SILVESTER
v.
DHSMV
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Silvester challenges the suspension of his driver's license based on refusal to submit to a breath test. The court found the Affidavit of Refusal defective because it was not properly sworn before a person authorized to administer oaths, and no other documents satisfied statutory requirements, requiring reversal.
The hearing officer's decision was not supported by competent, substantial evidence because the Affidavit of Refusal was defective—it was not sworn before a person authorized to administer oaths—and no other documents satisfied the statutory requirement under section 322.2615(2) for establishing that a test was requested and refused.
[1] An administrative agency's decision must be based on competent, substantial evidence.
[2] An affidavit must be sworn to before a person authorized to administer oaths to be legally valid.
Previewing 2 of 5 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“An affidavit must be sworn to before a person authorized to administer oaths.”
Establishes the core statutory requirement that affidavits must comply with Florida law regarding oath administration.
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Join FLexlaw to unlock all legal intelligenceSilvester's driver's license was suspended due to his refusal to submit to a breath test. A hearing officer sustained the suspension based on an Affid…
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P.O. Box 540609 Lake Worth, FL 33454-0609
PER CURIAM.
Steven Silvester ("Silvester") seeks review of the hearing officer's order sustaining the suspension of Silvester's driver's license due to his refusal to submit to a breath test.
We find that the hearing officer's decision was not based on competent, substantial evidence. The Affidavit of Refusal to Submit to Breath, Urine or Blood Test ("Affidavit of Refusal") admitted into evidence was defective as it was not sworn before a person authorized to administer oaths. "Oaths, affidavits, and acknowledgments required or authorized under the laws of this state ... may be taken or administered by or before any judge, clerk, or deputy clerk of any court of record within this state, including federal courts, or before any United States commissioner or any notary public within this state." § 92.50(1), Fla. Stat. (2010) (emphasis added). "Section 92.50, Florida Statutes, also indicates that an affidavit must be sworn to before a person authorized to administer oaths." Crain v. State, 914 So. 2d 1015, 1019 (Fla. 5th DCA 2005); see also Jackson v. State, 881 So. 2d 666, 667 (Fla. 5th DCA 2004) ("By definition, 'an affidavit' is a written or printed declaration or statement of facts, made under oath, before a person having authority to administer such oath or affirmation.").
The Affidavit of Refusal states that the instrument was sworn before the notary, Pamela Dorsey. From the testimony of Ms. Dorsey, however, it is conclusively shown that she did not administer an oath to Deputy Mercier. In addition, none of the other documents introduced at the formal review hearing satisfied section 322.2615(2), which requires an affidavit in order to establish that a breath, blood, or urine test was requested by a law enforcement officer and that the person refused to submit to such test. See Department of Highway Safety & Motor Vehicles v. Perry, 751 So. 2d 1277, 1280 (Fla. 5th DCA 2000) (finding that an arrest affidavit satisfied the dual affidavit requirements under section 322.2615(2)).
Accordingly, the Petition for Writ of Certiorari is GRANTED. The order sustaining Silvester's driver's license suspension is quashed.
HOY, McCARTHY, and KELLEY, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Authorities Cited
- Jackson v. State, 881 So. 2d 666 (Fla. 5th DCA 2004)
- Dep't of Hwy. Safety & Motor Vehicles v. Perry, 751 So. 2d 1277 (Fla. 5th DCA 2000)
- Crain v. State, 914 So. 2d 1015 (Fla. 5th DCA 2005)