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:
- Tell the hearing officer: “I call [name of witness] to testify.”
- When you are told the witness failed to appear, then provide proof that you served a subpoena on that witness to appear at the hearing.
- Ask the officer to confirm that the witness is either the breath test operator or the arresting officer.
- Then make a “motion to invalidate” because Section 322.2615(11), Fla. Stat., which provides, in pertinent part:… If the arresting officer or breath technician fails to appear…the department shall invalidate the suspension.
- If the hearing officer suggests any procedure other than immediately invalidating the suspension then object to that procedure as a due process violation.
What if the witness is not the arresting officer or breath test operator? If the witness that fails to appear is not the BTO or AR, 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 and waive the issue, then just tell the hearing officer that you will file the motion to enforce the subpoena and ask for a continuance.
Although a $400 filing fee is required if you file the action in the circuit court where the witness resides, no filing fee is required if you file the action in the criminal court case.
The hearing officer is required to provide you with an extended driving permit if you file the motion to enforce (and any notice of hearing) and provide the hearing officer with a copy within 10 days.
Are you looking for a sample motion to enforce the subpoena? 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 the undersigned attorney, and files this motion for an order to show cause and enforce the supboena pursuant to Section 322.2615(6)(c), Florida Statutes and Rule 15A-6.012, Florida Administrative Code.
Defendant respectfully requests this Honorable Court to grant this Motion for Order to Show Cause/Enforcement of Subpoena and relief sought herein.
In support of the motion, the Defendant shows:
- 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.”
- The Defendant was arrested for driving under the influence on [[date]].
- After the arrest, the Defendant was accused of either submitting 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 the Defendant’s driver license.
- The Defendant applied for a formal review hearing at the DHSMV to challenge the administrative suspension of the driver’s license within ten days of the arrest.
- As a result, the formal review hearing was scheduled for [[date]].
- 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 DHSMV with a Driver’s Prehearing Statement dated [[date]].
- On [[date]], Defendant then provided written notice to the State Attorney’s Office of the issuance of the subpoena for [[name of witness]]. See Exhibit “A”.
- [[Name of witness]] was properly served by [[name]] with [[company]], a certified process server. Proof of the return of service is attached as Exhibit “B”.
- [[name]] failed to appear for the formal review hearing on [[date]] 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.
- The hearing officer indicated that the hearing would be continued and relief would be granted only the proper motion was filed pursuant to the procedures outlined in Section 322.2615(6)(c), Florida Statutes.
WHEREFORE, the Defendant requests this Honorable Court to order [[name]] 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 ___________ [or a date that will be determined by the 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 [[witness name]], on the ___ day of September, 2020.
———————————-
Order for the Motion to Enforce a Subpoena
Listed below is a sample proposed order on 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 [[date]], 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 [[name]] shall appear at the rescheduled Formal Review Hearing on [[date]], at [[time]], 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 September, 2020.
______________________________
County Court Judge
cc:
_________, Defendant’s Attorney
_________, Assistant State Attorney
_________, Hearing Officer [[name]], Bureau of Administrative Review (BAR) Office, DHSMV
This article was last updated on Wednesday, September 16, 2020.
