GABRIEL SHAWN ZELONKER

v.

STATE OF FLORIDA DEPT OF HWY SAFETY AND MOTOR VEHICLES

On Petition for Writ of Certiorari from a final order of license revocation, suspension, or cancellation dated September 3, 2020 of the Department of Highway Safety and Motor Vehicles.

Alejandro Sola, Esq. and Philip L. Reizenstein, Esq. for Petitioner. Christie S. Utt, General Counsel, and Mark L. Mason, Assistant General Counsel, for Respondent.

Before: TRAWICK, WALSH, and SANTOVENIA, JJ.

This matter is before the court on a Petition for Writ of Certiorari ("Petition") filed by Gabriel Shawn Zelonker ("Petitioner" or "Zelonker") challenging a final [*2] order of license revocation, suspension, or cancellation dated September 3, 2020 of the Department of Highway Safety and Motor Vehicles ("Order" or "decision").

On July 31, 2020, Miami-Dade County Police Officer Kinsey-Smith ("Officer") stopped Petitioner for speeding. After witnessing signs of alcohol impairment such as slurred speech, bloodshot red eyes, watery eyes, difficulty in concentration, and an open 750 ML bottle of platinum 10x Vodka, 1/3 empty in the center console, the Officer began a Driving Under the Influence ("DUI") investigation. Based on the totality of the circumstances, Petitioner was arrested. Subsequently, the Officer placed an implied consent form in front of Petitioner and asked him "will you take the test," to which Petitioner responded, "your tests are a loaded question, please call 9-1-1." The Officer called Miami-Dade Fire Rescue and continued to read the consent form to Petitioner. When the Officer informed Petitioner that if he refused to submit to the breath test his license would be suspended, Petitioner responded, "[s]ir, I am not refusing to do anything."

Once Miami-Dade Fire Rescue arrived at the scene, an officer asked Petitioner for a voluntary blood sample. Petitioner informed the officer: "[a]fter they [Fire Rescue] check me and my levels are normal, I will consent to anything." After Miami-Dade Fire Rescue examined and cleared the Petitioner and returned him to the custody of Miami-Dade Police, Petitioner laid on the floor and "continued to complain about pain, but, now the pain was in his back." The officer did not attempt to take a breath sample at that time, but instead continued to request a blood sample. Afterward, Petitioner consented to provide a urine sample, and did provide one. The Petitioner was arrested for DUI in violation of Section 316.193, Fla. Stat., and refusal affidavits were submitted for breath and blood tests. The Department of Highway Safety and Motor Vehicles ("DMV") suspended his driver's license. Following an August 27, 2020 hearing, a hearing officer affirmed the suspension. [*3] We review the decision below to determine "whether or not the hearing officer provided procedural due process, observed the essential requirements of the law, and supported its findings by substantial competent evidence." Haines City Cmty. Dev. v. Heggs, 658 So. 2d 523, 530 (Fla. 1995); City of Deerfield Beach v. Vaillant, 419 So. 2d 624, 626 (Fla. 1982); Dep't of Highway Safety & Motor Vehicles v. Trimble, 821 So. 2d 1084, 1085 (Fla. 1st DCA 2002).

"A quasi-judicial hearing generally meets basic due process requirements if the parties are provided notice of the hearing and an opportunity to be heard." Jennings v. Dade County, 589 So. 2d 1337, 1340 (Fla. 3d DCA 1991). Further, "the parties must be able to present evidence, cross-examine witnesses, and be informed of all the facts..." Id.; Kupke v. Orange County, 838 So. 2d 598 (Fla. 5th DCA 2003) (procedural due process requires notice and an opportunity to be heard). Zelonker does not argue a lack of due process. Notwithstanding, the record reveals that Petitioner received not only notice of the hearing, but also a hearing at which he was represented by counsel and had the opportunity to present evidence and crossexamine the DMV's witnesses. As such, Petitioner received due process.

Petitioner argues that there was no competent substantial evidence to support the hearing officer's findings because he did not refuse to provide a breath or blood sample and actually did provide a urine sample. We agree.

