5D07-2384 Dept. of Highway v. Luttrell

State: Florida

Court: Florida Fifth District Court

Docket No: 5D07-2384

Case Date: 06/16/2008

Preview:IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA FIFTH DISTRICT JANUARY TERM 2008

DEPARTMENT OF HIGHWAY SAFETY AND MOTOR VEHICLES, Petitioner, v. PEGGY ALLEN LUTTRELL, Respondent. ________________________________/ Opinion filed June 20, 2008 Petition for Certiorari Review of Decision from the Circuit Court for Volusia County, Acting in its Appellate Capacity. Judson M. Chapman, General Counsel, and Heather Rose Cramer, Assistant General Counsel, Lake Worth, for Petitioner. Flem K. Whited III, Daytona Beach, for Respondent. EVANDER, J. The Department of Highway Safety and Motor Vehicles ("DHSMV") petitions for writ of certiorari, alleging that the Circuit Court, acting in its appellate capacity, departed from the essential requirements of law when it granted Luttrell's petition for writ of certiorari below. We agree. Case No. 5D07-2384

Followi ng Luttrell's arrest for DUI, 1 Luttrell requested a formal administrative review of her license suspension pursuant to section 322.2615(1)(b)(3), Florida Statutes (2006). At the hearing, Luttrell argued that her suspension should be invalidated

because she was "stopped" illegally. The only evidence presented to the hearing officer on this issue was the officer's probable cause affidavit and Luttrell's testimony. The officer did not testify at the hearing. According to his affidavit, Officer Harler was on routine patrol between 2:00 a.m. and 3:00 a.m. when he observed Luttrell's vehicle in the parking lot of a Wachovia Bank. The vehicle's door was open, but the officer did not see anyone at the ATM machine. Harler "pulled up to [Luttrell's] vehicle and saw that it was running and the lights were on." Harler made contact with Luttrell who advised him that she had pulled into the parking lot "to look for her glasses that fell into the floor board." It was at this time that Harler detected the odor of an alcoholic beverage and further observed that Luttrell had slurred speech and very glassy eyes. After retrieving Luttrell's driver's license, Harler returned to his patrol car to "run her information." When Harler returned to Luttrell's vehicle, he found her asleep. Harler woke Luttrell up and commenced his DUI

investigation. Luttrell performed poorly on the field sobriety tests and was ultimately arrested for DUI. After being read an implied consent warning form, Luttrell refused to submit to a breath test. Luttrell testified that she pulled into the lit Wachovia parking lot because her glasses had fallen to the floor board. Shortly thereafter, a patrol car "pulled in behind [her vehicle]." According to Luttrell, the officer had his blue lights on.
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