TRAFFIC OFFENSES - ADEQUACY OF CHEMICAL INVESTIGATION UNITS FOR ARCH. WHEN IT IS NECESSARY TO HOLD A MANDATORY HEARING
Til: John J. Blair, Attorney, Sarasota
Prepared by: A. S. Johnston, Assistant Attorney General
QUESTIONS:
1. Is detaining a driver for a non-criminal offense for the purpose of allowing a subsequent chemical intoxication test to be a lawful arrest?
2. It is a mandatory hearing required according to art. 318.19, F. S., when the property damage is between $51 and $250;
ABSTRACT:
An arrest for a noncriminal traffic violation or for alleged driving under the influence of alcohol, based on probable cause, is a sufficient "lawful arrest" to satisfy the statutory requirements of Sec. 322.261(1)(a), F.S., to allow for a subsequent chemical test for intoxication.
Compulsory consultation is not prescribed according to Art. 318.19, subsection 2, F.S., which includes the provision in subsection 322.27(1)(b), as long as the traffic violation does not result in property damage in excess of $250.
In answer to your first question, Ch. 74-377, Laws of Florida, effective January 1, 1975, decriminalized a number of former traffic offenses by downgrading those offenses to what would be termed "misdemeanors." Determining whether an arrest for a non-criminal "offense" amounts to an arrest is necessary to answer your original question.
In Gustafson v. State, 243 So.2d 615 (4 D.C.A. Fla., 1971), a driver was stopped because the police officer suspected that he was driving under the influence of alcohol. After his conviction, Gustafson appealed to the Fourth Circuit, arguing, among other things, that this position was unreasonable and therefore illegal under the Fourth Amendment to the United States Constitution. The court considered that:
"... [P]act of a policeman stopping a car and approaching it while armed and in uniform representsEpileptic seizureperson, regardless of how short the detention was. Even for a short time, the freedom of the household is restricted, as if a police officer made an official arrest and then released the 'arrested' persons.''
The Court then cited Terry v. Ohio, 392 U.S. 1 (1968): "It must be recognized that when a police officer arrests a person and restricts his freedom to leave, he has 'arrested' that person."
Arrest for a non-punishable traffic violation under the new law, ch. 74-377,of, falls under this definition of "technical" term. In the event that the driver is detained for a traffic violation, the police seize him and he is prohibited from continuing his journey, however short the delay. A person's freedom is limited as if he were detained and then released.
On the other hand, it must be recognized that not all cases of stopping vehicles on state roads constitute technical stops. License verification is one such case. City of Miami v. Aronovitz, 114 So.2d 784 (Fla. 1959). Detaining a driver for a routine search of a stolen car, Nicholson v. United States, 355 F.2d 80 (5th Cir. 1966), or detaining a robbery suspect, Lowe v. State, 191 So.2d 303 ( 3 D.C.A. Fla. ., 1966), would not be a technical opinion. In those cases, probable cause is lacking. In the event of a traffic stop, however, the officer must have probable cause for the stop. After stopping, the driver is detained in the sense that he is temporarily deprived of his liberty and subject to the powers of the law. This is a technical catch.
Another factor to be considered in assessing whether detention for a traffic offense constitutes a lawful arrest is the nature of the penalties imposed. The new statute prescribes fines for violations of the Traffic Act. Although these fines are characterized as "civil", their essential nature is criminal. Enforcement takes the form of punishment imposed by the sovereign or state, not personal individual enforcement. Their purpose is to deter illegal conduct, not to compensate a person for a civil wrong committed by the aggrieved party.I seeBEFORE 072-60.
When a detention for a traffic violation pursuant to X. 74-377 is determined to be a technical arrest, the question is whether such arrest meets the requirements of the section. 322.261(1)(a), F.S. This statute, known as the "implied consent" statute, provides that chemical intoxication tests may be administered to any person who consents to the privilege of operating a motor vehicle in the State of Florida, if lawfully arrested for any offense allegedly committed while driving under the influence of alcohol. It also provides that the test "must be in connection with a lawful arrest." A lawful warrantless arrest is an arrest based on probable cause to believe that a crime has been committed or is about to be committed. In the event that a motorist is arrested for a traffic violation, there is also probable cause to believe that the law is being obeyed or violated. Because there must be probable cause for traffic violations as a basic requirement for lawful detention, this detention also meets the standard for lawful detention. As long as there is sufficient probable cause, a detention is legal, regardless of whether it is a "technical" arrest or a full stop. Chapter 75-298, Florida Statutes.
