05-0876 SCHWARTZ V. STATE

State: Florida

Court: Florida Third District Court

Docket No: 05-0876 SCHWARTZ V. STATE

Case Date: 12/21/2005

Preview:NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DISPOSED OF.

IN THE DISTRICT COURT OF APPEAL OF FLORIDA THIRD DISTRICT JULY TERM, A.D. 2005

ADAM SCHWARTZ, Petitioner, vs. STATE OF FLORIDA, DEPARTMENT OF HIGHWAY SAFETY AND MOTOR VEHICLES, Respondent.

** ** ** ** ** ** LOWER TRIBUNAL NO. 04-440 AP CASE NO. 3D05-876

Opinion filed December 21, 2005. On Petition for Writ of Certiorari to the Circuit Court for Miami-Dade County, Appellate Division, Scott M. Bernstein, Sarah Zabel and Julio Jimenez, Judges. Parks and Braxton and Michael Braxton, for petitioner. Enoch J. Whitney, General Counsel, and Jason Helfant, Assistant General Counsel for the Department of Highway Safety and Motor Vehicles, for respondent. Before LEVY, GREEN, and WELLS, JJ. WELLS, Judge. Petitioner, Adam Schwartz, seeks certiorari review of an order from the Appellate Division of the Circuit Court refusing

to

quash

an

administrative

order

revoking

Schwartz'

driver's

license. portion

We deny certiorari. of the Circuit

We do observe, however, that the opinion holding that an

Court's

administrative hearing officer has no authority to determine the validity of a traffic stop leading up to a DUI arrest is

incorrect. 1961). The

See City of Miami v. Berman,

129 So. 2d 445 (Fla.

facts

in

this

case

are

undisputed.

Schwartz

was

stopped at 12:04 a.m. at 17th Street and Washington Avenue on Miami Beach after a Miami Beach police officer observed Schwartz "driving [a] 2003 Mercedez Benz SL 500 convertible . . . top down . . . on Collins Avenue to 17th St then west playing his car stereo at excessive volume in violation of FSS." was stopped, the officer noticed that After Schwartz face was

Schwartz'

flushed, his eyes were bloodshot, his speech was slurred, and his breath smelled of alcohol. The officer summoned a fellow

officer to conduct a field sobriety test; Schwartz performed poorly. Schwartz was then arrested for DUI but, after being

read the Implied Consent Warning, refused to take a breathalyzer test, resulting in an automatic suspension of his driver's

license.

See

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