How To Guide for Formal Review Hearings in Florida

The attorneys at Sammis Law Firm created this updated “how to guide” for contesting the administrative suspension during a formal review hearing at the DHSMV. Most DUI cases involve an administrative suspension if:

• the driver’s BAC or BrAC was .08 or above;
• the driver refused a lawfully requested chemical test of the breath, blood, or urine.

The notice of the administrative suspension is usually provided to the driver on the DUI Uniform Traffic Citation* issued shortly after the arrest. That citation explains the right to demand a formal review hearing.

Step 1: Demand the Formal Review Hearing

After the DUI arrest, you have only ten (10) calendar days to demand a formal review hearing, which requires submitting the following documents to the appropriate DHSMV Bureau of Administrative Reviews office:

• the written demand for the formal review hearing
• a legible copy of the notice of suspension contained (listed on the DUI citation)
• a $25 check to the appropriate Bureau of Administrative Review Office

This is a sample of the wording for the demand for a formal review hearing we might use for a refusal suspension at the Tampa BAR:

[insert date]

Department of Highway Safety and Motor Vehicles
Division of Driver License
2814 E. Hillsborough Avenue
Tampa, FL 33610

     Re: Demand for Formal Review Hearing

• [insert name of driver]
• DL#: [insert DL number]

Dear Tampa BAR:

I have been retained to represent [insert name of driver] (hereinafter “the Petitioner”). Please allow this letter to act as my demand for a one-hour formal review hearing to contest the Petitioner’s administrative suspension.

I have attached a copy of the DUI Citation that acts as the notice of suspension. I am also requesting a temporary permit for my client and have enclosed a check in the amount of $25.00 for the filing fee.

Finally, I am respectfully requesting a copy of the “packet” to be introduced into evidence at the hearing, including all material submitted by any law enforcement officer or agency as required by Section 322.2615(2), F.S. As soon as I receive the packet, I will email you the subpoenas to be issued.

I am available on the following dates: [select dates or times approximate 25-30 days from the date of the request]

Please contact my office with any questions or concerns regarding this request.

Alternatively, you can fill out this form – HSMV 78065 – APPLICATION FOR FORMAL/INFORMAL REVIEW OF DRIVER LICENSE SUSPENSION/DISQUALIFICATION –  https://www.flhsmv.gov/pdf/forms/78065.pdf.

Step 2: Confirm the Hearing was Scheduled and Noticed within 30 Days

After DHSMV receives the demand for the formal review hearing, a copy of the notice of the suspension, and the $25 payment, the hearing officer has to schedule the formal review hearing within 30 days.

Florida Statute Section 322.2615(9) provides, in part, that:

If the department fails to schedule the formal review hearing to be held within 30 days after receipt of the request therefore, the department shall invalidate the suspension. If the scheduled hearing is continued at the department’s initiative, the department shall issue a temporary driving permit that shall be valid until the hearing is conducted if the person is otherwise eligible for the driving privilege.

The DHSMV might try to bypass this rule by initially scheduling the hearing within thirty days but then rescheduling it outside the 30-day period. See, e.g., Vodar v. State of Florida, Department of Highway Safety and Motor Vehicles, 2008 WL 4612558 (13th Cir. Jan. 11, 2008).

In Georgiev v. State of Florida, Department of Highway Safety and Motor Vehicles, 19 Fla. L. Weekly Supp.783b (Fla. 11th Cir. July 6, 2012), the court suggested that if a hearing is scheduled improperly, it does not satisfy the scheduling requirement of Section 322.2615(9).

In Morales v. DHSMV, 20 Fla. L. Weekly Supp. 24b (13th Cir. Oct. 5, 2012), the court addressed the situation where a hearing is scheduled within thirty days, but the person whose license is suspended is not given proper notice of that hearing. The court held that basic procedural due process requires notice. Therefore, it found the hearing had to be “scheduled” and DHSMV had to provide notice of that scheduled hearing within the 30 day deadline, otherwise the suspension had to be invalidated.

If DHSMV fails to schedule the hearing and issue the notice within that 30-day deadline, raise that issue at the formal review hearing by moving to invalidate the suspension based on the violation of Florida Statute Section 322.2615(9) and basic due process requirements.

