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Florida's Supreme Court Concludes DHSMV Administrative Hearing Officers Must Determine the Lawfulness of DUI Arrests  Uploading ....Under Florida Law, anyone who is legally arrested for DUI must submit to a breath test at the request of the arresting officer. If that person refuses to submit, that person's driver's license will be suspended for one year for a 1st offense. The obligation to take a test is based on the arrest being a lawful arrest. To challenge the driver's license suspension the individual has to petition the Florida Department of Highway Safety and Motor Vehicles for an administrative hearing.
The Florida legislature attempted to prohibit the administrative hearing officers from considering if the arrest was legal. The statute, as it was written, stated that the DHSMV was only permitted to determine if the driver was arrested and if the driver refused a breathalyzer test. The Florida Supreme Court tackled this topic in the case of Florida Department of Highway Safety & Motor Vehicles v. Hernandez.
The Florida Supreme Court, addressing certified questions from the First & 5th Districts, held 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 lawful arrest. Resolving a conflict between the 1st and Second Districts, the court further ruled that a driver whose driver's license was suspended ought to have the ability to challenge whether or not the refusal was incident to a legal arrest in proceedings before a hearing officer, who's reviewing the validity of the driver's license suspension.
The 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 chemical 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 lawful arrest inside the allowable scope of review of a DHSMV hearing officer within a hearing to see if adequate cause exists in order to sustain the suspension of a driver's license under section 322.2615, Florida Statutes, for refusal to submit to a breath test?
Answer: Yes.
The supreme court majority opinion presented this analysis regarding the questions:
(1) Florida law doesn't require someone to submit to a breath alcohol-detection test just because that person possesses a driver's license. The obligation to take a breath-alcohol testing emanates in section 316.1932, Florida Statutes (2006), generally called the implied consent law. The law provides that a test must be incidental to a lawful arrest & provided at the request of a law enforcement officer who has reasonable suspicion to think such individual was driving or was in actual physical control of a car in this state while under the influence of alcoholic beverages. Therefore, the legislature authorized administration of a breath test only if it is incident to a lawful arrest and predicated on probable cause to think that the person driving was under the influence of alcoholic beverages.
Under the implied consent laws, the person has to be advised of the punishment (license suspension) for refusing to submit to a breath test. The statute before the court in this case governing suspension of a person's license to drive and the right to review of this type of suspension, authorizes a law enforcement officer, on behalf of DHSMV, to suspend the driver's license of any person who refuses to submit to a permissible breath test.
The only definition of a lawful chemical test pursuant to section 322.2615 is within section 316.1932(1)(a). The statutes have to be read in pari materia. Section 316.1932 is the only law that defines parameters of a legal breath-alcohol test in section 322.2615. If the statutes are not read in pari materia, it follows that there isn't a notice concerning when individuals are required to take a test or else be subject to a suspension of their driver's licenses. For that reason, a lawful test predicated on section 322.2615, Florida Statutes, is one that is requested incident to a lawful arrest, as laid out in section 316.1932, Florida Statutes.
(2) The second rephrased certified question is related to the first question & concerns the manner of challenging a suspension on account of refusal to submit to a breathalyzer test. The court explained that, after an individual's license is suspended predicated on section 322.2615 for refusing to submit to a breath test pursuant to section 316.1932, that section entitles the driver to demand a formal or informal review regarding the validity regarding the driver's license suspension. Inside the prior version of the law, the hearing officer's scope of review included consideration of the extra question of whether or not the person was put under lawful arrest for a violation of s. 316.193. Since the legislature removed this statutory language & made other deletions within the amended bill, the DHSMV argues that the issue of whether or not an individual was put under a lawful arrest is no longer a concern within the suspension process.
As noted by the circuit court in another matter, although the legislature's elimination of the lawful arrest requirement from section 322.2615(7) may seem obvious, the legislature left that requirement in 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 the driver's obligation to submit to a breath test. Section 322.2615 does not create any obligation on the part of the driver to take a chemical test upon the request of law enforcement; it simply establishes consequences for a refusal. Section 316.1932 is what creates & defines the scope of the obligation, and its mandate is clear: 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 restrict the scope of the administrative hearing to 3 issues. The first issue, probable cause, is a concept that is frequently inextricably intertwined with the lawfulness of the arrest as it is with this case. The 2nd topic directs the hearing officer to address whether or not the 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 final subject, the provision of notice, relates to the form of notice required through the same law, which too refers to a legal test. This so-called limitation on the hearing officer's scope of review does not abolish the law's directive that the hearing officer determine whether or not adequate cause exists to sustain, amend, or invalidate the suspension. A driver whose license is unlawfully suspended must have a way to challenge that driver's license suspension, and the only means through which the driver is able to challenge suspension of his or her license to drive due to refusal to take a a breath test is through section 322.2615. Irrespective of whether denominated a right or a privilege, the loss of a driver's license is definitely an extreme hardship.
The analysis urged by DHSMV would allow DHSMV to suspend a driver's license without reasonable notice & no possibility of a meaningful procedure to evaluate the legality of the driver's license suspension. The only reading of the statute that avoids an unfair and unconstitutional result is to construe sections 322.2615 and 322.1932 in pari materia & allow the hearing officer to examine whether the breathalyzer test was provided incident to a lawful arrest. As soon as section 322.2615 and section 316.1932 are read together, it becomes clear that under the statutory scheme, sufficient cause to maintain the suspension under section 322.2615(7) and whether the individual whose license to drive was suspended refused to take any such test require that the hearing officer make the determination of whether the breathalyzer test was provided incident to a lawful arrest, as is required by section 316.1932, Florida Statutes.
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