The Subpoena Duces Tecum at the Formal Review Hearing

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


GENERAL INFORMATION
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.

(REV 10/11)


Additional Resources:

Read more about the new procedures for telephonic formal review hearings.

Subpoena Duces Tecum Bureau of Administrative Reviews Rules


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:

DATE:                                                   TIME:

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.

subpoena duces tecum formal review hearing by telephone


Hello? New Procedures for Formal Review Hearings by Telephone

We just received the following memorandum from the Bureau of Administrative Reviews (BAR) of the Florida Department of Highway Safety and Motor Vehicle (DHSMV). The BAR is quickly rolling out mandatory telephone conferences across the state.

The attorney for the petitioner will no longer have the option of attending the hearing in person, at least in certain offices including Pasco County, Manatee County, and Hardee County, FL. Witnesses will also testify by phone in those cases.

Hopefully, these new procedures will result in more attorneys requesting formal review hearings, serving subpoenas on all of the witnesses (unless an essential element is missing from the packet), and obtaining a subpoena duces tecum for the DUI video, Intoxilyzer records and other documents necessary for the defense of the case.

The chaos that results during these transitions often gives the petitioner a big advantage.

Can someone explain to me how the petitioner is going to get the items listed in the subpoena duces tecum? How will the petitioner submit exhibits into the record? Can I travel to the BAR’s office and just sit in the lobby with my cell phone and laptop computer during the hearing?

Criminal defense attorneys that focus on DUI cases will have to quickly adjust their strategies to maintain every advantage getting the administrative suspensions invalidated while still preserving the testimony of the witnesses. More writs will be filed with the Circuit Court.

So make sure you review the new rules carefully and get those subpoenas served.


Bureau of Administrative Reviews

TO: Counsel for the Petitioner
FROM: Cindy VanDunk, HSMV Field Supervisor
Date: October 17, 2014
RE: New Telephone Formal Procedures

Effective immediately this office will no longer be holding formal review hearings at the following locations:

  • [PASCO COUNTY] Pasco County Tax Collector, 4720 U.S. Highway 19 North, New Port Richey
  • [HARDEE COUNTY] Hardee County Tax Collector, 110 W. Oak Street, Suite 102, Wauchula
  • [MANATEE COUNTY] Judicial Center, 8th Floor/Room 8032, 1051 Manatee Ave W., Bradenton

All formal review hearings at those locations will be held telephonically. When requesting a formal review hearing, please include a phone number for the hearing officer to call you.

Witnesses will also be appearing by phone. Attached is a copy of the subpoena format for telephonic hearings. Please begin using this format immediately. If a subpoena is received that is not the correct format, it will be returned to you unsigned.

We hope to make this transition as easy as possible. If you have questions, feel free to contact me at 727-507-4405.

Telephone Formal Review Hearings in DUI Cases in Florida

Read more about the rules for obtaining and serving the subpoena / subpoena duces tecum for the formal review hearing.

New Procedures for Getting DUI Videos from Florida Highway Patrol

It has always been difficult to get the DUI arrest videos from the Florida Highway Patrol. In many of these cases the defense attorney ends up filing a motion to compel the prosecutor to provide the video. The court then orders the prosecutor to provide the video within a certain number of days or face a sanction (including the exclusion of certain evidence from trial).

Alternatively, the defense attorney can contact the Florida Highway Patrol directly. The old procedure was to provide a blank DVD or CD media to the FHP, with the request and a SASE. The fact that the prosecutors have problems getting the video in a timely manner also explains why defense attorneys often face the same problem.

Under the new procedure just announced by the Troop C – Pinellas Park District of FHP, they are no longer accepting a blank DVD or CD media for security reasons. You can make the request in writing and mail the request to the Senior Clerk in the Records & Court Liaison department. You can also send the request for the DUI video via email or fax.

Once the video has been completed, the Senor Clerk will send an invoice showing the charge for processing. The charge for processing of videos is $3.48 per a quarter hour (15 minutes). The first half-hour is free. There also will be a charge for the blank media, postage, and mailing materials used to complete the request.

Good luck!

Is a DUI in Florida a Misdemeanor or a Felony?

