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State5/2/2003
Petition for Certiorari Review of Decision from the Circuit Court for Volusia County Acting in its Appellate Capacity.
The State of Florida, Department of Highway Safety and Motor Vehicles, (the Department) seeks certiorari review of the order granting Dustin Whitley's petition for writ of certiorari that was rendered by the circuit court in its appellate capacity. In that order, the circuit court quashed the Department's final order suspending Whitley's driver's license based on his arrest for driving under the influence of alcohol (DUI). We grant the Department's petition for writ of certiorari.
Factual and Procedural Background
In the early morning hours of February 3, 2002, a police officer saw Whitley drive "in a weaving manner from the inside lane to the outside lane," then drive off the road and onto the grass. The officer activated the emergency lights on his patrol car to signal Whitley to pull over, but Whitley continued to drive. When the officer activated his siren, Whitley looked in his side-view mirror at the patrol car, but continued to drive, weaving from lane to lane. At one point, Whitley almost struck some construction barricades located along the road. When attempting to turn onto another road, Whitley drove off the roadway and stopped. Upon approaching Whitley, the officer noticed a strong odor of alcohol on Whitley's breath and that Whitley's eyes were glassy. The officer also noticed that Whitley's speech was slurred. The officer asked Whitley to step out of his vehicle and placed Whitley under arrest for fleeing and eluding a law enforcement officer. However, the officer did not advise Whitley that he was under arrest for DUI. After informing Whitley of his Miranda rights, the officer asked Whitley why he had not stopped. Whitley replied, " ecause I had too much to drink tonight and if I made it to my girlfriend's home it would be okay." Whitley told the officer that he had consumed three or four drinks containing vodka.
Whitley was transported to the police department and asked to perform field sobriety tests, but refused. Whitley did, however, consent to a breath test, which revealed that he had a blood alcohol level well in excess of the legal limit. Whitley was then formally charged with DUI. Whitley requested a formal review of his driver's license suspension pursuant to section 322.2615(6), Florida Statutes (2000). In accordance with section 322.2615(7), which defines the scope of the formal hearing, the hearing officer concluded: 1) the arresting officer had probable cause to believe that Whitley was driving under the influence of alcohol; 2) Whitley was lawfully arrested and charged with a violation of section 316.193, Florida Statutes; and 3) Whitley had an unlawful alcohol level. The hearing officer suspended Whitley's driver's license for six months.
Whitley sought certiorari review in the circuit court, which granted certiorari and quashed the final order of license suspension. The circuit court held that a breath test must be incidental to a DUI arrest; thus, an individual's driving privilege may not be suspended unless the individual is first arrested for DUI and is thereafter administered the test to determine his or her blood alcohol content. To allow the State to suspend a license when the test is administered prior to the individual's lawful arrest for DUI would, according to the circuit court's reasoning, be contrary to the requirements of sections 316.1932 and 322.2615. The circuit court also held that the officer did not have probable cause to arrest Whitley for DUI until the breath test was administered and, therefore, Whitley was never lawfully arrested for that offense.
Hence, there are two
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