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New Releases
from Florida's Circuit and County Courts

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Criminal law -- Medical records -- Investigative subpoenas
VIEW OPINION

Licensing -- Driver's license -- Suspension -- Refusal to submit to blood test -- Where licensee was examined and released by rescue personnel at scene of accident and taken to jail and thereafter for unknown reason taken from jail to hospital, and there is no evidence that breath or urine test was impossible or impractical, request for blood test was not lawful -- Mere presence of licensee at hospital is not sufficient to justify request for blood test
VIEW OPINION

Licensing -- Driver's license -- Restricted license -- Revocation of restricted license as result of cancellation of licensee's participation in DUI Special Supervision Services Program based on licensee reporting alcohol consumption to dentist on medical history form is supported by evidence where question on form is phrased in present tense to ask about current, not past, alcohol use -- No merit to argument that licensee was denied due process by review process that afforded face-to-face meeting with DUI SSS Program conducting review of cancellation but did not provide for hearing -- Challenged review process is authorized by statute and rule, and there is no evidence that licensee was denied opportunity to be represented by counsel or to present evidence and witnesses during review meeting
VIEW OPINION

Licensing -- Driver's license -- Suspension -- Refusal to submit to breath test -- Implied consent warning -- No merit to argument that finding that licensee was read implied consent warning was not supported by competent substantial evidence because officer could not recall warning verbatim at hearing -- Refusal affidavit in record contained implied consent warning and stated that licensee was read implied consent warning -- Any error in considering results of Horizontal Gaze Nystagmus test alleged to have been improperly administered was harmless where there was sufficient evidence of impairment to support finding of probable cause for DUI arrest without considering HGN results
VIEW OPINION

Insurance -- Personal injury protection -- Deductible -- Trial court did not err in concluding that PIP insurer improperly applied statutory fee schedule to reduce bills before applying those bills to deductible
VIEW OPINION

Insurance -- Discovery -- Trial court departed from essential requirements of law in ordering insurer to produce documents from its claim file to medical provider in first party non-bad-faith case -- Further, documents trial court ordered produced were shielded from discovery either by attorney-client privilege, work product privilege, or both
VIEW OPINION

Criminal law -- Battery -- Evidence -- Silence of defendant -- Trial court erred in admitting evidence of defendant's pre-arrest, pre-Miranda silence where defendant did not testify at trial -- Error to sustain objection to defense question about nature of victim's relationship with defendant where purpose of question was anticipatory rehabilitation of expected impeachment of victim who testified that alleged battery was actually “kissing and romancing” -- Argument -- Prosecutor's comment that victim lied was improper where there was no foundational evidence other than police officer's testimony to contradict victim's testimony that she had not been battered -- New triql required given multiple harmful errors -- Trial court properly handled prosecutor's comment about defense case being “smoke and mirrors” by sustaining objection and giving curative instruction
VIEW OPINION

Municipal corporations -- Zoning -- Variances -- Appeal -- City commission did not err in accepting appeal of city planning and zoning board's denial of variances where notice of appeal stated issues on appeal, and any deficiencies in notice were mere technicalities -- City commission erred in conducting de novo hearing on appeal where land development code limits commission's scope of review to record before planning and zoning board
VIEW OPINION

Insurance -- Personal injury protection -- Coverage -- Medical expenses -- Lawfully rendered services -- Where plaintiff clinic failed to register with Department of Health after divorce of clinic owners disqualified it from exemption from registration requirement for clinics wholly owned by health care practitioner and spouse, services provided after date of divorce were not lawfully rendered, and PIP insurer is not required to pay for those services -- Trial court erred in finding that date of divorce was date of rendition of amended final judgment vacating and superceding earlier final dissolution judgment, rather than date of that earlier dissolution judgment, where amended judgment related only to asset distribution
VIEW OPINION

Licensing -- Driver's license -- Suspension -- Refusal to submit to breath test -- Despite discrepancies in some documents, hearing officer's finding that licensee was arrested before he refused to submit to breath test is supported by competent substantial evidence -- Where record shows that licensee was stopped for speeding, licensee admitted he had some drinks, and officer observed that licensee had bloodshot, glassy eyes and odor of alcohol, finding that officer had probable cause to stop and arrest licensee was supported by competent substantial evidence
VIEW OPINION

Counties -- Code enforcement -- Improper use of zone -- Where property owner operating party venue that is prohibited use in agricultural residential zone was ordered to obtain approval and site plans for those uses, and thereafter owner held event at property without obtaining approval, code enforcement board's finding of repeat violation is affirmed -- No merit to argument that, because homeowners may host parties and weddings at homes in AR zone, operating party venue is permitted use in AR zone -- It is immaterial that property owner did not charge for attendance at event where zoning code does not require that attendees be charged in order to distinguish events that are allowed from those that are not
VIEW OPINION

Traffic infractions -- Red light camera -- Evidence -- Hearsay -- Exceptions -- Mailing records of third-party vendor with which city contracted to send notices of violations and uniform traffic citations were properly admitted at final hearing under business records exception to hearsay rule -- Review of record on appeal does not reveal any evidence to support claim that city failed to comply with statutory requirements because electronic copy of UTC was transmitted to court clerk by “City Clerk's office” and not by a Traffic Infraction Enforcement Officer -- In absence of transcript of proceedings below, appellate court must defer to factual findings of lower tribunal -- Motions for appellate attorney's fees denied
VIEW OPINION

Criminal law -- Soliciting for prostitution -- Sentencing -- Error to fail to impose $5,000 civil penalty mandated by section 796.07(6)
VIEW OPINION

Criminal law -- Driving under influence -- Investigative subpoena -- Medical records -- Trial court erred in denying state's motion to issue investigative subpoena for respondent's medical records where records were relevant to demonstrating whether respondent was driving under influence of controlled substance, and respondent was given notice of motion -- Fact that state already had breath alcohol test results not proper basis for preventing issuance of subpoena
VIEW OPINION

Criminal law -- Competency to stand trial -- Dismissal -- Trial court erred in granting motion to dismiss charges against defendant who had been found incompetent to stand trial one year previously and again within past six months without affording state adequate opportunity to controvert motion -- Court is required to conduct evidentiary hearing and make findings on whether there is substantial probability that defendant will become competent to proceed in foreseeable future and whether defendant meets criteria for commitment
VIEW OPINION

Licensing -- Driver's license -- Suspension -- Refusal to submit to breath or urine test -- Lawfulness of arrest -- Under 2006 amendments to section 322.2615, crash report containing licensee's admission to driving truck involved in single vehicle accident was admissible in formal review hearing -- Record, including crash report, contains competent substantial evidence to support hearing officer's order upholding license suspension
VIEW OPINION

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