Order of License Suspension
What happens if the officer does not make an arrest for DUI but instead refers the matter to the State Attorney’s Office for a “direct file” DUI investigation?
The police report will often case that “the case is being direct filed to the State Attorney’s Office (SAO) for review.” In this cases, the arresting officer is usually waiting for additional evidence before charging the driver with DUI such as:
- the medical records showing a medical blood alcohol concentration reading;
- the FDLE lab report after legal blood is taken by the officer at the hospital and then sent off to the crime lab to determine the blood alcohol concentration.
After that information comes in, the officer might do one of two things including:
- issue a DUI citation that must be received by the Clerk of Court in order to trigger the criminal case;
- send the information to the DHSMV which triggers the DHSMV to send an “Order of License Suspension” to notify the driver of the 6 month or 12 months administrative suspension and their right to demand a formal review hearing to contest the suspension.
This article discusses what happens when the driver receives that order of license suspension signed by David Laliberte, or another Hearing Officer with the Tampa Bureau of Administrative (BAR) Review using form HSMV 78031 (last revised on 03/17).
Attorney to Contest the Administrative License Suspension in Tampa, FL
If you get such a letter notifying you that your license will be suspended on an administrative basis because of evidence gathered during a DUI investigation, then you should immediately retain an experienced criminal defense attorney to file a demand for a formal review hearing.
When the demand for the formal review hearing is served, your attorney can pick up your42 day permit so that you can drive to work, school and church.
Talk to your attorney about what happens if the officer triggers the administrative suspension without filing the DUI citation with the clerk’s office. In these cases, the officer might inadvertently trigger the driver’s right to a speedy trial.
In some of these cases, the clerk of court doesn’t even receive the DUI citation or schedule the criminal case for arraignment within the 90 day speedy trial period which can result in a dismissal of the criminal charges.
Demanding a Formal Review Hearing after the Order of License Suspension
For cases in Hillsborough County, and the surrounding counties that are covered by the Bureau of Administrative Reviews office in Tampa, FL, the “Order of Suspension” often provides as follows:
This is to notify you that your driving privilege is suspended for [six months or twelve months] effective on ____ for [driving with an unlawful alcohol level, pursuant to section 322.2615 Florida Statute or for refusing to submit to a lawfully request chemical test of your breath, blood, or urine].
You may request a Formal Review or Informal Review of this suspension at the address listed above [DHSMV Bureau of Administrative Reviews office at 2814 East Hillsborough Avenue, Tampa, FL 33610-4479, 813-276-5795] within ten calendar days of the date of this order.
Your request must be in writing and must include a copy of this order. The request must include a filing fee of $25.00 to schedule the Formal or Informal Review.
If this is your first DUI related offense and you otherwise qualify, you may waive your right to a review of the suspension and receive a business purposes only license for use during the period your driver license is suspended. A non-refundable filing fee of $25.00 made payable to DHSMV is required for determination of your eligibility for a restricted license.
Upon conclusion of an administrative review the Hearing Officer will determine by a preponderance of the evidence whether to sustain, amend, or invalidate the suspension. Appeal of the Hearing Officer will determine by a preponderance of the evidence whether to sustain, amend, or invalidate the suspension.
Appeal of the Hearing Officer’s decision may be initiated by filing a Petition for Writ of Certiorari in the Circuit Court within thirty calendar days, as provided in section 322.31, Florida Statutes.
Failure to request an administrative review shall result in a waiver of your right to review of this suspension and this suspension order shall become final.
David Laliberte, Supervisor, Hearing Officer
Bureau of Administrative Reviews Office
2814 East Hillsborough Avenue
Tampa, FL 33610-4479
HSMV 78031 REV (03/17)
Issues for the Formal Review Hearing on the Order of License Suspension
Your attorney can attend the formal review hearing on your behalf to argue all of the reasons that the administrative suspension should be invalidated including:
- adequate notice of the suspension was not provided;
- the initial stop or detention was illegal;
- the request for field testing was illegal;
- the arrest was without probable cause because:
- the petitioner was not driving or in actual physical control of a motor vehicle;
- the petitioner’s normal faculties were not impaired by alcoholic beverages, or chemical or controlled substances;
- the request for a breath, blood or urine test was unlawful (often because the request is made prior to an arrest);
- there was no legal basis for requesting a blood test because the breath or urine test was not impractical;
- at least one of the readings show that the BAC or BrAC was not over .08;
- implied consent was not read properly;
- no actual refusal to submit to testing occurred.
Your attorney can also help you obtain and serve a subpoena for each witness named in the packet submitted by law enforcement.
This article was last updated on Tuesday, February 26, 2019.