According to Florida Laws, anyone who is lawfully arrested for DUI must submit to a chemical test at the request of the arresting officer. If that person refuses to submit to the test, that person’s driver’s license will be suspended for 1 year for a 1st offense. The obligation to take a test is based on the arrest being a legal arrest. To challenge the driver’s license suspension a driver must petition the Florida Department of Highway Safety & Motor Vehicles for an administrative hearing.
The Florida legislature attempted to prevent the administrative hearing officers from considering whether or not the arrest was legal. The law, as it had been written, stated the DHSMV was only allowed to determine whether or not the driver was arrested & whether the driver refused to take a breath test. The Florida Supreme Court addressed this matter in the matter of Florida Department of Highway Safety and Motor Vehicles vs. Hernandez.
The Florida Supreme Court, addressing certified questions out of the 1st and Fifth Districts, ruled that a driver’s license suspension can be based on a refusal to submit to a chemical test, but only as long as the refusal is incident to a legal arrest. Resolving a conflict involving the 1st & Second Districts, the court additionally ruled that a driver whose license to drive was suspended must be able to challenge whether the refusal was incident to a lawful arrest in proceedings before a hearing officer, who is reviewing the legality regarding the suspension.
The supreme court rephrased the certified questions as follows:
(1) Can the DHSMV suspend a driver’s license based on section 322.2615, Florida Statutes, for a refusal to take a breath test if the refusal isn’t incident to a legal arrest?
Answer: No.
(2) Is the issue of whether the refusal was incident to a legal arrest inside the permissible scope of review of a DHSMV hearing officer within a hearing to determine if sufficient reason exists in order to sustain the suspension of a driver’s license under section 322.2615, Florida Statutes, for a refusal to take a breath test?
Answer: Yes.
The supreme court majority decision presented the following analysis regarding the questions:
(1) Florida law doesn’t require a person to submit to a breath alcohol-detection test simply because that person possesses a driver’s license. The obligation to take a breath-alcohol testing emanates in section 316.1932, Florida Statutes (2006), frequently known as the implied consent law. The law provides that a breath test must be incidental to a lawful arrest and administered at the request of a law enforcement officer who has reasonable cause to believe such individual was driving or was in actual physical control of the motor vehicle in this state at the same time as under the influence of alcoholic beverages. For that reason, the legislature authorized administration of the breath test only if it is incident to a lawful arrest & based upon probable cause to think that the person driving was under the influence of alcoholic beverages.
Under the implied consent law, the individual has to be advised of the punishment (license suspension) for refusing to take a breath test. The statute before the court in this matter governing suspension of an individual’s license and the right to review of this type of suspension, permits a law enforcement officer, on behalf of DHSMV, to suspend the license of any person who refuses to take a legal breath test.
The only definition of a lawful breath test under section 322.2615 is found in section 316.1932(1)(a). The statutes should be read in pari materia. Section 316.1932 is the one statute that defines parameters of a lawful breath-alcohol test in section 322.2615. If the statutes are not read in pari materia, it follows that there is no notice as to at what time individuals are required to take a test or else face suspension of their driver’s licenses. For that reason, a lawful test pursuant to section 322.2615, Florida Statutes, is one which is requested incident to a legal arrest, as laid out in section 316.1932, Florida Statutes.
(2) The 2nd rephrased certified question is related to the 1st question & concerns the method of challenging a suspension for a refusal to submit to a breathalyzer test. The court explained that, after an individual’s driver’s license is suspended based upon section 322.2615 for refusing to submit to a breath test pursuant to section 316.1932, that section authorizes a driver to request a formal or informal review of validity of the suspension. Inside the previous version of the statute, the hearing officer’s scope of review included consideration of the other issue of whether or not the person was placed under lawful arrest for a violation of s. 316.193. Because the legislature removed this statutory language and made other deletions within the amended statute, the DHSMV argues that the matter of whether or not a person was placed under a lawful arrest is not a consideration in the suspension process.
As noted by the circuit court in another case, even though the legislature’s removal of the lawful arrest prerequisite from section 322.2615(7) may seem clear, the legislature left that prerequisite within the implied consent law. Section 322.2615 can’t be read in isolation but has to be read together together with section 316.1932, which defines the scope of a driver’s obligation to submit to a breath test. Section 322.2615 doesn’t establish any obligation on the part of a driver to take a breath test on the request of law enforcement; it just establishes consequences for a refusal. Section 316.1932 is what creates & defines the scope of the obligation, and its mandate is certain: the test has to be incident to a lawful arrest. These statutes have to be considered in pari materia.
Subsection 322.2615(7) purports to limit the scope of review to 3 matters. The 1st topic, probable cause, is a concept that is frequently inextricably intertwined when considering the lawfulness of the detention as it is in this case. The 2nd issue directs the hearing officer to deal with whether a driver refused to take any such test. Any such test refers to the legal test that a driver’s license suspension is required to be pursuant to.
The last subject, the provision of notice, relates to the form of notice mandated through the same statute, which also refers to a lawful test. This so-called limitation regarding the hearing officer’s scope of review doesn’t invalidate the statute’s directive that the hearing officer conclude if adequate cause exists to sustain, amend, or invalidate the driver’s license suspension. A driver whose license to drive is unlawfully suspended is required to have a method to challenge that suspension, & the only means by which the driver can challenge suspension of his or her driver’s license for failure to submit to a breathalyzer test is through section 322.2615. Whether denominated a right or a privilege, the loss of a driver’s license is an extreme hardship.
The reading urged by DHSMV would allow DHSMV to suspend a driver’s license without reasonable notice & no possibility of a meaningful method to evaluate the lawfulness of the driver’s license suspension. The only interpretation of the law that avoids an unreasonable & unconstitutional result is to read sections 322.2615 & 322.1932 in pari materia and allow the hearing officer to examine whether the test was given incident to a lawful arrest. As soon as section 322.2615 and section 316.1932 are interpreted jointly, it becomes obvious that under the statutory scheme, adequate cause to maintain the suspension pursuant to section 322.2615(7) and whether the individual whose driver’s license was suspended refused to take any such test require that the hearing officer make the determination of whether the breath test was provided incident to a lawful arrest, as is required by section 316.1932, Florida Statutes.
For additional information on Miami DUI Attorney, DUI Lawyer Miami FL please contact our office at: The Law Offices of Rosenberg and Dye 201 South Biscayne Boulevard
28th Floor
Miami, FL 33131
(305)429-3285