Subpoena Decus Tecum for the DUI Video in a Formal Review Hearing
In a formal review hearing, we have always served a subpoena duces tecum to the officers for any video related to the DUI arrest. Watching the video before the formal review hearing is critical. The DHSMV does not make it easy to get those videos, but with a bit of planning, it can be done.
First, include the subpoena duces tecum language requesting the video within the subpoena for each law enforcement officer you would otherwise subpoena for testimony, including the stop officer and the arresting officer. Those offices almost always make no effort to read the subpoena duces tecum and usually show up empty-handed.
If the officer shows up empty-handed, it is important to question them on the record to get them to admit that they have access to the video because they can play it. They might say they have no good way to copy it unless they ask someone else at their agency, but they will usually admit that their agency can copy it at their request. You should also ask them for the name of the person within their agency who maintains those videos.
Then ask for a continuance so that you can obtain the video either through a motion to compel or by issuing a subpoena to the custodian of the record. Better yet, anticipate this problem will occur and serve a subpoena duces tecum on the custodian at any agency who might maintain any of these DUI videos.
To avoid any delay that might otherwise be caused by filing a motion to compel that officer to bring the video, the hearing officers will also issue a subpoena duces tecum to the custodian of that record. I assume most agencies would prefer their custodian of the record to process those requests instead of the individual officers.
When preparing the subpoena duces tecum to the custodian, the best practice is to call the agency to get the name of the custodian and then draft the subpoena duces tecum to that person, asking them to provide the video in advance of the hearing. The hearing officer will typically sign the subpoena even if it just says “Custodian,” but it is better to have the name of the person who normally processes those requests.
Rule 15A-6.012 for Subpoenas
The Florida Administrative Code, Section 15A-6, outlines the procedures for a Department license suspension hearing. Section 15A-6.012 specifically describes how a party may secure the issuance of a witness subpoena. Section 15A-6.012 provides, in part, as follows:
15A-6.012 Subpoenas.
(1) The driver may request a subpoena/subpoena duces tecum, HSMV Form 78066, for signature and issuance by the clerk or by the hearing officer, for the officers and witnesses identified in documents submitted pursuant to Section 322.2615(2), F.S. These documents include the following:….
(a) If a driver requests a subpoena/subpoena duces tecum, the driver shall submit a typed HSMV Form 78066 containing the name and address of the witness whose attendance is requested, the time and place at which the witness is to appear, and the driver’s name and address;
(b) If a subpoena duces tecum is requested, the driver shall also describe with particularity and specificity any material to be produced and the relevancy of such material. Materials requested pursuant to a subpoena duces tecum are limited to a time period not to exceed three months prior to the date of suspension…..
(6) A hearing officer is authorized to amend or strike a request for subpoena or subpoena duces tecum which does not comply with the provisions of this rule.
(7) A hearing officer is authorized to quash a subpoena or subpoena duces tecum prior to or at the review.
HSMV Form 78066 for the Subpoena Duces Tecum
Since this rule references HSMV Form 78066, you would think it would be easy to find on the HSMV website. After being unable to locate it, I emailed the Field Administrator for the Bureau of Administrative Reviews at BAR Tampa. I was provided with the following:
STATE OF FLORIDA
DEPARTMENT OF HIGHWAY SAFETY AND MOTOR VEHICLES
BUREAU OF ADMINISTRATIVE REVIEWS
GENERAL INFORMATION
SUBPOENA/SUBPOENA DUCES TECUM
Subpoenas are issued for the officers and witnesses identified in documents pursuant to sections 322.2615(2), 322.64(2), and 322.2616(3), Florida Statutes, and pursuant to R. 15A-6.012, F.A.C. If a subpoena duces tecum is requested, it shall be described with particularity and specificity any material to be produced and the relevancy of such material pursuant to R. 15A-6.012(1), F.A.C.
Pursuant to section 92.142, Florida Statute, witness fees are $5.00 per day plus 6 cents per mile round trip. Section 112.061(7)(a)(d), Florida Statutes, allows public officers, employees and authorized personnel 44.5 cents a mile whenever travel is by privately owned vehicles. Subpoenas should be served pursuant to sections 48.031, 92.141, and 92.142, Florida Statutes.
