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Florida Court of Appeal
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CASE NOS.: 5D99-2618, 5D99-3396
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755 So.2d 842, 755 So.2d 842, 2000.FL.0044996
<http://www.versuslaw.com>
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May 05, 2000
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STATE OF FLORIDA, APPELLANT,
V.
MARK ATKINSON, GARY BERNAU,
RAY ALLEN TANGUAY, ET AL.,
APPELLEES.
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Robert A. Butterworth, Attorney General, Tallahassee, and Belle B.
Schumann, Assistant Attorney General, Daytona Beach, for Appellant.
William F. Hathaway, New Smyrna Beach, for Appellees.
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The opinion of the court was delivered by: Cobb, J.
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9.160 Appeal from the County Court for Volusia County, Mary Jane
Henderson, Judge.
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The Volusia County court dismissed pending DUI cases against multiple
defendants on the ground of double jeopardy. In each of the cases the
defendants, the appellees here, had been arrested for violation of section
316.193, Florida Statutes (1997). The defendants either refused a breath
test or were measured as having an unlawful alcohol level. After arrest
each defendant was detained in jail for eight hours or more. The driver
licenses of the defendants were suspended pursuant to section 322.2615,
Florida Statutes (1997), which provides in part:
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(1)(a) A law enforcement officer or correctional officer shall, on
behalf of the department, suspend the driving privilege of a person who
has been arrested by a law enforcement officer for a violation of s.
316.193, relating to unlawful blood-alcohol level or breath-alcohol level,
or of a person who has refused to submit to a breath, urine, or blood test
authorized by s. 316.1932. (Emphasis added).
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The county court has now certified two questions to this court as
being of great public importance:
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1. Does the suspension of a DUI arrestee's driver's license because of
the results of a breath test being in excess of 0.08% constitute
punishment by the government thereby barring subsequent prosecution for
the crime of DUI?
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2. Does either the statutory provision allowing for a DUI arrestee to
be held for eight hours after arrest or the policy of the Volusia County
Branch Jail requiring that all arrestees be held for 8 hours constitute
punishment barring subsequent prosecution of the arrestee for the DUI
charge?
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The first certified question deals with those defendants who take, and
fail, the breath test. *fn1 We believe that a license suspension in such cases is
justified. We agree with Freeman v. State, 611 So. 2d 1260 (Fla. 2d DCA
1992), rev. denied, 623 So. 2d 493 (Fla. 1993), cert. denied, Lindemann v.
Florida, 510 U.S. 957 (1993), wherein the Second District upheld the DUI
convictions of a number of defendant drivers who were stopped and then
failed a breathalyzer test. Their licenses were seized by the arresting
officer pursuant to section 322.2615, Florida Statutes (1991). These
defendants argued that the suspensions of their licenses for the same
conduct alleged in the criminal charges for DUI violated the
constitutional prohibition against double jeopardy. This argument contends
that such roadside license suspensions are punitive in nature, hence
jeopardy attached before the state prosecuted them for driving under the
influence. This argument was rejected by the Second District, which
wrote:
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In Florida, it is clear that the purpose of the statute providing for
revocation of a driver's license upon conviction of a licensee for driving
while intoxicated is to provide an administrative remedy for public
protection and not for punishment of the offender. Smith v. City of
Gainesville, 93 So. 2d 105 (Fla. 1957).
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Freeman at 1261; see also State, Department of Highway Safety &
Motor Vehicles & Grapski, 696 So. 2d 950 (Fla. 4th DCA
1997).
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We note that the holding in Freeman comports with legislative intent
as expressed in section 322.2615(14), Florida Statutes (1997) which
provides that the disposition of any related criminal proceeding shall not
affect a suspension imposed by the Department of Motor
Vehicles.
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We also answer the second question contrary to the determination by
the county court. Section 316.193(9), Florida Statutes (1997), is not
unconstitutional in allowing temporary detention of an apparently drunk
driver, nor does such detention give rise to any viable claim of double
jeopardy by the detainee at any subsequent criminal trial. See County of
Riverside v. McLaughlin, 500 U.S. 44 (1991); United States v. Salerno, 481
U.S. 739 (1987); Bell v. Wolfish, 441 U.S. 520 (1979). The practice of
detaining an intoxicated driver is to protect that driver and the
community from an unreasonable danger imposed by drunken driving. It is a
situation analogous to the detention of persons under quarantine orders
wherein a threat is posed to the public health and safety. See Varholy v.
Sweat, 153 Fla. 571, 15 So. 2d 267 (1943). There is no claim or indication
in this case that the statute is being arbitrarily enforced in an
unconstitutional manner. See Thomas v. State, 583 So. 2d 336 (Fla. 5th DCA
1991), approved, 614 So. 2d 468 (Fla. 1993).
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Accordingly, we answer both questions in the negative, reverse the
dismissal orders of the county court, and remand for further proceedings
consistent with this opinion.
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DAUKSCH and THOMPSON, JJ., concur.
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Opinion Footnotes |
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*fn1 We have no problem with the suspension of a driver's
license for refusal to take the test authorized by section 316.1932,
Florida Statutes (1997). Our opinion in Davidson v. MacKinnon, 656 So. 2d
223 (Fla. 5th DCA), rev. denied, 662 So. 2d 931 (Fla. 1995) is dispositive
of this point. A refusal to take the test does not constitute criminal
conduct nor is it an element of the offense of DUI under section 316.193.
See U.S. v. Dixon, 509 U.S. 688 (1993). As we explained in Davidson, the
purpose of the potential suspension serves the immediate purpose of
obtaining the best evidence of blood alcohol content and the actual
suspension serves the long range goal of reducing highway injuries,
thereby protecting the public. Such a suspension is considered civil in
character, not criminal. Double jeopardy, therefore, is not implicated in
any subsequent trial on the criminal charge of
DUI.
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