Florida DUI Rules for the Administrative Suspension – It’s Complicated…

After an arrest for DUI in Florida you only have 10 days to protect your driver’s license. You can:

  1. do nothing;
  2. hire an attorney to request a “formal review hearing” to contest the suspension and send you a 42 day driving permit; or
  3. go to the DHSMV to stipulate to the administrative suspension during a “waiver review hearing” in exchange for immediate reinstatement of hardship privileges to avoid a 30 or 90 day hard suspension (only available if you have no prior DUI arrest).

For most people facing a first DUI who can afford to hire an DUI defense attorney willing to fight the suspension, Option 2 is the best option. Option 2 involves fighting to invalidate the suspension in a formal review hearing so that it is taken off your driving record forever.

Option 1 is the worst option.

Option 3 means that your driving record will show for the next 75 years that you received an administrative suspension for DUI even if your charges are ultimately reduced and you avoid a DUI conviction in court.

Click here to read more about our recent case results in DUI cases in Tampa, FL, and the surrounding areas, including our recent case results in administrative hearings to invalidate a suspension.

Option 1: Do Nothing 


Most people don’t understand the rules. As a result, they do nothing during the first 10 days after the DUI to protect their privileges to drive.

Read the citation carefully. The notice of suspension is contained on the citation and operates as the 10 day driving permit. After the 10 day permit expires, the 30 day hard suspension begins (90 days in a refusal case). During those 30 days the person cannot drive for any reason.

On the 31st day after the arrest for DUI involving a breath test reading over .08, the person can apply for a hardship license at the Bureau of Administrative Review with proof of enrollment in DUI school. The hardship license last for the rest of the six month suspension.

The notation that you receive an administrative suspension for DUI will stay on your driving record for the next 75 years even if you avoid a DUI conviction in court.

Option 2: Demand a Formal Review Hearing


As a criminal defense attorney, I see a lot of benefits to demanding the formal review hearing. Option 2 is the only option that gives the driver the ability to fight to invalidate the suspension. It is important to fight the administrative suspension because unless you get it invalidated, it will remain on your driving record for 75 years.

This notation on your driving record is an administrative finding that you were DUI. It remains on your driving record even if you win a “not guilty” verdict in a DUI refusal case or enter a plea to a lesser charge such as reckless driving. [The only exception to that rule is that if you get a “not guilty” verdict in a breath test case then the administrative suspension will be removed from your driving record.]

If the person hires an attorney during the first 10 days after the arrest, then the attorney can demand the formal review hearing. The attorney can also demand a 42 day driving permit on your behalf so that you can keep driving while the attorney fights to invalidate the suspension.

You are entitled automatically to receive the 42 day permit after you request the formal review hearing (as long as your driving privileges are otherwise valid).

If the arresting officer or breath test technician fails to appear at the formal review hearing than the suspension SHALL be invalidated. That means that any mention of DUI for the administrative suspension disappears off the driver’s record.

You can then get a duplicate driver’s license and avoid paying any reinstatement fee. Other reasons for winning the hearing include insufficient evidence in the documents submitted to the hearing officer or inconsistencies in the evidence.

Even if the driver loses the hearing, the attorney has gathered important evidence that can be used to fight the criminal charges. The only downside to contesting the formal review hearing is that the driver might still suffer the 30 day hard suspension (or 90 days in a refusal case). On the 31st day, the person can still obtain a hardship license with proof of enrollment in DUI school.

Option 3: Request a Waiver Review Hearing for Immediate Reinstatement

Request Waiver Review Hearing for Immediate Reinstatement

For a driver with no prior DUI cases, the driver can go to the Bureau of Administrative Review to file a Request for Eligibility Review Form (sometimes called the “waiver review”.)

The driver must personally appear within 10 calendar days. The driver must pay for DUI school during those 10 days.

After paying the $25 fee for the hearing, the driver must also pay a reinstatement fee.

The benefit to this process is avoiding the 30 day hard suspension. But the downside to waiver review is that the driver has NO chance of getting the suspension invalidated ever (unless he obtains a “not guilty” verdict at trial in a breath test case).

The Rules are Complicated

How do you explain the ridiculously complicated new rules for the administrative suspension? The rules have gotten so complicated that I needed to create these graphs to explain it. The graph used in this article applies to a driver (with no prior DUI arrest) who took the breath test and blew over the legal limit.

Hopefully these charts will help me explain these complicated rules – at least until the next legislative session when our lawmakers come up with something even more complicated.

Article last updated on Thursday, November 5, 2015.

How to Guide for the DHSMV DUI Formal Review Hearing in Florida

This “how to guide” is intended for attorneys only. If you have never requested a formal review hearing before, this article goes over the basics. This guide is not intended to be legal advice. If you disagree with our strategy or have an easier way to do it – please feel free to make a suggestion below in the comments section.

For the DUI attorneys at the Sammis Law Firm in Tampa, Hillsborough County, FL, we are still conducting formal review hearings in almost every DUI case. We certainly explain the different options to our clients, but the people that hire us almost always want a formal review hearing.

Read more about the benefits of requesting a formal review hearing after a Florida DUI.

Why Request a Formal Review Hearing after a DUI Arrest?

After a DUI arrest, the arresting officer will usually issue a DUI citation that also operates as a notice of the administrative suspension. The administrative suspension starts immediately after the arrest.

Although with a first DUI, the driver has the option of stipulating to the DUI for administrative purposes during a “waiver review hearing,” it is better to demand a formal review hearing to contest the suspension.

The only downside is that if you are not successful in invalidating the suspension after the formal review hearing then the driver will suffer a hard suspension. For a first DUBAL the hard suspension is for 30 days and for a first refusal the suspension is for 90 days. The hard suspension is a small price to pay for all the benefits that come from conducting the formal review hearing.

The upside of having the formal review hearing is that in many of these cases the suspension will be invalidated (removed completely) because the arresting officer or breath test operator fails to appear. Even if the suspension isn’t invalidated, the criminal defense attorney gets the opportunity to question under oath each of the witnesses in the case before the prosecutor even sees the file.

In these types of cases, there is NO real downside to demanding the formal review hearing:

  1. If your client has a prior conviction or administrative suspension for DUI (in that case the client is not even eligible for a “waiver review hearing”);
  2. If your client had one breath test reading over .08 and one below .08 (because you should win the hearing); or
  3. If your client doesn’t need to drive in Florida during those 30 or 90 days when the hard suspension would be in effect.

Step One – Request the Formal Review Hearing at the DMV within 10 Days

The driver has 10 days after receiving the notice of suspension (which is usually included in the DUI citation given to the driver after the arrest) to demand a formal review hearing. If the license is valid when you make the request then you should immediately receive a 42 day permit that will let your client drive for hardship purposes while you are waiting for the hearing.

To request the formal review hearing you should fill out the Application for FRDLSD form (HSMV 78065 S (8.09)) and check the box to request a formal review hearing instead of an informal review hearing. You also need to attach a legible copy of the DUI citation that operates as the notice of suspension and a check for $25.00 made payable to the “Department of Highway Safety and Motor Vehicles.”

We also include a cover letter requesting a copy of the packet submitted by law enforcement and any other documents the hearing officer intends to introduce at the hearing. The cover letter should also request either a one hour or two hour time allotment for the hearing. [The hearing officer will schedule the hearing for one hour even if you request more time, but the request for extra time might come in handy if you have a lot of witnesses or a long video and end up asking for extra time during the hearing.]

In the cover letter you can also request specific dates or times for the hearing within the next 30 days which the hearing officer might accommodate.

It is probably best to hand deliver the documents to the Bureau of Administrative Reviews so that you can obtain the 42 day permit the same day. The 42 day permit allows the driver to drive for business purposes only. Our office has a courier hand deliver the documents and then pick up the 42 day permit at the same time.

