MIRANDA FAULKNER

v.

DHSMV

PER CURIAM.

ORDER DENYING MOTIONS FOR REHEARING

Both the Petitioner, Miranda Faulkner (“Petitioner” or “Faulkner”) and the Respondent, State of Florida, Department of Highway Safety and Motor Vehicles, Division of Licenses, (“Respondent”or “Department”) move for rehearing of the Court’s order granting Faulkner’s petition for a writ of certiorari. This case arises out of Faulkner’s refusal to submit to a breath test following her arrest for DUI. We granted certiorari relief based upon the decision of the Fifth District Court of Appeal in Department of Highway Safety & Motor Vehicles v. Pelham, 979 So. 2d 304 (Fla. 5th DCA 2008).

We have reviewed the Department’s motion for rehearing, all of the papers submitted in connection with Faulkner’s petition¹ and our Order granting that petition from which the Department now seeks rehearing. We discern nothing in the Department’s motion for rehearing which we overlooked or which the Department did not previously raise or could not have previously raised. Fla. R. App. P. 9.330( a). See also Ayala v. Gonzalez, 984 So. 2d 523 (Fla. 5th DCA 2008). The Department again contends that the hearing officer complied with Pelham because, the Department contends, he addressed whether Faulkner’s arrest was lawful. The Department has never referred us to any page in the record to support this contention.

The Department’s motion for rehearing is denied. FAULKNER’S MOTION FOR REHEARING

Faulkner seeks rehearing of our order granting her petition for a writ of certiorari. She contends that we erred in remanding this matter rather than simply reversing the hearing officer’s decision. As with our decision on the merits, our remand of this case was consistent with prior decisions of this court in these breathalyser refusal matters. Those decisions are based upon the Fifth District Court of Appeal decision in Department of Highway Safety & Motor Vehicles v. Icaza, 37 So. 3d 309, 310 (Fla. 5th DCA 2010). In Icaza, the court of appeal remanded a case such as this where a hearing officer did not apply Pelham. We did the same. Faulkner contends that we overlooked and misapprehended that the reason for the remand in Icaza no longer obtained at the time of the hearing in this matter. We agree. The Icaza Court stated that: Because the hearing officer did not have the benefit of Pelham, he relied on the provisions of section 322.2615(7), which limits the scope of review to enumerated issues that do not include the lawfulness of the arrest. Therefore, the Department did not address that issue at the hearing. After Pelham was rendered, the Department sought remand so it could have the opportunity to comply with that decision, but its motion was denied. Every party should have a fair opportunity to be heard, and under the circumstances of this case, the Department was deprived of that opportunity and denied procedural due process.

Dep’t of Highway Safety & Motor Vehicles v. Icaza, 37 So. 3d at 312 (Fla. 5th DCA 2010).

The Florida Supreme Court denied review in Pelham on May 19, 2008. The hearing in this matter took place on September 12, 2008. Thus, unlike Icaza where the administrative hearing predated Pelham, in the matter sub judice the hearing officer had the benefit of Pelham. Indeed, Faulkner’s attorney brought Pelham to the attention of the hearing officer. Further, the Department had every opportunity to address Pelham at the hearing. It did not even appear.2

Faulkner’s motion for rehearing is granted.

Accordingly, it is hereby ORDERED AND ADJUDGED that:

1) the Motion for Rehearing of the Respondent, State of Florida, Department of Highway Safety and Motor Vehicles, Division of Licenses, be and hereby is DENIED, and

2) the motion for Rehearing of the Petitioner, Miranda Faulkner, be and hereby is

3) the Hearing Officer’s Final Order of License Suspension be and hereby is QUASHED.

DONE AND ORDERED in Chambers, at Orlando, Orange County, Florida on this the ___20th_____ day of ___December_________________________________, 2010.

__/S/_______________________ DONALD E. GRINCEWICZ

Circuit Court Judge

__/S/_______________________

__/S/_______________________ LAWRENCE R. KIRKWOOD

JANET C. THORPE Circuit Court Judge

Circuit Court Judge CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and correct copy of the foregoing Order has been

furnished via U.S. mail to:¹) David H. Novak, Esq., JAEGER & BLANKNER, P.A., 217 East

Ivanhoe Boulevard, Orlando, Florida 34741; and 2) Jason Helfant, Esq., Assistant General

Counsel, Department of Highway Safety and Motor Vehicles, DHSMV Legal Office, P.O. Box

540609, Lake Worth, Florida 33135 on the __20th____ day of__December_________________, 2010.

__/S/_______________________

Judicial Assistant