The 4th Judicial Circuit Court, Duval County, recently reversed a Florida DUI refusal suspension. The court ruled that because the breath test was conducted by a person who was not authorized to do so, the DUI refusal suspension could not be sustained. Holcomb v. DHSMV, FLWSUPP 2004HOLC ( 4th Jud. Cir. 2013).
On October 23, 2012, a Jacksonville Sheriff’s Office deputy arrested Mr. Holcomb for DUI. The deputy took Mr. Holcomb to the Duval County Jail where officer Officer Z. Mincey conducted a breath test. Based on the breath test results, the deputy took Mr. Holcomb’s driver’s license. Mr. Holcomb challenged his suspension and asked for an FLHSMV formal review hearing. At the hearing, the hearing officer upheld Mr. Holcomb’s suspension.
A Breath Test must be conducted according to Florida Administrative Code. R. 11D-8.008.
Florida Administrative Code 11D-8.008(3) states that all Breath Test Operators must renew their certifications by June 30th every four years. At the hearing, Officer Z. Mincey testified that she had not renewed her certification since 2004. Even so, Officer Mincey also testified that she believed she had a valid certification. The Duval Circuit court of Appeal disagreed.
The court found that Officer Mincey had not satisfied the continuing education requirement and thus was not permitted to administer a breath test at the time of the breath test. Because the breath test was conducted by a person who was not authorized to do so, Mr. Holcomb’s suspension could not be sustained.
If you have any questions about a DUI refusal suspension, it is important to contact an experienced DUI attorney for help. It could mean the difference between a driver’s license, or no licenses at all.