DUI Formal Review Hearings in Tampa, FL
You only have 10 days after your DUI arrest to request a formal review hearing to contest the administrative suspension of your driver’s license. The rules for the administrative suspension are found in Florida Statute Section 322.2615 and Chapter 15A-6 of the Administrative Code.
The administrative suspension occurs after a DUI arrest for any refusal case or breath test reading over .08.
Hiring an experienced DUI attorney at this stage of the case is important because of the complexity involved in successfully contesting the administrative suspension of a Florida driver license.
We are familiar with the best ways to conduct a formal review hearing in Tampa to contest the administrative suspension.
Click here to read more about our Recent Case Results in DUI Cases.
Winning the administrative hearing is an important step towards protecting your driving record.
Winning the administrative hearing also protects you from the collateral consequences that come with an administrative finding that you drove under the influence of alcohol or drugs, even if you ultimately avoid a DUI conviction in the criminal case.
Contact an experienced criminal defense lawyer at Sammis Law Firm to discuss your DUI case and protecting your driver’s license.
Call (813) 250-0500 today.
Demanding the Formal Review Hearing
Benefits of requesting the Formal Review Hearing under Florida law include:
- Requesting the formal review hearing gives you the opportunity to obtain a 42-day BPO license (a.k.a. the hardship license) so that you can continue to drive while your attorney fights the administrative suspension;
- You will automatically win the administrative hearing if the arresting officer or breath test operator fails to appear after being served with a subpoena;
- If another witness fails to appear, you can obtain another extended driving permit while your attorney enforces the subpoena against the witness;
- You may win the hearing if there is insufficient evidence related to any necessary showing required to uphold the suspension;
- If you win the hearing then the administrative suspension is INVALIDATED, which basically vacates the action taken by the officer at the scene of the arrest;
- Even if you lose the hearing, your attorney will have the opportunity to subpoena witnesses and documents, inspection calibration records, and explore important defenses early in your case; and
- By questioning the officers or civilian witnesses at the hearing, your attorney can lock them into their testimony, which allows your attorney to exploit inconsistent statements or disprove certain versions of events early in the case.
Your attorney can obtain discovery at the formal review hearing and not be deemed to have invoked criminal discovery because the Rules of Criminal Procedure have no application to discovery taken by a defendant in a parallel administrative or civil proceeding.
Consequently, the defendant is not obligated to engage in reciprocal discovery under the Rules of Criminal Procedure even after questioning all of the witnesses in the case at the formal review hearing. Llanes v. State, 603 So.2d 1294 (Fla. 3d DCA 1992).
When the Arresting Officer or Breath Test Operator Fails to Appear?
As a practical matter, the hearing officer can render a decision solely on the basis of documents without the presence of any witnesses. §322.2615(2), Fla. Stat. But the driver has the right to serve a subpoena issued by the hearing officer upon request.
If the driver obtains and properly serves a subpoena on the arresting officer and the breath test officer (even in a refusal case), and either fails to appear at the formal review hearing, then Florida Statute 322.2615 provides that the hearing officer SHALL invalidate the suspension.
If your attorney is successful in convincing the hearing officer to set aside the suspension of your driving privileges for any reason then the hearing officer will sign an order to that effect.
Admission of Agency Inspection During the Formal Review Hearing
In a breath test case, can you win the FRH if the hearing officer does not admit an agency inspection report or department inspection record into evidence at the hearing?
Yes. You can move to exclude the breath test affidavit and argue that the record is insufficient to show that the BAC was over .08 because the breath test result is only sufficient under section 316.1934(5) if it is accompanied by proof of the “most recent requirement maintenance” which the courts have interpreted as requiring proof of either the agency inspection or department inspection, both not both.
The reason the agency inspection is required is that Florida Statute section 316.1934(5)(e) requires proof of the “date of performance of the most recent required maintenance on such instrument.”
In a typical formal review hearing, the officer or agency will cause the Agency Inspection Report referenced as the last agency inspection on the breath test affidavit to be included within the packet. The hearing officer will then consider the Breath Alcohol Test Affidavit, showing that diagnostic checks immediately prior to and following the breath test samples indicate that the breath test machine was functioning properly. The hearing officer will also consider the Agency Inspection Report.
