SEE PEDEN
v.
DEP
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Carson petitioned for writ of certiorari to review a hearing officer's order suspending his driver's license for DUI. The appellate court affirmed the suspension, finding sufficient probable cause for arrest and that the petitioner was accorded due process.
The court affirmed the hearing officer's order sustaining the license suspension because there was ample other evidence supporting probable cause for DUI arrest beyond the field sobriety exercises and refusal, and all statements by officers regarding Carson's rights and legal obligations were accurate.
[1] A hearing officer's decision to sustain a driver's license suspension will be upheld if supported by sufficient competent evidence.
[2] Misstatements of law or misinformation regarding a motorist's rights by law enforcement may lead to the suppression of evidence.
Previewing 2 of 6 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“Leaving aside and not considering the evidence of Petitioner' instability in exiting his vehicle and walking (Petitioner had a hip replacements), and his refusal to take the field sobriety exercises (FSE), there was ample other evidence to support the hearing officer's finding that there was probable cause to arrest petitioner for DUI.”
Establishes that substantial evidence existed for DUI arrest independent of the disputed FSE and refusal evidence.
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceA deputy and breath test technician correctly provided Carson with the implied consent warning, informed him of applicable law regarding license suspe…
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from the Florida Department of Highway Safety and Motor Vehicles, Donna Petty, Hearing Officer. Neal T. McShane, Esq., for Petitioner. Kimberly A. Gibbs, Assistant General Counsel, for Respondent.
Before POWELL, BRONSON, and O’KANE, J.J.
FINAL ORDER DENYING PETITION FOR WRIT OF CERTIORARI
Petitioner Carson appeals by way of petition for writ of certiorari a hearing officer’s order affirming the suspension of his driver’s license. We have carefully considered his Petition, the Appendix, the respondent Department’s response, and the applicable law. We have read the transcript and viewed the video several times. We dispense with oral argument pursuant to Florida Rule of Appellate Procedure 9.320, and deny the Petition.2 of3
Leaving aside and not considering the evidence of Petitioner’ instability in exiting his vehicle and walking (Petitioner had a hip replacements), and his refusal to take the field sobriety exercises (FSE), there was ample other evidence to support the hearing officer’s finding that there was probable cause to arrest petitioner for DUI. See Peden v. Dep’t of Highway Safety & Motor Vehicles, 11 Fla. L. Weekly Supp. 953a (Fla. 6th Cir. Ct. Aug. 19, 2004).
We turn now to Petitioner’s other argument based on what we will call the “misstatement/misinformation doctrine.”1 Everything the deputy and breath test technician told Petitioner was correct. They correctly: • read Petitioner the implied consent warning. • read him the holding of the Hoch case.2 • told him that a second breath test refusal where a motorist’s license was suspended for a previous refusal was a misdemeanor. See § 316.1939, Fla. Stat. (2010) • told him he had 10 days to take himself (meaning drive under the 10 day temporary permit) to the DMV and apply for a business only permit.3 • told him he would still have to go to jail whether or not he took the breath test.4
DONE AND ORDERED at Orlando, Florida this __7th___ day of __February___, 2012.
_/S/_____________________
ROM W. POWELL Senior Judge
/S/
_/S/______________________ THEOTIS BRONSON JULIE H. O’KANE Circuit Judge Circuit Judge
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the foregoing order was furnished on this 7th day of February, 2012, to the following: Neal T. McShane, Esq., 836 N. Highland Avenue, Orlando Florida 32803; and Kimberly A. Gibbs, Assistant General Counsel, P.O. Box 570066, Orlando, Florida 32857.
_/S/________________________________
Judicial Assistant