November Updates

Interstate 4 shield

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Mazzola v. State, 17 Fla. L. Weekly Supp. 1051 (6th Jud. Cir., Sep 10, 2010): Appeal, affirmed – Defense of “voluntary victim contact” for violation of injunction, that stated that only the court can modify the conditions (that included “no contact”), is not a very good defense. Proffered testimony of victim excluded.

Auzenne v. DHSMV, 17 Fla. L. Weekly Supp. 1056 (9th Jud. Cir., Aug 4, 2010): Writ of Certiorari, granted – Refusal to issue subpoena for fact witness.  Defense wanted to subpoena breath test operator.  Hearing officer refused.  This is a refusal case – distinguished from a blow case, cited as DHSMV v. Chamizo, 753 So.2d 749 (Fla. 3d DCA 2000).

State v. Berkowitz, 17 Fla. L. Wekly Supp. 1065 (11th Jud. Cir., Aug 19, 2010): Appeal, reversed and remanded – Court reversed suppression order finding that constitutionality of traffic stop depends purely on objective (Whren) criteria.  Officer’s testimony described traffic infractions committed by the driver but he did not pull over the driver for an infraction but rather out of concern.

Richardson v. DHSMV, 17 Fla. L. Weekly Supp. 1069 (4th Jud. Cir., Jul 7, 2010): Writ of Certiorari, denied – Petitioner makes three claims, (1) first, that because the affiant on the arrest report could not remember the officer that notarized as “personally known” the report fails as a sworn affidavit, and (2) the hearing officer failed to be neutral by allowing a witness to appear telephonically.  The affidavit is good because of a lack of contradictory evidence and the failure of a subpoenaed witness to appear must be remedied via s.322.2615(6)(c), F.S., through the circuit court.

Nissen v. DHSMV, 17 Fla. L. Weekly Supp. 1071 (6th Jud. Cir., Jul 22, 2010): Writ of Certiorari, denied – Most interesting thing about this case is the District split on whether the Hearing Officer must consider “lawfulness of arrest.”  Under the 2d DCA the answer is no – plain and obvious meaning of statute (McLaughlin v. DHSMV, 2 So.3d 988 (Fla. 2d DCA 2008)).  Contrast with DHSMV v. Pelham, 979 So.2d 304 (Fla. 5th DCA 2008).

Gonzalez-Vega v. DHSMV, 17 Fla. L. Weekly Supp. 1072 (9th Jud. Cir., Aug 6, 2010): Motion for Rehearing (Department), denied – Hearing officer refused to consider lawfulness of arrest.  Original Writ of Certiorari was granted (based on Pelham) to the benefit of the petitioner.  Department moved for rehearing arguing DHSMV v. Icaza, 35 Fla. L. Weekly D850a (Fla. 5th DCA April 16, 2010).  Court found Icaza distinguishable.

State v. Scott, 17 Fla. L. Weekly Supp. 1075 (9th Jud. Cir., Jan 6, 2010): Appeal of suppression order, affirmed – State argued that the lower court erred because “reasonable suspicion” is the standard for a DUI investigation and that the continued detention of the defendant was proper after the issuance of the traffic citation.  Appellate court agreed but found that lower court’s finding that the evidence failed to establish “reasonable suspicion” could not be re-weighed.  The circuit court, in reviewing the ruling on a motion to suppress, may not re-weigh the evidence or substitute its judgment for that of the lower court. If there is any competent substantial evidence to support the trial court’s ruling, it must be sustained regardless of the reviewing court’s opinion as to its appropriateness. The circuit court should accept the county court’s determination of the facts and its evaluation of the witnesses. Maurer v. State, 668 So.2d 1077, 1079 (Fla. 5th DCA 1996).

Flanary v. DHSMV, 17 Fla. L. Weekly Supp. 1078 (11th Jud. Cir., Jul 21, 2010): Writ of Certiorari, granted – The only evidence against Petitioner were the documents in the arrest packet. At the close of the evidentiary portion of the hearing, counsel moved for an invalidation of the refusal suspension on the grounds that the documents contained too many inconsistencies to sustain the burden of proof.  The burden at a formal review hearing is whether or not the findings of the hearing officer were supported by substantial competent evidence.  Substantial competent evidence is “described as such evidence as will establish a substantial basis of fact from which the fact at issue can be reasonably inferred.” De Groot v. Sheffield, 95 So. 2d 912, 916 (Fla. 1957).  Court found no substantial competent evidence.  Read case for the disaster that was this Trooper’s case.

Perez v. DHSMV, 17 Fla. L. Weekly Supp. 1085 (13th Jud. Cir., Jul 21, 2010): Writ of Certiorari, granted – Failure of Hearing officer to remain neutral by telling witness not to answer questions posed (a recurring theme).  Numerous instances of interference even after defense counsel educated both hearing officer and witness on law.  When a hearing officer departs from neutrality, it is a due process violation.  Blackburn v. DHSMV, 8 Fla. Law Weekly Supp. 807 (4th Circuit 2001), George v. DHSMV, 8 Fla. Law Weekly Supp. 677 (4th Circuit 2001), Gonzalez v. DHSMV, 9 Fla. Law Weekly Supp. 75 (4th Circuit 2001), Friesland v. DHSMV, 9 Fla. Law Weekly Supp. 75 (4th Circuit 2001).

Rubenzer v. DHSMV, 17 Fla. L. Weekly Supp. 1088 (13th Jud. Cir., Jun 17, 2010): Writ of Certiorari, granted – Driver attempted to provide breath sample twice, never “refused” and was suspended as a refusal because he “would not give a proper breath sample.”  The driver was deemed a refusal despite his requests and efforts. The Department has argued Petitioner refused by actions but to the contrary, Petitioner’s actions and testimony demonstrated an attempt to provide a valid sample with no sworn testimony or evidence as to how or why a valid sample was not obtained. Due process requires some testimony or evidence the machine was working properly. No evidence in the record supports the Department’s theory of a refusal by action.  Good case.

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