If your license was valid on the night of your DUI arrest:
If you were arrested for DUI, you may have already had your driver’s license seized and suspended. The law enforcement officer who investigated your case was authorized by Florida law to take your driver’s license at the time of your arrest if you:
If either of the above conditions are satisfied, then the DHSMV administrative driver’s license suspension drops into place automatically.
You have the right to challenge this administrative suspension of your privilege to drive. However, you must act quickly in order to exercise that right. You only have 10 calendar days from the date of your arrest to challenge the driver’s license suspension and have your attorney request a hearing for that purpose. Note that Florida law specifically limits this 10 day period to “calendar” days, not just “business” days. This means that even though the Department of Highway Safety and Motor Vehicles may not open to accept the filing of a challenge to the administrative Driver’s License Suspension on Saturday or Sunday, the clock is still running on the 10 calendar day period.
If your license was seized and suspended for submitting a breath sample of .08 or above, you will be able to drive for a period of only ten days using the DUI citation issued to you on the night of your arrest (assuming that your driving privilege was otherwise valid prior to your DUI arrest). Unless you retain counsel and have him request a Formal DHSMV Review Hearing, you will not be able to drive at all for the following thirty day period. Under this scenario, on the 41st day from your arrest you could then be eligible for a hardship license.
If your license was taken from you because you refused to submit a breath sample, you will likewise be able to use the DUI citation to drive for ten days (assuming that your driving privilege was otherwise valid). After the tenth day from the date of your arrest, unless you retain counsel and have him request a Formal DHSMV Review Hearing, you must then cease all driving for a period of ninety days. Under this scenario, on the 101st day from the date of your arrest, you may then be eligible for a hardship license.
The Formal Administrative Review Hearing
In order to challenge your driver’s license suspension, it is necessary for your attorney to request a Formal Review Hearing within the 10 calendar day period. Prior to the hearing, an opportunity is provided for your attorney to review all of the documents associated with your case. At a Formal Review Hearing, we can subpoena and cross-examine the police officer who arrested you. In most cases, we can conduct the hearing without the need for you to appear, so that you can avoid missing time from work or school.
A Formal Review Hearing is not the same as a Hardship License hearing. In fact, these two types of hearings have nothing to do with each other. The Formal Review Hearing is for the sole purpose of challenging both the suspension of your driving privilege on the night of your DUI arrest and to avoid the thirty or ninety day period of no driving.
On the other hand, a Hardship License Hearing is held to decide if you qualify for the privilege of getting a restricted license. This license only allows driving for essential purposes related to maintaining your livelihood during the period that your license is actually suspended. Go here for more information onGetting a Hardship License or DUI Hardship License Tips. Our office can counsel you on your eligibility for both a driving permit and hardship license.
The Florida Legislature wants to encourage people arrested for DUI to submit a breath sample in order to the arm the prosecutor with evidence showing a breath alcohol level over the legal limit. The administrative suspension for “refusing” to blow is longer than the penalty for having a breath alcohol level of .08 or above.
The Three Ways Our Office May Be Able to Keep You Driving
1.) We can file all of the appropriate documents necessary to seek a temporary driving permit. Tthis temporary permit will allow you to continue driving beyond the ten day period permitted by the DUI citation.
2.) We will file an application for a Formal Review Hearing and request a copy of the forms and reports that law enforcement relied upon to justify taking your license. We will then review these forms and reports to determine the legal sufficiency of these materials in preparing our arguments for the hearing itself. If it is necessary to call witnesses to testify or to present evidence on your behalf, we will issue witness subpoenas to insure their attendance at the hearing. When the hearing is held, we will attend the proceeding and seek to invalidate the driver’s license suspension.
3.) If your driver’s license is nevertheless suspended, we may still be able to help you secure a hardship license. We will provide you with a “heads-up” about the nature and type of questions typically posed in the hardship license application process. We will also provide you with the necessary hardship driver’s license application materials. In addition, we can counsel you on the necessary tasks that you should complete prior to making your application.
