2nd District Court Of Appeal Requires Circuit Court To Review Legality Of Arrest

By Author: Darron Yan
Total Articles: 2
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In the matter of Ferrei vs Florida Department of Highway Safety and Motor Vehicles, the Court of Appeal granted the defendant's writ of certiorari & remanded the case for additional proceedings consistent with the court's opinion. The defendant sought certiorari review by the circuit court of an administrative order sustaining the suspension of defendant's driver's license. Defendant alleged that the circuit court departed from the essential requirements of law in ruling the DHSMV administrative hearing officer was not permitted to take into account the legality of the stop and arrest in reviewing the license suspension. The District Court, citing to the recent decision in Florida Department of Highway Safety & Motor Vehicles vs. Hernandez, noted that a hearing officer is required to make the determination of whether a breathalyzer test was given incident to a legal arrest, as is required by section Florida Statute 316.1932. The District Court examined four scenarios with salient distinctions following the Hernandez ruling: the first, where a defendant submitted to a breath test & the test results indicated a bac ...
... between a .129 and .136 and the defendant pleaded guilty to the reduced charge of and may have had the opportunity to contest whether the stop was legal in a criminal proceeding; the second where the defendant would not submit to a breathalyzer test, pleaded guilty to a reduced charge of reckless driving and may have had the opportunity to contest the legality of the stop within a criminal proceeding; the third, when a defendant submitted to the breathalyzer & the results indicated a blood alcohol level between a .129 and .137, & the criminal charges were subsequently dismissed by the state prior to the defendant having the opportunity to contest the legality of the stop; and the fourth when the defendant wouldn't submit to a breath test & the charges were dropped by the state attorney before the defendant had a chance to contest the legality of the stop.

In the current matter, the defendant had submitted to a chemical test, which placed defendant's bac above the legal range However, there isn't a record to suggest that the defendant was ever charged with a DUI. The 2nd District Court noted that the defendant did not have an opportunity to challenge the legality of the traffic stop in this civil administrative proceeding. The Second District Court of Appeal did not know if defendant ever had the opportunity within a criminal proceeding either. Accordingly, the circuit court is permitted to consider whether a criminal proceeding had, in fact, provided the defendant an adequate manner to contest the legality of the traffic stop. If the lower court determines the traffic stop was unlawful, it is still permitted to decide whether the breath test evidence is admissible evidence.

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