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

After an arrest in Florida for DUI, the officer will take your license and issue you an “on the spot” administrative suspension. You only have ten (10) calendar days to protect your driver’s license and ability to drive.

Some attorneys might tell you to waive all your rights by going to the DHSMV to request a waiver review hearing.

We take a different approach by ALWAYS demanding a “formal review hearing.” By asking for a formal review hearing, we can help our client get the 42-day permit so they can drive while we fight the administrative suspension.

Three Choices within the Ten Days after the DUI Arrest

Within the ten days after the DUI arrest, you have three choices:

  1. do nothing;
  2. hire an attorney to request a “formal review hearing” with an extra 42-day driving permit;
  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, suspension, revocation or conviction AND enroll in DUI school).

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

Option 3 means that you are stipulating to the suspension and that you were DUI for administrative purposes. If you waive all your rights to contest the suspension, then your driving record will show for the next 75 years that you received an administrative suspension for DUI even if your criminal charges are ultimately dismissed or reduced to avoid a DUI conviction.

If you are eligible for Hillsborough County’s new DUI Diversion program call “RIDR” and plan on sealing your record after completing diversion, it is particularly important that you hire an attorney to demand a formal review hearing in invalidate the suspension.


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


Option 1: Do Nothing 

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Most people don’t understand the rules. As a result, they do nothing during the first ten (10) days after the DUI arrest.

Read the citation carefully. The citation operates as your notice of the suspension. The citation also contains your 10-day driving permit. After the 10-day permit expires, the 30-day hard suspension begins for a breath test case with a BAC over .08 or a 90-day suspension begins if you are accused of refusing to take the breath, blood or urine test.

If you do nothing, then that administrative suspension that you were DUI will remain 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

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If you can afford a DUI defense attorney, then demanding the formal review hearing is the best option. Option 2 is the only option that gives the driver the ability to fight to invalidate the suspension so that it is forever removed from the driving record.

Unless you get it invalidated, the administrative suspension remains on your driving record for 75 years, even if you get the charges reduced to reckless driving or get a not guilty verdict at trial.

The only exception to that rule is that if you get a “not guilty” verdict at trial in a breath test case then the administrative suspension will be removed from your driving record. See Florida Statute Section 322.2615 (14)(b) and (16).

If you demand a formal review hearing, you are entitled to a 42-day permit so that you can keep driving for hardship purposes. You are entitled to the 42-day permit if you request the formal review hearing (as long as your driving privileges were valid before the DUI arrest).

If the arresting officer or breath test technician fails to appear at the formal review hearing then 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. Click here to read recent statistics showing why DUI administrative suspensions are invalidated.

Even if the driver loses the hearing, by attending 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).

After the hard suspension is over, the driver can then 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 also enroll in and pay for DUI school during those 10 days. The registration fee for Level I DUI School in Hillsborough County is $263.00.

Although the DHSMV originally took the position that the driver could only request the waiver review within the first 10 days after the arrest, at least one circuit court level decision has found that the 10-day time limit doesn’t apply to a waiver review hearing. See Bichaci v. DHSMV (2013).

The person must also pay a $25 fee for the hearing and then pay the reinstatement fee.

The benefit to this process is avoiding the 30-day hard suspension for a DUI with a BAC over .08 (or 90-day suspension for a refusal). 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 graphs will help me explain these complicated rules – at least until the next legislative session when our lawmakers come up with something even more complicated.

This article was last updated on Friday, July 6, 2018.

DHSMV Training 2017

According to the Florida Impaired Driving Coalition (FIDC) Meeting Report from August 24-25, 2017, Kathy Jimenez-Morales indicated that the BAR Class on administrative suspensions was available in an online format that could be provided to officers at the upcoming FDOT Law Enforcement Challenge. Kathy Jimenez-Morales is the Chief Counsel of Driver Licenses with the DHSMV Office of General Counsel.

We made a public records request for the online training material. Last week, Joseph Gillespie, the Public Records Operations Administrator for the Office of General Counsel at the Florida DHSMV, informed us that the BAR had NOT actually provided any online training for law enforcement officers. Instead, we were provided with these slides used during July and August of 2017 to train law enforcement officers on BAR procedures.

