New Formal Review Laws
The New Formal Review Hearing Process, effective July 1, 2013
Florida Statute Section 322.2615, "Suspension of license; right to review" will provide:
"[t]he driver may request a formal or informal review of the suspension by the department within 10 days after the date of issuance of the notice of suspension or may request a review of eligibility for a restricted driving privilege under s. 322.271(7)."
Effective July 1, 2013, Florida Statute Section 322.271(7) will provide:
Notwithstanding the provisions of s. 322.2615(10)(a) and (b), a person who has never previously had a driver license suspended under s. 322.2615 [an administrative suspension], has never been disqualified under section s. 322.64 [related to operating a commercial vehicle while under the influence], has never been convicted of a violation of s. 316.193 [DUI], and whose driving privilege is now suspended under section s. 322.2615 is eligible for a restricted driving privilege pursuant to a hearing under section (2).
(a) For purposes of this subsection, a previous conviction outside of this state for driving under the influence, driving while intoxicated, driving with an unlawful blood-alcohol level, or any other alcohol-related or drug-related traffic offense similar to the offense of driving under the influence as provided in s. 316.193 will be considered a previous conviction for a violation of s. 316.193, and a conviction for violation of former s. 316.028, former s. 316.1931, or former s. 860.01 is considered a conviction for a violation of s. 316.193.
(b) The reinstatement shall be restricted to business purposes only, as defined in this section, for the duration of the suspension imposed under s. 322.2615.(c) Acceptance of the reinstated driving privilege as provided in this subsection is deemed a waiver of the right to formal and informal review under s. 322.2615. The waiver may not be used as evidence in any other proceeding.
The Good, the Bad, and the Ugly
These changes are long time in coming. They are the result of legal challenges to the process by writs of prohibition and appeals. A lot of lawyers fought hard to get to this point. However, as with any forged compromise there is some upside and some downside.
If you apply for the Formal Review Hearing, F.S. 322.2615(11) now provides that if the arresting officer or the breath technician fails to appear pursuant to a subpoena as provided in subsection (6), the department shall invalidate the suspension. If a witness other than the arresting officer or breath technician fails to appear, then the driver can seek enforcement from the judge in the criminal case.
Someone other than a DHSMV employee can be designated as a hearing officer. (Like who, the barista at Starbucks?)
The hearing officer may conduct hearings via certain communications technology
The decision to apply for a Formal Review Hearing must be made within the first 10 days after the DUI arrest. At that point in the process, there is little opportunity for the defense lawyer to know what documents, if any, will be submitted at a formal review hearing. Lawyers will have to advise their clients about waiving their right to that hearing before knowing much about the case. If you request the formal review hearing, you can't change your mind and request the "review of eligibility." Only one bite of the apple.
It is hard to imagine a client willing to risk a 30 or 90 day "hard suspension" on a chance of winning the Formal Review Hearing. Since most people need to drive to work, you are being squeezed into waiving the Formal Review Hearing, which could have long lasting consequences. Remember, a second refusal can be charged as a misdemeanor.
Within ten days you can, if you choose, file an application for a Formal Review Hearing. This hearing affords you an opportunity to challenge the legality of the suspension of your driving privileges. An experienced DUI attorney will have the application for this hearing and can file it for you. In Miami, the DHSMV Field Hearing Office is located at 7795 West Flagler Street, Miami, Fl. A filing fee of $25.00 is required. Assuming that your license was otherwise valid at the time of the arrest, you will get an extension of the ten-day permit which lasts an additional forty-two days. DHSMV must schedule the Formal Review Hearing within 30 days from the date it was requested.
What if You Don't Request the Review?
If you don't request a Formal Review Hearing within ten days from the date of the arrest, DHSMV will sustain the suspension for the applicable period (six months, one year or eighteen months). In the case of a six month suspension, once the temporary permits expire, you are ineligible to drive for 30 days, as part of the six month suspension. After that period is up you can apply for a business purposes license (hardship license) after you provide proof of enrollment in an approved alcohol/substance abuse education program. In the case of a refusal suspension (one year) there is a 90 day ineligibility period as part of the one year suspension. In the case of a second or subsequent refusal, Florida law prohibits the issuance of any temporary/business or hardship permit for the entire eighteen month suspension period.
The Formal Review Hearing
Once you receive the Notice of Hearing from DHSMV, we will prepare a pre-hearing
statement, defining the issues to be considered at the hearing. This is
also the opportunity to request subpoenas for any witness we want to question,
including the police. We will also have the opportunity to review the
entire file before we decide which witnesses we want to subpoena. Subpoenas
need to be prepared, issued by DHSMV and served on the witnesses.