If your client needs the 42 day permit, it is probably a good idea to check that the driver’s license is valid before you make the request. For instance, if the driver has a suspension for an unpaid civil ticket you can probably get that issue cleared up within the 10 days so that your client is eligible for the 42 day permit when you make the request.

If the license is not otherwise valid and you can’t get the issue cleared, then you should still demand the formal review hearing (but you will probably not receive the 42 day permit).

In a few cases, I have seen the person make the request a few days outside of the 10 days (usually because of a notice issue). In many of those cases, at least in the Tampa BAR, the DHSMV will accommodate the demand for a formal review hearing requested outside of the 10 days but they will refuse to issue the 42 day permit.

Can the driver change his or her mind about a formal review hearing? If the driver already applied for a Review Waiver Hearing and and obtained hardship reinstatement, then the DHSMV will probably take the position that the driver cannot then request a formal review hearing (even if still within the 10 days) although that is not a well settled issue under Florida law. If the client had a waiver review hearing but hasn’t obtained the hardship reinstatement yet, then the DHSMV will probably still honor the request for a Formal Review Hearing made within the 10 day period.

Step Two – Receiving the Notice of the FRH and the Driver’s Pre-hearing Statement

If you make the demand for a formal review hearing within the 10 days after the arrest (or notice of the administrative suspension) then the hearing officer will send you a notice of the time and place for the Formal Review Hearing and a form called the driver’s “pre-hearing statement.”

In our cases, the Bureau of Administrative Reviews (BAR) will write the copy costs on the notice. We then write a check for that amount and pick up the packet of documents to be introduced at the hearing which are submitted by the arresting agency.

Under Florida Statute Section 322.2615(2) the arresting officer has 5 days after issuing the notice of suspension, to submit the following documents to the DHSMV: 

  1. the driver license;
  2. an affidavit stating the officer’s grounds for belief that the person was DUI;
  3. the results of any breath or blood test or an affidavit stating that a breath, blood, or urine test was requested by a law enforcement officer or correctional officer and that the person refused to submit;
  4. the officer’s description of the person’s field sobriety test, if any; and
  5. the notice of suspension.

The statute also provides that the hearing officer can still consider any documents submitted late as long as the are received “at or prior to” the hearing.

You need the DMV packet in order to know how to fill out the pre-hearing statement. You only have 10 days to submit the pre-hearing statement from the day of the notice. Sometimes there is a delay in getting the notice in the mail which cuts into the 10 days to submit the pre-hearing statement.

We always submit the pre-hearing statement within the 10 days and keep a blank copy of it for our records. If it needs to be updated before the hearing then an amended pre-hearing statement can be submitted after the 10 day deadline but before the hearing. Just write “amended” at the top and add the new information.

If the DMV doesn’t have the packet by the start of the hearing, then you should move to invalidate on that basis and the request to invalidate should be granted since there is no information in the record to uphold the suspension. If the packet suddenly appears on the day of the hearing (or too late to get the subpoenas issued), then you can request a continuance showing your efforts to obtain the packet ahead of time. It is best to arrive at the hearing with a written request to continue already prepared but wait to file it until after you read the packet to make sure the evidence in the packet is sufficient to uphold the suspension.

If you end up requesting the continuance, the hearing officer should issue you an extended 42 day permit since the delay was not caused by the driver. Ask for the extended permit in the written continuance request.

Before the hearing, you can also request many of these documents from the arresting agency although they might refuse to release them before the state has complied with a discovery demand. At a minimum, you can always obtain a copy of the citation and an crash report (if any).

Getting the DUI video ahead of the hearing is more difficult. In some cases, you might want to continue the hearing until after you are able to obtain the video. The hearing officers in Tampa will usually let us subpoena the custodian of records from the agency holding the video to bring it to the hearing since the arresting officer will often complain that he or she is not the “custodian” of the video. Once the custodian is served with the subpoena, the custodian will usually release it immediately to the attorney to avoid attending the hearing (or at least they become more accommodating).

Step Three – Completing the Pre-Hearing Statement and Subpoenas

Review the packet carefully. You should also compare any documents in the packet with any documents in the discovery.  Then go through the packet to identify any witnesses that you want to testify at the hearing and list them on the pre-hearing statement.

You also need to prepare a subpoena for each witness either with or without a subpoena duces tecum. Read more about the subpoena duces tecum at the DUI BAR formal review hearing.

At least in the Tampa Bay area, if the hearing is being conducted in a county outside of the county where the arresting agency is located then the BAR will schedule a telephonic formal review hearing after the DUI arrest.

In most cases, you will prepare a subpoena for each witness identified in the packet unless you have a really good reason not to subpoena that witness. [If the information in the packet is insufficient to uphold the suspension then you certainly don’t want to subpoena the witness who can fill in the missing information.]

Witnesses that can be issued a subpoena include:

  • the officer that conducted the initial stop of the vehicle;
  • the arresting officer;
  • any backup officer listed in the reports;
  • the breath test operator (in Hillsborough County, the breath test operator will be listed in the report as a witness to the refusal and can be issued a subpoena to the hearing even if it is an alleged refusal case);
  • the agency inspector (in a breath test case);
  • in a blood test case, subpoena any listed witness to the blood withdraw, the person withdrawing the blood and the crime laboratory analyst at the FDLE Toxicology Section (for FDLE you must include FDLE number, the submission number, and the agency number).

Step Four – Obtain and Serve the Issued Subpoenas

Take the pre-hearing statement and subpoenas to Bureau of Administrative Review (BAR) and the hearing officer will issue the subpoenas by stamping and signing the subpoenas the same day.  Then have your process server go ahead and serve each subpoena.

After obtaining the issued subpoenas but before serving it on the witness you must serve the prosecutor assigned the case, or the State Attorney’s Office if a prosecutor is not assigned, with notice of the hearing and a copy of the issued subpoenas. Under the rule, the notice and copies of the subpoena should be received by the State Attorney’s Office prior to the issued subpoenas being served on the witnesses. Most attorneys probably just mail them a copy of the subpoenas with a cover letter, although it is not clear that this procedure would strictly comply with the very specific notice requirements in the statute.

To comply with this notice requirement, we have found a very quick and easy way to accomplish this task. We prepare a “Notice of Filing” in the criminal case that is instantly served electronically on the State Attorney’s Office via electronic service. Then you can just print out the confirmation that the filing was received with a submission date and time. The Notice of Filing just informs the prosecutor that the formal review hearing has been scheduled and that the attached subpoenas have been issued. Then attach a copy of each subpoena to the Notice of Filing.

After notifying the State Attorney’s Office of the subpoenas, serve the subpoena on each witness with a $5.00 witness check. The officer is also entitled to be reimbursed for mileage if requested so bring a separate check to the hearing for that purpose. If the subpoena includes a subpoena duces tecum then include with the service a separate check for reasonable costs to provide a copy of that evidence.

If the witness fails to bring the items listed in the subpoena duces tecum then move to continue the hearing so that you have time to file a motion to compel compliance with the subpoena in the courtroom where the criminal case is pending. Or alternatively, if the officer claims no longer to be in possession of the item and denies being the “custodian of the record” then find out who is and request a subpoena deces tecum for that person.

For the agency inspector, our office also includes a public record request for the same documents requested in the subpoena duces tecum so that the Agency Inspector will also bring you a copy that you can take with you after the hearing or a copy that can be submitted into the record. You should bring a check to the hearing to pay for the public record request which is usually only a few dollars. Otherwise, just be aware the agency inspector may object to giving up the documents he brings and different hearing officers have different ways of resolving the issue.

Step Five – Attend the Hearing

The only thing left to do is attend the hearing. The most likely reason that you might win the hearing is because the arresting officer or breath test operator fail to appear.