Although the vast majority of DUI cases are charged as a misdemeanor, the answer to that question ultimately depends on a host of factors. In fact, we have counted at least 15 different ways that a DUI could be charged.

Below is a quick summary of the statutory maximum penalties allowed under Florida law for different types of DUI charges.

Different types of misdemeanor DUI charges:

  • First DUI – a misdemeanor with a maximum of 6 months in jail.
  • DUI with a child in the vehicle – a misdemeanor with a maximum of 9 months in jail.
  • DUI with a breath or blood alcohol concentration (BAC) over .15 – a misdemeanor with a maximum of 9 months in jail.
  • Second DUI outside of five years – a misdemeanor with a maximum of 9 months in jail.
  • Second DUI within five years – a second DUI within five years of a prior conviction is a misdemeanor with a maximum of 9 months in jail.
    • (unless it is also proven that the BAC is over .15 or a child was in the car – then the maximum is 12 months in jail).
  • DUI with property damage (or non-serious personal injury) – a first degree misdemeanor with a maximum of 12 months in jail.
  • Third DUI outside of 10 years – a misdemeanor with a maximum of 12 months in jail.

Different types of felony DUI charges in Florida:

  • Third DUI within 10 years – a third DUI can be charged as a felony if the third DUI arrest is within 10 years of any prior DUI conviction. A third DUI within 10 years of a prior is a third degree felony punishable by up to five years in prison.
  • Fourth or Subsequent DUI – any fourth DUI can be charged as a third degree felony punishable by up to five years in prison.
  • DUI with Serious Bodily Injury – a third degree felony with a maximum of five years in prison.
  • DUI Manslaughter – a second degree felony with a maximum of 15 years in prison.
  • DUI Manslaughter / Leaving the Scene – a first degree felony with a maximum of 30 years in prison.
  • Vehicular Homicide – a second degree felony with a maximum of 15 years in prison.
  • Vehicular Homicide / Leaving the Scene – a first degree felony with a maximum of 30 years in prison.

Florida DUI Penalties – Visit the website for the Florida Department of Highway Safety and Motor Vehicles (DHSMV) to learn more about the statutory maximum and mandatory minimum penalties for different types of DUI charges.

Problems with the Intoxilyzer 8000 and Power Outages

The FDLE website has a section on its website where it sporadically adds “Miscellaneous and Correspondence” on different Intoxilyzer 8000 machines.

Criminal defense attorneys rarely get notice when the machines suffer from serious malfunctions. Instead, the attorneys are instructed by the State Attorney’s Office to sift through the poorly organized FDLE website to find information on each Intoxilyzer. The search often turns up some interesting problems with the Intoxilyzer 8000 machines in Florida.

The documents that show major failures with the instruments are often buried in the miscellaneous correspondence section.

For example, read this miscellaneous correspondence on the Intoxilyzer 8000, Serial Number 80-000792 maintained by the St. Lucie Sheriff’s Office.

This e-mail really shows how creative the Agency inspectors have to be to skirt the rules and keep the instruments online. I cut and paste David Snow’s E-Mail on Intoxilyzer Problems below:


Shanahan, Jake


From: David Snow <SnowD@stluciesheriff.com>
Sent: Saturday, March 29, 2014 3:10 PM
To: Shanahan, Jake
Subject: Intoxilyzer Staus [sic]

Jake [Shanahan, FDLE Department Inspector],

I attempted to do inspections yesterday on the 3 instruments. A bad simulator running the interferent was discovered too late. At first I thought it was just a loose hose or loose cap. A power outage occurred at the jail and I ran out of time, as I was due in court. I went back today to re-run inspections. 80-00788 and 80-00792 inspected fine and 80-00794 kept running into ambient and purge fails, resulting in me having to fail the instrument.

A cord came loose from 792 causing it to lose power and NOT save the inspection. I ran out of time to re-inspect it today. I don’t know if I will get time again to get another inspection in before the end of the month, as I am off until Tuesday (April 1st). 792 is a dormant instrument and is never used. Deputy Gordineer (alternative [Agency Inspector]) is on light duty, but I will need to see if he can inspect 792 on Monday. I will upload 788 and 794 on Tuesday.

Any thoughts on the failure in reference to 794? I moved the instrument to try to re-test it, FYI, with same results.

I would like to try to two [sic] trim down to 2 instruments and was wondering how I could put 1 out of service, to be brought back in service if necessary?

I also need more mouth alcohol and interferent solutions for testing.

If I didn’t have short hair, I would be pulling it out right now.

Thanks for any help on this.

Dave [David Snow, Agency Inspector for St Lucie Sheriff's Office]


A power outage during an inspection is one of the few ways to make sure that all data from a failed inspection is NOT saved. No judge, prosecutor or defense attorney will ever see the data.

Since the agency inspector only gets to re-test once before being required to remove the Intoxilyzer 8000 from service, a convenient power failure can save the day. 

If the Intoxilyzer 8000 fails an inspection 10 times in a row and the Agency Inspector pulls the plug each time, then no data would be left except for the 10 unexplained log in records. [A least one FDLE Department Inspector has been fired for teaching Agency Inspectors this little trick for destroying evidence of a failed inspection.] 

This e-mail discusses two more mysterious power outages on the Intoxilyzer 8000 with Serial Number 80-000794. The first power outage occurred “at the jail.” The second time the instrument lost power during an inspection occurred the very next day. This time the power outage occurred when the “cord came loose… causing it to lose power.”

A cynical person might think that short hair is not the only thing this Agency Inspector is pulling out.


Read more about freak power outages during agency inspections – Falling Surge Protectors in Hillsborough County.

Read how one FDLE Department Inspector uses her cell phone and RFI to manipulate the Intoxilyzer 8000 instead of pulling the plug.

Read more about using the excuse that “the instrument inspection did not comply due to the fact that a sample was not provided during the allotted time necessary for this test to take place” when the attempted power outage failed

 

HCSO Cancels the 4th of July DUI Checkpoint

 

July 4th DUI Checkpoint Scheduled

 

 



It looks like the Hillsborough County Sheriff’s Office waited until the last minute to cancel a July 4th DUI Checkpoint.

Two days ago, the checkpoint was still listed on the HCSO website for an undisclosed location in District II from 2100 hours to midnight. BAT and transportation were to be provided at a location to be announced. Today, that checkpoint was wiped off the schedule.

HCSO is still planning a Saturation Patrol. The Tampa Police Department and other local police departments are expected to have increased patrols through the holiday weekend.

The University of South Florida Police Department website doesn’t disclose any checkpoints for July.

Everyone have a happy and safe 4th of July!

 

Hillsborough County Sheriff’s Office Checkpoint on Friday, June 20, 2014

If you were arrested in Friday night’s DUI checkpoint in Brandon, Florida, give us a call to discuss your case. Many states have banned the use of checkpoints under their state constitution.

In Florida, the use of DUI checkpoints are highly regulated by the courts. As a result, the checkpoints are highly ineffective at catching impaired drivers. The checkpoints require dozens of officer and hours of set up and planning.

Even if a few arrests are made, the DUI checkpoint is a nightmare for judges and prosecutors because any mistake made during the checkpoint means that all of the arrests can be challenged as unconstitutional.

Possible challenges can result if the operational plan is not complete, officers in the field deviate from the plan, and details about the checkpoint are not announced in advance.

On June 19, 2014, the Hillsborough County Sheriff’s Office released press release number OP3D14-080.

The press release announced that the Hillsborough County Sheriff’s Office would conduct a DUI roadblock (called the Operation 3D Comprehensive Roadside Safety Checkpoint) on Friday, July 20, 2014 at 10:00 p.m. until midnight.

The press release indicates that at the checkpoint, deputies with HCSO will be on the lookout for impaired drivers.

The law requires that in order for the DUI checkpoint to be reasonable under the Fourth Amendment of the U.S. Constitution, certain details about the checkpoint must be announced to the public in advance.

The press release for the Operation 3D Comprehensive Roadside Safety Checkpoint does not give the location of the checkpoint.

Instead, it list four possible locations in Hillsborough County:

  • 5353 Gunn Highway;
  • 257 Brandon Boulevard W;
  • 5408 State Road 674; or
  • 4537 Lowell Road.
The press release indicates that Hillsborough County Sheriff’s Office deputies will be targeting roadways “in one of the above areas” in an effort to reduce the number of crashes and deter those who may violate motor vehicular traffic laws.
The DUI enforcement page on the HCSO website also did not indicate the location in advance:
Friday, Jun 20, 2014 Checkpoint 2200 hrs. to 0400 hrs. District I & II B.A.T. And Transportation Provided Location T.B.A.

