||DUI Formal Review Hearings|
Florida DUI License Suspension Attorney
You only have 10 days after your DUI arrest to request a formal review hearing. Florida Statute Section 322.2615 and Chapter 15A-6 of the Administrative Code deal with the administrative suspension of your driver's license after a DUI arrest for any refusal case or breath test reading over .08.
Hiring an experienced Tampa DUI attorney at this stage of the case is important because of the complexity involved in successfully contesting the administrative suspension of a Florida driver license. Contact a DUI Attorney in Tampa, Florida to find out more about fighting your driver's license against an administrative suspensions after a DUI arrest in Hillsborough County, Pinellas County, Polk County, Pasco County, Hernando County and Manatee County, FL.
Winning the administrative hearing is an important step towards protecting your driving record, and the collateral consequences that come with a finding that you drove under the influence of alcohol or drugs, including a dramatic increase in your insurance premiums even if you ultimately avoid a DUI conviction in the criminal case.
NO DOWNSIDE TO REQUESTING THE FORMAL REVIEW HEARING IN A FLORIDA DUI CASE
Benefits of requesting the Formal Review Hearing under Florida law include:
- Requesting the formal review hearing allows you the opportunity to continue driving for work or business purposes for another 42 days;
- You may win the hearing if one of the critical witnesses do not appear after been subpoened by your attorney including the officer that conducted the stop, the officer that made the arrest, the breath test technician, and the agency inspector (if you took a breath test);
- You may win the hearing if there is insufficent evidence related to any necessary showing required to uphold the suspension.;
- If you win the hearing then the administrative suspension is INVALIDATED, which basically vacates the action taken by the officer at the scene of the arrest;
- Even if you lose the hearing, your attorney will have the opportunity to subpoeana witnesses and documents, inspection calibration records, and explore important defenses early in your case; and
- The officers or civilian witnesses will be locked into their story which allows your attorney to exploit inconsistent statements or disprove certain versions of events early in the case.
Opportunity to Explore DUI Defenses Under Florida Law
Even in those cases in which your Tampa DUI lawyer is not able to invalidate the Florida administrative suspension of your driver license, your attorney will nevertheless be able to cross-examine all of the state's witnesses. This cross-examination is important because it may be your attorney's only opportunity to question the witnesses before the trial or pre-trial motions in the case.
The cross-examination can then be typed up into a written transcript which can be used to impeach a witness at trial if they attempt to change their testimony. The transcript can also be used to convince the prosecutor to drop the charges completely, or reduce the charges to reckless driving or another non-DUI resolution of the case.
Your administrative suspension must be removed by the Florida DMV in an unlawful blood alcohol level test if you are later found "not guilty" of the underlying offense of DUI. However, if you are charged with DUI refusal, your administrative suspension will not be removed.
Administrative Suspension of your Driver's License After a Florida DUI Arrest
- First Offense -
- If you took the breath test your driver's license will be suspended for six (6) months with a thirty (30) "hard suspension" - meaning that you can not driver for any reason for those thirty (30) days.
- If you refused the breath test your driver's license will be suspended for twelve (12) months with a ninety (90) day "hard suspension" - meaning that you can not driver for any reason during those 90 days.
- Second Offense-
- If you took the breath test: twelve (12) month suspension with a thirty (30) day hard suspension.
- If you refused the breath test and the first offense was after a breath test, then a twelve (12) month suspension will follow with a ninety (90) day hard suspension.
- If you refused the breath test and the first offense was after a refusal, then your license will be suspended for eighteen (18) months with all eighteen months being a hard suspension - meaning that you can not get a hardship license.
- Third or Subsequent Offense-
- If you took the breath test: twelve (12) month suspension with all twelve (12) months being a heard suspension - meaning that you can not get a hardship license.
- If you refused the breath test and all of the prior offenses were after a breath test, then a twelve month suspension with 12 months of hard time will follow - meaning you can not get a hardship license.
- If you refused the breath test and one of the prior offenses was a refusal, then an 18 month suspension with 18 months of a hard suspension will follow - meaning you can not get a hardship license.
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Scheduling the DUI Administrative Hearing
The DUI formal review hearings are scheduled at the Bureau of Administrative Reviews office in the county in which the DUI arrest occurred and are governed by Section 322.2615. The hearing must be scheduled no later than thirty (30) days after the request is made. After requesting the hearing, a Notice of Formal Review Hearing / Prehearing Order is issued. If you are eligible a temporary driving permit is enclosed with the notice of formal review hearing which normally allows you to continue driving for business purposes only for another 30-45 days.
The DUI permit will become effective when the ten day permit expires. The temporary DUI permit in Florida is restricted to "business purposes only," which means a driving privilege that is limited to any driving necessary to maintain livelihood, such as driving to work, school, church or your doctor. A Driver's Prehearing Statement must be completed with subpoenas for the DHSMV seal and signature with in 10 days after the notice is received.
The subpoenas must be served on any witnesses to be compelled to testify at the DUI formal review hearing, which can include the officer that conducted the stop, the officer that conducted the field sobriety exercises, the officer that made the arrest, and the technician that administered the breath test or witnessed the refusal.