If the arresting officer or the breath test technician fail to appear – then call the witness to testify. “At this time, I would call [name of witness] to testify.” When the hearing officer puts on the record that the witness is not present, then hand the hearing officer proof that the subpoena and witness fee was served on the witness and that the prosecutor was notified of the subpoena. Ask that those documents been marked as the petitioner’s exhibits and included into the record. Then move to invalidate under Section 322.2615(11), Fla. Stat., which provides, in pertinent part:

If the arresting officer or breath technician fails to appear pursuant to a subpoena as provided in subsection (6), the department shall invalidate the suspension.

Although the statute does not provide for any discretion for the hearing officer to determine whether the absent witness has “just cause” for the absence, the administrative rules contradict the statute.  The hearing officer will often ignore the plain language of the statute and rely on the administrative rule which provides:

15A-6.015 Failure to Appear.

…(2) …a properly subpoenaed witness who fails to appear at a scheduled hearing may submit to the hearing officer a written statement showing just cause for such failure to appear within two (2) days of the hearing.

(a) For the purpose of this rule, just cause shall mean extraordinary circumstances beyond the control of the driver, the driver’s attorney, or the witness which prevent that person from attending the hearing.

(b) If just cause is shown, the hearing shall be continued and notice given.

(c) No hearing shall be continued for a second failure to appear.

(d) Notification to the department of a witness’s non-appearance with just cause prior to the start of a scheduled formal review shall not be deemed a failure to appear.

(Emphasis added).

So the driver should take the position that the plain language of the statute clearly requires invalidation regardless of any contradictory procedure “deemed” in the administrative rule.

The hearing officer will want you to waive that issue by telling you that you should ask for a continuance. Don’t do it. Instead, object that even under the hearing officer’s reading of administrative rule, no “just cause” has been shown for the continuance and move to invalidate on that basis. Then agree to attend any continued hearing. Renew the objection and request to invalidate on that basis at the end of the continued hearing.

Note on the record any other time the hearing officer violates the procedural rules and explain how that due process violation caused prejudice to your client and move to invalidate on that basis.

Also, to preserve any issues in the case make a motion to invalidate on the basis that the record contains insufficient evidence of one of the issues included in the scope of the review and explain why.

It is also helpful to bring a copy of Section 322.2615 and the 15A-6 administrative rules to the hearing with you in case any unexpected issues arise.

If you need help filing the writ of certiorari give us a call. In addition to the attorney fees for the writ (we typically charge $1500 in attorney fees), the client would pay for a transcript from the hearing and a $400 filing fee. The writ must be filed within 30 days of the order so you don’t have much time.

Winning the writ is usually cheaper for the client than living with the administrative suspension on their driving record for the next 75 years so be sure to review that option with the client.

Let us know your tips for the formal review hearing. Add a comment below…

Florida’s FDLE Alcohol Testing Program – Don’t Follow the 11D-8 Rules? Rewrite the Rule. Repeat.

“Only sometimes when we pick and choose among the rules we discover later that we have set aside something precious in the process.”

– Helen Simonson, Major Pettigrew’s Last Stand

Matthew Malhiot recently wrote an article discussing how the Florida Alcohol Testing Program (ATP) violated Chapter 11D-8 F.A.C. rules when it failed to conduct department inspections after the Intoxilyzer 8000 breath test machines were “returned from an authorized repair facility.” The article is entitled “Florida-ATP Violates Chapter 11D-8 F.A.C. Rule.”

Matthew Malhiot was essentially the number three guy in FDLE-ATP – right behind Laura Barfield and Roger Skipper. Now he testifies as an expert witness or consultant in DUI motion hearings and trials. Laura Barfield also started a consulting practice and testifies for criminal defense attorneys.

The History of Chapter 11D-8, F.A.C., Revisions for Florida’s Intoxilyzer 8000

The article discusses the history of how the Chapter 11D-8 F.A.C. rule was revised in March of 2006 during the time that FDLE was going from the Intoxilyzer 5000 to the Intoxilyzer 8000. The revisions created two important problems that later arose.

Back in March 2006, during the time that FDLE-ATP was transitioning from the Intoxilyzer 5000 to the Intoxilyzer 8000, the rules were revised. After the revisions the rules required that the machine MUST have a department inspection completed after it was returned from an authorized repair facility.

Matthew Malhiot explains that the reason for conducting the department inspection after the machine was returned to the agency after repairs was that the process of shipping the machine could cause additional problems that could be detected during the department inspection.

At first, FDLE – ATP complied with the rule for the Intoxilyzer 8000 inspections. After all, the rule set in place a mandatory procedure that demanded that the department inspection MUST be conduct at the agency after the machine was returned from repair.

In the article, Matthew Malhiot makes that point that during that time, Department Inspectors were constantly traveling throughout Florida to conduct these department inspection at the agency. Matthew Malhiot should know exactly how the rule was being followed since he was one of those Department Inspectors traveling all around Florida to the county and city agencies diligently conducting Department Inspections.

Matthew Malhoit explains in the article that there were times that after the machine was shipped back to the agency from the repair facility that the machine would fail the department inspection. That failure would require the machine to be sent back to the repair facility for more repairs. He explains that the machines can and do sometimes break during shipping. The machines are often sent by common courier such as UPS.

Then in 2010, the FDLE-ATP decided to enact a new procedure. The new procedure had nothing to do with ensuring the accuracy or reliability of the machine. Instead, it was designed as a cost saving measure. Under the new procedure, after a repair the machine would be boxed up and sent by common courier to FDLE in Tallahassee where the repairs would be performed.

Then after the repairs, the Department Inspector would conduct the Department Inspection at FDLE instead of back at the agency. This new procedure saved money for two reasons. First, FDLE-ATP no longer had to send the Department Inspectors throughout the State of Florida. Instead, all of the Department Inspectors could work from one location and fewer department inspectors would be needed.

Secondly, the plan was for all of the repair to be made by the FDLE-ATP Department Inspectors instead of paying more money to have the repairs made by CMI, Inc., in Owensboro, Kentucky, or another repair facility such as Enforcement Electronic Services, Inc.

Many estimate that CMI, Inc., makes most of its profits from the “cost of labor” required for repairing the machine. For instance, when a battery has to be replaced, the machine was designed so that the battery was placed in a very inconvenient place that required the much of the machine to be taken apart to get to it. So CMI, Inc., certainly didn’t mind Florida boxing up the machines and sending them their way every time a repair was needed.

in 2010, FDLE-ATP put one part of the new cost-saving plan into place under the leadership of Laura Barfield. This first step involved relocating all of the Department Inspectors to Tallahassee. According to Matthew Malhiot, the second part of the plan was never fully implemented because the machines were still being sent for repairs at CMI, Inc, or Electronic Enforcement Services, Inc.

Violations for Not Doing Department Inspections at the Agency after Repairs

Matthew Malhiot’s article explains that between 2010 and July 29, 2015, “FDLE-ATP had NOT been complying with the rule which required that a department inspection be completed at the agency, upon the return of a machine from an ‘authorized repair facility.’”

Several different courts across the State of Florida started issuing rulings finding problems with compliance and that the problems were substantial. Only after those rulings did the FDLE-ATP dispatched a Department Inspector to each law enforcement agency, in the Florida Panhandle, to do the department inspections at each agency.

FDLE-ATP is not an “Authorized Repair Facility”?

As the pressure began to mount, FDLE just decided to change the rule. As of July 29, 2015, the FAC rules no longer define FDLE-ATP as an “authorized repair facility.” Therefore, after July 29, 2015, when a machine is shipped from FDLE back to an agency, it would no longer be required to complete a department inspection at the agency.

But didn’t that solution just create a more serious problem? If FDLE is no longer an “authorized repair facility” then how in the world are they going to save all that money by doing the repairs in Tallahassee instead of paying the repair facilities for the “cost of labor.” And what about those pending cases that involved FDLE-ATP actually repairing the machine?

No worries – FDLE also changed the wording in the rule from “repair” to “maintenance.” So we can expect the FDLE-ATP employees to around the state to start telling judges that the “repairs” are really just “maintenance.” Judges will be expected to bend over backwards to participate in this exercise in verbal gymnastics.

