The Bureau of Administrative Reviews (BAR) of the Florida DHSMV has been busy writing memorandums explaining their interpretation of the administrative rules and how the rules apply to the new telephonic hearings. Please leave a comment if you disagree with our strategy or use a different strategy. We are also interested in hearing from anyone with experience in the new telephonic hearing.
Read the new rules carefully. It is not particularly difficult to comply with the rules. Although there is no set format for many of the notice requirements, we use this method:
- File a notice in the criminal case that discloses each subpoena / subpoena duces tecum issued with a copy of each subpoena attached as an exhibit. Include a “certification of written notice” showing that the written notice was served on the assistant state attorney assigned to the case (or if none is assigned then to the State Attorney’s Office). File and serve the notice prior to serving the subpoenas. (You may be going back later to see the judge to enforcement the subpoena / subpoena duces tecum).
- Write a $5.00 check to the witness and attach the check to the subpoena.
- Have your process server serve the subpoena / subpoena duces tecum, the certification of written notice, and the $5.00 check on each witness.
- Make sure the process server provides you with proof of service prior to the hearing that references:
- date and time of service;
- the name of the person served;
- a certification of service by the person who served the subpoena;
- proof of payment of witness compensation pursuant to Chapter 92, F.S. (a copy of the $5.00 check); and
- a copy of the “certification of written notice” to the assistant state attorney.
How do you make arrangements to pay any costs to obtain subpoena duces tecum items, manuals, cumbersome items or DVDs from the law enforcement agency?
It might be a good idea to send a separate check with the subpoena for the anticipated costs and a formal request for the items. If you are requesting the DUI video, then include a blank DVD.
Then if the items are not provided to you before the hearing, move to continue the hearing with a temporary permit to enforce the subpoena. You can file the motion to enforce the subpoena in front of the judge that has the criminal case. You can use the request and check for the reasonable copy costs to prove that you complied with the rules.
Viewing the DUI Video at the Telephonic Formal Review Hearing
So what does the memo mean when it says: “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.” How is that suppose to happen in a telephonic hearing?
In a memorandum circulated to law enforcement for formal review hearings in Monroe County, FL, it provides that the “video will need to be submitted to the hearing officer and to petitioner/petitioner’s attorney by hand delivery or mail at least one hour prior to the hearing. (Note: These are the same procedures as in the past.)”
The Monroe County memo also provided: “Everyone will be allowed to view the video at the same time by logging onto the department approved website (WebEx). The link to the website will be sent to the individual’s email. The hearing officer will advise all parties when to join the WebEx. Please check with your agency to make sure this website is NOT blocked. https://suncom.webex [dot] com.”
The memo also provides: “The witness will need to have access to a system where they can retrieve their email and log onto the Internet. It is very important to notify the hearing officer of your e-mail address once you have been issued a subpoena for the hearing.”
So if you serve a subpoena duces tecum for the DUI video, object to a procedural due process violation if you do not receive a copy of the video in advance of the hearing. Alternatively, you can ask the hearing officer to play the video during the hearing and object if you, the witness, and the hearing officer are not all able to view the video at the same time.
Memorandums Circulated in the Tampa Bay Area
The memorandums circulated for cases in Manatee County, Hardee County, and Pasco County provide:
State of Florida
Department of Highway Safety and Motor Vehicles
Bureau of Administrative Reviews
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 materials to be produced and the relevancy of such materials 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 section 48.031, 92.141 and 92.142, Florida Statutes.
Written notice, including a copy of the subpoena, must be provided to the individual Assistant Sate 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.
Proof of service must include: date and time of service; payment of witness fee; names 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 petitioner’s attorney will need to make arrangements to pay any costs to obtain subpoena duces mecum 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 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.
Read more about the new procedures for telephonic formal review hearings.
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 ARE SUMMONED TO APPEAR BY TELEPHONE BEFORE A HEARING OFFICER AT:
LOCATION: REPORT TO A DUTY STATION WHERE YOU CAN BE SWORN IN BY A FELLOW OFFICER OR NOTARY PUBLIC
TELEPHONE: B.A.R. Office Number and Office Email
and bring with you the following:
You will need to call the telephone number above at least one hour prior to the hearing to confirm out appearance and to leave a call back number for your testimony. Telephone numbers provided must be landline numbers; cellular telephone numbers are not acceptable.
A copy of the subpoena duces tecum items will need to be submitted to the hearing officer by hand delivery, mail, or fax at least one hour prior to the hearing time and date if the witness is appearing by telephone. 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 ______________, 2014.
DEPARTMENT OF HIGHWAY SAFETY AND MOTOR VEHICLES
BY: ___________________, Hearing Officer
Only the Hearing Officer may release you from this subpoena. Inquires regarding your obligations under this subpoena may be directed to the supervisor or designee of the Bureau of Administrative Review office.
Subpoena requested by: Petitioner / Petitioner’s Attorney
NOTICE: ANY ALTERATIONS TO THIS SUBPOENA WILL RENDER IT NULL AND VOID.
Pursuant to the provisions of the Americans with Disabilities Act, any person requiring special accommodations to participate in the proceedings please contact the Hearing Officer at the address and telephone number above at least seven days before the scheduled hearings.