Furthermore, when a breath test was given, your attorney may also be able to subpoena the agency inspector and department inspectors. Yankey v. DHSMV, 2009 WL 416618 (Fla. 2d DCA Feburary 20, 2009). Under Rule 15A-6.012(1) subpoenas can be served on any officers or witnesses identified in documents submitted to the DHSMV pursuant to section 322.2615(2), Florida Statutes, which typically include the following:
- Criminal Report Affidavit which alleges DUI;
- General Offense Police Report;
- Florida DUI Uniform Traffic Citation;
- Vehicle Impound Form;
- Hillsborough County Sheriff's Office Department of Detention Services, Breath Alcohol Analysis Report (for 20 minute observation period);
- DUI worksheet completed by the arresting officer;
- Florida Department of Law Enforcement Alcohol Testing Program - Breath Alcohol Test Affidavit;
- Department Inspection Report - Intoxilyzer 8000; and
- Agency Inspection Report- Intoxilyzer 8000.
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Issues for the DUI Administrative Hearing
At the formal review hearing, the Florida DHSMV hearing officer will determine by a preponderance of the evidence presented whether sufficient cause exists to sustain, amend or invalidate the suspension of the driver's license pursuant to Florida Statutes Section 322.2615. The issues to be determined during the DUI formal review hearing when it is alleged that the driver blew over the limit are as follows:
- Whether the DUI officer had probable cause to believe the individual was either driving or in actual physical control of the vehicle in the State of Florida while under the influence of alcoholic beverages or chemical or controlled substances.
- Whether the individual had an unlawful blood-alcohol level or breath alcohol level of .08 or higher as provided in Florida Statute 316.193.
The issues to be determined during the DUI formal review hearing when it is alleged that the driver refused to submit to a breath or urine test are as follows:
- Whether law enforcement had probable cause to believe the individual was driving or in actual physical control of a motor vehicle in the State of Florida while under the influence of alcohol or a controlled substance;
- Whether the individual refused to submit to a urine or a test of his breath or blood alcohol level after being request to submit by a law enforcement officer; and
- Whether the individual was told that if he refused a test that his privilege to operate a motor vehicle would be suspended for a period of one year, or in the case of a second or subsequent refusal, for a period of eighteen months.
Furthermore, a recent decision issued on November 21, 2008 found that the hearing officer must also address whether the refusal to submit to a breath test was incident to a lawful arrest. Hernandez v. Department of Highway Safety and Motor Vehicles, --- So.2d ----, 2008 WL 4949320 (Fla. 1st DCA 2008).
Although, the Second DCA has found that the lawfulness of the arrest is not an issue at a formal review hearing. McLaughlin v. DHSMV, 2008 WL 4891047 (Fla. 2d DCA November 14, 2008). Because of the split between the various District Court of Appeals in Florida, this issue will ultimately be decided by the Florida Supreme Court.
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If you have been arrested for drunk driving or DUI in Florida, you must act quickly to preserve all of your rights to attack the administrative suspension of your drivers license. Contact an experienced DUI Lawyer in Tampa, FL, to discuss your case today for any DUI arrest in Tampa, Plant City, St. Petersburg, Clearwater, Bartow, New Port Richey, Dade City, or the counties of Hillsborough County, Pasco County, Pinellas County, or Polk County.
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Department of Highway Safety and Motor Vehicles - Florida Review Hearing
Location of Administrative Review Hearing Office
Tampa Bureau of Administrative Review
2814 E. Hillsborough Ave.Tampa, FL 33610-4479
Clearwater Bureau of Administrative Review
4585 140th Ave. NorthSuite 1002Clearwater, FL 33762(727) 507-4404
Orlando Bureau of Administrative Review
4101 Clarcona Ocoee Road, Suite 152Orlando, FL 32810(407) 623-1100
Daytona Beach Bureau of Administrative Review
995 Orange AvenueDaytona Beach, FL 32114-4663(386) 254-3911
Ft. Myers Bureau of Administrative Review
4048 Evans Avenue, Suite 305Ft. Myers, FL 33901(239) 278-7421
Ft. Pierce Bureau of Administrative Review
3220 S. Federal Hwy., Ste. 8,Ft. Pierce, FL 34982-8105(561) 460-3658
Gainesville Bureau of Administrative Review
2815 N.W. 13th Street, Suite 302Gainesville, FL 32609(352) 955-2030
Jacksonville Bureau of Administrative Review
7439 Wilson Blvd., Rm. 9Jacksonville, FL 32210-3597(904) 777-2131
Lake Worth Bureau of Administrative Review
6801 Lake Worth Rd., Ste. 230Lake Worth, FL 33467(561) 433-3636
Lauderdale Lakes Bureau of Administrative Review
3708 W. Oakland Park Blvd.Lauderdale Lakes, FL 33311-5802(954) 714-3551
Miami Bureau of Administrative Review
2515 W. Flagler St.Miami, FL 33135-1422(305) 643-7568
Melbourne Bureau of Administrative Review -
(more info at Melbourne, Brevard County, FL - DUI Attorneys)
2325 S. Babcock StreetMelbourne, FL 32901-7121(321)984-4910
Panama City Bureau of Administrative Review
237 W. 15th Street (Lincoln Center)Panama City, FL 32404-6794(850) 872-7747
Pensacola Bureau of Administrative Review
7282 Plantation Rd., Ste. 406Pensacola, FL 32504(850) 494-5838
Tallahassee Bureau of Administrative Review
504-A Capital Circle SETallahassee, FL 32301-3817(850) 487-2788
Winter Springs Bureau of Administrative Review
290 East State Road 434Winter Springs, FL 32708
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