Zero Tolerance Suspensions

A violation of Florida Statute Section 322.2616 (often called “the zero-tolerance suspension”) is neither a traffic infraction nor a criminal offense, nor does being detained under this statute constitute an arrest.

Actions taken under this statute are recorded in the motor vehicle records maintained by DHSMV, but do not necessarily bar prosecution under Florida Statute 316.193 for DUI.

The Department of Highway Safety and Motor Vehicles (DHSMV) is not permitted to suspend the person’s license under Florida Statute Section 322.2615 and Section 322.2616 for the same episode.

If you received a notice that your driver’s license will be suspended because you are under 21 years old and drove with an unlawful breath-alcohol level of .02 or above, act quickly.

You only have ten (10) days to hire an attorney to contest the administrative suspension. Your attorney can request a hearing at the DMV office to ask a hearing officer to invalidate the suspension.

In many of these cases, the under-21-year-old driver is detained on the side of the road until the notice of the zero-tolerance suspension has been issued. Then the driver will be released from the scene, or the young person’s parents will be called to pick them up. But in most cases, the young person is not arrested for any criminal offense.

Many suspensions are invalidated (removed from the driving record) because the rules are so complicated that the officers often make mistakes. Any mistake might mean the hearing officer will invalidate the suspension, saving you money on the reinstatement fees and your insurance for years to come.

Attorney for Zero Tolerance Suspensions in Florida

The DUI Defense Attorneys at Sammis Law Firm represent young people charged with drinking and driving throughout Hillsborough County. We can fight the administrative suspension and/or any criminal case in court.

If you are under 21, call an experienced DUI Attorney for Zero Tolerance .02 DUI suspensions in Tampa, FL, at Sammis Law Firm.

We also have offices in Clearwater and New Port Richey.

We represent clients throughout the greater Tampa Bay area, including Pasco County, Hernando County, Pinellas County, Manatee County, and Polk County, FL. Contact us to find out more about Florida Statute Section 322.2616.

Call (813) 250-0500 today.

Section 322.2616 for the Under 21 Suspension

This article on zero-tolerance administrative suspensions under F.S. 322.2616 explains the following:

• the statutes regulating the suspension of persons under 21 years old;
• the level of breath or blood alcohol considered as impaired for a driver under 21 years old; and
• the differences between the “notice of suspension” for adults and zero tolerance.

Under F.S. 322.2616, it is unlawful for a person under 21 years old who has a breath-alcohol or blood-alcohol level of .02 or higher to drive or be in actual physical control of a motor vehicle.

A suspension for violating the “Zero Tolerance” law does not bar prosecution for DUI (under section 316.193, Florida Statutes). However, if a person is suspended under 322.2616, the person may not be suspended for the same episode under section 322.2615, Florida Statutes.

For boaters under 21 years of age, they cannot legally operate a boat if they have a breath alcohol concentration (BAC) of 0.02 or higher. Read more about boaters under 21 years old accused of BUI.

Requirements for the Officer’s Suspension Packet

The officer’s packet to trigger the administrative suspension must contain the following:

• a copy of the suspension, including a 10-day permit if eligible becoming effective 12 hours after the stop;
• the driver’s license of the person receiving the suspension;
• an affidavit stating the officer’s grounds for believing that the person was under the age of 21 and was driving or in actual physical control of a motor vehicle with any breath-alcohol level;
• the results of any breath test or an affidavit stating that a breath test was requested by a law enforcement officer or correctional officer and that the person refused to submit to the test;
• whether the person was under the age of 21; and
• whether the person had a blood-alcohol or breath alcohol level of .02 or higher.

The issues for a DHSMV formal review hearing if the administrative suspension was triggered by a “refusal” to submit to a breath test when the driver is under the age of 21 years old include:

• Whether the law enforcement officer had probable cause to believe that the person was under the age of 21 and was driving or in actual physical control of a motor vehicle in this state with any blood-alcohol or breath-alcohol level or while under the influence of alcoholic beverages;
• The driver was under the age of 21;
• Whether the person refused to submit to a breath test after being requested to do so by a law enforcement officer or correctional officer;
• Whether the person was told that if he or she refused to submit to a breath test, his or her privilege to operate a motor vehicle would be suspended for one year, or in the case of a second or subsequent refusal for 18 months.

Rules for the Portable Breath Testing – PBT

A breath test to determine breath-alcohol level may be conducted by a preliminary alcohol screening test device (often called the “PBT”) listed in the U.S. Department of Transportation’s conforming products list of evidential breath measurement devices.

The DHSMV takes the position that:

• The reading from the device is deemed to be accurate and is admissible in evidence in any administrative hearing;
• Rules under Chapter 11D, Florida Administrative Code (FDLE Rules) do not apply to these hearings;
• A PBT is not an evidentiary test;
• Agencies adopt their own policies and operating procedures;
• No maintenance is required under section 322.2616, Florida Statutes;
• Operators need not be certified by FDLE;
• No 20-minute observation period;

Instructions for Under 21 Notice of Suspensions

Effective on January 1, 1997, the instructions for the notice of suspensions provide:

Pursuant to Section 322.2616 F.S., these notices are to be issued only to persons operating or in actual physical control of a motor vehicle who is under the age of 21 and have a breath alcohol level of .02 or higher or refuse to submit to a breath test authorized in Section 322.2616 F.S. This suspension notice should always be used for a violation of Section 322.2616 F.S.

The following documents must be forwarded to one of the 16 hearing offices of the Department of Highway Safety and Motor vehicles, listed on the reverse side of the officer-agency copy of the notice. These documents must be submitted within FIVE CALENDAR DAYS after the date of the issuance of the notice of suspension.

1. A copy of the suspension notice (HSMV 78103)(DO NOT list on transmittal form).
2. An affidavit stating grounds for belief that the person was under the age of 21 and was driving or in actual physical control of a motor vehicle with any breath alcohol level.
3. An affidavit stating the Results of any breath test; or
4. An afidavit stating that a breath test was requested by a law enforcement officer and that the person refused to submit to such test, and was read the implied consent warning.
5. Driver’s License, if surrendered.

Florida’s Implied Consent Warnings for Drivers Under 21 Years Old

The implied consent warnings in Florida for drivers under the age of 21 years old. The officer issuing the notice must ensure the driver understands the warning. The warning provides:

1. I am not requesting that you submit to a test of your breath for the purpose of determining the alcoholic content of your breath.
2. If you refuse the best, your privilege of operating a motor vehicle will be suspended for a period of one year or 18 months if your license has been previously suspended for refusing to submit to a required test.

The yellow copy of the notice is sent to the DHSMV Hearing Officer’s Copy. The driver gets the yellow copy, and the officer-agency gets the pink copy.

Finding an Attorney for Section 322.2616 Violations

If you were given a notice that your driver’s license will be suspended under F.S. 322.2616 because you drove with a breath alcohol level of .02 or above (or if you refused to submit to the test requested), then contact an experienced DUI attorney in Tampa for driver’s under the age of 21 years old.

We represent young people charged with DUI throughout the greater Tampa Bay area, including Hillsborough County, Hernando County, Pasco County, Manatee County, and Polk County, FL.

Contact us to discuss your case today to discuss your rights during an administrative hearing at the Bureau of Administrative Reviews Office in Tampa, FL.

Call (813) 250-0500.

This article was last updated on Friday, June 2, 2023.