In a formal review hearing, the law enforcement agency that issued the driver license suspension must only establish an unlawful breath-alcohol level by a preponderance of the evidence. Dep’t of Highway Safety and Motor Vehicles v. Berne, 49 So. 3d 778, 782 (Fla. 5th DCA); Rule 15A-6.013, F.A.C.
The breath test result affidavit, combined with an agency inspection report, shows that the Department and the agency substantially complied with the applicable statutes and rules relating to the inspection and maintenance of the Intoxilyzer used for the Petitioner’s breath test. Dep’t of Highway Safety and Motor Vehicles v. Dehart, 799 So. 2d 1079 (Fla. 5th DCA 2001).
The documents provide a presumption of correctness of the breath test results creating a burden on the Petitioner to establish the breath test machine was not in compliance.
What does the order say if you win the hearing?
STATE OF FLORIDA
DEPARTMENT OF HIGHWAY SAFETY AND MOTOR VEHICLES
IN THE MATTER OF THE DRIVING PRIVILEGE OF:
Petitioner. Driver’s License Number: _________________
Final Order on Results of Review Hearing
This case is adjudicated under the authority of Chapter 15A-6, F.A.C. and section 322.2615. The Hearing Officer has set aside the suspension of your driving privilege dated ________ for driving with an unlawful alcohol level or refusing to submit to a lawfully requested chemical test.
Upon reviewing the facts of the case, the Department Hearing Officer has determined that this is insufficient evidence to support:
The law enforcement officer had probable cause to believe that the person who’s license was suspended was driving or in actual physical control of a motor vehicle in this state while under the influence of alcoholic beverages or chemical or controlled substances.
This decision of the Department Hearing Officer has no bearing on any DUI trial. If you are convicted of a DUI charge in court, your driving privilege will be revoked according to Florida law. You will be required to surrender to the court all driver licenses in your possession.
Ordered this ___ day of ______, 2013.
________, HSMV Field Hearing Officer
Bureau of Administrative Reviews
Department of Highway Safety and Motor Vehicles
A law enforcement agency may appeal any decision of the department invalidating a suspension by a petition for writ of certiorari in the circuit court in the county wherein a formal or informal review was conducted within 30 days of this order, pursuant to Florida Rules of Appellate Procedure 9.100.
HSMV 78060 (Rev. 05/11)
Opportunity to Explore DUI Defenses Under Florida Law
Even in those cases in which your Tampa DUI lawyer is not able to invalidate the Florida administrative suspension of your driver license, your attorney will nevertheless be able to cross-examine all of the state’s witnesses.
This cross-examination is important because it may be your attorney’s only opportunity to question the witnesses before the trial or pre-trial motions in the case.
The cross-examination can then be typed up into a written transcript which can be used to impeach a witness at trial if they attempt to change their testimony.
Your administrative suspension must be removed by the Florida DMV in an unlawful blood alcohol level test if you are later found “not guilty” of the underlying offense of DUI.
However, if you are charged with DUI refusal and are found “not guilty” of DUI at trial then your administrative suspension will not be removed.
The Length of the Administrative Suspension after a DUI Arrest
The length of the administrative suspension after a DUI arrest in Florida depends on whether a prior administrative suspension has occurred and whether the prior suspension was for a refusal or BAC over .08.
- First Offense–
- If you took the breath test your driver’s license will be suspended for six (6) months with a thirty (30) “hard suspension” – meaning that you can not driver for any reason for those thirty (30) days.
- If you refused the breath test your driver’s license will be suspended for twelve (12) months with a ninety (90) day “hard suspension” – meaning that you can not driver for any reason during those 90 days.
- For a DUI arrest that occurs after July 1, 2013, you can request a review of eligibility for a “Business Purpose Only” restricted driving privilege to avoid the hard suspension period but that request will waive your right to a formal or informal review hearing.
- Second Offense –
- If you took the breath test: twelve (12) month suspension with a thirty (30) day hard suspension.
- If you refused the breath test and the first offense was after a breath test, then a twelve (12) month suspension will follow with a ninety (90) day hard suspension.
