SCHWARTZ V. STATE
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NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DISPOSED OF. IN THE DISTRICT COURT OF APPEAL OF FLORIDA THIRD DISTRICT JULY TERM, A.D. 2005 ADAM SCHWARTZ, ** Petitioner, vs. ** ** STATE OF FLORIDA, DEPARTMENT OF HIGHWAY SAFETY AND MOTOR VEHICLES, Respondent. CASE NO. 3D05-876 ** ** LOWER TRIBUNAL NO. 04-440 AP ** Opinion filed December 21, 2005. On Petition for Writ of Certiorari to the Circuit Court for Miami-Dade County, Appellate Division, Scott M. Bernstein, Sarah Zabel and Julio Jimenez, Judges. Parks and Braxton and Michael Braxton, for petitioner. Enoch J. Whitney, General Counsel, and Jason Helfant, Assistant General Counsel for the Department of Highway Safety and Motor Vehicles, for respondent. Before LEVY, GREEN, and WELLS, JJ. WELLS, Judge. Petitioner, Adam Schwartz, seeks certiorari review of an order from the Appellate Division of the Circuit Court refusing to quash an license. portion administrative order We deny certiorari. of the Circuit revoking Schwartz driver's We do observe, however, that the Court s opinion holding that an administrative hearing officer has no authority to determine the validity of incorrect. a traffic stop leading up See City of Miami v. Berman, to a DUI arrest is 129 So. 2d 445 (Fla. 1961). The facts in this case are undisputed. Schwartz was stopped at 12:04 a.m. at 17th Street and Washington Avenue on Miami Beach after a Miami Beach police officer observed Schwartz driving [a] 2003 Mercedez Benz SL 500 convertible . . . top down . . . on Collins Avenue to 17th St then west playing his car stereo at excessive volume in violation of FSS. was stopped, the officer noticed that After Schwartz Schwartz face was flushed, his eyes were bloodshot, his speech was slurred, and his breath smelled of alcohol. The officer summoned a fellow officer to conduct a field sobriety test; Schwartz performed poorly. Schwartz was then arrested for DUI but, after being read the Implied Consent Warning, refused to take a breathalyzer test, resulting license. in an automatic suspension of his driver s See ยง 316.1932 (1)(a), Fla. Stat. (2004) ( failure to submit to any lawful [breath test] will result in the suspension of the . . . privilege to operate a motor vehicle ). 2 Schwartz suspension Vehicles pursued before formal the arguing administrative Department solely that of the review Safety Highway officer's of & arrest the Motor affidavit (quoted above) did not demonstrate that the initial stop was valid. The hearing officer rejected this argument and concluded that the traffic stop was supported by probable cause, stating: Objection by counsel/no Probable cause/or citation issued for loud music. Case law [provided by Schwartz] read and considered. The arrest affidavit plainly stated the reason for the stop excessive stereo volume[.] No citation required to be issued. The objection is over-ruled and the suspension is sustained. Schwartz Division of then sought the certiorari Circuit Court review arguing in that the Appellate there was no competent, substantial evidence to support the hearing officer s determination that the stop was lawful because the arrest affidavit did not detail sufficient facts demonstrating probable cause to stop certiorari 1 legality Schwartz concluding of an car. that initial a The driver stop in Circuit may an not Court denied challenge administrative the license suspension proceeding. Section expressly 322.2615 states suspension, the that (7)(b) during hearing of a officer the Florida formal must Statutes review determine of a (2004) license whether the person was placed under lawful arrest for a violation of s. 1 Judge Jimenez dissenting. 3 316.193 [Florida s DUI statute]. This provision contemplates that issues relating to the lawfulness of the stop . . . will be resolved under arrest. the issue concerning the lawfulness of the State, Dept. of Highway Safety and Motor Vehicles v. DeShong, 603 So. 2d 1349, 1351 (Fla. 2d DCA 1992) (emphasis added); Dobrin v. Florida Dept. of Highway Safety and Motor Vehicles, 874 So. 2d 1171, 1174 (Fla. 2004) (an administrative DUI license suspension proceeding in which the Court enunciated the test to be applied in determining whether probable cause exists to support a traffic stop). The Circuit Court s observation that the validity of a stop which ultimately leads to a DUI arrest cannot be challenged in a section 322.2615 (7) (b) administrative license suspension proceeding, was therefore incorrect. However, the order on appeal confirms that the hearing officer actually considered and ruled on the propriety of the stop. Because the hearing officer applied the test enunciated by the Florida Supreme Court in Dobrin for determining whether probable cause exists to support a stop, 2 and because the Circuit 2 Dobrin, 874 So. 2d at 1174 (holding that the correct test to be applied [in determining whether probable cause exists to support a traffic stop] is whether the particular officer who initiated the traffic stop had an objectively reasonable basis for making the stop ); State v. Rodriguez, 904 So. 2d 594, 598 (Fla. 5th DCA 2005)(observing "the validity of a traffic stop is determined by considering whether the officer who stopped the vehicle had an objective reason for stopping the vehicle"). 4 Court correctly officer's concluded findings were that supported evidence, certiorari is denied. 5 the by administrative competent, hearing substantial
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