On the day of the hearing we should bring all of your witnesses. We will have the opportunity to question the police officers and witnesses.
Scope of the Review
The scope of the Formal Review Hearing is fairly narrow. The burden of proof is whether the hearing officer had competent and substantial evidence to believe that the driver was driving or in actual physical control of a motor vehicle in this state, and that the driver had a breath alcohol level over a .08. In the case of a refusal, a hearing will review whether or not the driver refused after being told that his driving privileges would be suspended if he refused.
As you can see, it doesn't take a lot of evidence to sustain this administrative suspension. However, an experienced DUI defense lawyer is trained to challenge these hearings, often with notable success.
If You Win-If You Lose
If you win the hearing, your driving privileges are reinstated. If you
lose the hearing, you will have to endure either a 30 or 90 day period
during which you cannot drive. After those periods are up, you must provide
DHSMV with proof of enrollment in an alcohol education program for consideration
for a hardship license. If you are approved you must present this approval
to a driver license examining office, take a written examination, and
pay an administrative fee and a reinstatement fee and any license fee
and provide proof of liability insurance on the arrest date.
The results of this hearing have no bearing or effect on the disposition of your criminal case, and vice versa.
Administrative Suspension Law - s. 322.2615, F.S., s. 316.193, F.S., s. 316.1932, F.S.
- First Suspension for Driving With an Unlawful Alcohol Level (.08 or above): 6 months.
- Second or Subsequent Suspensions for Driving With an Unlawful Alcohol Level (.08 or above): 1 year.
- First Suspension for Refusal to Submit to Breath, Urine or Blood Test: 1 year.
- Second or Subsequent Suspensions for Refusal: 18 months.
- The suspension is effective immediately The officer will issue the driver a temporary permit valid for 10 days from the date of arrest, provided the driver is otherwise eligible.
Administrative Disqualification Law
- First Disqualification for Driving a Commercial Motor Vehicle With an Unlawful Blood Alcohol Level (.04 or above): 6 months disqualification
- Second or Subsequent Disqualification of Driving a Commercial Motor Vehicle With an Unlawful Alcohol Level (.04 or above): 1-year disqualification.
- First Disqualification for Refusal to Submit to Breath, Urine or Blood Test Arising from the Operation of a Commercial Motor Vehicle: 1-year disqualification.
- Second or Subsequent Disqualification for Refusal to Submit to Breath, Urine, or Blood Test Arising from the Operation of a Commercial Motor Vehicle: permanently disqualified.
- The disqualification is effective immediately upon refusal of the breath, urine or blood test or determination that the driver has a blood alcohol level of .08 or above, while operating or in actual physical control of a commercial motor vehicle.
The officer will issue the driver a temporary permit which is valid for 10 days from the date of arrest or disqualification, provided the driver is otherwise eligible. However, the permit does not authorize the operation of a commercial motor vehicle for the first 24 hours of disqualification.
Review Hearings For Administrative Suspensions And Disqualifications
Sections s. 322.2615 and s. 322.64, F.S., authorize the Department of Highway
Safety and Motor Vehicles upon the request of the driver to conduct formal
and informal reviews for the purpose of sustaining, amending or invalidating
administrative suspensions and disqualifications. The decisions of the
department shall not be considered in any trial for a violation of s.
316.193, F.S., nor shall any written statement submitted by a person in
his request for review be admissible into evidence against him in any
such trial. The disposition of any related criminal proceedings shall
not affect a suspension/disqualification.
Business or Employment Reinstatement
- Suspension for Driving With an Unlawful Alcohol Level of .08 or above or Refusal: Must show proof of enrollment in DUI school and apply for an administrative hearing for possible hardship reinstatement. For unlawful alcohol level must serve 30 days without driver license or permit prior to eligibility for hardship reinstatement. For first refusal must serve 90 days without driver license or permit prior to eligibility for hardship reinstatement. No hardship reinstatement for two or more refusals.
- Suspension - Persons Under Age of 21 Driving With a Breath Alcohol Level of .02 or above: Must complete a Traffic Law and Substance Abuse Education course before hardship reinstatement. .05 or higher, must complete DUI program prior to eligibility for hardship reinstatement. Must serve 30 days without driver license or permit prior to eligibility for hardship reinstatement.
Hardship License Prohibited
- Florida law prohibits any hardship reinstatement upon 2nd or subsequent suspension for test refusal or if driver has been convicted of (DUI) section 316.193, F.S., two or more times.
- Persons disqualified from operating a commercial motor vehicle cannot obtain a hardship license to operate a commercial motor vehicle
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