Matthew Malhiot makes the point that repairs would include such things as replacing batteries, replacing breath tubes, and replacing dry gas regulators. These are repairs and not simply maintenance because if a piece of the machine is broken and replaced then it is necessarily a repair. He gives the following example:

“When a breath tube is broken, the machine is NOT functional; therefore, a “repair” is required, in order for the machine to operate properly, allowing it to be placed back into service. Let’s look at some examples of what “maintenance” on an Intoxilyzer machine is.  If the machine’s external “O” rings need changing, or say, the breath tube screen needs cleaning; that would be considered “maintenance”.

Nothing was broken on the Intoxilyzer, and they were simply maintaining the machine.  Consider this, you have the oil changed in your car, would it not be considered “maintenance”?  On the other hand, if the alternator on your car went out, you would most certainly need it “repaired”, in order for the car to function again.”

So the next round of motions begin as attorneys fight to have their client’s breath test excluded because a department inspection was not conducted at the agency after the repair and/or maintenance was performed.

Those who drafted the wording of the rule changes did a really bad job. When you change one rule it changes everything about the entire scheme – and the people who drafted these latest changes didn’t do a very good job at recognizing all the new problems that were created.

Intoxilyzer 8000 Problems in Florida

What did New Port Richey Police Chief Kim Bogart Say About Covering Up Driving Drunk to a Traffic Homicide Investigation?

So the media has completely ignored the fact that the New Port Richey Police Department tried to cover up a detective driving drunk in his agency vehicle to a traffic homicide investigation – everyone except Mike Deeson with WTSP 10 News.

Read the story here – Chief Kim Bogart on why New Port Richey Police Did Not Arrest a Detective For Drunk Driving

NPR Police Chief Kim Bogart actually sat down with Mike Deeson for an interview. And what did he say? He says Denton never should have driven from his Wesley Chapel Home to the crash scene. Chief Kim Bogart explained, “When he arrived on the scene other officers noticed he had an odor of alcohol about his breath and he was unsteady.”

According to Chief Bogart, “In this particular case, it was a very good officer, well respected in the department, very hard working, and he made an egregious error.”

The bigger error was Chief Kim Bogart condoning the fact that his officers engaged in a cover up. Several officer saw Christopher Denton driving and behind the wheel. Several officers said he was obviously impaired. Several officers made sure that it was covered up.

When the reporter asked the chief, “Wasn’t there probable cause? Didn’t he get a break by not just charging him instead of ordering him to take the [administrative] breathalyzer?”

Chief Kim Bogart responded, “I’m not going to second guess my field commander for the decision he made. When he told me what he did I told him that was absolutely the right decision.”

The right decision? Absolutely the right decision? So a law enforcement officer can drive drunk to an investigation in his agency vehicle without any fear of being arrested for DUI by his fellow officers? What if his officer kills someone while driving drunk across two counties? Would they conduct an investigation then? Chief Kim Bogart thinks it is the “right decision” to cover it up?

Why hasn’t the State Attorney’s Office in Pasco County taken any action? What did the State Attorney’s Office know and when did they know it? And why did they hide it from every criminal defense attorney in town? It wasn’t until after Mike Deeson ran the story that I finally got a Brady Notice informing me of the IA investigation into Denton’s misconduct.

The State Attorney’s Office did not include the IA investigation with my one page Brady Notice – but you can read it here – New Port Richey IA report from the Christopher Denton case.

What is the State Attorney’s Office suppose to do when Chief Kim Bogart says it is the “right decision.” Isn’t an outside agency suppose to review it? So who else should take action if the State Attorney’s Office and the Police Chief do nothing?

Read more about the Corrupt Investigation of a New Port Richey Police Department Detective Allegedly Driving Drunk to a Roadside Investigation. Also, read more about the Officers’ Bill of RIghts in Florida.

What Happens at a Hardship Hearing with the Florida Bureau of Administrative Review in Tampa, FL?

I recently attended a hardship hearing at the Florida Bureau of Administrative Review office in Tampa, FL, in Hillsborough County. These hardship hearings can occur after an administrative suspension for a first DUI (either for 6 months or one year) or for a permanent life-time revocation after a fourth DUI (or anything else in between).

I thought it might be helpful to share information with other criminal defense attorneys in Florida about what happens during a typical hardship hearing.

The goal of the hearing is obtaining a class C business purposes hardship license or a class D employment purposes hardship license. If you plan to attend the hearing with your client, it might be a good idea to go over the script with them ahead of time so they know exactly what to expect.

The hearing officer will read from a script marked as “HSMV 78302 S.” which is entitled “Hearing Officer Report / Script.” According to the form, the script was last revised in October of 2006. During the hearing the hearing officer will both read from the script and fill it out. That report will be placed in the subject’s file and it operates as a summary of what occurred at the hearing. The hearing itself is audio recorded.

So what happens after you request a hardship hearing?

The hearing officer will greet you and ask you to have a seat. The hearing officer will inform you that the hearing will be recorded before turning on the tape recorder.

After the recording begins, the hearing officer will read from the script:

I am ___[name of hearing officer], HSMV Field Hearing Officer. This hearing is regarding the suspension / revocation for ___[type of susp / rev]___, with effective date of _______, with an expiration date of ______.

During the opening remarks the hearing officer will say the following:

Your hearing today is an informal proceeding of an administrative nature, therefore, judicial procedures do not apply.

Florida Statute 322.271 gives the department the authority to conduct your hardship hearing.

This hearing allows you and the department an opportunity to evaluate your driving record and to determine whether a hardship license should be granted.

Before we begin this hearing, I must place you under oath.

Please raise your right hand. Do you swear or affirm that the testimony you are about to give is the truth, the whole truth, and nothing but the truth.

For the record, please state your full name, date fo birth and your current address.

The hearing officer will then ask any witness, criminal defense attorney or interpreter in the room to identify himself or herself for the record.

Then the hearing officer will ask a series of questions so that he or she can fill out his report.

  1. What is your date of birth?
  2. What is your race?
  3. What is your sex?
  4. Are you married?
  5. If so, is your spouse employed?
  6. Are you a U.S. citizen?
  7. Do you have a license in your possession? [If so the hearing officer will ask you to turn it over since you are not suppose to possess a driver’s license if your driving privileges have been revoked or suspended.]
  8. Are you employed?
  9. What days do you work and what hours do you work on each day?
  10. What is your occupation?
  11. What is the name and address of your employer?

The hearing officer will then note whether he or she has check the Commercial Driver’s License Information System (CDLIS) and Comprehensive Case Information System (CCIS), offered by Florida’s Clerks of Court.

The hearing officer will also note the following:

  1. number of previous hearings;
  2. number of previous conviction;
  3. whether a traffic crash occurred;
  4. number of previous suspensions; and
  5. number of previous revocations.

The hearing officer will then review the subject’s driving record and discuss both current and past violations on the transcript. The hearing officer will also inform the subject of the consequences resulting from future or similar violations (such as points, revocations, suspensions, or designation as a habitual traffic offender).

Out of State Revocation or Suspension Issues

In many cases, the subject might have another suspension or revocation in another state or country that is not showing up on the Florida driver’s license. If the subject does not want to disclosure this information to the hearing officer then he or she should not request a hardship hearing. In some cases, it might just be best to forgo the hardship hearing and just wait to reinstate the license until after the suspension is over.

Questions related to any out of state revocation or suspension would include:

  1. Have you ever been licensed in another state or country?
  2. If yes, what state or country were you in when the revocation or suspension occurred?

