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Breath Test Operator's Failure to Appear

Section 322.2615(11), Florida Statutes, mandates invalidation of the administrative suspension due to the failure of the breath test operator to appear even when it is alleged that the driver refused to submit to the chemical test.

When the defendant subpoenas the breath tech, but they fail to appear, the hearing officer should grant the Petitioner's request to invalidate based on this failure to appear. In a breath test case, you can simply make a motion to invalidate the suspension and the hearing officer will grant the motion.

But in a refusal case, the Department of Highway Safety and Motor Vehicle (DHSMV) has taken the position that the Petitioner cannot be afforded relief under section 322.2615, Florida Statutes.

In other words, the hearing officer will refuse to invalidate the suspension when the breath test operator fails to appear at the formal review hearing as required by section 322.2615, Florida Statutes.

Attorneys for DUI Formal Review Hearings in Florida

This article explains why the attorney should move to invalidate the suspension under section 322.2615, Florida Statutes, and file a petition for writ of certiorari when the hearing officer errors by denying the motion in a refusal case.

Contact an experienced criminal defense attorney to discuss the best strategies to win a formal review hearing in Florida.

With offices in Tampa in Hillsborough County, and in New Port Richey in Pasco County, we fight DUI cases throughout the greater Tampa Bay area.

Call 813-250-0500.


Section 316.1932 - Authority to Request a Chemical Test

Section 316.1932 authorizes a law enforcement officer to request a breath, blood or urine test under certain conditions after a driver is lawfully arrested.

As set out in Section 316.1932, there are very specific requirements for when such a test may be requested and specific directives as to what must be done if a driver indicates a desire to refuse such a test.


Section 322.2615 - Guidelines for a Formal Review Hearing

Section 322.2615, Florida Statutes, establishes the statutory guidelines for the formal review hearing to review a driver's license suspension imposed due to an unlawful breath test result or the refusal to submit to a breath, blood, or urine test that is required by s. 316.1932.

Among the guidelines set out in s. 322.2615 is the scope of review for the Hearing Officer at these proceedings, the authority of the Hearing Officer as it relates to these proceedings, and the rights and protections afforded a driver.

Among these rights and protections afforded the driver are the guidelines setting out the witnesses who can be subpoenaed and the remedies available if a witness fails to appear at the hearing.

The issue resulted from the amendment of Sec. 322.2615, effective July 1, 2013. The changes pertinent to this petition are set out in s. 322.2615(6) and s. 322.2615(11). S. 322.2615(6) states:

(6)(a) If the person whose license was suspended requests a formal review, the department must schedule a hearing within 30 days after such request is received by the department and must notify the person of the date, time, and place of the hearing.

(b) Such formal review hearing shall be held before a hearing officer designated by the department, and the hearing officer shall be authorized to administer oaths, examine witnesses and take testimony, receive relevant evidence, issue subpoenas for the officers and witnesses identified in documents provided under paragraph (2)(a), regulate the course and conduct of the hearing, question witnesses, and make a ruling on the suspension. The hearing officer may conduct hearings using communications technology. The party requesting the presence of a witness shall be responsible for the payment of any witness fees and for notifying in writing the state attorney's office in the appropriate circuit of the issuance of the subpoena. If the person who requests a formal review hearing fails to appear and the hearing officer finds such failure to be without just cause, the right to a formal hearing is waived and the suspension shall be sustained.

(c) The failure of a subpoenaed witness to appear at the formal review hearing is not grounds to invalidate the suspension. If a witness fails to appear, a party may seek enforcement of a subpoena under paragraph (b) by filing a petition for enforcement in the circuit court of the judicial circuit in which the person failing to comply with the subpoena resides or by filing a motion for enforcement in any criminal court case resulting from the driving or actual physical control of a motor vehicle that gave rise to the suspension under this section. A failure to comply with an order of the court shall result in a finding of contempt of court. However, a person is not in contempt while a subpoena is being challenged . . .

The underlined sections are the relevant additions that were made.

Section 322.2615(11) states, in its entirety:

The formal review hearing may be conducted upon a review of the reports of a law enforcement officer or a correctional officer, including documents relating to the administration of a breath test or blood test or the refusal to take either test or the refusal to take a urine test. However, as provided in subsection (6), the driver may subpoena the officer or any person who administered or analyzed a breath or blood test. 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.

Again, the underlined section is the section that was added effective July 1, 2013. 


Section 322.2615(11) - No Distinction Between a DUBAL and Refusal Case

The statute makes a clear distinction between these sections as to the remedy for the failure to appear of an arresting officer or breath test technician and the failure to appear of any other witness. The statute makes no distinction, however, between a DUI breath test case and a DUI refusal case.

Sec. 322.2615(7) requires the hearing officer to consider the following:

  • whether the arresting officer had probable cause to believe that the driver was driving or in actual physical control of a motor vehicle while under the influence of an alcoholic beverage or controlled substance;
  • whether the driver was lawfully arrested for DUI, and
  • either:
    • whether the driver had an unlawful blood alcohol level; or
    • whether the driver was advised, in the case of a refusal to submit to a test that:
      • if they refused to submit to a breath, blood or urine test, their driving privilege would be suspended; and
      • whether after having been so advised, the driver refused such test. 

Thus both scopes of review require consideration of the proper actions by the breath test technician.


The Plain Language of the Statute

Prior to July 2013, when the arresting officer or breath test operator failed to appear, the only remedy was enforcement in the circuit court as with any other witness.

By amending this section in this manner, the Florida legislature clearly recognized that these witnesses were the most significant to the issues before the hearing officer. As such, there is no reasonable basis to differentiate between refusal and breath test cases.

The plain language of the statute makes no distinction between hearings where a driver has submitted to a breath, blood or urine test or where they have refused such test.

When the Florida legislature detailed that the suspension shall be invalidated based on a breath technician's failure to appear they could have very well made the distinction between breath tests and refusal, but they did not. For this reason, the hearing officer commits error when it denies the Petitioner's request to invalidate.


This article was last updated on Friday, August 23, 2018.

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