This article discusses the absurd position taken by the DHSMV that requires the petitioner to file a “Motion to Enforce a Subpoena” under Florida Statute § 322.2615(6)(c) after a witness fails to appear for a formal review hearing to contest the administrative suspension. Read more about how Florida DUI attorneys can deal with the DHSMV’s “No Call, No Show, No Problem” policy.
When the Officer Throws that FRH Subpoena in the Trash
In the movie “Office Space” Peter Gibbons said “I think I’m just going to … not go.” Law enforcement officers throughout Florida are taking the same stance when they receive a subpoena for a formal review hearing. Many of those officers promptly throw that subpoena in the trash. In many cases, the officers and their supervisors know they can ignore the subpoena without any negative consequences.
Purpose of the Formal Review Hearing to Contest the DUI Administrative Suspension
After a DUI arrest and the accompanying administrative suspension, the driver has a right to request a formal review hearing that must be conducted within 30 days pursuant to section 322.2615, Florida Statutes (2010). Rule 15A-6.013(5) affords the driver seeking review “the right to present evidence relevant to the issues, to cross-examine opposing witnesses, to impeach any witness, and to rebut the evidence presented against the driver.” Fla. Admin. Code R. 15A-6.013(5).
Pursuant to F.S. §322.2615(6)(b), a driver whose license has been suspended may have subpoenas issued to officers and witnesses identified in documents in subsection (2) of Florida Statute 322.2615, which states, in pertinent part: “Materials submitted to the department by a law enforcement agency or correctional agency shall be considered self-authenticating and shall be in the record for consideration by the hearing officer.”
But what happens when the Law Enforcement Officer throws the subpoena in the trash?
The Good Ole Days
Prior to July of 2010, if the officer was a “no show / no call” at the formal review hearing then the hearing officer would invalidate the suspension if the attorney made the appropriate objections. The law enforcement agencies would internally discipline the officers for the transgression. As a result, it was relatively rare for an officer to just throw the subpoena in the trash without any concern about the consequences.
In July of 2010, that policy changed. Now if a law enforcement officer throws the subpoena in the trash, he doesn’t have to worry much about the consequences. In most cases, the attorney fails to file a motion to enforce the subpoena or appeal the order upholding the administration suspension.
This article explorers different strategies to deal with the problem and even use this absurd “No Call, No Show, No Problem” policy to your client’s advantage.
Holding their Feet to the Fire
What can be done if you properly subpoena a law enforcement officer and the officer decides to “no call / no show”?
1. Move to strike from the record any document authored by the absent witness (or any document that even references the absent witness’ hearsay statements) since it would be “a violation of basic principles of due process” for the hearing officer to consider that evidence but deny the driver the ability to meaningfully cross examine the individual who prepared those documents or made the statement as contemplated by the rules. See Lee v. Dep’t of Highway Safety & Motor Vehicles, 3 So. 3d 754, 757 (Fla. 1st DCA 2009) [34 Fla. L. Weekly D520a]. The hearing officer will deny that motion.
2. The attorney should then move to invalidate the suspension based on the lack of evidence needed to support the suspension (since it should be struck from the record) and explain why the rest of the record is insufficient to uphold the suspension.
3. The hearing officer will ask you whether you want to seek enforcement of the subpoena in Circuit Court or alternatively, waive any objection and go forward with the hearing as if the witness had never been placed under subpoena. When you are presented with those choices, then make a separate due process objection because the officer’s failure to appear undermines the petitioner right to have a hearing within the thirty day period for the hearing as contemplated by FAC 15A-6.013 and § 322.2615(6)(a), Fla. Stat. Also put on evidence to show the prejudice the petitioner will suffer because of the delay including the expense the petitioner must pay for additional attorney fees or costs for the court reporter. Also, point out that even if the petitioner gets an extended driving permit, the permit is for business purposes only.