It is important to note that the issues and burdens associated with a Formal Review Hearing are quite different from the issues that are considered by a criminal court. The Formal Review Hearing is a civilproceeding and will be limited to relatively narrow questions that are not generally considered in the criminalcourt proceeding. Success at a Formal Review Hearing can often be attributed to the simple failure on the part of law enforcement to timely submit or properly complete affidavits, forms, and reports. As such, what may seem like a significant amount of incriminating evidence in your criminal court case could have no bearing on your chances of winning a DHSMV Formal Review Hearing.
The facts of every case are different, so it is impossible to say with certainty what your chances of winning might be at this early stage. However, at your initial consultation, we can review some of the documentation in your case and possibly identify relevant issues that can be raised at your hearing. If we win the DHSMV Formal Review Hearing, you will then be able to get your driver’s license back. The request for the hearing and subsequent favorable administrative ruling may have the effect of resulting in your uninterrupted ability to lawfully drive.
If you lose the Formal Review Hearing there are no additional adverse penalties assessed against you — other than what you would have suffered had you elected not to pursue this remedy. (For example, losing the Formal Review Hearing will result in the same driver license suspension period, along with, the 30 or 90 days of ”no driving” you would have suffered had you never initially requested the hearing.) Even if you lose the Formal Review Hearing, our initial request will have still earned you an additional four to six weeks of driving beyond that permitted under the citation originally drafted by the arresting officer. Such additional time will have enabled you a better opportunity to secure arrangements for alternative transportation upon the commencement of your period of no driving.
DHSMV FAR Hearing is limited in scope to only the following issues:
In cases involving a breath test reading of .08 or higher, the DSHMV Hearing Officer must examine:
a.) Whether the law enforcement officer had probable cause to believe that you were driving or in actual physical control of a motor vehicle while under the influence of alcoholic beverages; and
b.) Whether you submitted a breath test that resulted in a reading of a .080 or higher.
See Florida Statute §322.2615(7)(a).
OR
In cases involving a refusal to submit to a breath test, the DHSMV Hearing Officer must examine:
a.) Whether the law enforcement officer had probable cause to believe that you were driving or in actual physical control of a motor vehicle while under the influence of alcoholic beverages; and
b.) Whether you refused to submit a breath sample after being told that your refusal to submit would cause the suspension of your driving privilege for a period of at least one year.
See Florida Statute §322.2615(7)(b).
You will note that because the scope of the DHSMV FAR Hearing is limited in this manner, it does not encompass the question of whether you are guilty or innocent of the DUI charge.
The ultimate outcome of the DHSMV hearing has little to do with the specific factual allegations made by the law enforcement officer involved in your case. Instead, the focus of the hearing is directed towards the “sufficiency” of the documentary evidence rather than the “quality” of the overall investigatory evidence intended for use in the prosecution of the criminal court DUI charge. Most Formal Review Hearings are won or lost on technicalities, such as the failure to include required documents, clerical errors in the documents themselves, or defects in the documents. Very few, if any, Formal Review Hearings can be won by challenging the factual allegations of law enforcement.
The process of challenging a civil administrative license suspension requires the assistance of a qualified attorney who knows and understands the unique issues associated with this collateral attack on your privilege to drive. It is obviously important to have a competent and experienced attorney on your side who can spot the issues associated with both your criminal court case and the Formal Review process. You should know that the law governing these hearings is in a constant state of flux. Court decisions are issued throughout the State of Florida on a regular basis that modify, add, or subtract from the legal requirements of what must actually be shown at the hearing.
Our office routinely handles Formal Administrative Review hearings at the local Florida DHSMV, Bureau of Administrative Review office in Clearwater. We are well familiar with the procedures put in place by DHSMV and the legal issues that need to be explored in order to try and overturn the administrative suspension. We are likewise knowledgable in the various methods for obtaining a hardship driver’s license or a temporary driving permit.
Retaining legal counsel for a DHSMV Formal Review Hearing may not be as costly as you think. If you have been arrested for a DUI, call our office to schedule a free initial consultation at (727) 578-0303. We can help!
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