Pivacco v. State

Florida Circuit Courts

Pivacco v. State

46 Fla. Supp. 2d 44

Circuit Court for the Judicial Circuits of Florida·Decided February 25, 1991·No. Case No. 90-163 AP·Published

Opinion

OPINION OF THE COURT

NADLER, J.

[45] The State of Florida obtained an order from the court suspending the driving privileges of LAURA PIVACCO, petitioner herein. The basis for the suspension was her refusal to submit to a breath test pursuant to Fla. Stat. § 322.261, after having been charged with driving under the influence of alcoholic beverages (DUI), Fla. Stat. § 316.193.

Factually, petitioner first refused and later having agreed to the test, was less than cooperative. As such, the examining officer determined that Ms. Pivacco refused the chemical analysis test (emphasis added).

The record reveals and we find the petitioner did not act in good faith nor was she fully cooperative in connection with the administration of the test; that agreement to take the test while refusing to conduct oneself in a manner that will permit an objective result is tantamount to a refusal under the statute. One cannot say “yes” and do “no”.

Accordingly the Petition for Writ of Certiorari to quash the order suspending driving privileges is denied.

CAPUA and FERRO, JJ., concur.

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OPINION OF THE COURT

NADLER, J.

[45] The State of Florida obtained an order from the court suspending the driving privileges of LAURA PIVACCO, petitioner herein. The basis for the suspension was her refusal to submit to a breath test pursuant to Fla. Stat. § 322.261, after having been charged with driving under the influence of alcoholic beverages (DUI), Fla. Stat. § 316.193.

Factually, petitioner first refused and later having agreed to the test, was less than cooperative. As such, the examining officer determined that Ms. Pivacco refused the chemical analysis test (emphasis added).

The record reveals and we find the petitioner did not act in good faith nor was she fully cooperative in connection with the administration of the test; that agreement to take the test while refusing to conduct oneself in a manner that will permit an objective result is tantamount to a refusal under the statute. One cannot say “yes” and do “no”.

Accordingly the Petition for Writ of Certiorari to quash the order suspending driving privileges is denied.

CAPUA and FERRO, JJ., concur.

Pivacco v. State, 46 Fla. Supp. 2d 44 (Fla. Super. Ct. 1991).

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Opinion

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