refusal to take the test would result in a license suspension for one year or eighteen months if his license had been previously suspended as a result of a refusal to submit to a chemical test. Appellee was further advised that refusal to submit to the test could be used against him in court. After one unsuccessful attempt to perform the test, appellee refused to make another attempt and the trooper "wrote him up" for refusal.

The "Refusal to Submit to Breath, Urine or Blood Test" affidavit requires the attesting officer to swear under oath to the facts contained in the affidavit. In this case, the trooper who arrested appellee signed the affidavit form on the signature line as provided. Directly below the signature line is the statement, "THIS AFFIDAVIT MUST BE NOTARIZED OR ATTESTED TO (F.S. 117.10)." Beneath the foregoing statement on the form are three lines labeled "signature of attesting officer," "title," and "date." The trooper failed to sign as attesting officer and, in fact, failed to complete all three spaces.

After listening to testimony and receiving evidence during a hearing on appellee's petition challenging the refusal, the trial judge found that the trooper did not swear to the truth of the facts in the affidavit form. There is record support of this finding.

In its order, the trial court found that the trooper had reasonable cause to believe appellee was driving under the influence and, thus, had lawfully placed him under arrest. The court found that appellee refused to submit to the breath test, and was correctly advised of his implied consent warnings under section 322.261(3)(d), Florida Statutes (1987). Reasoning that section 322.261(1) requires an arresting officer to swear to the facts contained in the refusal affidavit and that the failure of the officer to do so results in a lawful refusal under section 322.261, the court found there was, in fact, a lawful refusal in this case. Thereafter, the court certified to us the following question to be of great public importance:

IN A PROSECUTION UNDER SECTION 361.193, FLORIDA STATUTES, FOR DRIVING UNDER THE INFLUENCE, IF THE ARRESTING OFFICER DOES NOT SWEAR TO THE AFFIDAVIT OF REFUSAL SENT TO THE DEPARTMENT OF HIGHWAY SAFETY AND MOTOR VEHICLES IN TALLAHASSEE, AND THE REFUSAL OTHERWISE MEETS THE REQUISITES OF AN UNLAWFUL REFUSAL UNDER SECTION 322.261(3), FLORIDA STATUTES, SHOULD THE REFUSAL BE DEEMED A LAWFUL REFUSAL UNDER SECTION 322.261, FLORIDA STATUTES?

Under section 322.261(1), where a person refuses to submit to a breath test when an officer has reasonable cause that the person is driving under the influence of alcohol or drugs, the Department of Motor Vehicles "shall suspend" the person's privilege to operate a motor vehicle "upon receipt of the officer's sworn statement " of reasonable cause. (Emphasis added.) Under section 322.261(3), the question of whether the person "lawfully refused" to be tested is determined by four factors set forth in subsections (a)-(d). However, none of these subsections state that the existence or absence of an officer's sworn statement is a factor in determining whether there was a lawful refusal. Accordingly, the lack of a sworn statement is not the equivalent of a lawful refusal and we therefore answer the certified question in the negative. The lack of a sworn refusal affidavit does not operate to turn an otherwise unlawful refusal under section 322.261(3) into a lawful refusal. Thus, the trial court erred and we reverse its order dismissing the charge herein. However, the trial court should not have reached this issue. In this case, the specific issue is whether the Department of Motor Vehicles was entitled or empowered to go forward in its attempt to suspend appellee's license when it had not received the officer's "sworn statement" as required under section 322.261(1); for reasons explained below, we believe the Department would not have the authority to do so.

An examination of chapter 322 (Drivers' Licenses) reveals that in other sections of the chapter, the legislature has carefully used specific language to dictate under which circumstances the department may cancel, revoke or suspend a person's license. Various sections within the chapter contain procedural requirements with which the legislature intends the department to comply before embarking upon an action which would effect a person's driving privilege. For example, section 322.251(2) sets forth the explicit...