- If you refused the breath test and the first offense was after a refusal, then your license will be suspended for eighteen (18) months with all eighteen months being a hard suspension – meaning that you can not get a hardship license.
- Third or Subsequent Offense–
- If you took the breath test: twelve (12) month suspension with all twelve (12) months being a hard suspension – meaning that you can not get a hardship license.
- If you refused the breath test and all of the prior offenses were after a breath test, then a twelve-month suspension with 12 months of hard time will follow – meaning you can not get a hardship license.
- If you refused the breath test and one of the prior offenses was a refusal, then an 18-month suspension with 18 months of a hard suspension will follow – meaning you can not get a hardship license.
Scheduling the DUI Administrative Hearing
The DUI formal review hearings are scheduled at the Bureau of Administrative Reviews office in the county or region where the DUI arrest occurred. The hearings are governed by Section 322.2615.
The hearing must be scheduled no later than thirty (30) days after the request is made. After requesting the hearing, a Notice of Formal Review Hearing / Prehearing Order is issued.
If you are eligible a temporary driving permit is enclosed with the notice of formal review hearing which normally allows you to continue driving for business purposes only for another 42 days.
The DUI permit will become effective when the ten-day permit expires. The temporary DUI permit in Florida is restricted to “business purposes only,” which means a driving privilege that is limited to any driving necessary to maintain the petitioner’s livelihood, such as driving to work, school, church, or your doctor.
A Driver’s Prehearing Statement must be completed with subpoenas for the DHSMV seal and signature within 10 days after the notice is received.
The subpoenas must be served on any witnesses to be compelled to testify at the DUI formal review hearing, which can include the officer that conducted the stop, the officer that conducted the field sobriety exercises, the officer that made the arrest, and the technician that administered the breath test or witnessed the refusal.
Furthermore, when a breath test was given, your attorney may also be able to subpoena the agency inspector and department inspectors. Yankey v. DHSMV, 2009 WL 416618 (Fla. 2d DCA February 20, 2009).
Under Rule 15A-6.012(1) subpoenas can be served on any officers or witnesses identified in documents submitted to the DHSMV pursuant to section 322.2615(2), Florida Statutes, which typically include the following:
- Criminal Report Affidavit which alleges DUI;
- General Offense Police Report;
- Florida DUI Uniform Traffic Citation;
- Vehicle Impound Form;
- Hillsborough County Sheriff’s Office Department of Detention Services, Breath Alcohol Analysis Report (for 20 minute observation period);
- DUI worksheet completed by the arresting officer;
- Florida Department of Law Enforcement Alcohol Testing Program – Breath Alcohol Test Affidavit;
- Department Inspection Report – Intoxilyzer 8000; and
- Agency Inspection Report- Intoxilyzer 8000.
Under 15A-6.012(2), a driver who requests subpoenas to be issued is responsible for the service of such subpoenas and payment of any costs and fees.
Service of witness subpoenas and compensation of witnesses shall be in the manner provided for service of witness subpoenas pursuant to Sections 48.031, 92.141, and 92.142, F.S.
Local police departments will usually accept service of a DHSMV subpoena within the 5 business days service requirement explained in Fla. Stat. 48.031(4)(a)3.
Issues for the DUI Formal Review Hearing
At the formal review hearing, the Florida DHSMV hearing officer will determine by a preponderance of the evidence presented whether sufficient cause exists to sustain, amend or invalidate the suspension of the driver’s license pursuant to Florida Statutes Section 322.2615.
The issues to be determined during the DUI formal review hearing when it is alleged that the driver blew over the limit are as follows:
- Whether the DUI officer had probable cause to believe the individual was either driving or in actual physical control of the vehicle in the State of Florida while under the influence of alcoholic beverages or chemical or controlled substances.
- Whether the individual had an unlawful blood-alcohol level or breath alcohol level (BAL) of .08 or higher as provided in Florida Statute 316.193.
