LAWRENCE KORPECK
v.
DEPARTMENT OF HIGHWAY SAFETY AND MOTOR VEHICLES
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Petitioner appeals his driver license suspension following a DUI arrest and refusal to provide a breath sample. The court granted the petition, finding the hearing officer's determination that petitioner maintained his refusal lacked competent, substantial evidence because petitioner was never re-asked to provide a sample after being advised of the consequences of refusal.
The court held that the hearing officer's finding was not supported by competent, substantial evidence. Because petitioner was not asked to provide a sample after being warned of the consequences of refusal, the record does not support a finding that he maintained his refusal after such warning. Consequently, the license suspension cannot be upheld.
[1] A hearing officer's finding must be supported by competent, substantial evidence in the record.
[2] A driver's license may be suspended if the driver refuses to provide a breath sample after being warned of the consequences of refusal.
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Establishes the legal standard for when license suspension is permissible—the driver must be given an opportunity to refuse after receiving warnings about consequences.
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Join FLexlaw to unlock all legal intelligencePetitioner was arrested for DUI and taken to a breath alcohol testing facility. He initially refused to provide a breath sample. He was then read Impl…
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P.O. Box 540609 Lake Worth, FL 33454-0609 [email protected]
PER CURIAM.
Petitioner appeals his driver license suspension, claiming that there was no competent, substantial evidence to support the hearing officer's finding that Petitioner maintained his refusal to provide a breath sample. We agree and grant the petition.
Petitioner was arrested for Driving Under the Influence and taken to the breath alcohol testing facility. At the facility, Petitioner was asked if he would provide a breath sample. Petitioner refused, and was read Implied Consent, immediately followed by Miranda warnings. Petitioner was then asked if he wanted to speak to the arresting officer, but was not asked if he would provide a breath sample after being advised of the consequences of his refusal. "[I]f a driver does not
OFTEDAL, BONAVITA, and BLANC, JJ., concur. 2 of 2 IN THE CIRCUIT COURT OF THE FIFTEENTH JUDICIAL CIRCUIT IN AND FOR PALM BEACH COUNTY, FLORIDA
LAWRENCE KORPECK, Petitioner,
V.
DEPARTMENT OF HIGHWAY SAFETY AND MOTOR VEHICLES, Respondent.
/ APPELLATE DIVISION (CIVIL): AY Case No.: 502017CA005668XXXXMB
Opinion/Decision filed: NOV1 4 2017
Petition for Writ of Certiorari from the Department of Highway Safety and Motor Vehicles
Petition filed: May 19, 2017
DATE OF PANEL: OCTOBER 30, 2017 PANEL JUDGES: OFTEDAL, BLANC, BONAVITA
GRANTED/DENIED/OTHER: PETITION GRANTED
PER CURIAM OPINION/DECISION BY: PER CURIAM
CONCURRING: 11/8/17 DATE: 11/9/17 DATE: 11-9-17 DATE: ) DISSENTING: ) With/Without Opinion J. J. J.) ) ) CONCURRING SPECIALLY: ) With/Without Opinion ) ) ) J.) ) ) J.) ) J.) )