Following his January 31, 2007 arrest, BMH immediately retained Jeffrey H. Garland for his DUI and administrative suspension arising out of the DUI arrest.
Attorney Garland immediately made a public records request to the DHSMV for the documents relating to the administrative suspension. Upon review of these documents, it was determined that BMH had been mirandized before he was read implied consent.
A strategic decision was made, therefore, to subpoena both officers involved in the arrest to the formal review hearing. An affidavit was prepared for the clients execution. The clients affidavit echoed the information in the police reports, to-wit: Upon being advised of his Miranda rights, BMH specifically requested to speak with an attorney. BMHs affidavit specified that none of the law enforcement officers involved clarified the conflict between the Miranda advisement and the implied consent warning. Consequently, BMH was confused. This confusion lead to his refusal to submit to the breath test. BMHs affidavit specifically stated on this issue:
Paragraph 6. After being read my Miranda warning, the officer asked whether I would submit to a breath test. Initially, I agreed to. However, I had an opportunity to reconsider the matter as I was being transported to the St. Lucie County Jail from the site of the arrest. I realized that the officer had told me that I could speak to an attorney before being asked to answer questions.
Paragraph 7. After arriving at the St. Lucie County Jail, the officer again began talking to me about taking the breath test. I explained to the officer that I wished to talk to an attorney before making such a decision, just as he had told me that I could. The officer repeated the request for me to blow into the breath test machine several times without any further explanation.
Paragraph 8. The officer did not give me an opportunity to speak to an attorney before my questioning, nor did the officer provide any other explanation to reconcile the conflict between the Miranda advisement and his repeated demand to answer questions relative to the breath test.
Paragraph 9. I was read the Miranda rights before the officer read me the implied consent warnings. I did not submit to the breath test, because I believed I had a right to remain silent, that I had a right to speak to an attorney before any questioning and to have an attorney present during any questioning. The officer never offered any explanation to me to reconcile the rights he described in the Miranda warning with his questioning whether I would submit to the breath test.
Paragraph 10. My confusion on the applicability of the Miranda warning to the implied consent question was created by the officer and not cleared up by the officer. Therefore, I believe that the suspension should be set aside, because there was no refusal.
At the hearing, the officer who stopped BMH appeared and testified about the circumstances leading up to and just following the stop. He did not mirandize BMH, turning the matter over to the DUI officer. The DUI officer failed to appear for the heairng. Attorney Garland moved to set aside the suspension on due process grounds due to the DUI officers failure to appear.
Attorney Garland contended the old DHSMV rules remained in place, even though new rules had been proposed. The new rules would be greatly disadvantageous to any driver at a suspension hearing. The old rules allowed the non-appearing officer an opportunity to submit a written statement explaining why he did not appear. Under the old rules, the hearing officer would often have to set aside the suspension when a non-appearing witness failed to submit written justification for a failure to appear, and the witnesss testimony was deemed significant. Here, the hearing officer agreed the old rules should apply.
Attorney Garland submitted BMHs affidavit. He then argued that DHSMV’s own policy required reinstatement of the drivers license. In March 5, 1996, the DHSMV office of general counsel stated:
The office of general counsel chose to settle this case because of the confusion doctrine. The record documents clearly indicate that Mr. Howard was read his Miranda warnings prior to his implied consent warnings. Further, Mr. Howard testified the reason that he refused the breath test was because he believed he had the right to remain silent and because he believed he had the right to have an attorney present at the breath test. The record does not indicate that a law enforcement officer cleared up these misconceptions. Accordingly, the suspension should have been set aside.
Howard v. DHSMV, Order Dismissing Petition for Writ of Certiorari, No. 96-22
The hearing officer, issued an Order on March 8, 2007, that found there was insufficient evidence to support the suspension. She returned BMHs drivers license to Attorney Garland with a copy of the Final Order.
On May 7, 2007, BMH went to his second trial docket. At that time, he entered a plea to a reckless driving charge. Importantly, the reckless driving offense did not carry with it any suspension. The court withheld adjudication, which meant that he would receive no points on his driving record. The related speeding ticket was dismissed.
This disposition kept BMHs CDL intact. His employment duties occasionally required that he drive vehicles for which a CDL is necessary. There would have been no work permit available during the course of a CDL suspension.