Can You Win a Florida DHSMV DUI Formal Review Hearing?

Yes, it is possible to win a Florida DHSMV DUI formal review hearing, but success often depends on the facts of the case and the experience of your attorney.

What Happens to a Person’s Driver’s License When They Provide a Breath Alcohol Sample Above .08, or They Refuse to Submit to Testing?

If a driver aged 21 or older with a Class E Florida license (the standard, non-commercial driver’s license required to legally operate personal vehicles in Florida) provides a breath alcohol sample and the result is at or above .08, or if the driver refuses to submit to a breath, blood, or urine test, the law enforcement officer will confiscate the person’s driver’s license and then issue them a DUI citation which suspends the person’s Florida driver’s license.

The DUI citation also triggers a separate administrative case with the Florida DHSMV that is independent of the criminal court case.

The Bureau of Administrative Reviews at the Florida Department of Highway Safety and Motor Vehicles (DHSMV) handles the administrative case.  If your DUI arrest took place in Hillsborough or Pasco Counties, the DHSMV Bureau of Administrative Reviews located at 2814 East Hillsborough Avenue in Tampa will handle your case.  If your arrest took place in Pinellas County, then the DHSMV Bureau of Administrative Reviews located at 4585 140th Ave N., Suite 1002, in Clearwater, will handle your case.

What is a Business Purposes Only Driver’s License in Florida?

A business purpose only driver’s license is a restricted driver’s license.  The driver can only use the BPL license for his or her work, education, religious services, or medical appointments.

In the Florida DHSMV Process, what are a Driver’s Options after They Receive a DUI Citation?

Let’s assume the driver is aged 21 or older with a Class E Florida driver’s license.  In the first 10 days following the date of the citation, the driver has three options.

Option #1.  Do Nothing.  If a driver takes no action after they receive a DUI citation for an above .08 breath alcohol level, or they refuse to submit to testing, a Florida DUI citation suspends the driver’s license as follows:

• If it’s a first DUI, and the driver provided a breath sample above .08, then the driver’s license is suspended for 6 months.  There is a 30-day “hard time suspension,” during which time the driver may not apply for a business purpose only driver’s license.  A driver in this situation can give up their right to a formal review hearing and request an immediate business purpose only driver’s license.

• If it’s a first DUI, and the driver refused to provide a breath sample, then the person’s license is suspended for one year.  There is a 90-day “hard time suspension,” during which time the driver may not apply for a business purpose only driver’s license.   A driver in this situation can give up their right to a formal review hearing and request an immediate business purpose only driver’s license.

•  If it’s a second DUI, and the driver provided a breath alcohol sample above .08, then the driver’s license is suspended for one year. There is a 30-day “hard time suspension,” during which time the driver may not apply for a business purpose only driver’s license.

•  If it’s a second DUI and the driver refused to provide a breath sample, if the prior DUI arrest involved a breath test above .08, then the driver’s license is suspended for one year.  There is a 90-day “hard time suspension,” during which time the driver may not apply for a business purpose only driver’s license.

• If it’s a second DUI and the driver refused to provide a breath sample, if their prior DUI arrest was also a refusal, then the driver’s license is suspended for 18 months.  The driver is not eligible for a business purpose only driver’s license during the 18-month suspension.

• If it’s a third or subsequent DUI and the driver provided a breath alcohol sample above .08, then the driver’s license is suspended for one year. The entire one-year suspension is a “hard time suspension,” during which time the driver may not apply for a business purpose only driver’s license.

•  If it’s a third or subsequent DUI and the driver refused to provide a breath sample, if all the prior DUI arrests involved a breath test above .08, then the driver’s license is suspended for one year.  The entire one-year suspension is a “hard time suspension,” during which time the driver may not apply for a business purpose only driver’s license.

• If it’s a third or subsequent DUI and the driver refused to provide a breath sample, if any of the prior DUI arrests involved a refusal, then the driver’s license is suspended for 18 months.  The driver is not eligible for a business purpose only driver’s license during the 18-month suspension.

Option #2:  If the driver has no prior DUI citations in any state, they can waive their right to a formal review and apply for an immediate business purpose only driver’s license.  I say immediate, but it may take the Bureau of Administrative Reviews a week or more to process the application.