This training material was not nearly as interesting as the material previously obtained through a public records request on the Statistics on Administrative Suspensions in Florida. That training material was based on the statistics gathered in 2015 about why suspensions were being invalidated across Florida. That training material showed the fourteen (14) reasons why a hearing officer could invalidate a suspension and the corresponding percentage for each reason.

Although the Bureau of Administrative Reviews is supposed to be neutral, the training material was not. That material also provided:

  • the percentage of suspensions that are sustained at formal review hearings stands at an incredible 95.3% (although that included all the cases in which the person waived their right to contest the suspension);
  • in commenting on this successful campaign to keep such rates high, the manual asks the police officers, “While sustained rates of 95% and 90% are good and indicative of the fine work you are doing, how many of you would like to see those numbers even higher?”
  • the training material offered the police tips on how to reduce the number of invalidations. “Let’s look at the reasons for those invalidations and what might be done to reduce the number that are invalidated.”

This training material appears to be far more neutral. It provides a general overview of the process. If you are interested in this training material, you can see the slides below.

 

1-adminstrative-suspension-process
2-fdot-provides-funding-for-training
3-florida-traffic-related-fatalities-on-roadways
4-florida-fatalities-related-to-impaired-driving5-dual-processes-criminal-justice-system-and-administrative-suspension-process6-administrative-dui-suspensions-based-on-statute-majority-done-by-law-enforcement7-admin-process-bac-of-08-or-02-if-under-21-license-suspended-for-6-months-refusal-is-suspended-for-1-year-or-18-months-for-2nd8-admin-suspension-process-starts-when-officer-takes-license-within-10-days-do-nothing-or-do-1-of-3-elections9-admin-suspension-process-review-waiver-informal-review-formal-review10-review-waiver-waive-for-1st-time-dui-enroll-in-dui-school-hardship-permit-immediately11-hardship-permits-after-30-or-90-days-after-informal-or-formal-review-hearing12-informal-review-no-witnesses-testify-based-off-material-submitted-by-law-enforcement-hearing-officer-determines-to-sustain-amend-or-invalidate13-scope-of-review-hearing-officer-determines-probable-cause-actual-physical-control-while-under-the-influence-and-whether-the-person-had-an-unlawful-blood-alcohol-level-or-breath-level-of-08-or14-scope-of-review-contd-refusal-did-person-actually-refuse-implied-consent-read15-formal-review-similar-to-motion-to-suppress-testimony-taken-from-witnesses-under-oath-evidence-presented-standard-for-evidence-is-relevance16-formal-review-per-statute-316-26152a-evidence-must-be-submitted-by-law-enforcement17-formal-review-evidence-affidavit-breath-or-blood-results-affidavit-stating-a-breath-blood-or-urine-test-was-requested-and-the-person-refused18-formal-review-evidence-officers-description-of-field-sobriety-exercises-notice-of-suspension-crash-report-video-may-be-submitted-without-a-subpoena19-formal-review-lawful-basis-to-challenge-reasonable-suspicion-for-stop-actual-physical-control-insufficient-basis-for-fses-probable-cause-for-arrest-reading-of-implied-consent20-formal-review-conducted-by-calling-witnesses-and-presenting-evidence-or-soley-by-relying-on-the-evidence-previously-discussed-without-calling-any-witnesses21-formal-review-who-attends-the-driver-may-request-hearing-officer-to-issue-subpoena-to-officers-and-or-witnesses22-formal-review-if-a-witness-fails-to-appear-a-party-may-seek-enforcement-in-a-court-may-seek-attorneys-fees-by-statute-a-failure-to-comply-with-an-order-shall-result-in-a-finding-of-contempt23-formal-review-if-a-witness-cannot-appear-they-must-notify-hearing-officer-if-arresting-officer-or-breath-technician-fail-to-appear-hearing-officer-is-required-by-statute-to-invalidate24-larmer-v-dhsmv-whether-a-refusal-by-a-driver-constitutes-a-refusal-when-the-driver-changes-his-mind25-larmer-v-dhsmv-totality-of-circumstances-approach-driver-may-change-mind-and-avoid-refusal26-dhsmv-v-green-does-a-driver-have-a-right-to-select-a-different-initial-test-to-be-used-to-determine-bac27-dhsmv-v-green-officer-requests-the-test-not-the-driver-who-selects-it-a-driver-has-no-right-to-demand-a-blood-test-instead-of-a-breath-test-however-driver-at-their-expense-can-do-an-indepen28-kaiser-v-state-did-technician-observe-kaiser-prior-to-the-breath-test-during-the-20-min-observation-period-do-so-properly29-kaiser-v-state-finder-of-fact-technician-is-not-required-to-stare-fixedly-at-the-driver-for-the-whole-time-tech-must-observe-driver-for-the-entire-observation-period30-gallardo-v-state-is-a-visual-estimation-of-speed-alone-a-lawful-basis-for-a-traffic-stop31-gallardo-v-state-visual-estimate-of-speed-alone-is-sufficient-vantage-point-training-and-experience-must-be-articulated-if-a-speed-device-was-used-they-must-state-which-device32-questions

The Administrative Suspension Process

DUI and Zero Tolerance Driver License Administrative Review

The Florida Department of Transportation (FDOT) funded this training. According to the FDOT:

  • Florida has 122,659 miles of highway
  • Florida is the 3rd most populous state (with an approximate population of 20.5 million)
  • 107 million people visit yearly

Traffic-Related Fatalities in Florida

In 2016, there were 3,175 traffic-related fatalities on Florida roadways. As of July 1, 2017, there have been 1,403 traffic-related fatalities on Florida roadways. The number of traffic-related fatalities in 2017 is expected to surpass 2016.

A significant number of traffic crashes were alcohol-related. The 2016 numbers are not out yet, however, in 2015 there were 908 alcohol suspected fatalities. There were 6,847 alcohol suspected injuries. The 2016 numbers are also expected to have increased.

Dual Processes to Combat Impaired Driving

The Florida Legislature has passed laws that combat impaired driving through dual processes that are independent of each other including:

  • the criminal justice system
  • the administrative suspension process

All administrative DUI suspensions are based on statute and the majority are done by law enforcement officers at the time of the arrest including:

  • 322.2616
  • 322.2616
  • 322.64

A driver with a breath or blood alcohol concentration (BAC) of at least .08 (0.02 if under 21) will have their license suspended for 6 months, or one year if they have a previous suspension.

A driver who refuses to blow, provide urine, or blood will have their license suspended for 1 year for a first refusal or 18 months if they have a previous refusal.

The suspension period starts at the time law enforcement takes a person’s license and issues a notice of suspension. Within 10 days after the issuance of the notice of suspension, a driver may do nothing, or make one of three elections regarding their suspension including:

  • review waiver
  • informal review
  • formal review

As of July 1, 2013, a driver may waive a formal review for a first time DUI. The driver must have enrolled in a DUI substance abuse education course and evaluation period to be eligible. This allows the driver to obtain a hardship permit immediately. By

By choosing this option, the driver must waive their right to an informal or formal review to contest the administrative suspension. The administrative suspension for DUI then remains on their driving record for the next 75 years.

With an information or formal review, the driver is not eligible for a hardship (business purposes only) permit for 30 days (BAC of .08) or 90 days (refusal) if the suspension is sustained. By waiving review, there is no 30 or 90 day wait, often called “hard time,” before the driver may obtain a hardship permit.

Informal Review Hearing

An informal review is a review of all of the material submitted by law enforcement and the driver. No witnesses testify.

The hearing officer determines by a preponderance of the evidence whether sufficient cause exists to sustain, amend, or invalidate a suspension.

Scope of Review at the Formal or Information Review Hearing

What is the Hearing Officer determining?

Breath/Blood/Urine provided:

  1. Whether the officer had probable cause to believe that the person whose license was suspended was driving or in actual physical control of a vehicle while under the influence of alcoholic beverages or chemical or controlled substances.
  2. Whether the person…had an unlawful blood-alcohol level or breath-alcohol level of .08 or higher…

Refusal:

  1. Whether the officer had probable cause to believe that the person whose license was suspended was driving or in actual physical control of a vehicle while under the influence of alcoholic beverages or chemical or controlled substances.
  2. Whether the person…refused to submit to any such test after being requested to do so by a law enforcement officer.
  3. Whether the person… was told that if he/she refused to submit to such test his/her privileges to operate a vehicle would be suspended for a period of 1 year, or in the case of a second or subsequent refusal, for a period of 18 months.