Step 3: Review the Packet

If the DHSMV complies with Florida Statute Section 322.2615(9), within 30 days, it will schedule the formal review hearing and issue the Notice of Formal Review Hearing / Prehearing Order (HSMV-BARNOTFRHG (Rev. 03/2020). The Hearing Officer with the Bureau of Administrative Reviews will send you the following documents:

• the Driver’s Prehearing Statement (HSMV-BARPREHGST (Rev. 03/2020);
• the 42-day Temporary Driving Permit; and
• the packet containing the documents the arresting officer must submit to the DHSMV pursuant to Section 322.2615(2), including:
  • a copy of the driver’s license;
  • an affidavit stating the officer’s grounds for the belief that the person was DUI;
  • the results of any breath or blood test or an affidavit stating that a breath, blood, or urine test was requested by a law enforcement officer or correctional officer and that the person refused to submit;
  • the officer’s description of the person’s field sobriety test, if any; and
  • the notice of suspension.

Review the packet carefully to see if the documents are sufficient to uphold the suspension and whether those documents are sworn. For example, the suspension will be invalidated if the probable cause statement is not sworn. You might also find inconsistencies in the documents.

Before the hearing, you should read more about the fourteen (14) ways to win the formal review hearing and the percentage of time those ways are successful. The fourteen (14) ways to win the formal review hearing are listed as follows:

1. The Arresting Officers Fails to Appear at the Formal Review Hearing – 32.7%
2. No DUI Packet Received by the BAR before the Review Hearing – 10.8%
3. The Breath Test Operator Fails to Appear at the Formal Review Hearing – 7.9%
4. Invalid Stop – 6.4%
5. Conflicting Evidence – 6.3%
6. No Valid Breath Test – 5.6%
7. The Officer Didn’t Attest to the Probable Cause Statement – 5.5%
8. No Physical Control – 4.9%
9. Missing or Illegible Documents – 4.9%
10. The Driver Did Not Refuse – 4.4%
11. No or Improper Implied Consent Warnings – 4.4%
12. Refusal Affidavit Not Attested To -.98%
13. No Probable Cause Under 21 – .17%
14. No .02 Agreement on the Intoxilyzer Breathalyzer Test -.05%

Step 4: Complete the Prehearing Statement

You will complete the prehearing statement. In paragraph 4, you must list the names and addresses of any person you wish to subpoena for the hearing.

The first task is deciding whether the packet has sufficient evidence to prove each element. If not, you should not issue a subpoena to any witness who might fill in the missing information. If the packet is sufficient, consider issuing a subpoena to each witness named in the documents.

Paragraph 4 of the prehearing statement requires you to list the names and addresses of any person you want to appear at the hearing below. In Paragraph 4, we note that the information is provided on an additional page marked Exhibit “A,” which is attached. For example:

Exhibit “A”

The petitioner is requesting that the hearing officer attach a seal and signature to each proposed subpoena for the following witnesses: 

1. The stop officer, [insert name, agency, badge number], is listed in the Criminal Report Affidavit (CRA) and police report number ______.
2. The arresting officer, [insert name, agency, badge number], is listed on the Uniform Traffic Citation, CRA, and police report number ______ .
3. The backup officer, [insert name, agency, badge number], is listed on police report number _______. 
4. The civilian witness, [insert name and address], is listed in the police report. 
5. Any breath test operator, [insert name, agency, and ID number], is listed on the breath test affidavit. 
6. The agency inspector, [insert name, agency, and ID number], is listed as the person who conducted the agency inspection on the breath test machine prior to the Petitioner’s test.
7. The custodian of any video of the roadside investigation, including dash cam or body worn camera video is [insert name, agency, and ID number].
8. The custodian of any video of the reading of implied consent or alleged refusal is [insert name, agency, and ID number].

Paragraph 5 of the prehearing statements asks you to list the issues of law and fact that the anticipated testimony of each witness. In Paragraph 5, we note that the information is provided on an additional page marked Exhibit “B,” which is attached. For example:

Exhibit “B”

The issues of law and fact include:

1. whether the stop was valid or became unreasonably prolonged;
2. whether a valid breath test occurred with a BAC of .08 or higher;
3. whether there was probable cause that the Petitioner was driving or in actual physical control of a vehicle while normal faculties were impaired by alcoholic beverages or chemical or controlled substances;
4. whether the Petitioner refused to submit to a lawfully requested chemical test of the breath, blood, or urine;
5. whether the breath test was properly administered and provided two readings within .02 agreement and with a BAC level of .08 or above.