Revocations or Suspensions that are Alcohol Related including DUI

For suspensions or revocations that are alcohol related, the hearing officer will ask the following questions:

  1. Have you ever been convicted of an alcohol related offense in any other state?
  2. Has your privilege to drive ever been suspended or revoked in any other state or country?
  3. If so, for what reason?
  4. Do you have any violations / convictions / revocations / suspensions that have not been mentioned?
  5. If so, what are they?
  6. Do you understand what caused the revocation / suspension of your driving privilege?
  7. Were you incarcerated as a result of this revocation / suspension of your driving privileges?
  8. If so, what was the date of your release? [For purposes of determining your eligiblity for a hardship license, some time periods do not begin until your release from incarceration.]
  9. What did you learn in the ADI / DUI School?
  10. How can you prevent future violations from occurring? [Don’t drive without a license and don’t drink alcohol].
  11. What are your driving needs? [work, school, church, doctor, grocery store]
  12. How did you get here today? [The hearing officers will often watch everyone that pulls into the parking lot. If you drive to the hearing they will know. Also, don’t drive to a nearby parking lot. Do not drive to the hearing. Do not drive at all or you will not be eligible for a hardship license.]
  13. How many licensed drivers are in your household?
  14. How have your driving needs been met since your suspension / revocation?
  15. When was the last time you operated a motor vehicle? [If you have a permanent revocation and you drove on that revocation during the last five years than you are not eligible for a hardship. If you have a DUI suspension and drove during the suspension, then you will not be eligible for a hardship.]
  16. For what reason did you operate a motor vehicle?

At this point, the hearing officer might discuss any F.R. (financial responsibility) Suspension.The hearing officer might also note whether the subject has a good or bad attitude (so have a good attitude).

The form also says “M/O’s (Multiple DUI Offenders) ONLY: When was the last time you consumed any type of alcoholic beverage or controlled substance?”

The bottom part of the form notes whether the D300 was issued, the date issue, who it was approved through, and whether the data base was updated. The hearing officer will then note whether the person is eligible for:

C = Business Purposes
D = Employment Purposes
Y = Educational Purposes

The hearing officer will indicated whether the subject failed to submit. Whether the request was denied, the reason, and the reconsideration date.

The Hearing Officer will also talk with the subject about any requirement for the ignition interlock device and other conditions required by DUI special supervision services (if applicable).

The Hearing Officer will note whether the person has completed ADI, DUI School or another requirement, the completion date or the enrollment date. The bottom of the form also has a section for comment and the amount paid for the reinstatement or license fee. Finally, the form has a place for the hearing officer to sign.

Please leave a comment if you have any additional insight on this process or common problems your clients encounter during a hardship hearing at the Florida Bureau of Administrative Review office.

This article, written on Tuesday, August 11, 2015, explains what often happens at a hardship hearing for a business purpose class C or employment purpose class D hardship license at the Florida Bureau of Administrative Review office in Tampa, Hillsborough County, FL. Similar procedures are used at the other BAR offices throughout the State of Florida including the Bureau of Administrative Review office in Clearwater, FL.

This article is for educational purposes only. If you need legal advice seek out the services of a qualified DUI Attorney in Florida to discuss your case.

Florida’s Rule on Completion of the DHSMV approved 4-Hour Basic Driver Improvement Course

For certain types of traffic violations, Florida Statutes 322.0261 requires completion of a 4-hour Basic Driver Improvement course approved by the Department of Highway Safety and Motor Vehicles. Those offenses include but are not limited to a conviction for certain criminal offenses such as:

1. Highway Racing (as a driver or passenger); or

2. Reckless Driving.

The Florida Department of Highway Safety and Motor vehicles will send a letter requiring the course within 10 days after receiving notice of judicial disposition, because their records show that the driver was convicted of a traffic violation that requires the BDI course pursuant to F.S. 322.026. If you do not take the course then your driving privileges will be cancelled indefinitely.

Reckless Driving Reduced from DUI

If the person’s DUI case is reduced to reckless driving then the 4-hour Basic Driver Improvement course is required. The BDI course is required even if that was not ordered by the court or negotiated with the prosecutor.

Insurance Reduction

A person might also take a course on Basic Driver Improvement in lieu of receiving points on your driving record or to receive a discount on your insurance rates.

Finding a 4-hour Basic Driver Improvement Course in Tampa, FL

You can refer to your local telephone directory yellow pages under “Driving Instructions” or “Traffic School” to locate a Driver Improvement school that teaches Basic Driver Improvement courses in your area.

You can also take this course online by visiting http://www.flhsmv.gov/ddl/drivingcourses.html. When you enroll in the course let them know that you are registering for the class in order to comply with this requirement.

The DHSMV will not accept out of state schools to meet this requirement.

Additional Resources:

Florida’s Basic Driver Improvement Course – Visit the website of the Florida Department of Highway Safety and Motor Vehicles (DHSMV) to learn more about the approved 4 hour course for basic drive improvement.

The Corrupt DUI Investigation of a New Port Richey Detective

On Wednesday, I was combing through records for the one-and-only Intoxilyzer 8000 breathalyzer that belongs to the New Port Richey Police Department (NPRPD). The Serial Number of the breath test machine is 80-001064. As I was scrolling through the pages of breath test readings on the FDLE website, I came across a startling discovery – one of the NPRPD agency inspectors gave a breath test to another NPRPD agency inspector during the early morning hours of April 10, 2015. And the second agency inspector, Detective Christopher Denton, blew a .161 and a .151.

I found that particularly interesting since I had both of the agency inspectors under subpoena for a hearing a few days later. The hearing was concerning the lack of substantial compliance for that breath test machine. Were they conducting some kind of highly unusual experiment testing out the machine?

I knew better because a few weeks before that I had learned that Christopher Denton, a Detective in the Criminal Investigations Unit, had been “involuntarily separated” from the NPRPD and a review and grievance request was pending. But no other information was provided to me.

I had already requested the Internal Affairs record from the State Attorney’s Office and the agency – and I was still waiting. But when I saw that breath test reading, I knew the reason that Detective Denton had been separated from his job.

The DUI Cover Up and the Reveal

Only another DUI attorney can appreciate the irony of an agency inspector blowing over the legal limit on the Intoxilyzer 8000 that he maintains.

But anyone can appreciate the problem with a detective (and more specifically, a traffic homicide investigator) allegedly driving his agency vehicle to a traffic homicide investigation while impaired by alcohol. The deceased victim is still lying in the roadway. The other officers have to stop what they are doing and deal with an allegedly impaired detective who should know better.

And how do they deal with it? It doesn’t appear anyone requested field sobriety exercises, video taped the investigation or conducted a proper interrogation to get his side of the story. All they did was obtain a breath test – and the results could not be denied. At least the results could not be denied without a lot of embarrassment since the one blowing also had the task of maintaining the breathalyzer.

That is not even the worse part. What is far worse is what happens next. These officers participated in a cover up during those early morning hours. The alleged drunk driver got a free ride home instead of a night in lock up.

Official Findings Concerning the Administrative Review of Detective Christopher Denton

The New Port Richey Police Department just e-mailed me the memorandum that was dated today, May 22, 2015. It details the official findings concerning the administrative review of Detective Christopher Denton for an incident that occurred on April 10, 2015.

The thing that will be most interesting to criminal defense attorneys in New Port Richey with cases pending with Detective Christopher Denton is what he said. He said he only had one mixed drink and that he had the drink more than three and a half hours before. So either those statements were false or the breath test machine that he was in charge of maintaining was returning a dramatically exaggerated reading. If Christopher Denton was telling the truth – then it is clear that the machine doesn’t work.

These issues are ignored in the memorandum. Instead, it makes much less interesting findings. The memorandum concludes that Detective Christopher Denton violated D-1 Code of Conduct, IV. Prohibited Acts, Section 21, by reporting for duty under the influence of alcohol or drugs to any degree. He was also found in violation of Section 22 by being unfit for duty or having the odor of alcoholic beverages on his breath when reporting for duty.

