To Waive or Not to Waive – Request for Eligibility Review after a DUI Arrest in Florida

Image

Florida law recently changed the rules on formal review hearings after a DUI arrest. The hearings are conduct at the State of Florida Department of Highway Safety and Motor Vehicles (DHSMV) Bureau of Administrative Reviews (BAR). A copy of the new official form identified as “HSMV 72034 (05/2013)” is attached to this blog article below.

A hearing officer told me that the form must be signed in the presence of the hearing officer. The text of the form I was provided reads as follows:

STATE OF FLORIDA

DEPARTMENT OF HIGHWAY SAFETY AND MOTOR VEHICLES

BUREAU OF ADMINISTRATIVE REVIEWS

REQUEST FOR ELIGIBILITY REVIEW

Driver Name: _____________DL#:____________

I ______________________ hereby request a review of my record for the purpose of reviewing and determining my eligibility for immediate reinstatement of my driving privilege on a restricted basis as provided in section 322.2615(1)(b)3, Florida Statutes. I understand the restriction is for Business Purposes Only as defined in section 322.271, Florida Statutes and I must pay a $25.00 filing fee for this review, pursuant to section 322.21(9)(a).

I understand that the restricted license will be for the duration of the suspension period under section 322.2615, Florida Statutes, as follows:

__ Driving with an Unlawful Breath-Alcohol or Blood-Alcohol Level = 6 months suspension

__ Refusal to Submit to a Breath, Blood or Urine Test = 1 year suspension

Reinstatement of the driving privilege on a restricted basis as set forth herein is conditioned on statutory eligibility requirements, including but not limited to enrollment in DUI School.

WAIVER OF FORMAL AND/OR INFORMAL REVIEW

I also understand that acceptance of the reinstated driving privilege as provided in section 322.271(7)(c), Florida Statutes, is deemed a waiver of my right to formal and informal review under section 322.2615, Florida Statutes.

___________________ Date: ___________

Signature of Driver

___________________ Date: ___________

Witness Signature

___________________

Witness Printed Name

HSMV 72034  (5/2013)

____________________

Click here to view the new form for Request for Eligibility Review after DUI Administrative Suspension

____________________

So what might happen when a person arrested for DUI shows up at the Bureau of Administrative Reviews DHSMV office in Tampa, Hillsborough County, FL? I have compiled a list of some of the hoops the person might have to jump through to get the Business Purpose Only license under the new immediate reinstatement provision.

  • The person arrested for DUI must physically report to the Bureau of Administrative Reviews office within 10 calendar days of the arrest. If the 10th day falls on a holiday, Saturday or Sunday then the request for eligibility review must be made prior to the 10th day.
  • The person must fill out the form and sign it in the presence of the hearing officer.
  • The person must have a seat until called up for a hearing on the request for the review of eligibility.
  • The person must pay the $25.00 filing fee for this review.
  • If the person is deemed not eligible for immediate reinstatement because of a prior DUI or DUI related offense, then I have been told that the person has the option to withdraw the request for eligibility review and to demand a formal review hearing. At that point, the person would pay another $25, demand the formal review hearing in writing and request the 42 day driving permit.

I see nothing in the statute that allows or forbids the person from withdrawing the waiver after it is determined that the person is not eligible for immediate reinstatement.

Despite the fact this option is not spelled out in the statute, I have been told the hearing officer will accept the revocation only if it is done at “that moment” during the eligibility hearing. According to what the hearing officer told me if the person does not immediately request a formal review hearing in that moment, then the right to a formal review hearing is forever waived.

I was told by a different hearing officer a few weeks ago that after a determination of ineligibility the person still has the rest of the 10 day period to demand a formal review hearing.

The form says that the waiver occurs upon “acceptance of the reinstated driving privileges.” Since acceptance of the reinstatement driving privilege did not occur then an argument could be made that requesting a formal review hearing thereafter (but still within the 10 days) would be sufficient.

To be safe, I would not sign the waiver form unless you really want to waive the review hearing. If there is any question about eligibility the DUI attorney should attend the hearing with the client.

  • If the person is deemed eligible, the person must pay another $25, show proof of enrollment in DUI school, and show proof that the person has paid for DUI school with the receipt of payment.
  • The person must also be in compliance with the Florida Real ID Act. I was told you can look at your driver’s license and see if you are in compliance with the Real ID Act because if so you will have a yellow star in the upper right hand corner of your driver’s license. If not, you must provide various documents required that might include a valid passport, original or certified copy of your birth certificate, social security card and two documents that show your principal residence.

It seems to me that some of these procedures have changed slightly since the last time I spoke to a hearing officer about the new rules. It sounds like the hearing officers are making up some of these rules as they go along.

Many DUI attorneys in Tampa are attending the request for eligibility review hearing with their client so that any unforeseen problems can be addressed immediately. Read more about the new law in Florida for DUI administrative suspensions.

Leslie Sammis is a DUI attorney in Tampa, Hillsborough County, FL. She sometimes feels like Alice in Wonderland when she enters the Bureau of Administrative Review office.

5 Comments

  1. Posted August 9, 2013 at 14:01 | Permalink | Reply

    Miami hearing officers won’t permit an attorney to participate in the review of eligibility process.

    These folks just make it up as they go along.

    Jonathan Blecher

    • Posted August 15, 2013 at 09:48 | Permalink | Reply

      It is a hearing. I don’t see how they can keep the attorney out of the room. How do they physically stop the attorney from going in the room? What if the person shows up with a court reporter so a transcript is made of the entire hearing. I think we need to type up our own forms and create a record of what a due process violation this entire process is. So what I want to know is who is the person who wrote this new legislation? How do we find that out. I’m sure someone knows I just haven’t asked the right person.

      • Posted August 15, 2013 at 10:04 | Permalink

        I’m pretty sure that DHSMV Counsel Kathy Jimenez had her hand in this. She’s the one who hands down memo after memo to the hearing officers

        Maybe we look into who sat on the senate committee. Do we have someone from FACDL in Tally?

      • Posted August 15, 2013 at 17:06 | Permalink

        I would think she would have drafted it. But when I first read it I thought it was too favorable to the defense to be the work of Kathy Jimenez. But now that I’m seeing all the little tricks they have to make it impossible – so it is starting to make more sense. Someone at FACDL must know.

        I was there yesterday to get a copy of the packet during the first 10 days so my client and I could decide about whether to request the Formal Review Hearing or not. They laughed and said no one was getting a packet by the 10th day or it was highly unlikely they would have it but I could keep checking back. I have a better chance of winning the Florida Lottery.

  2. Posted August 16, 2013 at 13:43 | Permalink | Reply

    DHSMV has agreed to retroactively apply the July 1 statutory revisions of Florida Statute 322.2615 to pre-July 1 cases. The Department will now invalidate the administrative license suspension from a DUI arrest if the arresting officer or breath test officer fails to appear at the hearing, even if the arrest pre-dates the statute.

    Simply another example of the way FL-DHSMV implements the rules and statutes. Considering the recent statutory changes were drafted ostensibly by General Counsel Kathy Jimenez, this comes as no surprise. FL-DHSMV is notorious for moving the goalposts back, sideways, forward, at their whim.

2 Trackbacks

  1. […] non-refundable filing fee of $25.00 and proof of DUI school enrollment must be submitted with your application for a waiver review hearing within 10 days of the driver license suspension. You may submit your request by appearing at the […]

  2. […] Request for Eligibility Review Form provides: […]

Post a Comment

Follow

Get every new post delivered to your Inbox.

Join 35 other followers

%d bloggers like this: