Beginning July 1, 2013, the rules for the administrative suspension of a driver’s license after a DUI arrest, and the right to review that administrative suspension will change.
Criminal defense attorneys who practice DUI defense will have to act quickly to understand the legislative changes.
Changes to Florida’s DUI Administrative Hearings
For individuals who have never been accused of DUI or a related offense, the individual will now have three choices:
- request an informal review hearing;
- request a formal review hearing; or
- request a review of eligibility for a “Business Purpose Only” restricted driving privilege which waives the right to a formal or informal review hearing.
I have been told that the DHSMV is taking the position that it is not the date that the person requests the hearing that controls, but the date of the DUI arrest or notice of suspension.
Under that reading, if the arrest and notice of suspension are dated June 30, 2013, then the person does not have the option of avoiding the hard suspension by immediately requesting a “review of eligibility.” But if the DUI arrest and notice of suspension are dated July 1, 2013 or later, then the new rules control.
It is also my understanding that if the DMV determines the individual is not eligible, then the DMV will still let the individual request the formal review hearing as long as the request is made within the 10 days of the arrest.
Good and Bad Parts of Florida’s New Law
At first blush, this looks like a big improvement over the current rules. [It might put a few hearing officers out of a job and save the tax payers a lot of money on the officer's overtime pay].
But here is the problem. That decision must be made within the first 10 days after the DUI arrest when the notice of suspension is issued. So the attorney has no idea what documents might be submitted into the record if a formal review is requested.
We certainly try to get the police reports and other documents during that time period, but the DHSMV often says the packet is not available until well after the 10 day period.
In other words, the attorney will have to advise the client about waiving this important right before the attorney knows anything about the case. Once you request the formal review hearing and the 10 days pass, then you cannot later change your mind and request the “review of eligibility.”
To put it another way – our clients are getting punished for exercising their right to contest the administrative suspension. It is a basic denial of due process to punish someone for exercising their rights. Many legal challenges will be filed until that issue is decided.
Secondly, the client is being coerced into waiving a very important right with long lasting consequences. This is especially true since a second refusal can be charged as a separate crime.
Maybe that was the point. It would be hard to imagine a case in which my client would want to risk a 30 or 90 day hard suspension on a chance of winning a hearing to invalidate the suspension. Most people need to drive to work, so it seems like this new rule will coerce people into waiving this important right.
Individuals with a Prior DUI Conviction or Administrative Suspension Still Want a Formal Review Hearing
Individuals with a prior DUI conviction or administrative suspension will still want to request and litigate all issues at a formal review hearing since there is no downside to the request (at least as far as I can tell at this moment).
It would be better if the attorney could request the formal review hearing, review the packet, advise the client on the chances of success at the formal review hearing, and then decide to waive the formal review hearing by requesting review of eligibility for the restricted driving privilege. But it doesn’t look like that is allowed.
Florida Statute Section 322.2615
Effective July 1, 2013, Florida Statute Section 322.2615. “Suspension of license; right to review” will provide:
“[t]he driver may request a formal or informal review of the suspension by the department within 10 days after the date of issuance of the notice of suspension or may request a review of eligibility for a restricted driving privilege under s. 322.271(7).“
Florida Statute Section 322.271(7)
So who is eligible for a restricted driving privilege under Florida Statute Section 322.271(7)?
Effective July 1, 2013, Florida Statute Section 322.271(7) will provide:
Notwithstanding the provisions of s. 322.2615(10)(a) and (b), a person who has never previously had a driver license suspended under s. 322.2615 [an administrative suspension], has never been disqualified under section s. 322.64 [related to operating a commercial vehicle while under the influence], has never been convicted of a violation of s. 316.193 [DUI], and whose driving privilege is now suspended under section s. 322.2615 is eligible for a restricted driving privilege pursuant to a hearing under section (2).
(a) For purposes of this subsection, a previous conviction outside of this state for driving under the influence, driving while intoxicated, driving with an unlawful blood-alcohol level, or any other alcohol-related or drug-related traffic offense similar to the offense of driving under the influence as provided in s. 316.193 will be considered a previous conviction for a violation of s. 316.193, and a conviction for violation of former s. 316.028, former s. 316.1931, or former s. 860.01 is considered a conviction for a violation of s. 316.193.
(b) The reinstatement shall be restricted to business purposes only, as defined in this section, for the duration of the suspension imposed under s. 322.2615.(c) Acceptance of the reinstated driving privilege as provided in this subsection is deemed a waiver of the right to formal and informal review under s. 322.2615. The waiver may not be used as evidence in any other proceeding.
- Someone other than a DHSMV employee can be designated as a hearing officer (wonder who that might be?)
- The hearing officer may conduct hearings using communications technology (the title uses the term telecommunications technology but I don’t see a definition for either term). Does this mean that witnesses will just call into the hearing on the telephone?
- The motion to enforce the subpoena for a witness that fails to appear is now filed with the judge in the criminal case and the client is entitled to an extended driving permit during the time it takes to enforce the subpoena (that is a huge improvement over the DHSMV’s crazy interpretation of the old rules).
- Under 322.2615(11), if the arresting officer or the breath technician fails to appear pursuant to a subpoena as provided in subsection (6), the department shall invalidate the suspension. If a witness other than the arresting officer or breath technician fails to appear, then the driver can seek enforcement from the judge in the criminal case (and it appears that the driver can still seek enforcement in the Circuit Court as well).
You can read more analysis of the new 2013 changes to the Florida DHSMV hearings in the House analysis. This is one of the best sources of information interpreting the new law that I could find. I guess we will find out on July 1, 2013.
Leslie Sammis is a DUI attorney in Tampa, FL, who represents men and women charged with driving under the influence (DUI) in Hillsborough County, FL.