JEREMY A. FASEL
v.
HEARING OFFICER BRUCE CARTWRIGHT
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Jeremy Fasel challenged the suspension of his driver's license following a DUI arrest, raising arguments about the Affidavit of Refusal, the traffic stop date, probable cause, and the lawfulness of the arrest. The court affirmed the suspension on the merits but granted a limited petition to remand for correction of a scrivener's error regarding the traffic stop date.
The court affirmed the suspension on the merits, finding that the hearing officer properly found probable cause for the DUI arrest, lawfulness of the arrest, and that Fasel refused to submit to a breath test. However, the court granted a limited petition to remand the case to correct the scrivener's error in the traffic stop date.
[1] A party waives an argument if they fail to raise it before the administrative hearing officer.
[2] A scrivener's error in an administrative order may be grounds for remand to correct the error.
Previewing 2 of 4 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“We find that the Petitioner waived any argument related to the alleged deficiency of the Affidavit of Refusal since he failed to raise it before Hearing Officer Cartwright.”
Establishes that failure to raise an issue at the administrative hearing level results in waiver of that argument on appeal.
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Join FLexlaw to unlock all legal intelligenceJeremy Fasel was arrested for DUI and his driver's license was suspended following a refusal to submit to breath, urine, or blood testing. A hearing o…
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P.O. Box 540609 Lake Worth, FL 33454-0609 [email protected]
PER CURIAM.
Jeremy A. Fasel ("Petitioner") seeks review of a decision by Hearing Officer Bruce Cartwright ("Hearing Officer Cartwright") sustaining the suspension of his driver's license. Petitioner raises several arguments on appeal: (1) the Affidavit of Refusal to Submit to Breath, Urine or Blood Test ("Affidavit of Refusal") was defective, (2) the Hearing Officer's final order stated the incorrect date of the traffic stop, (3) there was no probable cause for the arrest, and (4) the suspension was not incident to a lawful arrest.
We find that the Petitioner waived any argument related to the alleged deficiency of the Affidavit of Refusal since he failed to raise it before Hearing Officer Cartwright. See Lane v. Dep't of Highway Safety & Motor Vehicles, 20 Fla. L. Weekly Supp. 334a (Fla. 15th Cir. Ct. 2012). Further, even if no waiver occurred, we find that the affidavit was not deficient, and regardless, Hearing Officer Cartwright's finding that Petitioner refused to submit to a breath test was supported by other competent, substantial evidence in the record. We also find that there was competent, substantial evidence in the record to support Hearing Officer Cartwright's findings that the arresting officer had probable cause for the Driving Under the Influence ("DUI") arrest and that the arrest was lawful.
We grant the petition, however, for the limited purpose of remanding the case to the Hearing Officer to correct a scrivener's error in the final order. The final order affirming the suspension of the Petitioner's license mistakenly stated the date of the traffic stop was May 15, 2012, rather than July 22, 2012. This Court has previously granted a similar petition for the limited purpose of remanding the case to the hearing officer to correct a scrivener's error and to enter an amended order. Deluca v. Dep't of Highway Safety & Motor Vehicles, 19 Fla. L. Weekly Supp. 1000a (Fla. 15th Cir. Ct. 2012).
Accordingly, the Petition for Writ of Certiorari is GRANTED and the order of suspension is QUASHED for the limited purpose of remanding this case to Hearing Officer to enter an amended order correcting the scrivener's error. In all other respects, the Petitioner's arguments are without merit.
COX, MARX, and SASSER, JJ., concur.