The anticipated testimony of each witness related to those issues of law and fact include:

1. The stop officer, [insert name, agency, badge number], is listed in the Criminal Report Affidavit (CRA) and police report number ______.
   • The stop officer witnessed whether there was any lawful basis for the stop and whether the detention became unreasonably prolonged.
2. The arresting officer, [insert name, agency, badge number], is listed on the Uniform Traffic Citation, CRA, and police report number ______ .
   • The arresting officer witnessed whether there was a sufficient basis to request the Petitioner to exit the vehicle, perform field sobriety exercises, whether probable cause supported the arrest, whether the Petitioner was advised that the license could be suspended, and whether the Petitioner refused to submit. 
3. The backup officer, [insert name, agency, badge number], is listed on police report number _______. 
   • The backup officer witnessed…
4. The civilian witness, [insert name and address], is listed in the police report. 
   • The civilian witness is expected to testify that….
5. Any breath test operator, [insert name, agency, and ID number], is listed on the breath test affidavit. 
   • The breath test operator will testify about whether they are permitted to administer the breath test, whether they complied with the Chapter 11D-8 rules for administering the breath test, whether the readings were within .02 agreement, and whether the BAC was .08 or above.
6.  The agency inspector, [insert name, agency, and ID number], is listed as the person who conducted the agency inspection on the breath test machine prior to the Petitioner’s test.
   • The agency inspector will testify about whether they are permitted to conduct agency inspections and whether the breath test machine used in this case complied with other Chapter 11D-8 rules.
7. The custodian of any video of the roadside investigation, including dash cam or body worn camera video is [insert name, agency, and ID number].
   • The video is expected to include evidence of each issue of law and fact discussed here.
8. The custodian of any video of the reading of implied consent or alleged refusal is [insert name, agency, and ID number].
   • The video is expected to include evidence of each issue of law and fact discussed here.

Step 5: Draft Each Subpoena to be Issued

For any witness you listed in Exhibit “A,” return a proposed subpoena to the hearing officer so they can attach the FLHSMV seal and signature. You are responsible for serving each subpoena.

When we draft the subpoena, we include language to request that the witness submit specific evidence. We have listed examples of this language included in the subpoena duces tecum below:

• For the Agency Inspector:
  • A copy of your agency inspector permit and certification of completion of continuing education classes as required by chapter 11D-8, FAC.  Also, provide a copy of any agency inspection reports, maintenance records, repair records, or internal memos concerning Intoxilyzer 8000 bearing Serial Number [insert number] generated within the 90-day period before the date of the subject test on [insert date].
• For the Custodian of CBT Video:
  • a copy of any and all video or audio recordings maintained by [agency], including the CBT video, of Petitioner on the date of [insert date] related to [name of agency] report number [insert report number].
• For the Custodian of Investigation Video:
  • a copy of any and all Dash Camera or Body Worn Camera videos recorded by the officer related to the investigation of Petitioner on the date of [insert date] and [name of agency] report number [insert report number].
• For the Stop Officer, Arresting Officer, or Backup Officer:
  • a copy of any and all Dash Cam or Body Worn Camera video or audio recordings related to the DUI Investigation of [insert subject name] and [name of agency] report number [insert report number].

Update: The 2019 Hearing Officer’s training materials on a subpoena request or video request provided:

• Make sure the request is made to the specific officer subpoenaed.
• Ensure the request is not for “any and all video” without limitation.
• If the request is limited to the day of the incident, it is likely okay.
• Don’t assume there is no videotape just because it is not present in the file.

According to the training materials, possible acceptable language for video requests in subpoenas: “…any and all videos from body cameras and/or in-car cameras recorded by the officer subpoenaed relating to the Petitioner on the date of (date of incident).”

Step 6: Attend the Hearing

You can appear in person or telephonically. You will appear with or without your client. The witnesses appear telephonically. The most common reasons to invalidate the suspension are because of a “due process violation” or because a required element is missing. If a due process violation occurs, explain any prejudice it caused your client.

