5D07-2737 Dept. of Hwy. v. Pelham

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State: Florida

Court: Florida Fifth District Court

Docket No: 5D07-2737

Case Date: 03/10/2008

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. JESSE C. PELHAM, Respondent. ________________________________/ Opinion filed March 14, 2008 Petition for Certiorari Review of Order from the Circuit Court for Volusia County, Randell H. Rowe, III, Judge. Judson M. Chapman and Heather Rose Cramer, Lake Worth, for Petitioner. Eric A. Latinsky, Daytona Beach, for Respondent. Case No. 5D07-2737

TORPY, J. After Respondent's driver's license was suspended for refusal to take a breath test, he sought formal review before a Department of Highway Safety and Motor Vehicles (DHSMV) hearing officer. Respondent contended that the suspension should be invalidated because the detention preceding his arrest had been unlawful. The hearing officer refused to consider the lawfulness of Respondent's arrest, concluding that recent amendments to the statutory review procedure precluded him from addressing those issues. Respondent thereafter sought certiorari review in the Circuit

Court, which granted his petition and quashed the hearing officer's ruling. Petitioner now seeks review of the Circuit Court's order. We conclude that the lawfulness of Respondent's arrest was appropriately within the hearing officer's scope of review and that the Circuit Court properly quashed the order of the hearing officer. Accordingly, we deny the petition. A detailed exposition of the facts is unnecessary to the legal issue we confront. Suffice it to say that Respondent was in his car on private property when he was approached by police officers who ordered him to exit. When Respondent refused, police officers forcibly removed him from the car. The officers then became suspicious that Respondent was under the influence of alcohol and requested that he perform field sobriety tests. He refused, and was arrested for DUI. Later, he refused to take a breath test. Although the hearing officer declined to address the lawfulness of the police

actions in entering upon private property and then forcibly removing Respondent from his car, the lower court concluded that this action constituted an unlawful seizure of his person. Petitioner does not contend otherwise but instead maintains that the lawfulness of the police action is not legally relevant in an administrative proceeding to suspend a driver's license.1 The obligation to submit to testing for alcohol and chemical substance impairment emanates from section 316.1932, Florida Statutes (2007). This statute, sometimes referred to as the Implied Consent Law, provides that any person who accepts the privilege of operating a motor vehicle in this state is deemed to consent to Petitioner does argue alternatively that we should at least grant the petition to require the remand of the lawfulness issue to the hearing officer. Because Petitioner did not timely assert this argument in the lower court, we conclude that it was not preserved. 2
1

testing to determine the "alcoholic content of his or her blood or breath if the person is lawfully arrested . . . ."

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