DEPARTMENT OF HIGHWAY SAFETY AND MOTOR VEHICLES, APPELLANT,
v.
ROGER RIGGEN, APPELLEE
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The Florida First District Court of Appeal reversed a circuit court's decision that had reinstated a driver's license, holding that the Department of Highway Safety and Motor Vehicles need not prove that a refused breath test would have been valid in administrative license suspension proceedings.
No. The Department is not required to establish the validity of a refused test in administrative license suspension proceedings. Although the validity of a breath test may be essential to admissibility in criminal proceedings, the hypothetical validity of a refused test is not relevant to administrative suspension review.
[1] The validity of a hypothetical breathalyzer test is not relevant to the administrative suspension of a driver's license.
[2] A driver's license may be suspended for refusal to take a breathalyzer test, even if the operator failed to properly initiate an observation period before offering the te…
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Join FLexlaw to unlock all legal intelligence“We reject Riggen's argument that the Department is required to establish the validity of a refused test.”
The court's core holding that the Department need not prove a refused test would have been valid in administrative proceedings.
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Join FLexlaw to unlock all legal intelligenceRoger Riggen was arrested for driving under the influence. He submitted to two breath tests that were rendered invalid because the intoxilyzer machine…
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PER CURIAM.
The Department of Highway Safety and Motor Vehicles (the Department) seeks review of the circuit court’s order granting certiorari by which the court reinstated Roger Riggen’s driver’s license.1 Finding that the circuit court did not proceed in accordance with the essential requirements of law, we grant the petition and quash the circuit court’s decision to reinstate Riggen’s license.
After his arrest for driving under the influence of alcohol, Riggen submitted to two breath tests which were rendered invalid because in each instance the machine became clogged with a foreign substance, apparently from Riggen’s mouth. Upon his refusal to take a third test, Riggen’s driver’s license was suspended pursuant to section 322.2615, Florida Statutes (1993). An administrative hearing officer sustained the suspension notwithstanding the intoxilyzer operator’s testimony that the refused breath test would have been invalid due to the operator’s admitted failure to begin a new observation period prior to offering the third test. On certiorari review, the circuit court reinstated Riggen’s license because the Department failed to establish that a valid test would have been available had Riggen opted to take the test.
We reject Riggen’s argument that the Department is required to establish the validity of a refused test. Although the validity of a breathalyzer test may be essential to its admissibility in a criminal proceeding, the hypo thetical validity of a refused test is not relevant to review the administrative suspension of a driver’s license. § 322.2615(7)(b)1. -4., Fla.Stat. (1993); see Department of Highway Safety and Motor Vehicles v. Berry, 619 So. 2d 976 (Fla. 2d DCA 1993); Conahan v. Department of Highway Safety and Motor Vehicles, 619 So. 2d 988 (Fla. 5th DCA 1993).
Accordingly, we grant the Department’s petition and quash the circuit court’s order that reinstated Mr. Riggen’s driver’s license.
ERVIN, MINER and WOLF, JJ., concur. . Review in this court was incorrectly sought by means of appeal when the proper procedure was to petition for writ of certiorari. Wingate v. Department of Highway Safety and Motor Vehicles, 442 So. 2d 1023 (Fla. 5th DCA 1983). At the Dcpartmcnt’s request, and pursuant to Florida Rule of Appellate Procedure 9.040(c), we will treat the instant appeal as a petition for writ of certiorari.
Cases With Similar Vibessemantic neighbors from the corpus
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Dep't of Hwy. Safety & Motor Vehicles v. Favino, 667 So. 2d 305 (Fla. 1st DCA 1995)…supra. We have determined that the circuit court did indeed fail to apply the correct law by failing to apply the correct standard of review. City of Deerfield Beach v. Vaillant, supra; see also, Dept. of Highway Safety and Motor Vehicles v. Riggen, 654 So. 2d 221 (Fla. 1st DCA 1995). Accordingly, we grant the writ, quash the order of the circuit court and remand with instructions that a redetermination be made applying the correct standard of review. BOOTH and MICKLE, JJ., concur. . Review in this court w…1 / 2
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Dep't of Hwy. Safety & Motor Vehicles v. Roberts, 938 So. 2d 513 (Fla. 5th DCA 2006)…t the circuit court did indeed fail to apply the correct law by failing to apply the correct standard of review. City of Deerfield Beach v. Vaillant, supra [419 So. 2d 624 (Fla.1982) ]; see also, Dept. of Highway Safety and Motor Vehicles v. Riggen, 654 So. 2d 221 (Fla. 1st DCA 1995). Favino, 667 So. 2d at 309. In Friend, another case similar to the instant case, the court held: The petitioner seeks review of a circuit court decision granting certiorari and setting aside an administrative order suspending t…
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Dep't OF Hwy. Safety v. Dean, 662 So. 2d 371 (Fla. 5th DCA 1995)…earings suggests a continuing concern about the fairness of this statutory procedure. See, e.g., Department of Highway Safety and Motor Vehicles v. Shonyo, 659 So. 2d 352 (Fla. 2d DCA 1995); Department of Highway Safety and Motor Vehicles v. Riggen, 654 So. 2d 221 (Fla. 1st DCA 1995), Anderson v. Department of Highway Safety and Motor Vehicles, 3 Fla.Supp. 250 (Fla. 7th Cir. June 6, 1995); Day v. Department of Highway Safety and Motor Vehicles, 2 Fla.Supp. 279 (Fla. 9th Cir. May 17, 1994). Nevertheless, requi…
Previewing 3 of 4 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Conahan v. Dep't OF Hwy. Safety & Motor Vehicles, 619 So. 2d 988 (Fla. 5th DCA 1993)
- Wingate v. State, 442 So. 2d 1023 (Fla. 5th DCA 1983)
- State v. Berry, 619 So. 2d 976 (Fla. 2d DCA 1993)