5D04-3127 Dept. of Hwy v. Patrick

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State: Florida

Court: Florida Fifth District Court

Docket No: 5D04-3127

Case Date: 01/31/2005

Preview:IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA FIFTH DISTRICT JANUARY TERM 2005

DEPARTMENT OF HIGHWAY SAFETY AND MOTOR VEHICLES, Petitioner, v. DEBORAH M. PATRICK, Respondent. ________________________________/ Opinion filed February 4, 2005 Petition for Certiorari Review of Decision from the Circuit Court for St. Johns County, Acting in its Appellate Capacity. Enoch J. Whitney, General Counsel, and Rosena H. Finklea, Assistant General Counsel, Department of Highway Safety and Motor Vehicles, Tallahassee, for Petitioner. David M. Robbins and Susan Z. Cohen of Epstein & Robbins, Jacksonville, for Respondent. MONACO, J. The Department of Highway Safety and Motor Vehicles ("DMV"), seeks certiorari review of a decision of the circuit court in its certiorari review capacity. As we conclude that the circuit court departed from the essential requirement of law, and that the ruling resulted in a miscarriage of justice, we grant the writ. Case No. 5D04-3127

This case arises out of the administrative suspension of the driving privilege of the respondent, Deborah M. Patrick, as a result of the assertion of the DMV that she was driving while under the influence of alcohol. The facts leading to that suspension, as stated by the hearing officer, do not appear to be in dispute: On November 29, 2003, at approximately 6:36 PM, Mr. Joe Ward, a chauffer [sic], was waiting with his vehicle in the O'Connell Center parking lot outside the University of Florida stadium. Mr. Ward observed a blond haired lady stagger to a van. The lady first went to the passenger side of the van, but then got into the drivers seat and proceeded to back over a table and other tailgate party items and bumped into two vehicles. While Mr. Ward watched, the woman got out of the van and looked at the two vehicles she had bumped into. She then got back into the van and again bumped into the vehicles. The woman then left the scene, driving toward the exit of the parking lot. Mr. Ward then waved down Patrolman Blunt, a University of Florida Campus Parking Patrolman, who called dispatch.

Officer P.R. Bell of the University of Florida Police Department quickly arrived on scene. After learning what had happened, Officer Bell put out a BOLO for the hit and run vehicle that included the tag number and description of the van. The van was spotted almost immediately by University of Florida Police Department Officer Gentry, who observed the van run a stop sign and drive the wrong way on a one-way street before he could successfully conduct a traffic stop. Officer Gentry stated that he approached the van and tapped on the door. Officer Gentry observed that a female driver got out of the van and seemed disoriented stating, "I don't know where I am." When asked for her driver license, the woman began looking outside the van and attempted to open the gas cap. Officer Gentry also noted that the woman was swaying while standing. The driver was identified as Deborah M. Patrick. Officer Bell arrived on scene. After observing Ms. Patrick's slurred speech, bloodshot & watery eyes, dilated pupils, and

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strong odor of an alcoholic beverage on her breath, he requested that Ms. Patrick take field sobriety tests. Ms. Patrick refused to take the field sobriety tests and was arrested by Officer Bell for DUI. Officer Bell testified at the formal review that he also read Ms. Patrick the implied consent warning at that time. Deborah M. Patrick was transported to the University of Florida Police Department where Lieutenant M. Welsh again read the implied consent warning. Ms. Patrick consented to a breath test that was administered by Lieutenant Welsh after a 20-minute observation period. Test results were 0.233 and 0.235 g/210L. [Apparently, no blood test was administered.] Deborah Patrick's driving privilege was suspended for driving with an unlawful breath alcohol level. The hearing officer found that the arresting officer had probable cause to believe that Ms. Patrick was driving or had actual physical control of a motor vehicle in this state while under the influence of alcoholic beverages or controlled substances; that she was lawfully arrested and charged with a violation of section 316.193, Florida Statutes (2003); and that she had an "unlawful alcohol level of .08 or higher." He concluded, therefore, that Ms. Patrick's driving privilege was properly suspended pursuant to the statute . Ms. Patrick thereafter sought certiorari review of the suspension by the circuit court. While the circuit court did not disagree with the factual findings of the hearing officer, it rejected the hearing officer's central legal conclusion. The court indicated in its order that because the plain language of subparagraphs 322.2615(7)(a)1.

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