File a Petition for Writ of Certiorari
One option is to reject the hearing officer’s offer for a continuance and instead file a Petition for Writ of Certiorari if the hearing officer fails to invalidate the suspension. Several courts have found that asking the petitioner to file the motion to enforce the subpoena deprived the petitioner of his due process rights because it “effectively added a procedural step to the review process that deprived Petitioner the real opportunity to be heard and to challenge the suspension on the merits within thirty days.” Pfleger v. Florida Department of Highway Safety and Motor Vehicles, 18 Fla. L. Weekly Supp. 706(a), (Fla. 6th Cir. App. Ct. May 20, 2011).
Additionally, in Robinson v. Dept of Highway Safety and Motor Vehicles, 18 Fla. L. Weekly Supp. 1099b, (Fla. 6th Cir. App. Ct. September 1, 2011), the Circuit Court also followed the Pfleger decision and held that the petitioner’s due process rights were violated by the officer’s unexcused, unexplained non-appearance at the administrative formal review hearing.
The Robinson Court quashed the hearing officer’s “Finding of Facts, Conclusion of Law and Decision” and ordered the DHSMV to reinstate the petitioner’s driving privilege and removed from his permanent driving record any entry that reflects the administrative suspension. See also Saxlehner v. Dep’t of Highway Safety and Motor Vehicles, 19 Fla. L. Weekly Supp. 67a (Fla. 11th Cir. Ct., Oct. 27, 2011).
That decision was upheld in Dept of Highway Safety and Motor Vehicles, No. 2D11–5121 (Fla. 11th Cir. Ct., June 27, 2012). The Court also noted in that decision that “…circuit courts are ruling both ways on this issue and using different reasoning for granting or denying petitions…” It certified the following question of great public importance to the supreme court pursuant to Florida Rule of Appellate Procedure 9.030(a)(2)(A)(v):
WHEN A SUSPENDEE SEEKS FORMAL REVIEW OF A DRIVER’S LICENSE SUSPENSION PURSUANT TO SECTION 322.2615(a), FLORIDA STATUTES, IS IT A VIOLATION OF DUE PROCESS TO SUSPEND THE LICENSE AFTER A SUBPOENAED WITNESS FAILS TO APPEAR AND THE SUSPENDEE CANNOT ENFORCE THE SUBPOENA WITHIN THE STATUTORILY MANDATED THIRTY–DAY PERIOD FOR FORMAL ADMINISTRATIVE REVIEW?
The downside to this approach is that while you are pursuing the Petition for Writ, your client will not get a temporarily permit and will likely suffer most of the suspension. The second downside to this approach is that your client will have to cough up the filing fee and your attorney fees to file the Writ. On the other hand, the benefit of this approach is that if your client wins the Petition for Writ, the Circuit Court may order the DHSMV to remove any mention of the administrative suspension from your client’s permanent driving record.
File the Motion to Enforce
An alternative way to deal with the problem is to take the hearing officer up on the continuance with an extended driving permit and file a motion to enforce. When you file the motion to enforce, add a demand that the absent witness pay the $400 filing fee, other costs to serve the motion, and reasonable attorney fees.
Fla. Stat. Ann. § 322.2615(6)(c) provides:
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. 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.
Under this approach, your client will get an extended driving permit during the time it takes to enforce the subpoena. In fact, the DHSMV must issue the extended driving permit. See Carballosa v. Dept of Highway Safety and Motor Vehicles, 18 Fla. L. Weekly Supp. 569a (Fla. 4th Cir. Ct., Feb. 28, 2011).
Getting that extended driving permit can be a huge advantage, particularly when the client is suffering a 12 to 18 month hard suspension because the permit cuts into that hard suspension. In many breath test cases involving a first DUI, the period of enforcement may take up the entire six month suspension meaning that your client never suffers the 30 day “hard” suspension.
[Tip that Makes the Prosecutor's Head Spin] – A big upside to this approach is that now you get to cross examine the witness in the criminal DUI case with the fact that he had to be sued in circuit court for not showing up to the formal review hearing. The civil suit become relevant and goes to the witness’ bias and motive when he or she testifies in the criminal case. The jurors might be highly amused to learn that the officer ended up paying your client’s attorney fees for the failure to appear. Also, most law enforcement agencies will discipline the officer after the motion to enforce is filed which also becomes additional impeachment evidence that can be used at trial to show the officer’s motive and bias.
The downside to this approach is that your client will have to cough up the $400 filing fee as well as the fee for the process server to serve the motion on the absent witness, plus other costs and your attorney fees. Hopefully your client will get all that money back from the officer (or the law enforcement agency where he or she is employed) when you prevail on the motion to enforce.
Send a Letter to the “No Call / No Show” Witness
In certain cases, you may opt for the continuance to file the motion to enforce and then head back to the office to type up a letter. Fax the letter off to the absent witness and his supervisor explaining your intention to file the motion to enforce. Invite the absent witness to contact the hearing officer within two days with a written request for a continuance showing good cause.
Sending the letter increases the chance that the witness will follow through with requesting the continuance. If the witness doesn’t request the continuance, the letter is also useful in the “motion to enforce” proceeding to show the Circuit Court that the absent witness deserves to pay a heft amount of attorney fees and costs. The letter might also be admissible at trial to show the officer’s bias and motive in the event the “motion to enforce” is filed.
Either Way – Ask for a Continuance in Writing to Re-serve the Witness with Another Subpoena
As a matter of strategy, when you see that a witness is a “no call / no show” write up a quick motion to continue and hand it to the hearing officer when the hearing officer asks if you want to file a motion to enforce. Then say, “No, I’m asking for a continuance to re-serve the officer with another subpoena.” File a written ”motion to continue” because the rules require a request for a continuance to be in writing and to show “good cause.”
Point out that this approach is cheaper since it only cost $40 to serve another subpoena verses $400 to file a motion to enforce. Also point out that this is approach is faster since the hearing could be rescheduled much faster without the need to seek enforcement in the Circuit Court (after all those Circuit Court judges are really busy handling more important matters). Also point out, that since the hearing officer is going to continue the hearing to allow you to file the motion to enforce, it makes more sense just to continue the hearing so the witness has a second chance to appear.
The DHSMV will reject that approach, but then it shows how absurd their policy is since the officer can continue for “good cause” but the Petitioner’s right to continue for “good cause” is being denied. It also shows that the DHSMVs real motivation is creating an undue hardship to frustrate the petitioner’s right to a fair hearing.
After your written request for a continuance is denied object that the denial of your request for a continuance is a violation of due process. Point out that the DHSMV’s own rules that merely require “good cause.” Then that argument can be included in either the “Writ of Cert” or the “Motion to Enforce” to show the absurdity of the DHSMV’s position.
Ask to Have the Filing Fee Waived for an Indigent Petitioner
If Petitioner is indigent, then the $400 filing fee can be waived. Section § 57.081(1), Florida Statutes provides that “Any indigent person. . .who is a party or intervenor in any judicial or administrative agency proceeding or who initiates such proceeding shall receive the services of the courts, sheriffs, and clerks, with respect to such proceedings, despite his or her present inability to pay for these services.”
The services to which the indigent person is entitled includes filing fees. § 57.081(1), Fla. Stat. “Thus, under this statute, if a person is certified as indigent, the prepayment of costs is ‘waived.’ ” Schmidt v. McDonough, 951 So. 2d 797, 800 (Fla. 2006) [32 Fla. L. Weekly S16a].
The DMV’s “No Call, No Show, No Problem” Policy
I bet the DHSMV’s “No Call, No Show, No Problem” policy would change pretty fast if a “motion to enforce” or “petition for writ of cert” was filed in every single case. I’d love to hear how other attorneys are dealing this problem.