It looks like HCSO actually conducted the DUI checkpoint at the 257 West Brandon Boulevard, Brandon, FL 33511 on the east end of State Road 60 and it ran past midnight.

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If you were stopped in the checkpoint, let us know what you saw. Did Tampa Cop Watch get video?

Learn more about Jason Sammis’ favorite DUI checkpoint in Pasco County a few years ago:

Florida’s Under Age 21 Suspension in 322.2616 F.S.

At the Sammis Law Firm, we spend a lot of time fighting the administrative suspensions that occur after a DUI arrest. We believe that the formal review hearing to contest that administrative suspension is one of the most important parts of the DUI case.

We also represent young people who are not arrested for DUI, but who receive a Notice of Suspension for being under the age of 21 and driving while having a breath alcohol level of .02 or higher. This suspension is for a period of 6 months for a first violation, or for a period of 1 year if it is a second violation.

For all of the reason discussed below – there is no downside to requesting a formal review hearing. The request must be made within 10 days after the notice of suspension is issued. One benefit of requesting the formal review hearing is that the department must then issue a 30 day hardship license until the hearing is scheduled to take place.

Also, if the hearing is continued at the department’s initiative, then the department must issue a temporary driving permit until the rescheduled hearing. If you win the hearing then any mention of the administrative suspension is removed from the driving record as if it never happened.

Consequences of the Administrative Suspension

Even without a DUI arrest, the administrative suspension for driving under the influence of alcohol can cause a huge spike in young person’s insurance premiums.

F.S. 322.2616(19) provides that a violation of this section is neither a traffic infraction nor a criminal offense, nor does being detained pursuant to this section constitute an arrest. A violation of this section is subject to the administrative action provisions of this section, which are administered by the department through its administrative processes.

Administrative actions taken pursuant to this section will be recorded in the motor vehicle records maintained by the department. This section does not bar prosecution for DUI under s. 316.193. However, if the department suspends a person’s license under s. 322.2615 for a violation of Florida DUI law under s. 316.193, it may not also suspend the person’s license under this section for the same episode that was the basis for the suspension under s. 322.2615.

So as a practical matter, the administrative suspension under F.S. 322.2616 only takes place when the officer suspects that the young person has been drinking but does not have enough probable cause to make a DUI arrest.

Driving Privileges After the Suspension

If the officer does not arrest the young person for DUI, the officer may decide to issue the notice of suspension and take the young person’s license. If the driver’s license was valid immediately before the officer issues the notice of suspension, then the driver is automatically eligible for a 10 day permit. The officer will note on the citation when the person is eligible for the 10 day permit.

The notice of suspension reads:

“Unless ineligible, this suspension notice shall serve as a temporary driver’s license and will expire at midnight on the 10th day following the date of the issuance of this notice. This permit becomes effective after 12 hours have elapsed from the time of issuance of this notice.

At the Tampa, DHMVS hearing office, located at 2814 E. Hillsborough Avenue, Tampa, FL 33610-4479, you may request within 10 calendar days after the issuance of this suspension notice, a review of the suspension by the Department of Highway Safety and Motor Vehicles.

The notice of suspension can also be issue if the officer alleges that the young person refused to submit to a breath test under F.S. 322.2616. This suspension is for a period of one year if this is the first refusal or 18 months if the driver license was previously suspended for refusal to submit to a breath, blood, or urine test.

The Mobile Handheld Breathalyzer – Alco-Sensor FST

Officers with the Tampa Police Department will also complete a breath test result affidavit for under age 21 suspensions if the young person blew over .02. In the affidavit, the officer will swear or affirm that he administered a breath test to the young person in accordance with s. 322.2616 F.S.

The first breath sample was collected on ____ at ___, resulting in [a reading of] 0.__ grams of alcohol per 210 liters of breath (g/210L). The second breath sample was collected on ___ at ___, resulting in a 0.__ g/210L.

Officers with TPD will usually list the ALCO-SENSOR FST (sometimes called the “ASFST”) and the serial number of the instrument. The instrument used must be listed in the U.S. Department of Transportation’s conforming products list. The ALCO-SENSOR FST is listed on the Conforming Products List.

The affidavit will swear that the instrument has been calibrated and checks in accordance with the manufacturer’s and/or agency’s procedures.

DUI enforcement officers with the Tampa Police Department are also trained to fill out an affidavit of probable cause which states:

I _______, hereby swear or affirm that I have probable cause to believe that _______ was on ________ under the age of 21 as determined by the following: __ Driver License, __ I.D. Card, Other __________, and was driving or in actual physical control of a motor vehicle in this state with any blood alcohol or breath alcohol level or while under the influence of alcoholic beverages, to wit:

….. To be admissible at the hearing, the document should be notarized or attested to under the procedure provided by F.S. 117.10.

Issues for the Formal Or Informal Review Hearing

Pursuant to 322.2616(8), at the formal or informal review hearing, the hearing officer must determine by a preponderance of the evidence whether sufficient cause in the form of competent and substantial evidence exists to sustain, amend, or invalidate the suspension. The scope of the review is limited to the following issues:

(a) If the license was suspended because the individual, then under the age of 21, drove with a blood-alcohol or breath-alcohol level of 0.02 or higher:

  1. Whether the law enforcement officer had probable cause to believe that the person was under the age of 21 and was driving or in actual physical control of a motor vehicle in this state with any blood-alcohol or breath-alcohol level or while under the influence of alcoholic beverages.
  2. Whether the person was under the age of 21.
  3. Whether the person had a blood-alcohol or breath-alcohol level of 0.02 or higher.

(b) If the license was suspended because of the individual’s refusal to submit to a breath test:

  1. Whether the law enforcement officer had probable cause to believe that the person was under the age of 21 and was driving or in actual physical control of a motor vehicle in this state with any blood-alcohol or breath-alcohol level or while under the influence of alcoholic beverages.
  2. Whether the person was under the age of 21.
  3. Whether the person refused to submit to a breath test after being requested to do so by a law enforcement officer or correctional officer.
  4. Whether the person was told that if he or she refused to submit to a breath test his or her privilege to operate a motor vehicle would be suspended for a period of 1 year or, in the case of a second or subsequent refusal, for a period of 18 months.

What Documents are Reviewed?

F.S. 322.2616(3) requires the law enforcement officer to forward to the department, within 5 days after the date of the issuance of the notice of suspension the following documents:

  1. a copy of the notice of suspension;
  2. the driver’s license of the person receiving the notice of suspension, and
  3. an affidavit stating the officer’s grounds for belief that the person was under the age of 21 and was driving or in actual physical control of a motor vehicle with any blood-alcohol or breath-alcohol level; and
  4. the results of any blood or breath test or an affidavit stating that a breath test was requested by a law enforcement officer or correctional officer and that the person refused to submit to such test.

The failure of the officer to submit materials within the 5-day period specified in this subsection does not bar the department from considering any materials submitted at or before the hearing.

What is the Standard for Review Used by the Hearing Officer?

The hearing officer can either sustain the suspension only if he or she finds, by a preponderance of the evidence, that sufficient cause in the form of competent and substantial evidence exists to support each issue in the case. If that evidence is missing, then the suspension should be invalidated.

At the hearing, according to F.S. 322.2616(2)(b)(5), the driver may submit to the department any materials relevant to the suspension of his or her license.

Enhanced Consequences if the BAC is 0.05 or Higher?

F.S. 322.2616(c) provides that if the driver has a BAC of 0.05 or higher, the suspension shall remain in effect until such time as the driver has completed a substance abuse course offered by a DUI program licensed by the department.

The statute requires the driver to assume the reasonable costs for the substance abuse course. As part of the substance abuse course, the program must conduct a substance abuse evaluation of the driver, and notify the parents or legal guardians of drivers under the age of 19 years of the results of the evaluation.

If a driver fails to complete the substance abuse education course and evaluation, the driver’s license shall not be reinstated by the department.

The Informal Review Hearing

The driver can request either a formal or informal review hearing under F.S. 322.2616(2)(b)(3). At the informal review hearing, a hearing officer employed by the department within 30 days after the request is received by the department and shall issue such person a temporary driving permit for business purposes only to expire on the date that such review is scheduled to be conducted if the person is otherwise eligible.

Under F.S. 322.2616(10), if the department fails to schedule the hearing to be held within 30 days after receipt of the request therefor, the department shall invalidate the suspension.

The informal review hearing must consist solely of an examination by the department of the materials submitted by a law enforcement officer or correctional officer and by the person whose license is suspended, and the presence of an officer or witness is not required.

After completion of the informal review, notice of the department’s decision sustaining, amending, or invalidating the suspension of the driver’s license must be provided to the person.

The notice must be mailed to the person at the last known address shown on the department’s records, or to the address provided in the law enforcement officer’s report if such address differs from the address of record, within 7 days after completing the review.

The Formal Review Hearing

At the formal review hearing, if a timely request was made by the driver, the department must schedule a hearing to be held within 30 days after the request is received by the department. It must notify the person of the date, time, and place of the hearing. It shall issue such person a temporary driving permit for business purposes only to expire on the date that such review is scheduled to be conducted if the person is otherwise eligible.

Under F.S. 322.2616(10), if the department fails to schedule the formal review hearing to be held within 30 days after receipt of the request therefor, the department shall invalidate the suspension.

The formal review hearing must be held before a hearing officer employed by the department, and the hearing officer may administer oaths, examine witnesses and take testimony, receive relevant evidence, issue subpoenas, regulate the course and conduct of the hearing, and make a ruling on the suspension.

The department and the person whose license was suspended may subpoena witnesses, and the party requesting the presence of a witness is responsible for paying any witness fees and for notifying in writing the state attorney’s office in the appropriate circuit of the issuance of the subpoena.

If the person who requests a formal review hearing fails to appear and the hearing officer finds the failure to be without just cause, the right to a formal hearing is waived and the suspension is sustained.

What Happens if You Subpoena a Witness and the Witness Fails to Appear?

If a witness fails to appear after being properly serviced with the subpoena, a party may seek enforcement of a subpoena 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.

A failure to comply with an order of the court constitutes contempt of court. However, a person may not be held in contempt while a subpoena is being challenged.

When Will I Know if the Suspension is Invalidated?

The department must, within 7 days after a formal review hearing, send notice to the person of the hearing officer’s decision as to whether sufficient cause exists to sustain, amend, or invalidate the suspension.

Hardship Permit if the Suspension is Sustained

Under F.S. 322.2616(11), if the suspension is sustained (or if no hearing is request) then the person may apply for issuance of a license for business or employment purposes only, pursuant to s. 322.271, if the person is otherwise eligible for the driving privilege.

However, such a license may not be issued until 30 days have elapsed after the expiration of the last temporary driving permit issued under this section.

This 30 day period during which the driver is not eligible for a hardship license is known as the “hard suspension” period.

Appeal the Order Sustaining the Under Age 21 Suspension

Under F.S. 322.2616, the young person may appeal any decision of the department sustaining a suspension of his or her driver’s license by a petition for writ of certiorari to the circuit court in the county wherein such person resides or wherein a formal or informal review was conducted under s. 322.31.

However, an appeal does not stay the suspension. This subsection does not provide for a de novo appeal.

Policy Behind the Under Age 21 Suspensions

F.S. 322.2616(16) explains that by “applying for and accepting and using a driver’s license, a person under the age of 21 years who holds the driver’s license is deemed to have expressed his or her consent to the provisions of this section.”

A breath test to determine breath-alcohol level pursuant to this section may be conducted as authorized by s. 316.1932 or by a breath-alcohol test device listed in the United States Department of Transportation’s conforming-product list of evidential breath-measurement devices.

The reading from such a device is presumed accurate and is admissible in evidence in any administrative hearing conducted under this section.

Conclusion

Unlike administrative suspensions after a DUI arrest, the under 21 driver given only the suspension under F.S. 322.2616 is not eligible for immediate reinstatement by waiving the right to a formal or informal review hearing (the waiver review hearing). Therefore, no downside exist to demanding the formal review hearing to contest the administrative suspension under F.S. 322.2616.

Jason Sammis represents driver’s under the age of 21 that are served with a notice of suspension for having a breath alcohol concentration over .02 or for refusing to submit to to the handheld breathalyzer. 

DUI Enforcement in Tampa over Memorial Day Weekend

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The Hillsborough County Sheriff’s Office issued a press release on Thursday, May 22, 2014, about Operation 3D Saturation. Although no checkpoints are scheduled, deputies will be on the lookout for impaired drivers this Memorial Day weekend. HCSO will also be using increased patrol units county wide from Friday, May 23, 2014 at 8:00 p.m. until Saturday, May 24, 2014 at 4:00 a.m.

Additionally, on Saturday, May 24, 2014, HCSO will conduct a Multi-Agency Saturation Patrol from 9:00 p.m. until 4:00 a.m. the next morning in the City of Tampa. BAT and Transportation will be provided from an undisclosed location in Tampa. Other participating agencies include the Tampa Police Department and the Florida Highway Patrol. During the saturation patrol, Deputies, Troopers and Officers will be on the lookout for impaired drivers.

According to its press release, the Hillsborough County Sheriff’s Office hopes that these efforts will deter impaired driving violations, increase the number of DUI arrests, and make the holiday weekend DUI injury and fatality free.

If you were arrested for DUI in Hillsborough County over Memorial Day weekend – learn more about the importance of requesting a formal review hearing within the first 10 days after your arrest – http://tampaduiattorney.wordpress.com/2014/03/20/florida-dui-rules-for-the-administrative-suspension-its-complicated/

What is the “Business Purpose Only” Hardship License?

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If your license is suspended, revoked or canceled, then you may still qualify for a Class E driver’s license that restricts driving to only certain purposes.

The Class E license can include either a C Restriction or a D Restriction.

 

  • The C Restriction is the “Business Purpose Only” license; and
  • The D Restriction is the “Employment Purpose Only” license.

No hardship restriction can be added to a Commercial Driver License (also known as the CDL license). When a CDL driver obtains a hardship license the driver must downgrade to a Class E license.

How to I Apply for a Temporary Hardship Permit within the 10 Days after my DUI Arrest?

If your driver’s license is suspended because you were arrested for DUI, then the DUI citation operates as your 10 day permit. During those 10 days you must request a formal review hearing to contest the administrative suspension. Because the rules for the hearing are so complicated, few people are able to successfully represent themselves at the hearing.

Note: Many people who cannot afford to hire an attorney within the 10 days decide to request immediate reinstatement and waive the formal review hearing. This is called a “waiver review hearing” by the DMV.

At the waiver review hearing, the hearing officer will make sure that you actually waived your right to a formal review hearing.

You are also required to show proof that you have enrolled in DUI school (the original certificate or the online form with proof of payment).   Other documents may be required and you must personally appear.

Individuals who cannot afford an attorney and are not eligible for a waiver review hearing should still request the formal review hearing and obtain the 42 day driving permit.

If you can afford a private attorney willing to fight to invalidate the suspension, your attorney will demand the formal review hearing within the 10 days after your arrest (and you do NOT need to be present). Your attorney will also obtain a 42 day temporary driving permit on your behalf (which is also called the “Business Purpose Only” temporary permit) that allows you to continue driving on a restricted basis while your attorney fights to invalidate the administrative suspension.

If you win the hearing and the suspension is invalidated, then the suspension is erased from your driving record as if it never happened. You just go to the DMV to get a duplicate copy of your driver’s license. If you lose the hearing, then you must serve the hard suspension and then apply for a hardship license.

How do I Apply for a Hardship License?

After your 42 day permit expires and you have served any hard suspension period, you can obtain a hardship license if you meet certain eligibility requirements. The agency that oversees the issuance of a hardship license is the Bureau of Administrative Review Office (often called the “BAR”). The BAR also holds the formal review hearings.

The application for any hardship license after the formal review hearing is concluded can be obtained at the Bureau of Administrative Review Office.

Tampa Bureau of Administrative Review (BAR)
2814 E Hillsborough Ave.
Tampa, FL 33619
(813)276-5795
 
Clearwater Bureau of Administrative Review (BAR)
4585 140th Ave. North, Suite 1002
Clearwater, FL 33762
(727) 507-4405

What Happens at the Hearing for my Hardship License?