Option #3:  Request a Bureau of Administrative Reviews Formal Review Hearing.

If I Don’t Qualify for an Immediate First Time DUI Business Purpose Only Driver’s License, Should I Request a Formal Review Hearing?

Yes.  You have nothing to lose but the $25.00 fee of applying for the hearing and the cost of a process server to serve the arresting officer and possibly the breath technician (if you provided a breath sample).  If you prevail at the formal review hearing, the DHSMV will invalidate the administrative suspension and remove it from your driving record.

If I Qualify for an Immediate First Time DUI Business Purpose Only Driver’s License, Should I Still Request a Formal Review Hearing?

It depends on you and your personal situation.  You and your attorney should weigh the advantage of the possibility of winning the hearing and avoiding a suspension, against the risk of losing the hearing and giving up your driver’s license for 30 days or 90 days.

For example, if you refuse the breath test and then you lose at the formal review hearing, the DHSMV will affirm the officer’s one year suspension of your driver’s license, and you won’t be able to apply for a business purpose only driver’s license for 90 days, plus an extra week or two for the DHSMV to process your business purpose only driver’s license application.  For many people, especially those that need to drive to get to work, a 100-day suspension causes great hardship.  In cases like that, people will request an immediate business purpose only driver’s license.

However, if you are retired, work from home, are a college student living on campus, or for whatever reason don’t need to drive, then it may make sense for you to take a chance and have your attorney request a formal review hearing.  If you win at the hearing, the suspension is removed from your driving record.

Because you generally have only 10 days to protect your driving privileges, contact Attorney David C. Hardy as soon as possible to discuss your options.

What if I have a Commercial Driver’s License (CDL)?

If you have been arrested for DUI in Florida and have a CDL, click here for more information regarding CDL and DUI.

What Does the DHSMV Hearing Officer Decide at a Formal Review?

A hearing officer, who generally is an attorney that works for the DHSMV, decides whether it’s more likely than not that there is sufficient cause to sustain, amend, or invalidate the suspension.

Specifically, in a case in which a police officer suspended a driver’s license for a breath alcohol level above .08, the hearing officer decides:

1. If the law enforcement officer had probable cause to believe that the person whose license was suspended was driving or in actual physical control of a motor vehicle in Florida while under the influence of alcoholic beverages or chemical or controlled substances.

2.    Whether the person whose license was suspended has a breath alcohol level of .08 or higher.

In a case in which the driver’s license was suspended for refusal to submit to a breath, blood, or urine test, the hearing officer decides:

1. Whether the law enforcement officer had probable cause to believe that the person whose license was suspended was driving or in actual physical control of a motor vehicle in Florida while under the influence of alcoholic beverages or chemical or controlled substances.

2.    Whether the person whose license was suspended refused to submit to any such test after being requested to do so by a law enforcement officer or correctional officer.

3.    Whether the person whose license was suspended was told that if he or she refused to submit to such test his or her privilege to operate a motor vehicle would be suspended for a period of 1 year or, in the case of a second or subsequent refusal, for a period of 18 months.

Can You Handle Your DUI Formal Review Hearing by Yourself?

Formal review hearings are very technical.  An experienced attorney knows:

·      how to subpoena witnesses.

·      whether it’s even a good idea to subpoena a particular witness.

·      how to question a witness effectively.

·      how to spot key mistakes in a police report.

·      how to use the formal review hearing to gather evidence for the criminal case.

·      how to make the proper legal objections.

There is an old saying in the law – “He who represents himself has a fool for a client.”  In other words, it’s a very bad idea to represent yourself in a legal proceeding.

How can Your Attorney Win Your DUI Formal Review Hearing?

The deck is stacked against the driver at a formal review, because the burden of proof is so low for the hearing officer to affirm a driver’s license suspension.  The formal review hearing is not like criminal court, where a prosecutor must prove beyond a reasonable doubt to a jury that a person drove while impaired.  At a formal review hearing, the burden to affirm the officer’s suspension is merely “more likely than not”.

You might think that because the hearing officer works for the DHSMV, that the whole process is rigged.  However, in my experience, the hearing officers are very fair, and they will invalidate a driver’s license suspension, if they think it’s warranted.

