PAUL L. ANDERSON, PETITIONER,
v.
DEPARTMENT OF HIGHWAY SAFETY AND MOTOR VEHICLES, RESPONDENT
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Paul Anderson challenged the constitutionality of Florida Statute section 322.28(5), which prohibits courts from staying administrative suspensions of driving privileges during judicial review. The Fifth District Court of Appeal upheld the statute's constitutionality and denied Anderson's petition for a writ of certiorari seeking to stay his license suspension.
Subsection 322.28(5) is constitutional and valid. The statute prevails over Florida Rules of Appellate Procedure Rule 9.310(a) as a valid general law, and courts have no authority to issue stays of administrative license suspensions during judicial review of those suspensions.
[1] A statute prohibiting a stay of administrative license suspension during judicial review prevails over a general rule allowing stays pending appellate review.
[2] A court may not stay an administrative suspension of a driving privilege under Florida Statutes section 322.2615 or 322.2616 during judicial review of the departmental or…
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Join FLexlaw to unlock all legal intelligence“A court may not stay the administrative suspension of a driving privilege under s. 322.2615 or s. 322.2616 during judicial review of the departmental order that resulted in such suspension and a suspension or revocation of a driving privilege may not be stayed upon an appeal of the conviction or order that resulted in the suspension or revocation.”
The statutory language of section 322.28(5) that Anderson challenged as unconstitutional and that the court found to be constitutional.
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Join FLexlaw to unlock all legal intelligenceAnderson refused to submit to a breath, blood, or urine test pursuant to Florida Statutes section 322.2615(1)(a). His driving privileges were administ…
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PETERSON, J.
Paul Anderson petitions for a writ of certiorari that would order the circuit court to stay the suspension of his driving privileges. The suspension followed his refusal to submit to a breath, blood or urine test pursuant to subsection 322.2615(l)(a), Florida Statutes (1999). When he first appealed the suspension to the Department of Highway Safety and Motor Vehicles, the suspension was sustained. Next, he petitioned for a writ of certiorari in the circuit court where he requested a stay of the suspension alleging that subsection (5) of section 322.28, Florida Statutes (1999), recently added to the Florida Statutes 1 is unconstitutional. Subsection 322.28(5) provides:
A court may not stay the administrative suspension of a driving privilege under s. 322.2615 or s. 322.2616 during judicial review of the departmental order that resulted in such suspension and a suspension or revocation of a driving privilege may not be stayed upon an appeal of the conviction or order that resulted in the suspension or revocation.
The circuit court upheld the constitutionality of subsection 322.28(5) and denied Anderson’s motion to stay the suspension. We agree with the circuit court’s conclusion that the statute is constitutional and deny the petition for certiorari.
Prior to the amendment of section 322.28 that added subsection (5), this court, in Department of Safety v. Stockman, 709 So. 2d 179 (Fla. 5th DCA 1998), concluded that a judicial stay of a license suspension was appropriate when the administrative order causing the suspension was being reviewed. Stockman relied upon the inherent power and discretion of courts to suspend an administrative order pending certiorari review and also upon the relief available pursuant to Rule 9.310, Florida Rules of Appellate Procedure. Stockman further noted that any conflict between the statute and rules regarding court procedure must be resolved in favor of the rules. See also, Larcher v. Department of Highway Safety & Motor Vehicles, 736 So. 2d 1249 (Fla. 5th DCA 1999).
We conclude that any conflict that did exist between the rules and the controlling statutes has now been rectified by the 1999 amendment to section 322.28. Rule 9.310(a), provides for stays pending appellate review but allows a general law to prevail over the rule. Subsection 322.28(5) is a “valid general law” and prevails over Rule 9.310(a) by prohibiting a stay. There is no conflict between the rule and the statute and the circuit court was correct in determining that it had no authority to issue the stay.
WRIT DENIED.
DAUKSCH and COBB, JJ., concur. . Ch. 99-248, § 45, Laws of Fla.
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Citator
Authorities Cited
- Dep't OF Safety v. Stockman, 709 So. 2d 179 (Fla. 5th DCA 1998)
- Larcher v. Dep't of Hwy. Safety & Motor Vehicles, 736 So. 2d 1249 (Fla. 5th DCA 1999)