SARMIENTO
v.
DHSMV
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Sarmiento sought certiorari review of an administrative order suspending his driver's license for refusing a breath test. The court held that because the motor vehicle was inoperable at the time of his arrest, he was not in 'actual physical control' of a motor vehicle, and therefore the statutory implied consent to chemical testing did not apply.
The court held that to be in control of a motor vehicle under Florida Statute § 316.1932(1)(a), the vehicle must be operable. Since the vehicle was undisputedly inoperable, the statutory implied consent did not apply, and the suspension of Sarmiento's license must be set aside.
[1] Implied consent to submit to a breath test for alcohol content applies only when a person is arrested while driving or in actual physical control of a motor vehicle.
[2] A vehicle must be operable to be considered under the actual physical control of a person for the purposes of implied consent laws.
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Join FLexlaw to unlock all legal intelligence“To be in control of a motor vehicle, the vehicle must be operable.”
Establishes the legal requirement that actual physical control of a vehicle requires operability
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Join FLexlaw to unlock all legal intelligenceJose Sarmiento was arrested and refused to submit to a breath test. The hearing officer found that the arresting officer had probable cause to believe…
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IN THE CIRCUIT COURT OF THE FIFTEENTH JUDICIAL CIRCUIT IN AND FOR PALM BEACH COUNTY, FLOFUDA. APPELLATE DIVISION (CIVIL) CASE NO: 502007CA016857XXXXMB DIVISION: "AY"
JOSE SARMIENTO, Petitioner,
STATE OF FLORIDA, DEPARTMENT OF HIGHWAY SAFETY AND MOTOR VEHICLES, Respondent. Appealed from the Department of Highway Safety and Motor Vehicles
Opinion filed: FEB 1 4 2008 Appealed from the Department of Highway Safety and Motor Vehicles.
For Petitioner: John H. Lipinski, Esq., P.O. Box 848068, Pembroke Pines, FL 33084.
For Respondent: Heather Cramer, Esq., Department of Highway Safety and Motor Vehicles, 6801 Lake Worth Road #230, Lake Worth, FL 33467.
PER CURIAM.
This Petition for Writ of Certiorari seeks review of an order entered by the Florida Department of Highway Safety and Motor Vehicles, Bureau of Administrative Reviews affirming the suspension of Jose Sarmiento's ("Sarmiento") driver's license for refusal to submit to a breath test. Petitioner asserts that the suspension of his license was invalid because the motor vehicle he was occupying was inoperable. While the hearing officer found that the arresting officer had probable cause to believe the vehicle was operable at the time of arrest, a finding not seriously disputed by Petitioner, it was undisputed at the hearing that the vehicle was, in fact, inoperable.
Florida Statute § 316.1932(1)(a) provides, in pertinent part, as follows:
Any person who accepts the privilege extended by the laws of this state of operating a motor vehicle within this state is, by so operating such vehicle, deemed to have given his or her consent to submit to an approved chemical test or physical test including, but not limited to, and infrared light test of his or her breath for the purpose of determining the alcoholic content of his or her blood or breath if the person is lawfully arrested for any offense allegedly committed while the person was driving or was in actual physical control of a motor vehicle while under the influence of alcoholic beverages . . . (emphasis added).
It is clear that the statute implies consent to a breath test when any person accepts the privilege of operating a motor vehicle in Florida. However, the statutorily created implied consent only applies if the person is arrested while driving or while in actual physical control of a motor vehicle.
To be in control of a motor vehicle, the vehicle must be operable. Jones v. State, 510 So. 2d 1147, 1149 (Fla. 1st DCA 1987) (finding a lack of actual physical control where vehicle was found to be inoperable so that it could not be moved except by an outside agency). The record establishes that the vehicle at issue was inoperable. Therefore, the statutory implied consent contained in Florida Statute § 316.1932(1)(a) does not apply and the suspension of the petitioner's license must be set aside.
The Petition for Writ of Certiorari is GRANTED. The action is remanded to the hearing officer with direction to vacate the driver's license suspension.
KELLEY, CROW and MAASS, JJ., concur.