The “official findings” left out anything about the following issues:

  • whether he was DUI and his fellow officers covered up this fact even after he blew more than double the legal limit; or
  • whether he drove from Tampa (or maybe his home in Wesley Chapel) to a traffic homicide investigation in New Port Richey in a NPRPD vehicle while under the influence of alcohol; or
  • whether he blew a .161 and .151 on the same Intoxilyzer 8000 breathalyzer that he was responsible for maintaining as an agency inspector for the NPRPD; or
  • whether he gave truthful statements when he reported drinking only one mixed drink hours before despite the breath test reading.

Amazingly, the memorandum ends with the Police Chief Kim Bogart accepting Denton’s resignation in lieu of termination. Showing up to work after having consumed a small amount of alcohol is one thing, but driving drunk to a traffic homicide investigation is quite another. The memorandum doesn’t seem to correspond with any of the evidence contained in the other documents attached to the memorandum.

As the top law enforcement officer for the City of New Port Richey, Kim Bogart, somehow ignored all of the other documents attached to the memorandum. He somehow missed the evidence of a moral-character violation.

More importantly, he ignored the fact that his officers gave Denton a free ride home instead of the required 8 hours in a jail cell. A blind eye was turned. The blue wall of silence is intact. Just ignore the other stuff. Move along, nothing to see here.

Allowing Resignation in Lieu of Termination

The letter of resignation, dated May 14, 2015, shows that Christopher Denton was allowed to resign in lieu of termination. Under this agreement, the Criminal Justice Training Commission (CJSTC) Form 61, Affidavit of Separation, will designate a disposition in Box 7.E of “voluntary separation or retirement in lieu of termination for violation of agency or training school policy not involving moral character violation…”

That finding made it possible to avoid any showing that a moral-character violation occurred and the corresponding requirement of submitting a CJSTC Form 61A, Affidavit of Separation Supplement. The supplement is not required because the “resignation” is not for any violation of Florida Statute section 943.13(4) or Florida Administrative Code, Rule 11B-27.0011.

Additionally, the NPRPD’s CJSTC Form 78, Internal Investigation Report does not denote any violation of Florida Statute section 943.13(4) or 943.13(7) or a violation of Florida Administrative Code, Rule 11B-27.0011 because no moral-character violation was alleged.

Under the facts contained in the rest of the report – how does an officer escape a moral-character violation finding? Does that mean the breathalyzer can’t be trusted. Why was it ignored exactly? Taking an administrative breath test might be proper if the person were not also DUI. But when several officers saw Christopher Denton driving and sitting behind the wheel at the scene, there is no ethical way to avoid a criminal investigation.

Formal Grievance Filed on Behalf of Detective Christopher Denton

The formal grievance from the Florida Police Benevolent Association (PBA) was filed on behalf of Christopher Denton on April 20, 2015, just 10 days after the incident. The PBA suggested a “compromise solution” that would allow Christopher Denton an opportunity to find employment with another law enforcement agency.

The PBA formal grievance noted that Chief Bogard had disregarded the fact that:

  • no damage had been done;
  • no one outside the Police Department for the City of New Port Richey has observed Denton’s behavior; and
  • the Department created the situation by calling Denton out to a crash scene;
  • Denton initially attempted to refrain from responding by noting it was not his week to be on call, but that the Supervisor told him to respond anyway in reference to a crash; and
  • Denton was intoxicated at the time and perhaps unable to make a better decision than to respond to a directive.

The formal grievance asked for the Chief to give Christopher Denton the opportunity to resign immediately instead of terminating his employment. The PBA noted that allowing the resignation would allow Christopher Denton to seek employment with Law Enforcement elsewhere.

Memorandum From Lieutenant Steven Kostas

In a memorandum from Lieutenant Steven Kostas to Chief Kim Bogart, the Lieutenant details his involvement in the investigation (or lack thereof).

In the memo he discloses that he was called to the scene of a traffic homicide investigation at 0234 after learning that another officer thought Detective Denton had driven his agency vehicle to the scene while under the influence of alcohol. After arriving at the scene, Lieutenant Kostas noticed an odor of alcoholic beverages on Detective Denton’s breath, his speech was thick tongued, and he was swaying from side to side.

Although Lieutenant Kostas told Detective Denton that he “thought he was intoxicated,” Lieutenant Kostas made the decision not to conduct a DUI investigation and arrest Detective Denton for DUI. Instead, Detective Denton’s firearm was secured and he was asked to submit to an “administrative” breath test.

Officer Brett Schambach also participated in this scheme by administering that breath test without performing a criminal investigation. The first reading was .161 and the second reading was .151. At that time, Detective Denton was told he was placed on administrative leave until further notice, but he was not arrested. Instead, Sergeant Engel was instructed to transport Detective Denton home.

The three officers at the scene that interacted with Detective Denton were then asked to write memorandums detailing their actions and observations.

A copy of all of Denton’s radio transmissions were preserved from when he went into service at 0127 hours until his arrival at the scene at 0218. That 51 minute time period also goes along with the text message that Detective Denton send to Detective Sergeant Michael Anderson. That message read: “Called out at 1240am for THI [traffic homicide investigation]. Not on call, coming from TPA [Tampa]. Not my on call week WTF.”

Lieutenant Steven Kostas found that:

Detective Denton drove his department issued unmarked vehicle, while impaired, at least 26 miles from his home in Wesley Chapel to the crash scene in New Port Richey….  Detective Denton reported to duty while under the influence of alcohol…, Detective Denton had an odor of alcoholic beverages on his breath and provided a breath sample of .161 and .151…. Detective Denton’s actions compromised the efficiency of the department. An active traffic homicide investigation was underway with a deceased person lying in the road, road closures and power lines down…. Detective Denton’s actions reflected poorly on the Department which had a tendency to destroy public’s trust and confidence in our Department and himself.

So what was missing from that? Maybe that the officers gave Denton a free pass. They skipped the criminal investigation completely and hoped that no one would notice?


When a law enforcement officer commits a crime while on duty, that crime should be investigated. When probable cause exists for a DUI arrest, then an officer that allegedly commits a DUI should be arrested. If those are the standard operating procedures then the officers should apply them across the board.

Officers shouldn’t neglect conducting a DUI investigation just because a friend or fellow officer is involved in the crime. The fact that a DUI prosecution is embarrassing or inconvenient to the employer should not factor into the decision of whether to arrest a law enforcement officer for DUI while on duty.

In this case, it was obvious to the officers that a fellow officer was allegedly DUI. But these officers did nothing required by the situation and their own standard operating procedures.

The main difference when investigating a fellow officer is that a Garrity warning must be read instead of (or in addition to) a Miranda warning before an interrogation can take place. A DUI investigation can proceed even when an interrogation does not. It happens all the time and officers are training on how to conduct a DUI investigation and preserve evidence without an interrogation. But selectively enforcing a law and letting a fellow law enforcement officer break the law with no arrest (and a free ride home) is corrupt.

It is not the crime of DUI that will destroy the public’s trust and confidence in the New Port Richey Police Department, it is the cover up of that crime. The destruction of public trust occurs when the officers selectively enforce the law in a way that protects their own.

Christopher Denton DUI Text

Article Updated on May 23, 2015

For those that might be interested, we just uploaded three years worth of data on that breathalyzer 80-001064 obtained through a public records request to the New Port Richey Police Department. Click here to find the agency records for the Intoxilyzer 8000, Serial Number 80-001064. The records show that in 2014, the machine was sent out for repairs twice and was out of service for much of the year.

When it was in service in 2014, numerous problems were uncovered during monthly inspections including repeating tests more than once, missing forms that should have documented failed monthly agency inspections, controls outside of tolerance, pen and ink amendments without a date, problems with the Alcohol Free / Mouth Alcohol test, the failure to upload data properly, and the destruction of 6 weeks worth of COBRA data from late October through the middle of December. Christopher Denton performed the agency inspections in October and November when many of the most serious problems occurred.

Read more about DUI Attorneys for New Port Richey, FL.

