The basic definition of the term "hearsay" is "an extrajudicial statement that only has evidentiary value for the truth of the matter asserted." Hearsay is usually excluded from trials since it’s presumed to be unreliable. Nevertheless, there’s a lot of exceptions to the general rule. An out of court statement is only considered hearsay, and thus inadmissible, if the nature of the declaration is testimonial. If the out of court statement isn’t testimonial, it can still be introduced into evidence.
In the appeal in Bowens v The State of Florida, the Fourth District Court of Appeal addressed this matter as it pertained to a co-defendant’s recorded statements while in the back of a police car. Police obtain information & confessions in this fashion fairly regularly. 2 people sitting in the rear seat of a police car trying to get their stories straight inadvertently give the police a confession.
The District Court, following the defendant’s appeal of a strong-armed robbery conviction, upheld the lower court’s refusal to keep out a surreptitiously recorded conversation containing admissions by defendant while in the back of a patrol car, & affirmed the trial court’s denial of a request for a mistrial.
After being detained for a strong-arm robbery, defendant & the driver of the car where he was a occupant, had been put in the rear of a patrol car. A concealed microphone recorded the discussion in which defendant made admissions about the robbery. The Fourth District Court of Appeal found that the taped statements of the defendant were admissible as the statements were a party admission under The Florida Rules of Evidence, & that the statements of the driver were also admissible to put the defendant’s statements into context (making the statements non-testimonial). The Appellate Court additionally held that the statements were not instigated or otherwise facilitated by anybody for the primary reason of collecting evidence in furtherance of a prosecution, but were a recording of a spontaneous conversation. The 4th District Court of Appeal ruling contains an in depth discussion of Crawford vs. Washington, in addition to other cases that have ruled on surreptitious tape recordings.
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Pursuant to Florida Law, an individual who is legally arrested for a DUI is required to submit to a breath test at the request of the arresting police officer. If that person refuses to submit, that individual’s license to drive will be suspended for a period of 1 year for a 1st refusal. The requirement to take a breath test is predicated upon the arrest being a lawful arrest. To challenge the driver’s license suspension the individual has to petition the Florida Department of Highway Safety & Motor Vehicles for an administrative hearing.
The Florida legislature attempted to prohibit the administrative hearing officers from taking into account whether or not the arrest was lawful. The statute, as it had been written, stated the DHSMV was only permitted to determine whether or not the driver was arrested & whether the driver refused a breathalyzer test. The Florida Supreme Court addressed this matter in the matter of Florida Department of Highway Safety and Motor Vehicles vs. Hernandez.
The Florida Supreme Court, addressing certified questions from the First & 5th Districts, ruled that a driver’s license suspension can be predicated on a refusal to take a breath test, but only if the refusal is incident to lawful arrest. Resolving a conflict involving the 1st & 2nd Districts, the court further held that a driver whose license to drive was suspended should be able to challenge whether or not the refusal was incident to a legal arrest in proceedings before a hearing officer, who is reviewing the validity of the suspension.
The court rephrased the certified questions as follows:
(1) Can the DHSMV suspend a driver’s license based on section 322.2615, Florida Statutes, for a refusal to take a breath test if the refusal is not incident to a lawful arrest?
Answer: No.
(2) Is the problem of whether or not the refusal was incident to a legal arrest inside the permissible scope of review of a DHSMV hearing officer in a proceeding to see if enough reason exists to sustain the suspension of a driver’s license under section 322.2615, Florida Statutes, for refusal to take a breath test?
Answer: Yes.
The supreme court majority opinion presented this analysis of the questions:
(1) Florida law does not require someone to take a breath alcohol-detection test simply because that individual possesses a driver’s license. The obligation to submit to breath-alcohol testing emanates from section 316.1932, Florida Statutes (2006), usually called the implied consent laws. The statute provides that a test has to be incidental to a lawful arrest & administered at the request of a law enforcement officer who’s reasonable suspicion to believe such individual was driving or otherwise was in actual physical control of the motor vehicle in this state while under the influence of alcoholic beverages. For that reason, the legislature approved administration of a breath test only if it is incident to a lawful arrest and based on probable cause to believe that the individual driving was under the influence of alcoholic beverages.
