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Sample Motion to Enforce a Subpoena

What happens if you properly subpoena a witness for a formal review hearing at the Bureau of Administrative Reviews (BAR) office, but the witness just doesn't show up? If the arresting officer or breath test operator fails to appear then make a motion to invalidate the suspension or disqualification.

But if any other witness fails to appear, then you must decide between going forward without the witness or seeking a continuance to file a motion to enforce the subpoena pursuant to Florida Statute Section 322.2615(6)(c) and Rule 15A-6.012, Florida Administrative Code.

Section 322.2615(6)(c) provides: 

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.

Unless you have a really good reason to go forward without the witness, you should consider filing the motion to enforce the subpoena. No filing fee is required if you file the action in the criminal court case. A $400 filing fee is required if you file the action in the circuit court where the witness resides.

The hearing officer is required to provide you with an extended driving permit if you file the motion to enforce and notice of hearing and provide the hearing officer with a copy within 10 days. We cut and paste a sample motion to enforce a subpoena below.


IN THE COUNTY COURT OF THE THIRTEENTH JUDICIAL CIRCUIT

    IN AND FOR HILLSBOROUGH COUNTY, FLORIDA

CRIMINAL DIVISION 

STATE OF FLORIDA,

v.

xxx,

      Defendant.

_____________________/

 

CASE NO.:

 

 

DIVISION: 

 

MOTION FOR ORDER TO SHOW CAUSE/ ENFORCEMENT OF SUBPOENA

Comes now the Defendant, xxx, by and through undersigned attorney, in this case, pursuant to Section 322.2615(6)(c), Florida Statutes and Rule 15A-6.012, Florida Administrative Code, and respectfully requests this Honorable Court to grant this Motion for Order to Show Cause/Enforcement of Subpoena and relief sought herein and would state as grounds therefore and in support thereof the following:

  1. Florida Statutes section 322.2615(6)(c) provides: “If a witness fails to appear, a party may seek enforcement of a subpoena . . . 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.”
  2. Defendant was arrested for driving under the influence on .
  3. After the arrest, it is alleged that Defendant submitted to a breath test with a reading over the legal limit [or refused to submit to a breath, blood or urine test], which resulted in an administrative suspension of Defendant's driver license.
  4. The Defendant appropriately applied for an administrative formal review hearing to challenge the administrative suspension of her driver’s license within ten days of the arrest.
  5. As a result, the formal review hearing was scheduled for .
  6. The Defendant, upon receiving documents from the arresting law enforcement agency, then submitted the appropriate form subpoenas to be issued by the hearing officer by providing the Department with a Driver’s Prehearing Statement dated , which is attached as Exhibit “A”.
  7. On , Defendant then provided written notice to the State Attorney’s Office of the issuance of the subpoena for Deputy , Deputy , and witness . Written notice is attached as Exhibit “B”.
  8. Each witness was properly served by a certified process server, with . Proof of the return of service is attached as Exhibit “C”.
  9. failed to appear for the formal review hearing on and did not show just cause as to why he / she could not attend the scheduled hearing within the time period allowed pursuant to F.A.C. 15A-6.015.
  10. Hearing Officer indicated that the hearing would be continued and relief would be granted only if a Motion for Order to Show Cause / Enforcement of Subpoena was filed with the clerk and a hearing was scheduled pursuant to Section 322.2615(6)(c), Florida Statutes.

WHEREFORE, the Defendant requests this Honorable Court to order to fully comply with the subpoena and to personally appear for the Formal Review Hearing at the Bureau of Administrative Reviews Office located at 2814 E. Hillsborough Avenue, Tampa, Florida 33610, on a date that will be determined by Hearing Officer .

The Defendant additionally requests this Honorable Court to make applicable the full force of contempt sanctions to any failure to abide by this Court’s order.

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and correct copy of the foregoing has been furnished to the Honorable Andrew H. Warren, Office of the State Attorney of the Thirteenth Judicial Circuit, via Electronic Mail, MailProcessingStaff@sao13th.com, the Bureau of Administrative Reviews, 2814 E. Hillsborough Avenue, Tampa, FL 33610, via Electronic Mail, tampabar@flhsmv.gov, and to , on the ___ day of January, 2018.

----------------------------------


Sample Proposed Order for the Motion to Enforce a Subpoena

IN THE COUNTY COURT OF THE THIRTEENTH JUDICIAL CIRCUIT

  IN AND FOR HILLSBOROUGH COUNTY, FLORIDA

CRIMINAL DIVISION

STATE OF FLORIDA,

v.

xxx,

      Defendant.

_____________________/

 

CASE NO.:  

 

DIVISION: 

 

 

ORDER ON MOTION TO SHOW CAUSE/ENFORCEMENT OF SUBPOENA

            THIS CAUSE having come before me on , upon the Defendant’s Motion to Show Cause/Enforcement of Subpoena and the Court upon the foregoing Motion and being fully advised in the premises, it is hereby:

            ORDERED AND ADJUDGED that shall appear at the rescheduled Formal Review Hearing on , at 9:00 a.m., at the Bureau of Administrative Reviews, located at 2814 E. Hillsborough Avenue, Tampa, Florida 33610, and shall otherwise fully comply with the terms listed on the previously served subpoena attached as Exhibit "A."

            DONE AND ORDERED in Chambers at the Hillsborough County Courthouse, Tampa, Florida on this _____ day of January, 2018.

                                                                                                                           ______________________________

                                                                                                                           County Court Judge

 

cc:        

_________, Defendant's Attorney

_________, Assistant State Attorney

_________, Hearing Officer , Bureau of Administrative Review (BAR) Office, DHSMV


This article was last updated on Thursday, March 3, 2018.

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