Competent substantial evidence is "such evidence [that] will establish a [*4] substantial basis of fact from which the fact at issue can be reasonably inferred." DeGroot v. Sheffield, 95 So. 2d 912, 916 (Fla. 1957). The test is whether there exists any competent substantial evidence to support the decision maker's conclusion, and any evidence which would support a contrary decision is irrelevant. Dusseau v. Metropolitan Dade County Board of County Commissioners, 794 So. 2d 1270, 1276 (Fla. 2001). "When exercising its certiorari review power, the circuit court is not permitted to reweigh the evidence or substitute its judgment for that of the agency." Dep't of Highway Safety & Motor Vehicles v. Trimble, 821 So. 2d 1085-86.

In deciding whether to uphold the Petitioner's license suspension, the hearing officer was required to determine: 1. Whether the officer had probable cause to believe that the person whose license was suspended was driving or in actual physical control of a motor vehicle in this state while under the influence of alcoholic beverages or chemical or controlled substances.

2. Whether the person whose license was suspended refused to

submit to any such test after being requested to do so by a law enforcement officer or correctional officer. 3. Whether the person whose license was suspended was told that if he or she refused to submit to such test his or her privilege to operate a motor vehicle would be suspended for a period of one (1) year or, in the case of a second or subsequent refusal, for a period of eighteen (18) months.

§ 322.2615 (7)(b)(1)-(3), Fla. Stat. (2020). Petitioner does not argue that there was no competent substantial evidence supporting the hearing officer's decision as to the first and third elements, but only as to the second element. Specifically, Petitioner [*5] argues that he did not refuse to submit to any test and that the Officer did not have a valid reason to request a blood test in the first place.

Florida's implied consent law, Section 316.1932, Fla. Stat.,¹ provides, in relevant part, that:

Any person who accepts the privilege extended by the laws of this state of operating a motor vehicle within this state is, by operating such vehicle, deemed to have given his or her consent to submit to an approved blood test for the purpose of determining the alcoholic content of the blood or a blood test for the purpose of determining the presence of chemical substances or controlled substances as provided in this section if [1] there is reasonable cause to believe the person was driving or in actual physical control of a motor vehicle [2] while under the influence of alcoholic beverages or chemical or controlled substances and [3] the person appears for treatment at a hospital, clinic, or other medical facility and [4] the administration of a breath or urine test is impractical or impossible. As used in this paragraph, the term "other medical facility" includes an ambulance or other medical emergency vehicle. The blood test shall be performed in a reasonable manner. Any person who is capable of refusal shall be told that his or her failure to submit to such a blood test will result in the suspension of the person's privilege to operate a motor vehicle for a period of 1 year for a first refusal, or for a period of 18 months if the driving privilege of the person has been suspended previously as a result of a refusal to submit to such a test or tests, and that a refusal to submit to a lawful test of his or her blood, if his or her driving privilege has been previously suspended for a prior refusal to submit to a lawful test of his or her breath, urine, or blood, is a misdemeanor. The refusal to submit to a blood test upon the request of a law enforcement officer is admissible in evidence in any criminal proceeding.

§ 316.1932(1) (c), Fla. Stat. (emphasis added).

N 1 Section 316.1933, Fla. Stat. provides another basis for a police officer to request a blood test. However, this section requires the police officer to have probable cause to believe that the driver, who was driving under the influence, caused death or serious injury to himself or others before a blood test can be requested and obtained. This section does not apply here because Petitioner did not cause death or a serious injury to himself or another human being. [*6] The Third District Court of Appeal has interpreted the above statutes, as follows:

Thus, the general scheme for determining if a motorist is impaired is:
(1) before an arrest, the suspect may consent to or demand a breath test; and (2) after an arrest, the person is deemed to have implicitly consented to a breath test and a urine test.

The first exception to this general scheme is given in section 316.1932(1)(c), whereby a 'person whose consent is implied' i.e., is lawfully arrested, is taken for treatment to a medical facility and a breath or urine test is impossible or impractical to perform. Only then may a blood test be requested, subject to the person's refusal. The subsection further provides penalties for such a refusal but does not authorize the officer to proceed with the test regardless of the refusal.

