5D01-2474 5D01-2475 Dept. of Hwy. Safety v. Neff

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State: Florida

Court: Florida Fifth District Court

Docket No: 5D01-2474

Case Date: 12/24/2001

Preview:IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA FIFTH DISTRICT JULY TERM 2001

DEPARTMENT OF HIGHWAY SAFETY AND MOTOR VEHICLES, Petitioner, v. JEFFREY NEFF AND JAMES LAMB, Respondents. ______________________________/ Opinion filed December 28, 2001 Petition for Certiorari Review of Order from the Circuit Court for Seminole County, Acting in its Appellate Capacity. Enoch J. Whitney, General Counsel and Kathy A. Jiminez and Rhonda M. Diamond, Assistant General Counsels, Miami and Heather Rose Cramer, Assistant General Counsel, West Palm Beach, for Petitioner. Stuart I. Hyman of Stuart I. Hyman, P.A., Orlando, for Respondents. COBB, J. The petitioner, State of Florida, Department of Highway Safety and Motor Vehicles (hereinafter the Department) has petitioned for certiorari review of an order issued by the Circuit Court of Seminole County, acting in its appellate review capacity, which overturned the drivers' license suspensions of the respondents here, Jeffrey Neff and James Lamb. We grant the petition and quash the order of the circuit court. CASE NOS.: 5D01-2474 & 5D01-2475

In the last six months we have granted certiorari review in cases of this nature on six occasions: Department of Highway Safety & Motor Vehicles v. Lazzopina, 26 Fla. L. Weekly D2524 (Fla. 5th DCA Oct. 19, 2001); Department of Highway Safety & Motor Vehicles v. Dehart, 26 Fla. L. Weekly D2411 (Fla. 5th DCA Oct. 5, 2001); Department of Highway Safety & Motor Vehicles v. Fiorenzo, 795 So. 2d 1128 (Fla. 5th DCA 2001); Department of Highway Safety & Motor Vehicles v. Cochran, 798 So. 2d 761 (Fla. 5th DCA 2001); Department of Highway Safety & Motor Vehicles v. Russell, 793 So. 2d 1073 (Fla. 5th DCA 2001); Department of Highway Safety & Motor Vehicles v. Mowry, 794 So. 2d 657 (Fla. 5th DCA 2001). The facts of Lamb's arrest, as adduced at the formal review hearing held pursuant to section 322.2615(1)(b)(3), Florida Statutes, are that he was stopped because he could not maintain a single lane and because he was doing 48 in a 35 mile-per-hour zone. He had the odor of alcohol, his speech was slow, his eyes were glassy and bloodshot, and his pupils were constricted. He performed the field sobriety exercises poorly. His breath test results were .147 and .151. At the hearing a Florida Department of Law Enforcement Inspector, Roger Skipper, testified as did the DUI Technician and Agency Inspector for Seminole County, Keith Betham. The facts of Neff's arrest are that he was stopped for driving in an erratic manner, weaving, stopping suddenly and accelerating rapidly. He had the odor of alcohol, his speech was thick tongued and slurred, his mouth was dry, and his face appeared flushed. He was unsteady on his feet and performed the field sobriety exercises poorly. He had difficulty maintaining his balance and could not follow instructions. His breath test results were .227 2

and .221. At the formal review hearing, the arresting officer, Longwood Police Officer Grieb, and a DUI technician, Nelson Wilder, testified, as did Skipper and Betham. The hearing

officers, based upon a preponderance of the evidence, sustained both suspensions. The circuit court granted review and reversed the suspensions. The three grounds upon which it based its decision were: 1. "[T]he hearing officer departed from the essential requirements of law when he

upheld the license suspensions despite a lack of evidence that Guth solutions used in the monthly inspections were FDLE-approved. . . ." 2. "[T]he breath test results affidavits do not reflect `the date of the performance of the

most recent required maintenance' as required by Florida Statute

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