Procedures for the Formal Review Hearing

From the law enforcement officer’s perspective, a formal review hearing is similar to a motion to suppress. However, there is no prosecutor to present the law enforcement officer’s case. Testimony is under oath, witnesses testify and may be cross-examined, and the hearing officer may receive evidence. The standard for the admission of evidence is relevance.

Pursuant to 316.2615(2)(a), the following evidence must be submitted by law enforcement for consideration (if applicable):

  • affidavit stating officer’s grounds for believing the driver was DUI
  • breath or blood results
  • affidavit stating a breath, blood or urine test was requested and the person refused to submit

The evidence at the formal review hearing includes:

  • the officer’s description of the field sobriety exercises
  • notice of suspension
  • crash report (if any)
  • video may be submitted without a subpoena

Like a motion to suppress, any lawful basis may be used to challenge the action or inaction of the law enforcement officer in order to attempt to invalidate the license suspension including:

  • reasonable basis for the stop
  • actual physical control
  • insufficient basis for FSEs
  • probable cause for arrest
  • reading of implied consent

A formal review may be conducted by calling witnesses and presenting evidence, or solely by relying on evidence previously discussed without calling any witnesses.

So how do I know whether to attend a formal review hearing? The driver may request that the hearing officer issues a subpoena to the officer(s) and witnesses identified in the material submitted.

If a witness fails to appear, a party may seek enforcement of the subpoena by filing a petition for enforcement in court. A party may then seek attorney’s fees against the witness that failed to appear. By statute, a failure to comply with an order of the court shall result in a finding of contempt.

If a witness cannot appear the witness must notify the hearing officer in writing prior to the formal review. If the arresting officer or the breath test technician fails to appear the hearing officer is required by statute to invalidate the suspension.

Case Law

Larmer v. DHSMV – Whether the driver’s refusal to provide a breath sample constitutes a refusal when the driver changes his mind? A totality of the circumstances approach must be used. The driver may change his mind and avoid the refusal penalty where the retraction comes shortly after the refusal, the driver is still in the presence of law enforcement, and when there is no inconvenience to officers.

DHSMV v. Green – Does a driver arrested for DUI have a right to select a different initial test to be used to determine their BAC? It is the officer who requests the test, not the driver who selects it. A driver has no right to demand a blood test instead of a breath test. However, following a breath test, Florida law provides that the driver may, at his own expense, have an independent test and an officer must provide timely telephone access and not hinder the driver.

Kaiser v. State – Did the breath test technician observing Kaiser prior to the breath test during the 20 minute observation period do so properly? This is a question for the finder of fact. A technician is not required to stare fixedly at the driver for the entire period of time. However, the technician must observe the driver for the entire observation period and restart the period if necessary.

Gallardo v. State – Is a visual estimation of speed alone a lawful basis for a traffic stop? Visual estimation of speed alone is sufficient if the officer articulates enough information about the officer’s vantage point, opportunity to observe the vehicle, and training and experience. If a speed measuring devise is then used, the officer must describe and explain which devise was used.

14 Ways to Win a Formal Review Hearing

Why have a formal review hearing?

For anyone who can afford to hire an attorney to help them with the formal review hearing, the benefits of having the hearing far outweigh the potential down side.

Let’s start with the fact that there are fourteen (14) different ways to win a formal review hearing according the the Bureau of Administrative Review Office’s own training materials – click here to download the 2017 Administrative Suspension Training Slides.

The training materials explains who frequently each reason results in the administrative suspension being invalidated. This training material, entitled “2016 Administrative Suspension Training for Law Enforcement” was presented to DUI enforcement officers at the Hillsborough County Sheriff Office (HCSO) Falkenburg Road Jail on September 28, 2016.

Although criminal defense attorneys were not invited to attend or even given notice that the training was occurring, we can still learn a lot from just reading the material.

