        DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                              FOURTH DISTRICT

   STATE OF FLORIDA, DEPARTMENT OF HIGHWAY SAFETY AND
                     MOTOR VEHICLES,
                         Petitioner,

                                      v.

                         TODD EDWARD DAVIS,
                             Respondent.

                              No. 4D18-2772

                            [February 13, 2019]

  Petition for writ of certiorari to the Circuit Court for the Fifteenth
Judicial Circuit, Palm Beach County; Donald W. Hafele, Ted Booras, and
Edward Artau, Judges; L.T. Case No. 2017-CA-011092.

    Christie S. Utt, General Counsel, and Mark L. Mason, Assistant General
Counsel, Department of Highway Safety and Motor Vehicles, Tallahassee,
for petitioner.

   Louis C. Arslanian of Gold & Associates, P.A., Hollywood, for
respondent.

PER CURIAM.

   The Florida Department of Highway Safety and Motor Vehicles (the
Department) petitions for second-tier certiorari review of the circuit court’s
order granting Respondent Todd Davis’s petition for certiorari and
quashing the hearing officer’s order affirming Respondent’s license
suspension. As set forth below, we grant the Department’s petition.

                                Background

    In May 2017, police officers responded to a complaint that an SUV had
crashed into plant pots lining the front yard of a residential property. An
officer approached the vehicle and found Respondent slumped over the
steering wheel, unresponsive and smelling strongly of alcohol. Fearing for
Respondent’s safety, the officer requested emergency transport to the
hospital.
    Respondent regained consciousness at the hospital, and the officer
read him Miranda warnings and questioned him. Respondent admitted to
having five drinks and attempting to drive home. While still at the hospital,
the officer asked Respondent if he would consent to a blood draw to
determine his blood alcohol content (BAC). Respondent consented to the
blood draw. Testing indicated that he was unlawfully driving under the
influence of alcohol with a 0.412 BAC.

    The Department suspended Respondent’s license for six months.
Respondent challenged the Department’s action, and a hearing officer
affirmed the suspension, finding the police officer had probable cause to
believe that Respondent had an unlawful BAC and was in actual control
of the vehicle.

   Respondent petitioned the circuit court for certiorari review, insisting
that the gravamen of the case was whether the officer informed him that
he could refuse a blood draw pursuant to section 316.1932(1)(c), Florida
Statutes (2016) (the “implied consent law”). The two-judge majority of the
circuit court appellate panel granted the petition and quashed
Respondent’s license suspension. The circuit court acknowledged our
opinion in State v. Dubiel, 958 So. 2d 486 (Fla. 4th DCA 2007), wherein we
held that a law enforcement officer is not required to advise a suspect of
the consequences of failure to consent to a blood draw when the blood
draw is legislatively authorized. However, the circuit court relied on our
earlier opinion, Chu v. State, 521 So. 2d 330 (Fla. 4th DCA 1988), for the
proposition that the blood draw at issue was not legislatively authorized
under Florida’s implied consent law because nothing in the record
suggested that a breath or urine test was impossible or impractical. Judge
Artau dissented on the basis that Dubiel, and not Chu, controls here.

    The Department now petitions this court for second-tier certiorari
review, arguing that the circuit court erred by substituting its own findings
of fact for those of the hearing officer and because it failed to apply the
correct precedent.

                                 Analysis

   Our review of a circuit court’s decision in its appellate capacity is
limited to whether the circuit court afforded the parties procedural due
process and whether it applied the correct law. Gordon v. Fla. Dep’t of
Highway Safety & Motor Vehicles, 166 So. 3d 902, 904 (Fla. 4th DCA
2015).

   Florida’s implied consent law states, in pertinent part:

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      Any person who accepts the privilege extended by the laws of
      this state of operating a motor vehicle within this state is, by
      operating such vehicle, deemed to have given his or her
      consent to submit to an approved blood test for the purpose
      of determining the alcoholic content of the blood or a blood
      test for the purpose of determining the alcoholic content of the
      blood . . . as provided in this section if there is reasonable
      cause to believe the person was driving or in actual physical
      control of a motor vehicle while under the influence of
      alcoholic beverages . . . and the person appears for treatment
      at a hospital, clinic, or other medical facility and the
      administration of a breath or urine test is impractical or
      impossible.

§ 316.1932(1)(c), Fla. Stat. (2016).

   In Dubiel, we held that a blood draw is legislatively authorized when a
suspect is in a hospital and voluntarily consents. 958 So. 2d at 488. In
that setting, an officer is not required to advise a suspect of the
consequences of refusal. Id. We distinguished Dubiel from our opinion in
Chu by explaining “the two cases are factually different, as Dubiel was in
the hospital when the blood [draw] was requested. The blood test in Chu
[which involved a blood draw and test administered outside of a hospital
or other medical facility] was not legislatively authorized, whereas the
blood test [in Dubiel] was.” Id. Here, like the defendant in Dubiel,
Respondent was in the hospital when the officer requested a blood draw
and Respondent voluntarily consented. Because Dubiel is controlling
precedent, the circuit court failed to properly construe the implied consent
law in reaching the decision to quash the hearing officer’s order.

   We recently reiterated that the implied consent law does not apply when
a suspect voluntarily consents to a blood draw while in a hospital. State
v. Meyers, 43 Fla. L. Weekly D2647 (Fla. 4th DCA Nov. 28, 2018). In such
a case, the impracticality of a breath or urine test is not a necessary
precondition for obtaining a blood draw. Id. (“The Florida Supreme Court
has explained . . . that if a defendant expressly consents to a blood test,
‘then the blood test falls wholly outside the scope of the implied consent
law.’”) (quoting Robertson v. State, 604 So. 2d 783, 790 (Fla. 1992)).

                                Conclusion




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   Accordingly, we grant the Department’s petition for writ of certiorari
and quash the circuit court’s order. This case is remanded to the circuit
court for action consistent with this opinion.

   Petition granted.

GERBER, C.J., DAMOORGIAN and FORST, JJ., concur.

                          *         *        *

   Not final until disposition of timely filed motion for rehearing.




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