State v. Slaney, 653 So. 2d 422, 427 (Fla. 3d DCA 1995) (citing State v. Perez, 531 So. 2d 961 (Fla.1988)) (emphasis added).

Similarly, the Fourth District Court of Appeal has interpreted the above statutes as follows:

We think it is clear that the legislature intended and provided for the use of breath and urine tests, except under the circumstances described in sections 316.1932(1)(c) and 316.1933(1) and that the legislature did not intend to authorize a law enforcement officer to request a blood test when the conditions described in these statutes do not exist.

Slaney, Id. (citing Chu v. State, 521 So. 2d 330 (Fla. 4th DCA 1988). See Robertson v. State, 604 So. 2d 783, 790 n.7 (Fla. 1992) ("[T]he implied consent statute... appl[ies] only when blood is being taken from a person based on probable cause that the person has caused death or serious bodily injury as a result of a DUI offense specified in the statutes."). [*7] Notably, Section 316.1932(1)(c) allows a police officer to request a blood test only if, inter alia, "the administration of a breath or urine test is impractical or impossible." The Third District Court of Appeal in Slaney acknowledged that where:

there was utterly no showing below that "a breath or urine test [was] impractical or impossible,"... there was no basis under Section 316.1932(1)(c), Florida Statutes (1991), for the police to require the defendant to give a blood sample nor to advise the defendant that he would lose his driver's license if he failed to consent to such a blood withdrawal.

Id. at 430.

Here, although the Petitioner was complaining of pain -- both in his chest and back apparently stemming from recent surgeries -- which may have delayed or made it more difficult to obtain a breath test, difficulty does not equate to impracticality or impossibility. Petitioner willingly provided a urine sample. And there is no evidence that Petitioner refused to submit to a breath test: the Petitioner stated that he was not refusing to submit to a breath test; he was conscious; he was always in the officers' presence; and the testing equipment was readily available.

Because there was no death or serious bodily injury involved and it was not impractical or impossible to obtain a breath or urine test, there was no valid reason for the Officer to request a blood test. See Slaney, Id. As such, the hearing officer departed from the essential requirements of law in concluding that “all elements necessary to sustain the suspension for refusal to submit to a breath, blood, or urine test under section 322.2615 of the Florida Statutes are supported by a preponderance of the evidence." (emphasis added).

Conclusion

After the Petitioner was medically cleared by Lieutenant Litt with the Miami- Dade Fire Department, the Officer was not precluded from seeking a breath test. [*8] However, the Officer effectively abandoned the request for a breath test when he requested an impermissible blood test instead. The officer pursued that course of action notwithstanding his lack of legal authority to request a blood test absent death or serious injury, and absent impracticality or impossibility in obtaining a breath or urine test.

We find that there is no competent substantial evidence supporting the hearing officer's conclusion that the Petitioner refused to consent to a breath or blood test². Furthermore, the hearing officer departed from the essential requirements of law in concluding that the Petitioner refused a blood test that was not authorized as a matter of law. Accordingly, the petition for writ of certiorari is GRANTED and the decision of the Hearing Officer is QUASHED.

TRAWICK, WALSH and SANTOVENIA JJ., concur. COPIES FURNISHED TO COUNSEL

OF RECORD AND TO ANY PARTY

NOT REPRESENTED BY COUNSEL.

N 2 Petitioner correctly points out that there is also no competent substantial evidence supporting the hearing officer's conclusion that Zelonker "refused to submit to any such test after being requested to do so by a law enforcement officer" and that “all elements necessary to sustain the suspension for refusal to submit to a breath, blood, or urine test under section 322.2615 of the Florida Statutes are supported by a preponderance of the evidence" as it pertains to any alleged failure to submit to a urine test because the Petitioner did provide a urine sample. (emphasis added). [*9] Copies Furnished to: [email protected] [email protected] [email protected] [email protected] [email protected] [email protected] Melissa [email protected]