At the hearing of the hearing, renew any prior objections. Make a motion to invalidate the suspension for each reason and explain.

What Information is Contained in the Prehearing Order?

The Notice of Formal Review Hearing / Prehearing Order provides:

This document serves as official notification that your telephonic formal review hearing for either REFUSE SUBMIT BREATH/URINE/BLOOD TEST or DRIVING WITH AN UNLAWFUL BAC LEVEL has been scheduled for a specific time and date per section 322.271, Florida Statutes and Chapter 15A-6, Florida Administrative Code.

You will be contacted for the hearing at [the number listed in demand for the formal review hearing]. To be contacted at a different phone number, please contact the hearing officer within 48 hours of the scheduled hearing time.

If you fail to participate in the hearing, you waive your right to a formal review unless just cause is shown in writing within two days of the hearing.

The Florida Department of Highway Safety and Motor Vehicles (FLHSMV) has enclosed a Driver’s Prehearing Statement with this document, which must be completed and returned within 10 days of this notice to the hearing officer’s address listed below. The Driver’s Prehearing Statement should state, with specificity, disputed issues of law and fact and summarize the anticipated testimony of all witnesses.

Please include a self-addressed, stamped envelope and all typed subpoenas for FLHSMV seal and signature to request subpoenas. You are responsible for properly serving the subpoena(s) on your witness(es).

If you do not speak or understand English, please have an English-speaking interpreter present to assist you.

The hearing officer will determine by a preponderance of the evidence whether sufficient cause exists to sustain, amend, or invalidate the suspension or disqualification.

Please note, based on your driving record, a temporary driving permit has been enclosed with this document and is restricted to business purposes only. Your driving is limited to any driving necessary to maintain livelihood, including driving to and from work, necessary on-the-job driving, driving for educational purposes, and driving for church and for medical purposes.

The prehearing statement must be returned to the Bureau of Administrative Reviews Office at the address listed on the prehearing statement within ten (10) days of the date listed on the preheating statement.

The prehearing statement lists the following information:

Petitioner Name:

Driver License #:

Hearing Date:

Citation #:

Time:

1. Phone number where you can be reached between 8 a.m. and 5 p.m., Monday through Friday ____________.

2. Will you be represented by legal counsel? __ Yes __ No

3. If you answered yes, please provide your attorney’s name, address and phone number below: —_________________. 

Be advised that section four (4) must be completed, or this statement will be returned, which may result in a delay or denial of a request for a subpoena (see Rule 15A-6.011(2), Florida Administrative Code (F.A.C.)). Per Rule 15A-6.012(1), F.A.C., subpoenas shall be limited to officers and witnesses identified in documents per section 322.2615(2), Florida Statutes.

4. List the names and addresses of all individuals you request to appear at the hearing below (attach an additional page, if necessary). To request subpoenas, please include a self-addressed, stamped envelope and all types of subpoenas for FLHSMV seal and signature. You are responsible for properly serving the subpoena(s) on your witness(es).

Witness Name:

Address:

List the Document Identifying Witness:

Is a Subpoena Being Request for Issuance?

5. Please list the issues of law and fact that the anticipated testimony of each witness (attach additional pages, if necessary).

_______________

I certify that a copy of this Driver’s Prehearing Statement has been mailed or delivered to then FHSLMV on the ___ day of _______, to the Bureau of Administrative Reviews office at the address listed in the prehearing statement.

What is a Temporary Driving Permit?

The temporary driving permit is sometimes called the 42-day permit because it typically lasts approximately forty-two (42) days. The temporary driving permit lists the DL#, License Class, Name, DOB, Gender, Address, City, State, Zip, Height, Issued Date: Expiration Date, Period, Endorsement, and Remarks. The temporary driving permit typically contains a restriction for business purposes only.

Footnote:

*Not all DUI cases result in an administrative suspension. For example, no administrative suspension will occur if the person is not accused of refusing a chemical test of the breath, blood, or urine when the BAC or BrAC reading is not .08 or above. However, if that person is later convicted of DUI, the court will still impose a court-ordered driver’s license revocation.

This article was last updated on Wednesday, January 22, 2025.