If you lose the hearing then you must serve the hard suspension. After the hard suspension is over you can report to the Bureau of Administrative Review for a hardship license hearing. At the hearing, the hearing officer will ask you whether you drove during the hard suspension period. If you answer yes to this question then no hardship license will be issued.

If you were caught driving during the hardship period then no hardship license will be granted. The hearing officer will also determine if you actually need a hardship license and whether you are otherwise eligible. If you are eligible then you will receive a hardship license for the rest of the suspension or revocation period.

Who is Not Eligible for a Hardship License under Florida Law?

Certain individuals are not eligible for a hardship license because of something on their driving record (although that person might still be eligible for a 42 day hardship permit after the DUI arrest). The most common reasons why a person is not eligible for a hardship license include:

  1. A second or subsequent administrative suspension for refusal (322.271(2)(a));
  2. A five or ten year DUI revocation (322.271 (2)(a));
  3. A DUI for Driving with an Unlawful Breath or Blood Alcohol Level (DUBAL) with two DUI convictions or two prior refusals (322.271 (2)(a);
  4. Permanent DUI Manslaughter with prior or subsequent DUI convictions (322.271(4));
  5. Murder Resulting from the Operation of a Motor Vehicle (322.28(3));
  6. DUI Serious Bodily Injury with two or more prior DUI convictions.

Other than in DUI cases, other types of suspensions or revocation are also ineligible for a hardship license including:

  1. A conviction for Felony Possession of a Controlled Substance (322.27(6));
  2. A conviction for Theft of Motor Vehicle, Parts or Components (unless ordered by trial judge)(322.274);
  3. Child Support Delinquency suspensions;
  4. Fail to Pay Fines (D6 suspension);
  5. Failure to Appear in Court (D6 suspensions);
  6. Suspensions resulting from the Drop-out Law (related to school attendance);
  7. Possession of Tobacco by a Minor; and
  8. Financial Responsibility Suspensions.

What Does “Business Purpose Only” Mean?

The hardship license for “Business Purposes Only” means that your driving is restricted to “any driving necessary to “maintain livelihood” including driving to or from work, school (or other educational purposes), necessary on-the-job driving, driving for see a doctor (medical purposes), or driving for church.” The courts have considered a variety of excuses to determine whether they qualify as necessary to “maintain livelihood.”

For instance, the court has allowed driving necessary to obtain food (State v. Quiroli, 9 Fla. L. Weekly Supp. 780b (15th Jud. Cir., Sep 12 2002)) or driving to pay a utility bill (Vilches v. State, 12 Fla. L. Weekly Supp. 530a (11th Jud. Cir., Mar 29 2005)). Those decisions were extreme dependent on the particular facts of that case and there is no guarantee that other courts would follow the same reasoning. In some cases, the courts have found that a person cannot drive on a “business purpose only” restriction if another licensed driver is in the vehicle.

What Happens if I Get Caught Driving for a Purpose Not Allowed by the Restriction?

Driving for any other purpose is not allowed and could result in an arrest for violation of the restriction on the driver’s license. Under Florida Statute Section § 322.16(5), Fla. Stat., violation of a restriction imposed pursuant to § 322.16(1)(c) is a second-degree misdemeanor.

That subsection provides that the Department of Highway Safety and Motor Vehicles may impose other restrictions on the use of the license with respect to time and purpose of use including the “business purpose only” restriction after an administrative or court ordered suspension for DUI.

As a second degree misdemeanor, the crime is punishable by up to 60 days in jail and a $500 fine. Also if you are caught in violation of your restriction during the restriction period, your restriction period may be extended on your driving record and you may receive a suspension. If this happens, your old license will show an old expiration date and your hardship restriction will not automatically drop off your driving record until the new expiration date has passed.

What Happens with the Hardship Restriction Expires?

When the hardship restriction expires then the driver’s license simple loses that restriction. You can resume driving within full privileges. You are not required to obtain a new license. To avoid embarrassment, many people choose to get a clean driver’s license that does not notate the prior restriction. You can obtain a replacement license for $31.25 at the tax collector’s office. If you are not already compliant under the REAL ID ACT then you will be required to show certain documents as explained on http://www.gathergoget.com.

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