Florida Department of Highway Safety & Motor Vehicles v. Hernandez

74 So. 3d 1070, 2011 WL 2224791
CourtSupreme Court of Florida
DecidedNovember 10, 2011
DocketSC08-2330, SC08-2394
StatusPublished
Cited by27 cases

This text of 74 So. 3d 1070 (Florida Department of Highway Safety & Motor Vehicles v. Hernandez) is published on Counsel Stack Legal Research, covering Supreme Court of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Florida Department of Highway Safety & Motor Vehicles v. Hernandez, 74 So. 3d 1070, 2011 WL 2224791 (Fla. 2011).

Opinions

PER CURIAM.

The issue we address is whether an individual’s driver’s license can be suspended by the Florida Department of Highway Safety and Motor Vehicles (DHSMV) under section 322.2615, Florida Statutes (2006),1 for the refusal to submit to a test of his or her breath-alcohol level where the refusal is not incident to a lawful arrest and, if not, whether the hearing officer has authority to review whether the refusal was incident to a lawful arrest.2 In the cases under review, Hernandez v. Department of Highway Safety & Motor Vehicles, 995 So.2d 1077 (Fla. 1st DCA 2008), and McLaughlin v. Department of Highway Safety & Motor Vehicles, 2 So.3d 988 (Fla. 2d DCA 2008), the First and Second District Courts of Appeal reached opposite conclusions as to the scope of the hearing officer’s authority to review the suspension.3 The First District also certified the following questions of great public importance to this Court in Hernandez, 995 So.2d at 1080:

Can the DHSMV suspend a driver’s license for refusal to submit to a breath test, if the refusal is not incident to a lawful arrest? If not, is [a] DHSMV [1073]*1073hearing officer required to address the lawfulness of the arrest as part of the review process?

We have jurisdiction based on express and direct conflict and based upon a certified questions of great public importance. See art. V, § 3(b)(3), 3(b)(4), Fla. Const.

Because the certified questions involve two separate but related issues, we rephrase them and answer them separately. The first certified question as rephrased is:

Can the DHSMV suspend a driver’s license under section 322.2615, Florida Statutes, for refusal to submit to a breath test if the refusal is not incident to a lawful arrest?

The second certified question as rephrased is:

Is the issue of whether the refusal was incident to a lawful arrest within the allowable scope of review of a DHSMV hearing officer in a proceeding to determine if sufficient cause exists to sustain the suspension of a driver’s license under section 322.2615, Florida Statutes, for refusal to submit to a breath test?

In order to avoid any possible confusion stemming from the plurality opinion and the separate concurring-in-result-only opinion, we set forth the holdings in this case. A majority of this Court (Justices Pariente, Lewis, Quince, and Perry) agree with the First District in Hernandez, 995 So.2d at 1079, and the Fifth District Court of Appeal in Department of Highway Safety & Motor Vehicles v. Pelham, 979 So.2d 304, 305-08 (Fla. 5th DCA 2008), that a suspension can be predicated upon a refusal to take a breath test, but only if the refusal is incident to a lawful arrest. See per curiam op. at 1076 (“[W]e conclude that the DHSMV cannot suspend a driver’s license under section 322.2615 for refusal to submit to a breath test under section 316.1932 if the refusal is not incident to a lawful arrest.”); Justice Quince’s concurring-in-result-only op. at 1080 (“It is unmistakably clear to me that a person’s privilege to drive on the highways of this State can only be taken away if he refuses a test of his blood alcohol level and that refusal is incident to a lawful arrest.”).

A majority of this Court (Justices Par-iente, Lewis, Quince, and Perry) also agree that the driver cannot be precluded from challenging whether the refusal was incident to a lawful arrest, albeit with different reasoning. Justices Pariente, Lewis, and Perry agree with the reasoning of the First District in Hernandez and the Fifth District in Pelham that the driver whose license is suspended is able to challenge whether the refusal was incident to a lawful arrest in the proceedings before the hearing officer who is reviewing the legality of the suspension. See per curiam op. at 17 (“Because the Legislature has mandated that an individual need only consent to a test under section 316.1932 if the test is administered incident to a lawful arrest and has provided the procedure for challenging a suspension for a refusal, an individual must be able to challenge the legality of the suspension if the refusal was not incident to a lawful arrest. To read the statute otherwise would produce an unreasonable — and unconstitutional — result.”). Justice Quince disagrees with the reasoning of the plurality opinion, but agrees that a driver whose license is suspended for refusing to submit to a test must be able to challenge the lawfulness of the arrest. See Justice Quince’s concurring-in-result-only op. at 1080 (“I cannot concur in the majority’s statutory construction that the hearing officer is statutorily authorized to determine the lawfulness of the arrest. But I acknowledge that there must be a mechanism by which a driver can challenge the lawfulness of the arrest. Without such a method, the statutory scheme would be unconstitutional.”).

Accordingly, a majority of this Court approves the result of the First District’s [1074]*1074decision in Hernandez, quashes the Second District’s decision in McLaughlin, answers the first rephrased certified question in the negative, and answers the second rephrased certified question in the affirmative, holding that a driver must be able to challenge whether the refusal was incident to a lawful arrest.

FACTS AND PROCEDURAL HISTORY

In Hernandez, William Hernandez challenged the suspension of his driver’s license for refusal to submit to a breath test, asserting that the request for a breath test was not incident to a lawful arrest. In the hearing to determine if the suspension should be sustained, the DHSMV hearing officer did not consider whether the request that Hernandez submit to a breath test was made incident to a lawful arrest. Hernandez, 995 So.2d at 1078. Accordingly, the DHSMV sustained the suspension of the driver’s license. Upon petition for writ of certiorari to the circuit court, which is the authorized statutory route for review of a decision made by the DHSMV, see § 322.2615(13), Fla. Stat., the circuit court agreed that the legality of the arrest was outside of the scope of consideration for the hearing officer under section 322.2615(7), Florida Statutes (2007). The First District, relying on the reasoning of the Fifth District in Pelham, concluded that section 322.2615(7)(b), Florida Statutes, governing proceedings to review license suspensions must be read together with section 316.1932(l)(a)l.a., Florida Statutes (2007), Florida’s implied consent law, because under the “statutory scheme, the lawfulness of the suspension is central to any determination that there is ‘sufficient cause’ to ‘sustain’ ” the suspension. Hernandez, 995 So.2d at 1079 (quoting Pelham, 979 So.2d at 308).

The Second District in McLaughlin engaged in an opposite statutory analysis regarding the scope of the hearing officer’s authority based on its determination that the plain language of section 322.2615(7)(b) limits the hearing officer’s scope of review to the three specific determinations set forth in the statute, none of which includes consideration of whether the person was placed under lawful arrest. McLaughlin, 2 So.3d at 991-92. The Second District in McLaughlin never specifically addressed whether the DHSMV could suspend a driver’s license for refusal to submit to a breath test if the refusal was not incident to a lawful arrest.

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Bluebook (online)
74 So. 3d 1070, 2011 WL 2224791, Counsel Stack Legal Research, https://law.counselstack.com/opinion/florida-department-of-highway-safety-motor-vehicles-v-hernandez-fla-2011.