The issues to be determined during the DUI formal review hearing when it is alleged that the driver refused to submit to a breath or urine test are as follows:
- Whether law enforcement had probable cause to believe the individual was driving or in actual physical control of a motor vehicle in the State of Florida while under the influence of alcohol or a controlled substance;
- Whether the individual refused to submit to a urine or a test of his breath or blood alcohol level after being request to submit by a law enforcement officer; and
- Whether the individual was told that if he refused a test that his privilege to operate a motor vehicle would be suspended for a period of one year, or in the case of a second or subsequent refusal, for a period of eighteen months.
Furthermore, a recent decision issued on November 21, 2008, found that the hearing officer must also address whether the refusal to submit to a breath test was incident to a lawful arrest. Hernandez v. Department of Highway Safety and Motor Vehicles, — So.2d —-, 2008 WL 4949320 (Fla. 1st DCA 2008).
Although, the Second DCA has found that the lawfulness of the arrest is not an issue at a formal review hearing. McLaughlin v. DHSMV, 2008 WL 4891047 (Fla. 2d DCA November 14, 2008).
Because of the split between the various District Court of Appeals in Florida, this issue will ultimately be decided by the Florida Supreme Court.
Evidence that Supports Inconsistent Inference
A hearing officer cannot make a critical determination supported only by evidence that gives equal support to inconsistent inferences. In circumstances where conflicting documents support two different reasonable inferences, the arbitrary choice of one document over another does not meet the competent, substantial evidence test.
For example, in Dep’t of Highway Safety & Motor Vehicles v. Colling, 178 So. 3d 2, 4 (Fla. 5th DCA 2014) [39 Fla. L. Weekly D1195b], the court found that although a scrivener’s error had occurred, the hearing officer erred in choosing to believe one document over the other.
In Papper v. Dep’t of Highway Safety & Motor Vehicles, 23 Fla. L. Weekly Supp. 813a (Fla. 15th Cir. Ct. Jan. 28, 2016), the court held that the hearing officer lacked competent, substantial evidence necessary to support her decision in the face of conflicting documents as to when the petitioner was arrested.
In Smith v. Dep’t of Highway Safety & Motor Vehicles, 24 Fla. L. Weekly Supp. 12a (Fla. 7th Cir. Ct. March 9, 2016), the court found that petitioner could not have been arrested and read the implied consent at the same time, as the Refusal Affidavit stated, thus there was a lack of competent, substantial evidence necessary to support the hearing officer’s finding.
One problem that occurs is when the evidence doesn’t show that the request for a breath test must occur after a lawful arrest. In Dep’t of Highway Safety & Motor Vehicles v. Whitley, 846 So. 2d 1163, 1167 (Fla. 5th DCA 2003), the court held that the breath test was incidental to a lawful arrest because it was administered well after the driver was lawfully arrested.
In Dep’t of Highway Safety & Motor Vehicles v. Hernandez, 74 So. 3d 1070 (Fla. 2011) [36 Fla. L. Weekly S243a], the court held that a driver license cannot be lawfully suspended unless the request to take the breath test and the refusal are incident to a lawful arrest.
When the evidence is hopelessly in conflict as to whether the breath test was requested before or after the driver was arrest and there is no sworn testimony explaining that the conflicts in the evidence are scrivener’s errors or otherwise clarifying the timeline of events, the hearing officer is not permitted to arbitrarily chose to believe certain documents over others.
If there is a lack of competent, substantial evidence to support the hearing officer’s finding that Petitioner refused to submit to a breath test incident to a lawful arrest, the Petition for Writ of Certiorari should be granted and the sustaining the driver’s license suspension should be quashed.
Finding Competent Substantial Evidence With Conflicts in the Paper Record
After requesting a formal review hearing, the Department or the Driver is free to subpoena witnesses to attend the hearing. Although the Department will issue a subpoena requested by the driver so that the driver cann then serve the subpoena on the witness, the Department rarely serves a subpoena itself.
When the paper record has conflicts, the driver might decide not to serve the subpoena. If the Hearing Officer decides the case on a paper record, without the benefit of any live testimony, then doing so is not without risks. In Dep’t of Highway Safety & Motor Vehicles v. Colling, 178 So. 3d 2, 5 (Fla. 5th DCA) [39 Fla. L. Weekly D1195b], rev. denied 148 So. 3d 770 (Fla. 2014), the court concluded:
When the documents conflict on a material issue, however, the hearing officer cannot simply throw a dart to decide which one is correct. This does not necessarily mean that live testimony is always needed to resolve such conflicts.