Definition of “Business Purposes Only” Drivers License

Florida Driver License Business Purpose only

Many of our clients ask us about the definition of the “Business Purposes Only” restriction placed on a Florida Driver License. The restriction can occur after a DUI arrest while the attorney is fighting the administrative suspension (when the client is driving on a 42 day permit) and during the rest of the administrative suspension when the client obtains restricted driving privileges after enrolling in DUI school.

The business purpose only restriction might also occur after a court ordered suspension following a DUI conviction.

We tell our clients to follow the rules closely and to minimize driving as much as possible (when it is expressly allowed). Officers tend to look more carefully at a person who is driving on a business purpose only restriction and it is best to avoid any opportunity for an allegation to be made during the time the criminal case is pending or while the person is on probation.

Section 322.271, Florida statutes, provides that a driving privilege restricted to business purposes only shall mean any driving necessary to maintain a livelihood, including driving to and from work, necessary on the job driving, driving for educational purposes and driving to church for medical purposes.

There is case law suggesting that driving for the purpose of paying a utility bill would also be allowed on a restrict license for business purposes only.

Common sense would suggest that activities that are required by law should also be included as necessary to maintaining a livelihood such as driving your minor children to school (since you are legally obligated to provide child care and an education to your children and it is also for their educational purposes), driving to your attorney’s office for a consultation to discuss a pending case, driving to court, driving to DUI school, and driving to community service (if court ordered). However, none of those things are expressly authorized under the statute and an officer in the field might be of the opinion that such an activity is not included under the catch all provision of maintaining livelihood.

Common sense would also suggest that some activities would not be allowed such as driving when another licensed driver is in the vehicle, driving to a sporting event or movie theater, or driving to visit friends or family.

What about driving to the grocery store?

According to a memo (attached) that was circulated by James H. Cox, the former director of the Division of Drivers Licenses at the Florida DHSMV, his general counsel was of the opinion that under Section 322.271 driving for the purpose of shopping for groceries should be considered necessary to maintain livelihood. The Division of Drivers Licenses agreed and instructed its hearing officers to advise drivers as authorized to drive for business purposes only that grocery shopping is allowed under that restriction.

The opinion was distributed in a memo with the request that the Division’s policy be considered by law enforcement officers and the Courts when dealing with Florida drivers who have business purposes only restrictions on their drivers license.

Definition Business Purpose Only License – DHSMV-Memo-Grocery Shopping

Additional Resources:

Restriction Code: C = BUSINESS PURPOSES ONLY means the person can only drive to work and on-the-job, for education purposes, to church and for medical purposes.

#UberOn in Hillsborough County, FL

Update: Tomorrow, Wednesday, May 13, the Hillsborough County PTC will hold a public hearing on a set of rule changes it plans to enact that would effectively shut out job-creating technologies like Uber in Hillsborough County.

Wednesday, May 13, 2015: 9:30AM – 12PM

601 E. Kennedy Blvd. BOCC Board Room, 2nd Floor
Tampa, FL 33602

You can take action now by telling PTC not to get rid of Uber in Tampa.


Board Chair Victor Crist 813-272-5452
Kyle Cockream 813-350-6878
Yvonne Capin 813-274-8133
David Pogorilich 813-514-3568
Ken Hagan 813-272-5725
Frank Reddick 813-274-8189
Billy Keel 813-659-4200
Al Higginbothom 813-272-5735

Original Article:

The Hillsborough County Public Transportation Commission (PTC) recently filed a lawsuit against Uber, as well as some of its driver-partners. In response, Uber has promised to support its partners every step of the way. It has also promised to continue to connect its users with drivers who provide thousands of safe, reliable rides every day. Uber promises that this fight will not stop it from moving forward with innovation and consumer choice.

We find it particularly offensive that the PTC is pursuing criminal charges against the drivers. In fact, the PTC inspectors have been using undercover sting operations to hand drivers citations totally up to $700 each and making arrests for misdemeanor charge of operating without a proper permit.

PTC Inspectors have handed out more than 36 misdemeanor charges with 17 to Lyft drivers and 19 to Uber drivers. Those criminal charges should be fought aggressively in court because the old rules do not apply to these new technologies that power ride sharing. Citations include a civil penalty of $500 for violation of the HCPTC rules (Section 7-1) and Chapter 2001-299, for Operating a public vehicle for hire without a certificate. Somebody needs to explain the concept of ride sharing to Victor Crist (a Hillsborough County commissioner and Public Transportation Commission PTC Chairman).

He said on Tuesday that Uber could operate in Hillsborough County tomorrow if they met legal requirements. “But they come into town and claim, ‘we’re not a cab, we’re not a limousine..’ ” That is because they are not a cab or a limousine. It seems to me Uber is doing a better job at providing ride sharing which is much more convenient that a taxi service. In response, PTC should be talking about less regulation and ways to cut its own budget. Let’s find something better to do with taxpayer money than using it to fight innovation and consumer choice. I like Uber and Lyft for several reasons.

First, it is much faster and cheaper than a taxi. You push a button on your phone and within minutes a driver is there. The drivers and their vehicles are nicer and smell better. Sharing a ride through Uber or Lyft is a great way to get around for work or just to go out on the town.

Second, as a criminal defense attorney, I know that some people in Tampa have lost their driving privileges temporarily because of a DUI or even a first time conviction for a marijuana offense. These people can use Uber or Lyft to get to work and continue to provide for their families. A taxi is just too expensive and inconvenient. Third, many people that shouldn’t be driving because they have consumed alcohol or prescription medication can now use Uber or Lyft.

The number of DUI arrests should continue to drop as more people realize that driving under the influence of alcohol or drugs is simply not worth the risk of hurting someone or getting arrested. This is especially true when you can just hit a button on your phone to share a ride within a matter of minutes.

The County Commissioners and other elected county officials should remember that people that like Uber also like to vote. If they shut down Uber and Lyft in Hillsborough County, then new County Commissioners should be elected who are not afraid of innovation and consumer choice.

Statements from the Companies: A Uber spokesman says: “Dozens of municipalities across the country have recognized that their transportation regulations are outdated and simply don’t apply to the modern ridesharing business model. The fact that the PTC refuses to catch up with the times indicates they are more concerned with maintaining control over the status quo than improving the lives of Tampa residents and visitors. We fully stand behind our partners and will cover any legal or financial costs associated with these unjust citations.”

A Lyft spokeswoman released this statement: “We are actively monitoring the situation in Tampa and are providing legal assistance wherever needed. While we cannot comment on pending legal matters, we are committed to standing strong with drivers and passengers every step of the way. Ridesharing has become part of daily life for people in Tampa and we will continue working with the PTC to find a solution that prioritizes public safety and consumer choice.”

Read more about efforts at the state level to unnecessarily regulate ride sharing – Florida 2015 Senate Bill 1298: Targets Ubers and “Transportation Network Companies.

Can the Prosecutor Subpoena My Medical Records in a DUI Investigation?

In many cases for misdemeanor DUI or DUI with property damage (or non-serious bodily injury) the prosecutor will issue a subpoena for the medical records including your “hospital blood” or “medical blood” test results.

In misdemeanor cases, the subpoena is most often issued in cases where the person refused breath testing or the officer’s request for a blood test.

It is also routine in felony DUI cases such as DUI with serious bodily injury and manslaughter, for the prosecutor to issue a subpoena for your medical records even when you also submitted to a blood test at the officer’s request.

If you receive notice that the prosecutor is trying to get your medical records, you should hire an attorney to contest the issuance of the subpoena. If you can’t afford an attorney – right the objection yourself. Prosecutor’s often have a difficult time showing a judge that the requested subpoena is proper. An objection to the subpoena might prevent a criminal arrest or prosecution from ever taking place.

In many of these cases, the prosecutor or the officer has already illegally obtained the records, and then tries to use the subpoena in order to “legally” obtain the record. If you don’t object to the issuance of the subpoena, you might be effectively waiving this important issue.