Written notice, including a copy of the subpoena, must be provided to the individual Assistant State Attorney assigned to the DUI case, or the appropriate state attorney’s office if no prosecutor has been assigned to the DUI case pursuant to R. 15A-6.012(5), F.A.C.
Service of subpoenas can be provided by the Sheriff’s Office for a nominal fee. The driver is responsible for service of the subpoena, notification to the Office of the State Attorney, and all related expenses.
Proof of service must include: date and time of service; payment of witness fees; name of person who accepted service; certification of service by the person who served the subpoena; and written notice to the appropriate state attorney’s office. See, R. 15A-6.012(4), F.A.C.
Subpoena duces tecum items for formal reviews, other than what the officer submitted pursuant to sections 322.2615, 322.2616 and 322.64 to the Bureau of Administrative Reviews office prior to the hearing, will need to be submitted to the hearing officer prior to or brought to the hearing. A copy of the subpoenaed item(s) can be delivered, mailed, or faxed to the hearing officer at least one hour prior to the hearing date and time unless brought to the hearing in person. The petitioner or the petitioner’s attorney will need to make arrangements and pay any costs to obtain subpoena duces tecum items, manuals, cumbersome items, or DVDs from the law enforcement agency. Discovery subpoenas will not be issued.
Videos are to be copied to a DVD and be certified as a true and correct copy by the law enforcement agency, prior to it being submitted to the hearing officer. If the video is to be viewed at the hearing, all parties must have the ability to view the video at the time of the hearing in their respective offices.
REV (09/20)
The Formal Review Hearing Subpoena / Subpoena Duces Tecum
STATE OF FLORIDA
DEPARTMENT OF HIGHWAY SAFETY AND MOTOR VEHICLES
BUREAU OF ADMINISTRATIVE REVIEWS
ADMINISTRATIVE SUSPENSION CASE NO.: Citation Number
IN RE.: Driver/Petitioner Name DRIVER LICENSE NO.: DL #
TO: Witness Name
Agency and Address
You must EMAIL the below BAR office at least one business day prior to the hearing. Your email must include the driver’s name, date, and time of the hearing on this subpoena. In your email, you must also (1) confirm your appearance; (2) leave a call back number for your testimony; and (3) leave an email address, as you may be sent a link to be sworn-in via GoToMeeting, or similar web-based audio/video platform. Please have a functional web camera and microphone for this purpose.
If at the time of your appearance, you are in the presence of a fellow law enforcement officer or notary public, you will be sworn in and testify via the telephone. If you are unable to be in the presence of a fellow law enforcement officer or notary public, you will be sworn-in and testify via a web-based audio/video platform. Only the Hearing Officer may release you from this subpoena.
YOU ARE SUMMONED TO APPEAR BY TELEPHONE BEFORE A HEARING OFFICER AT:
DATE: TIME:
LOCATION: TELEPHONE
BAR OFFICE TELEPHONE: (813) 276-5795
BAR OFFICE EMAIL: TAMPABAR@FLHSMV.GOV
SUBPOENA REQUESTED BY: Petitioner/Petitioner’s Attorney
and submit the following to the above listed B.A.R. Office*:
*A copy of the subpoena duces tecum items will need to be submitted to the hearing officer by hand delivery, email, or mail at least one hour prior to the hearing. The petitioner or the petitioner’s attorney will need to make arrangements and pay any costs to obtain subpoena duces tecum items, manuals, cumbersome items, or DVDs from the law enforcement agency. Videos are to be copied to a DVD and certified as a true and correct copy by the law enforcement agency prior to being submitted to the hearing officer.
WITNESS my hand and seal of the Department this _______day of ________________________, _______.
DEPARTMENT OF HIGHWAY SAFETY AND MOTOR VEHICLES
BY: ___________________________________
REV (09/20)
Pursuant to the provisions of the Americans with Disabilities Act, any person requiring special accommodations to participate in this proceeding please contact the Hearing Officer at the email address and telephone number above at least seven days before the scheduled hearing.