For example, had the record here contained the machine-generated printout of the results, the hearing officer might appropriately have chosen to prefer it over a report, because it is an inherently reliable expression of the result.
We are aware that the Department is authorized to proceed without witnesses in a formal review. It also has the authority to compel the attendance of witnesses when it chooses. When it elects the former strategy, however, it does so at the risk that the documents might contain irreconcilable, material contradictions.
A good example of the paper evidence having irreconcilable conflicts that do not constitute sufficient competent substantial evidence can be found in Dep’t of Highway Safety & Motor Vehicles v. Trimble, 821 So. 2d 1084, 1087 (Fla. 1st DCA 2002).
In Trimble, the formal review hearing involved the review of paper records only. The arresting officer filled out an “Affidavit of Refusal to Submit to Breath, Urine, or Blood Test” that listed the time of the arrest as September 27, 2000, at 11:40 p.m. The same document listed the time of refusal as September 27, 2000, at 12:45 a.m., which was almost 23 hours earlier.
Although the reading from the breath test machine showed that the refusal occurred on September 27 at 12:47 a.m., that time was in conflict with the “Alcohol Influence Report” that stated that the consent warning was given on the 27th at 12:50 a.m., which was a few minutes after the refusal but a few minutes before the “Affidavit of Refusal” said the consent warning was given. Id. at 1086.
On certiorari review, the circuit court concluded that “the documentary evidence presented by the Department, which was the only evidence submitted to prove its case, was legally insufficient to constitute CSE on the warning issue because the documents were hopelessly in conflict and the discrepancies on the critical facts went unexplained.” Id. at 1086.
The Department then sought second-tier certiorari in the First District Court of Appeal, arguing that the circuit court had improperly engaged in reweighing the evidence. In denying certiorari, the appellate court upheld the circuit court’s decision finding that it did not reweigh the evidence when finding a lack of competent substantial evidence to support the suspension. Id. at 1085.
The court used the definition of “competent substantial evidence” from in De Groot v. Sheffield, 95 So.2d 912 (Fla. 1957):
Substantial evidence has been described as such evidence as will establish a substantial basis of fact from which the fact at issue can be reasonably inferred. We have stated it to be such relevant evidence as a reasonable mind would accept as adequate to support a conclusion.
In employing the adjective “competent” to modify the word “substantial,” we are aware of the familiar rule that in administrative proceedings the formalities in the introduction of testimony common to the courts of justice are not strictly employed.
We are of the view, however, that the evidence relied upon to sustain the ultimate finding should be sufficiently relevant and material that a reasonable mind would accept it as adequate to support the conclusion reached. To this extent the “substantial” evidence should also be “competent.”
Id. at 916.
The Trimble court then decided that the circuit court did not reweigh the evidence in finding that the evidence was neither competent nor substantial because the “critical determination of when or whether the motorist was given the consent warning required by law as a predicate for the conclusion that she refused to submit to the test, thereby leading to a suspension of the license, was supported only by evidence that gives equal support to inconsistent inferences, and as such can hardly be deemed so sufficiently reliable that a reasonable mind would accept it as adequate to support the conclusion reached.” Trimble, 821 So. 2d at 1087 (emphasis added).
Since the “hearing officer’s finding that Trimble was given a consent warning before her refusal could have rested as much on the flip of a coin as on the documentary evidence submitted,” the circuit court’s decision to invalidation of the suspension was upheld. Id.
Filing a Writ of Certiorari after a Formal Review Hearing
At the formal review hearing, the hearing officer is required to provide minimum procedural due process of law, conduct a fair and impartial review of the evidence, and render a decision that does not depart from the essential requirements of the law.
One issue in many formal review hearings occurs because the officer’s reports are inconclusive about an essential fact such as whether the reading of the implied consent and alleged refusal occurred before or after the DUI arrest.
When the evidence is inconclusive, but the hearing officer nevertheless upholds the suspension, the petitioner can file for a writ of certiorari asking the Court to grant the petition, quash the Final Order of License Suspension, and reinstate the driving privileges.
