Recusal of DHSMV Hearing Officer
After an arrest for DUI, your driver’s license will be administratively suspended if you had a BAC over .08 or you refused a breath test, urine test or blood test after being read implied consent.
You can fight that administrative suspension by demanding a formal review hearing within 10 days of your arrest (or the day you receive notice of the administrative suspension).
The administrative hearings are not presided over by judges or even lawyers. Instead, non-lawyers preside over the hearing. To recuse the hearing officer assigned to the case, you must file a motion for recusal prior to the state of the hearing.
The motion must contain a written statement explaining sufficient facts to show the driver has a well-founded fear that he will not receive a fair and impartial hearing. When should the DHSMV hearing officer be disqualified or recused from presiding over driver’s license administrative hearings?
In some cases, the attorney will file the Motion to Recuse not only the assigned hearing officer, but all other Department hearing officers because of some collective action taken by their office. DUI defense attorneys have long complained that they will not receive a fair and impartial hearing before a neutral and detached hearing officer.
In most cases, this training was conducted at the law enforcement agency by the hearing officer’s supervisor. This training demonstrates why the petitioner often has a well-founded fear that he would not receive a fair and impartial hearing.
Florida law provides for three sources for a recusal motion:
- Florida Administrative Code, Rule 15A-6.008;
- Section 38.10, Florida Statutes; and
- Rule 2.330, Fla. R. Jud. Admin (previously number Rule 2.160).
This administrative rule, Rule 15A-6.008, is the counterpart to Fla.Stat. §38.10 and Fla.R.Jud.Admin. 2.330. Section 38.10 provides the substantive right to seek disqualification of a judge while Rule 2.330 controls the procedural process.
Section 38.10 and Rule 2.330, like Administrative Rule 15A-6.008 provide that only the legal sufficiency of the motion may be addressed by the judge or hearing officer to whom the motion is addressed and that the judge or hearing officer may not pass on the merits of the motion.
Legal Sufficiency of the Motion to Recuse the Hearing Officer
Even if the driver has no first-hand knowledge about the facts that support the recusal, the driver should sign a statement or support affidavit that he was told about the facts in the motion and believes, based on those facts, that he will not receive a fair and impartial hearing.
Rule 15A-6.008(2), Florida Administrative Code. The Motion should also include a certificate of good faith from counsel. See section 38.10, Florida Statutes; Florida Rule of Judicial Administration 2.330.
Sufficient Grounds for the Disqualification of the Hearing Officer
If the only ground asserted in the Motion are related to prior rulings made by the Hearing Officer that are unrelated to the subject suspension hearing, then the court might rule that adverse prior rulings are not legally sufficient as grounds for a motion to recuse or to disqualify a hearing officer. See Krawczuk v. State, 92 So. 3d 195 (Fla. 2012) [37 Fla. L. Weekly S270b]; Jackson v. State, 599 So. 2d 103 (Fla. 1992); Howard v. State, 950 So. 2d 1260 (Fla. 5th DCA 2007) [32 Fla. L. Weekly D733a]; Winburn v. Earl’s Well Drilling & Pump Service, 939 So. 2d 199 (Fla. 5th DCA 2006) [31 Fla. L. Weekly D2516b]; see also Ginther v. Dep’t of Highway Safety & Motor Vehicles, Case No. 2003-30622-CICI (Fla 7th Cir. Ct. 2003).
Non-Lawyers Serving as Hearing Officers
The Florida legislature has designated the Florida Department of Highway Safety and Motor Vehicles (hereinafter “the Department” or “DHSMV”) as the agency to preside over hearings involving the suspension or revocation of a Florida driver’s license.
DHSMV oversees the Florida Highway Patrol (FHP), which is a division of the DSHMV. FHP is the primary law enforcement agency charged with ensuring the safety of the highways and roads of the state.
DHSMV also created the Bureau of Administrative Review (B.A.R.) to be responsible for the hiring, selecting, and assigning non-lawyer hearing officers to preside over the review hearings, receive testimony and evidence, determine the facts, and reach conclusions of law.
A “hearing officer” is a Division of Driver Licenses’ employee designated to conduct any proceeding prescribed by the administrative rules of the DHSMV. See Rule 15A-6.012(1), F.A.C. If a hearing officer is disqualified for any reason, the Division appoints another hearing officer to hear the case. See Rule 15A-6.008, F.A.C.
The Department’s dual role has at times created concern among drivers who appear before a Department hearing officer. To date, however, Florida courts have rejected the assertion that this administrative procedure is constitutionally infirm. Florida is not the only state to have reached this conclusion.
In State of Florida, DHSMV v. Griffin, 909 So.2d 538, 543 (Fla. 4th DCA 2005) [30 Fla. L. Weekly D2065a], that court reasoned that “we see no constitutional infirmity in non-lawyers serving as hearing officers under section 322.2615. . . .”
The court often emphasizes that administrative proceedings need not match the judicial model by containing all the formalities of judicial proceedings. Dixon v. Love, 431 U.S. 105, 115, 97 S.Ct. 1723, 1729, 52 L.Ed.2d 172 (1977); Hadley v. Department of Administration, 411 So.2d 184 (Fla. 1982).
The courts note that combining fact-seeking and judicial functions in the same office does not automatically violate due process. State v. Johnson, 345 So.2d 1069 (Fla. 1977) (upholding judge’s dual role in noncriminal traffic prosecutions).
Mass Recusal of the BAR Hearing Officers
In State of Florida, DHSMV v. Tidey, 946 So.2d 1223 (Fla. 4th DCA 2007) [32 Fla. L. Weekly D157a], the motorist feared bias on the part of all hearing officer and sought “mass recusal” of all non-lawyer DHSMV hearing officers. Id. at 1227, of all non-lawyer DHSMV hearing officers.
The fear was passed on “some hearing officers’ conduct in past hearings,” but not on any conduct by the hearing officer assigned to his case.
The appellate court observed: “We deem it significant that Tidey’s petition was not predicated on conduct that had transpired in his hearing, as none had yet been scheduled or conducted.” The Tidey’s motion asked that the Department be required to retain “neutral, detached magistrates.” Id. at 1225.
The Department declined and the reviewing court demurred, noting that the motorist’s motion for recusal of all DHSMV employees sought relief that was “beyond the scope of the recusal rule.” Id.
F.A.C. 15A-6.008 Recusal
The Florida Administrative Code 15A-6.008 provides the rule for the process to move to request a hearing officer for a formal review hearing at the Department of Highway Safety and Motor Vehicles.
(1) Any motion for recusal of a hearing officer shall be filed with the hearing officer before whom the case is pending prior to the start of the hearing. The motion shall be accompanied by a written statement stating particular grounds for which a hearing officer may be recused. The written statement must state facts sufficient to show that the driver has a well-founded fear that he will not receive a fair and impartial hearing.
(2) Unless denied as untimely, a motion shall be decided by the hearing officer before whom the case is pending. The hearing officer shall determine the legal sufficiency of the motion and affidavit. If the motion and affidavit are found to be legally sufficient, the hearing officer shall recuse himself or herself, after which the division shall appoint another hearing officer to hear the case.
Rulemaking Authority 322.2615(12), 322.02(4), 322.64(12) FS. Law Implemented 322.2615, 322.64 FS. History–New 10-1-90, Amended 10-7-91, 1-2-96.
This article was last updated on Friday, August 17, 2018.