The Rules for the Subpoena for Medical Records

“A patient’s medical records enjoy a confidential status by virtue of the right to privacy contained in the Florida Constitution, and any attempt on the part of the government to obtain such records must first meet constitutional muster.” State v. Johnson, 814 So.2d 390, 393 (Fla.2002). Depending on the circumstances, “[t]he right to privacy is not absolute and will yield to compelling governmental interests.” Id.

Section 395.3025(4), provides exceptions to the general rule requiring patient confidentiality. Pertinent to this case is subsection (4)(d), which states as follows:

(4) Patient records are confidential and must not be disclosed without the consent of the person to whom they pertain, but appropriate disclosure may be made without such consent….

(d) In any civil or criminal action, unless otherwise prohibited by law, upon the issuance of a subpoena from a court of competent jurisdiction and proper notice by the party seeking such records to the patient or his or her legal representative.

At a hearing to contest the issuance of the subpoena, the State must normally present evidence that the State is conducting a criminal investigation, that the information subject to the subpoena is relevant to that investigation, that the subpoena is narrowly tailored, and that the State has probable cause to obtain the results, including blood test results.

How will I know if the prosecutor is going to subpoena the medical records?

In many cases the State Attorney’s Office, including the State Attorney’s Office for the Thirteenth Judicial Circuit in Tampa, Hillsborough County, FL, will send you a letter advising you that the office is investigation the case. The letter is necessary before the prosecutor can issue the subpoena.

The letter will notify you that the office will issue a subpoena in fifteen (15) days from the date of the letter to a specific hospital or medical facility for your medical records specifically including but not limited to any and all tests made to determine the blood alcohol content of your blood.

The subpoena is issued pursuant to Florida Statute 395.3025(4)(d) and must comply with 45 CFR 164.501, the Federal regulations implementing the Health Insurance Portability and Accountability Act of 1996 (HIPAA).

HIPAA, by its own language, exempts disclosure of individually identifiable medical information “for law enforcement purposes … [p]ursuant to process and as otherwise required by law.” 45 C.F.R. Section 164.512(f)(1) (emphasis added).

Can an Attorney Object to the Issuance of the Subpoena for my Medical Records?

If you have an objection to the issuance of a subpoena for your medical records, you must file a written objection or response that must be provided to the Assistant State Attorney referenced in the letter prior to the expiration of the 15 day notice period provided in the letter. For cases in Tampa, the address is the State Attorney’s Office, 419 North Pierce Street, 2nd Floor, Tampa, FL 33602.

If you are represented by a DUI attorney in Florida, your attorney may file a written objection or response on your behalf. If the letter references a pending case, a copy of the letter will be sent to your counsel of record, if any, and any written objection or response to the issuance of a subpoena for your medical records should be filed with the clerk of court and a copy provided to the Assistant State Attorney prior to the expiration of the 15 day notice period provided in this letter.

What Might the Subpoena Require?

The subpoena usually requires the hospital to produce the following requested information to the STATE OF FLORIDA:

  1. The results of any and all blood test in reference to blood alcohol content and/or the presence of drugs or narcotics performed upon the person under investigation for DUI.
  2. The name of the person who drew the patient’s blood.
  3. The name of the person who analyzed the blood samples.

The subpoena provides that the information is requested pursuant to a matter pending and undetermined in which the office of the State Attorney is conducted an investigation. The subpoena provides that the hospital or medical facility may provide this requested information INSTANTER, in person or by mail at the address provided. The subpoena provides that failure to comply with the subpoena may subject “you to penalty by the court.”

If you need to speak to an attorney about a DUI investigation that involves medical records from treatment immediately after the DUI investigation or crash, then contact an experienced criminal defense attorney at the Sammis Law Firm to discuss the case.

The DUI attorneys in Tampa that work at the Sammis Law Firm are experienced in filing motions to contest the issuance of the subpoena in a DUI blood test case. Even if the subpoena is granted after a hearing, we are experienced in fighting to keep the “hospital blood” results excluded from the trial.

A Prosecutor’s Obligation to Gag Sheriff Grady Judd with the Polk County Sheriff’s Office

Do the prosecutors in Polk County have an ethical obligation to gag Sheriff’s Grady Judd with the Polk County Sheriff’s Office?

He is constantly putting up mugshots on the PCSO Facebook page of people presumed to be innocent and making “extrajudicial comments that have a substantial likelihood of heightening public condemnation of the accused…”

These people haven’t even had their day in court yet and some of them will be exonerated of the charge. Some of them may be entitled to have their record sealed or expunged.

On November 4, 2014, the Sheriff posted this picture with all 21 people arrested in Polk County for DUI in October of 2014. I have cropped the picture to protect the innocent.

October 2014 DUI Arrests in Polk County

The Facebook picture had this message with it:

FALLing off the wagon and choosing to drive hammered will get you nailed.
PCSO arrested 21 people for DUI in OCTOBER 2014. When will they learn to make better choices and to designate a driver?
They should be thankful it didn’t cost them their lives, or the life of another.”

666 people have liked the picture so far and it has been shared 124 times. Most of the 133 comments congratulated Sheriff Grady Judd for arresting the individuals and commented on how these individuals look guilty and drunk. A few of the comments point out the problem with declaring innocent people to be guilty:

“forgive me, but ok, I get it with posting pictures of sex offenders etc or even repeat habitual DUI offenders, but really have to publicly humiliate some of these people who made one mistake?”

“I’m not saying what these people or any of the other criminals on here are doing is ok, but think about what it may do plastering the pictures of people who are already caught. These people have family who are probably already suffering from their stupidity and drunkery enough, then to have it plastered all over facebook makes their situation so much harder. Not to mention, many of these people have children who can be bullied, etc based on these posts. These criminals ruin their lives enough, but try thinking of everyone else it impacts to plaster this. Post people who are wanted or you can’t find, but not those you already found just to brag. I don’t see other counties doing this crap.”

Maybe the criminal defense attorneys in Polk County should start notifying the prosecutors in these cases of their professional obligation to tell Sheriff Grady Judd to cut it out.

The ABA’s model rule of professional responsibility provide, in part:

Rule 3.8. Special responsibilities of prosecutor.

A prosecutor in a criminal case shall:…

(e) except for statements that are necessary to inform the public of the nature and extent of the prosecutor’s action and that serve a legitimate law enforcement purpose, refrain from making extrajudicial comments that have a substantial likelihood of heightening public condemnation of the accused and exercise reasonable care to prevent investigators, law enforcement personnel, employees or other persons assisting or associated with the prosecutor in a criminal case from making an extrajudicial statement that the prosecutor would be prohibited from making under Rule 3.6 or this Rule.

Does the Model Rule 3.8(e)  apply to prosecutors in Florida? Florida Rule 4.3.8 omits subdivisions (b), (e), and (f) of Model Rule 3.8. The comment to Florida Rule 4.3.8 clarifies that Florida has adopted the ABA Standards of Criminal Justice Relating to Prosecution Function.

Those standards provide:

Standard 3-1.4 Public Statements

(a) A prosecutor should not make or authorize the making of an extrajudicial statement that a reasonable person would expect to be disseminated by means of public communication if the prosecutor knows or reasonably should know that it will have a substantial likelihood of prejudicing a criminal proceeding.

   (b) A prosecutor should exercise reasonable care to prevent investigators, law enforcement personnel, employees, or other persons assisting or associated with the prosecutor from making an extrajudicial statement that the prosecutor would be prohibited from making under this Standard.

So the rules are clear and prosecutors in Polk County ought to follow them.

Standard 3-1.2 The Function of the Prosecutor provides in section (e):

It is the duty of the prosecutor to know and be guided by the standards of professional conduct as defined by applicable professional traditions, ethical codes, and law in the prosecutor’s jurisdiction

Therefore, the prosecutors ought to put a stop to Sheriff Judd’s inappropriate comments and pictures on Facebook. Criminal defense attorneys ought to hold the prosecutor’s feet to the fire when those improper comments impact their client’s pending case.


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