STACY EDGELL-GALLOWHUR

v.

STATE OF FLORIDA, DEPARTMENT OF HIGHWAY SAFETY AND

or HIGHWAY SAFETY AND MOTOR ('1 ~f§’r VEHICLES,- _ *~1\J\/ ,,;';_j - Q 32:1 Respondent. _ (oouno, M.) ORDER REVERSING THE ADMINISTRATIVE SUSPENSIQQIOF PETl'I‘IONER’$

DRIVER LICENSE

(PER CURIAM) This appeal arises fiom the Findings of Fact, Conclusions of Law and Decision (“Final Order”) dated April 6, 2009, of the Department of Highway Safety and Motor ’ ' ' ' ' ' ' of the driver’s license of Vehicles (the “Department’ ), sustaining an administrative suspension Sta Ed ll Gallowhur (“Petitioner”) This matter was abated while the Supreme Petitioner, cy ge - . Court ruled on whether the lawfulness of a stop and subsequent arrest is an issue to be decided at th fo al review hearing by a hearing officer. In Hernandez v. DHSMV, '74 So. 3d 1070 (Fla. e mi 2011), the Supreme Court decided the matter, holding that the lawfulness of a stop and b nt arrest is indeed an issue to be decided at the formal review hearing. Subsequent to the su seque I-Ierngdez decision, the present case was remanded back to the hearing officer wherein the h ' officer in a Final Order dated February 16, 2012, considered the lawfulness of the stop earing , and ruled that it was lawful. The Department administratively suspended Pet1t1oner’s driver’s ' ' le 1' se for a period of 12 months because he refused to submit to a breath and/or urine samp icen test after being arrested for driving under the influence (“DUI”) pursuant to section 316.193 of ‘ ' ' F ' b 't of the Florida Statutes. Petitioner seeks review of the Department’s Final Order y wri certiorari. We havejurisdiction pursuant to Article V section 5(b) of the Florida Constitution and section 322.2615 (13) of the Florida Statutes. .1"! ‘fit 9urea °i"“‘B9103 - us Hfimhhfiudmmue [*2] ' ~ l . . Stacy~Edgell»Gailowhur v. State ofFlorida, DHSMV Case No. 9-234 AP The standard of certiorari review of an administrative agency decision is limited to: “(l) whether procedural due process is accorded; (2) whether the essential requirements of law have been observed; and (3) whether the administrative findings and judgment are supported by competent substantial evidence.” DHSMV v. Roberts, 938 So. 2d 513 (Fla. 5*‘ DCA 2006) citing Haincs City Community Development v. I-Ieggs, 658 So. 2d 523, 530 (Fla. 1995). Petitioner raises two (2) issues on appeal: (1) there was insufficient competent evidence for the hearing officer to determine that the stop leading to the arrest was lawful; and (2) the license suspension should be set aside because the reading of the implied consent form warning the Petitioner that driving privileges would be suspended for refusal to submit to both a breath and urine test, was improper. For the reasons set forth below, we grant the Petition for Writ of Certiorari and quash the Depaitment’s Final Order sustaining the driver’s license suspension in this case. On February 24, 2009 at 2:50 am the Petitioner was stopped by Doral police oflicer(s) (the “Officer”) at NW 79"‘ Avenue near NW 50”‘ Street. The arrest affidavit stated that the reason for the stop was that the Petitionerwas speeding (cit. 3153-XEJ), and the Officer noticed a strong smell of alcohol emitting from the Petitioner’s breath and person, bloodshot eyes, and slurred speech. Based upon the Officer’s observations, he asked the Petitioner to submit to roadside exercises. The Petitioner complied. At the conclusion of the exercises, the Officer placed the Petitioner under arrest for driving under the influence (“DUI”) pursuant to section 316.193 of the Florida‘ Statutes. Subsequent to Petitioner’s arrest for DUI, he refused to take a breath and/or urine test at the station. He signed the implied consent form indicating that he knew his license would be suspended for twelve months for refusal to give a breath and/or urine test. In his petition for Writ of Certiorari, Petitioner also argues that the hearing officer lacked sufficient competent evidence to determine the lawfulness of the stop and subsequent arrest during the formal review hearing. To support his argument, Petitioner relies on DHSMV v. Roberts, 938 So. 2d 513 (Fla. 5th DCA 2006), wherein the Fifth District determined that there must be reasonable suspicion supported by the facts in the affidavit to pull over a motorist and to subsequently suspend their license. In Roberts, the charging affidavit stated that the officer observed the defendant “traveling 71 mph in a 45 mph speed zone and that he followed him for a tenth of a mile” with no other facts describing how the officer determined that flie defendant was speeding, specifically whether the officer was using a radar, laser, a pace clock, or a visual estimate to [*3] | , '5 . ~ » I

O .

, . Stacy-Edgell~Gailowhur v. State ofFlorida, DHSMV Case No. 9-234 AP calculate the defendant’s speed. E. Competent substantial evidence being the standard, the Fifth DCA affirmed the circuit court order finding that the paperwork was insufficient to sustain an administrative suspension. E. In the present case, the Officer merely states that the Petitioner was pulled over for speeding. The Officer makes no mention ofhow he determined the Petitioner’s speed. The arrest affidavit refers to the DUI ticket and says nothing about the speeding ticket. Additionally, the speeding ticket on file does not say anything other than, “unlawful speeding, 60/40 mph posted. Pace speed unit # (123) Tag.” Here, the Officer merely reaches a conclusion that the Petitioner was speeding without providing any evidence in his report to support his conclusion. This Court finds that the hearing officer’s decision to sustain the Petitioner’s license suspension departed from the essential requirements of law, wherein the hearing officer lacked sufficient competent evidence to hold that the stop leading up to the arrest was lawful. The Court finds it moot to address the additional arguments by the Petitioner as the Court is reversing the hearing officer's decision on other grounds. " ' Aecordingly,'it is hereby ORDERED AND ADJUDGED that: 1. The “Petition for Writ of Certiorari” is GRANTED and the hearing officer’s Final Order of License Suspension is QUASHED 2. Petitioner’s Motion for Attorney’s Fees and Costs is hereby DENIED (TINKLER-MENDEZ, M., HIRSH, M., GORDO, M.) gun nnconn ‘AND ro ANY sanrr -‘torRsrnnsittrrnnav oneness. " t 5I