The Court will then grant an Order to Show Cause and require the DHSMV to file a response. The petitioner can also request oral arguments, pursuant to Florida Rule of Appellate Procedure 9.320.
“Competent substantial evidence” has been defined as “evidence in the record that supports a reasonable foundation for the conclusion reached.” Dep’t of Highway Safety & Motor Vehicles v. Trimble, 821 So. 2d 1084, 1087 (Fla. 1st DCA 2002) [27 Fla. L. Weekly D807a].
“If the [DHSMV] is going to choose to present no live testimony but to rely exclusively on written documents, then clearly it cannot ask [the circuit court] to ignore discrepancies and inconsistencies in the written documentation where the cause for such discrepancies and inconsistencies is not explained by sworn testimony.” Trimble, 821 So. 2d at 1086; see also, Dep’t of Highway Safety & Motor Vehicles v. Wiggins, 151 So. 3d 457, 469-70 (Fla. 1st DCA 2014) [39 Fla. L. Weekly D1894a], rev. granted, SC14-2195 (Fla. Dec. 17, 2014).
If you have been arrested for drunk driving or DUI in Florida, you must act quickly to preserve all of your rights to attack the administrative suspension of your driver’s license.
Contact an experienced DUI Lawyer in Tampa, FL, to discuss your defenses today for any DUI arrest in Tampa, Plant City, St. Petersburg, Clearwater, Bartow, New Port Richey, Dade City, or the counties of Hillsborough County, Pasco County, Pinellas County, or Polk County.
Call 813-250-0500 today.
Department of Highway Safety and Motor Vehicles – Florida Review Hearing
Location of Administrative Review Hearing Office
Pensacola Bureau of Administrative Review
7282 Plantation Rd., Ste. 406 Pensacola, FL 32504 (850) 494-5838
The Pensacola BAR Office is responsible for the following counties – Bay, Escambia, Holmes, Okaloosa, Santa Rosa, Walton, Washington
Tallahassee Bureau of Administrative Review
504-A Capital Circle SE Tallahassee, FL 32301-3817 (850) 487-2788
The Tallahassee BAR Office is responsible for the following counties – Calhoun, Dixie, Franklin, Gadsden, Gilchrist, Gulf, Hamilton, Jackson, Jefferson, Lafayette, Leon, Levy, Liberty, Madison, Suwannee, Taylor, Wakulla
Jacksonville Bureau of Administrative Review
7439 Wilson Blvd., Rm. 9 Jacksonville, FL 32210-3597 (904) 777-2131
The Jacksonville BAR Office is responsible for the following counties – Alachua, Baker, Bradford, Clay, Columbia, Duval, Flagler, Nassau, Putnam, St. Johns, Union, Volusia
Orlando Bureau of Administrative Review
4101 Clarcona Ocoee Road, Suite 152 Orlando, FL 32810 (407) 623-1100
The Orlando BAR Office is responsible for the following counties – Brevard, Indian River, Lake, Okeechobee, Orange, Osceola, St. Lucie, Seminole
Tampa Bureau of Administrative Review
2814 E. Hillsborough Ave. Tampa, FL 33610-4479
The Tampa BAR Office is responsible for the following counties – Citrus, Hernando, Hillsborough, Marion, Pasco, Polk Sumter.
Clearwater Bureau of Administrative Review
4585 140th Ave. North Suite 1002 Clearwater, FL 33762 (727) 507-4404
The Clearwater BAR Office is responsible for the following counties – Charlotte, DeSoto, Highlands, Hardee, Manatee, Pinellas, Sarasota
Lauderdale Lakes Bureau of Administrative Review
3708 W. Oakland Park Blvd. Lauderdale Lakes, FL 33311-5802 (954) 714-3551
The Lauderdale Lakes BAR Office is responsible for the following counties – Broward, Glades, Hendry, Lee, Martin, Palm Beach.
Miami Bureau of Administrative Review
2515 W. Flagler St. Miami, FL 33135-1422 (305) 643-7568
The Miami BAR Office is responsible for the following counties – Collier, Miami-Dade, Monroe
This article was updated by Leslie Sammis on Friday, April 30, 2021.