Under the implied consent law, the person must be advised regarding the punishment (license suspension) for refusing to submit to a breath test. The statute before the court in this matter governing suspension of a person’s driver’s license & the right to review of such a suspension, authorizes a law enforcement officer, on behalf of DHSMV, to suspend the license of anyone who refuses to take a legally recognized breath test.
The only definition of a legal breath test predicated on section 322.2615 is found in section 316.1932(1)(a). The statutes must be read in pari materia. Section 316.1932 is the only law that defines parameters of a lawful breath-alcohol test in section 322.2615. If the statutes are not read in pari materia, then there isn’t a notice as to when citizens are obligated to take a test or otherwise face suspension of their driver’s licenses. Therefore, a lawful breath test based upon section 322.2615, Florida Statutes, is one that is requested incident to a lawful arrest, as laid out in section 316.1932, Florida Statutes.
(2) The second rephrased certified question is related to the first question & concerns the method of challenging a suspension for a refusal to take a breath test. The court explained that, after an individual’s license is suspended pursuant to section 322.2615 for refusing to take a breath test under section 316.1932, that section permits a driver to request a formal or informal review regarding the validity of the driver’s license suspension. Inside the prior version of the statute, the hearing officer’s scope of review included consideration of the other concern of whether the person was placed under lawful arrest for a violation of s. 316.193. Since the legislature removed this statutory language and made additional deletions in the amended statute, the DHSMV contends that the matter of whether or not an individual was placed under a lawful arrest is not a issue within the driver’s license suspension process.
As noted by the supreme court in another case, even though the legislature’s removal of the lawful arrest prerequisite from section 322.2615(7) may seem obvious, the legislature left that requirement in the implied consent law. Section 322.2615 cannot be read in isolation but must be read as one together with section 316.1932, which defines the scope of the driver’s obligation to take a breath test. Section 322.2615 does not establish any obligation on the part of the driver to submit to a chemical test upon the request of law enforcement; it merely establishes consequences for a refusal. Section 316.1932 is what creates & defines the scope of the obligation, and its mandate is certain: the test must be incident to a lawful arrest. These statutes must be considered in pari materia.
Subsection 322.2615(7) purports to limit the scope of the administrative hearing to 3 issues. The first issue, probable cause, is an idea that is often inextricably intertwined with the lawfulness of the detention as it is with this case. The second topic directs the hearing officer to deal with whether the driver refused to take any such test. Any such test refers to the lawful test that a suspension must be pursuant to.
The last matter, the provision of notice, relates to the form of notice required by the same statute, which also refers to a lawful test. This so-called limitation regarding the hearing officer’s scope of review does not abolish the statute’s directive that the hearing officer determine whether adequate cause exists in order to sustain, amend, or otherwise invalidate the suspension. A driver whose driver’s license is illegally suspended must have a way in order to challenge that driver’s license suspension, and the only method by which the driver is able to challenge suspension of his or her driver’s license for a failure to submit to a breathalyzer test is through section 322.2615. Even if denominated a right or a privilege, the loss of a driver’s license is definitely an extreme hardship.
The analysis urged by DHSMV would allow DHSMV to suspend a driver’s license without reasonable notice and no possibility of a meaningful process to evaluate the lawfulness of the suspension. The only interpretation of the statute that avoids an unfair and unconstitutional result is to read sections 322.2615 and 322.1932 in pari materia & allow the hearing officer to examine whether or not the test was administered incident to a lawful arrest. As soon as section 322.2615 and section 316.1932 are read jointly, it becomes obvious that under the statutory scheme, adequate cause to sustain the suspension under section 322.2615(7) and whether the individual whose driver’s license was suspended refused to take any such test require that the hearing officer reach the determination of whether or not the breath test was provided incident to a legal arrest, as required by section 316.1932, Florida Statutes.
For further information regarding Attorney Miami FL , Miami DUI Lawyer you can contact our office at: The Law Offices of Rosenberg and Dye 201 South Biscayne Boulevard
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Miami, FL 33131
(305)429-3285