Here are a few examples of how a formal review hearing can be won.

• The arresting officer or the breath tech (in the case of a breath test above .08) does not appear at the formal review hearing, even though they were served with a subpoena.  In my experience, once a breath tech is served a subpoena, they almost always appear at the formal review hearing.  However, from time to time, a police officer, State Trooper, or deputy sheriff will miss a hearing after being subpoenaed.  If this happens, the hearing officer will invalidate the suspension, and the person will get their driver’s license back.

• The law enforcement agency refuses to accept a subpoena, because the agency claims that the officer is in training the day and time of the formal review hearing.  Under Florida law, this is not a valid reason for law enforcement to refuse a subpoena for a formal review hearing, and when it happens, and your attorney knows the law and makes the proper objection, the DHSMV hearing officer will invalidate the driver’s license suspension.

• The law enforcement report leaves out an important detail regarding the basis of the stop of the driver’s vehicle.  Sometimes, if a police report is vague, an experienced attorney will purposely not subpoena the arresting officer to the hearing, so that the officer can’t correct his mistake during the hearing.  When there is no officer to testify, the DHSMV hearing officer must rely only on what’s in the police report.

For example, in one of attorney Hardy’s cases, an officer wrote in his report that he had stopped the driver because the driver had failed to come to a complete stop at a stop bar.  Attorney Hardy had visited the scene of the alleged infraction, and he knew that the stop bar was in front of a stop sign. It’s true that not stopping at a stop bar which is in front of a stop sign is a traffic infraction.  However, the police report did not mention the stop sign - it just said the driver did not stop at the stop bar.  Since stop bars are also in front of traffic lights, and since a driver would not have to stop at a stop bar in front of a traffic light if the traffic light were green, attorney Hardy argued that the officer’s report lacked sufficient detail to establish a legal basis for the stop of the driver’s vehicle.  The argument worked.  The hearing officer invalidated the suspension.

• The law enforcement officer’s report isn’t specific enough with respect to why the officer stopped the driver’s vehicle.  For example, in one case, a police officer wrote in his report that he had stopped the driver because the driver made “an improper right turn.”

However, the officer did not explain why the turn had been improper.  The DHSMV hearing officer agreed with attorney Hardy that the statement in the report wasn’t specific enough and invalidated the suspension.

• The law enforcement officer’s report relies on conclusory statements for the basis of the vehicle stop.  For example, in one case attorney Hardy handled, the officer wrote that he stopped the driver’s vehicle because he had witnessed “a traffic infraction, and a possible traffic infraction” but the officer did not describe the infractions any further.

The hearing officer agreed with attorney Hardy and found that there was insufficient evidence to support the stop.  In another case, an officer wrote that he had stopped the driver because the vehicle was driving “at a high rate of speed and in an unsafe manner but failed to include the speed at which the vehicle was driving or why the driving had been unsafe.  The hearing officer agreed with attorney Hardy and found that there was insufficient evidence to support the stop.

• The law enforcement  officer fails to warn the driver of the consequences of refusing testing.  For example, with respect to a Commercial Driver’s License (CDL) suspension, a law enforcement officer must inform the CDL that if he or she refuses to submit to testing, that the DHSMV will disqualify the driver from operating a commercial vehicle for one year, and permanently disqualify the driver from operating a commercial vehicle if the driver previously drove with an unlawful blood-alcohol level or previously refused to submit to testing.  However, in one case attorney Hardy handled, the officer neglected to read the CDL warning, which resulted in the hearing officer setting aside the CDL disqualification.

Have you been arrested for driving under the influence in the Tampa Bay area?

Tampa Attorney David C. Hardy is a former DUI prosecutor that now represents persons accused of DUI. He is Board Certified by the Florida Bar and the National Board of Trial Advocacy as an Expert in Criminal Trial Law. As a prosecutor and defense attorney, he has extensive experience handling all types of DUI cases.

If you or a loved one has been arrested for DUI in Hillsborough County or Pinellas County, Florida, contact Attorney David C. Hardy.  He has the knowledge, skills, and experience to guide you through this process and obtain the best possible results.