This conclusion—that the detention of a driver for an unpunished offense constitutes a lawful technical arrest for purposes of permitting a subsequent chemical test—should not be interpreted as permitting the arbitrary use of chemical tests on any driver arrested for a traffic offense .A police officer must have probable cause to believe that a motorist is intoxicated before he can conduct a test that meets the requirements of s. 322.261(1)(a), F.S.In cases where a driver is initially arrested for a non-criminal traffic violation, and a police officer subsequently discovers evidence of intoxication, they may have probable cause to arrest them for DUI (which is a misdemeanor that remains a felony without the new law ... That probable cause would be sufficient for a lawful arrest and that arrest would also be the basis for conducting a chemical test.
In response to your second question, s. 318.19(1), F.S., s. 318.19(1), F.S., provides for a mandatory hearing for “any offense resulting in an accident causing death or bodily injury to another person or property damage in excess of $250,” while s. 318.19, par. 2, F. S., provides for a mandatory hearing for "any offense which, if the person is convicted, would result in the suspension or revocation of his driver's license or privileges under sections 322.26 and 322.27." The reference to § 322.26 in § 318.19(2), F.S., is incorrect because none of the offenses listed in that section qualify as a "misdemeanor" and would be deleted from the statute by the revision bill.
Section 322.27(1)(b), F.S., authorizes the Department of Highway Safety and Motor Vehicles to suspend a driver's or driver's license upon showing that:
``(b) has been convicted of a violation of any traffic law that resulted in an accident that caused death or injury to another person or property damage in excess of $50;
The last paragraph seems to be in conflict with the provisions of section 318.19, subsection 1, F. S., because a different minimum property damage is specified.
First, we must remember that § 318.19, F. S., only provides that a person who violates the conditions in § 2, subsection 318.19(1), (2) and (3) will not have the provisions of s. 318.14, subsection 2 and 4, F. S. Provisions in subsection 318.14(2) and (4) are provisions that allow a person charged with an offense to either post bail and forfeit it or pay a civil penalty per by mail or in person within 10 days of the date of the offense. These two sections essentially allow civil penalties to be paid without the need for a court hearing. If the privilege of not participating in the hearing is revoked, then the person charged with a misdemeanor who has lost that privilege by operation of law must appear in court.
When a misdemeanor occurs that results in an accident that causes death or bodily injury to another or damage to property, the question arises as to how much property damage is required to compel the person who committed the offense to appear in court for a hearing . It is obvious that paragraph 318.19, F. S., is contrary to subsection 2, as the former allows for property damage in excess of $250, while the latter (which includes § 322.27, subsection 1, letter b), F.S.) provides for property damage in excess of $50.
If the sections of a statute are so inconsistent that they cannot be reconciled or reconciled, the statute must be interpreted in a manner that fulfills the purpose of the statute and the intent of the legislation. Reyes v. Banks, 292 So.2d 39. All parts of a statute must be considered and reconciled in order that the whole legislative scheme may be effective, and the fundamental rule in the interpretation of statutes is that the legislative intent must ultimately be governing. Chiapetta v. Jordan, 16 So.2d 641.
It is also important to note that the construction of a statute by the agency or body charged with its administration carries great weight and will not be overturned unless clearly erroneous. stateex rel. Biscayne Kennel Club v. Board of Business Regulation, 276 So.2d 823. The Division of Highway and Motor Vehicle Safety administers the provisions of Sec. 322.27, F. S., and shall not suspend a driver's license for a violation of any traffic law resulting in property damage unless such property damage exceeds $250.
Therefore, it must follow that, following the fundamental rule of interpretation of conflicting parts of a statute as expressed by the courts of the state concerned and the harmonization and reconciliation of legislative intent, upon consideration of the construction of the statute by the body charged with administering the statute , mandatory hearing will be required pursuant to s. 318.19(2), F.S., as included in s. 322.27(1)(b), until the property damage exceeds $250.