According to the training materials, these are the reasons the administrative suspension is invalidated after a formal review hearing:

  • The Arresting Officers Fails to Appear at the Formal Review Hearing – 32.7%
  • No DUI Packet Received by the BAR before the Review Hearing – 10.8%
  • The Breath Test Operator Fails to Appear at the Formal Review Hearing – 7.9%
  • Invalid Stop – 6.4%
  • Conflicting Evidence – 6.3%
  • No Valid Breath Test – 5.6%
  • The Officer Didn’t Attest to the Probable Cause Statement – 5.5%
  • No Physical Control – 4.9%
  • Missing or Illegible Documents – 4.9%
  • The Driver Did Not Refuse – 4.4%
  • No or Improper Implied Consent Warnings – 4.4%
  • Refusal Affidavit Not Attested To -.98%
  • No Probable Cause Under 21 – .17%
  • No .02 Agreement on the Intoxilyzer Breathalyzer Test -.05%

I can count several reasons that attorneys should conduct formal review hearings. Almost every time, my client tells me they can survive the 30 or 90 day hard suspension if we request the formal review hearing but are not successful in getting the suspension invalidated.

When my clients understand the pros and cons, they almost always choose to go forward with the formal review hearings.

The benefits of requesting the formal review hearing include:

  • getting a 42 day permit to keep driving while challenging the administrative suspension;
  • invalidating the suspension is the only way to get the notation removed from the driving record (otherwise the notation will stay on the driving record for the next 75 years);
  • getting the opportunity to question each of the witnesses under oath before the prosecutor even sees the file;
    • getting permission from the court to take a depositions in a typical DUI case is difficult so the formal review hearing takes care of that problem;
    • by requesting the subpoena duces tecum, you can require the witnesses to bring additional evidence to the hearing including body cam video and dash cam video;
    • obtaining evidence related to the maintenance of the Intoxilyzer 8000 faster which is important if there was a lack of substantial compliance with the administrative rules;
    • finding evidence that can be used to win the criminal case;
    • locking the witnesses into their testimony so that it can’t be changed after filing a motion to dismiss or motion to suppress;
    • being able to use the transcript of the FRH testimony at trial and impeach the witness if they try and change their story.
  • being able to provide the client with an audio recording of the testimony which can help the client understand the allegations against them better; and
  • learning everything about the case very quickly so you do not have to opt into reciprocal discovery or waive your client’s right to a speedy trial (particularly important in a urine test or blood test case).

So if your client has an administrative suspensions under Florida Statute Section 322.2616 after a DUI arrest, or an administrative suspensions under Florida Statute Section 322.2616 after a zero tolerance violation for an underage 21 driver, consider the benefits of seeking the formal review hearing.

REASONS TO WIN A FORMAL REVIEW HEARING OFFICER FAILED TO APPEAR

dhsmv hearing officer determination of insufficient evidence reasons officer failed to appear

I wrote another article that goes into greater detail about the training material on reasons why the DUI admin suspension is invalidated at the formal review hearing.

Click here to find out more about pros and cons of requesting a formal review hearing.

Are DHSMV Hearing Officers Training the Officers on How To “Win” the Formal Review Hearing?

Congrats to Lee Lockett, a DUI defense attorney in Jacksonville Beach, FL. I cut and paste below an important ruling he just obtained after filing a petition for a writ of certiorari against the Department of Highway Safety and Motor Vehicles (DHSMV).

The ruling is important for two reasons. First, it points out the problem with hearing officers at the DHSMV training local law enforcement officers on how to “win” formal review hearings. I wrote a blog article about similar training that occurred in Hillsborough County after hearing about Lee Lockett’s discovery in Duval County, FL. Through a public record request, I was able to obtain the DHSMV training material used when DHSMV hearing officers taught the class at HSCO in Hillsborough County, FL. Apparently, this training was occurring throughout the State of Florida.

Lee Locket argued, on behalf of this client, that due process was denied because the Bureau of Administrative Review (hereafter, “B.A.R.”) has provided training to law enforcement officers regarding their appearances in license suspension hearings. In the opinion below, the court AGREED with that argument.

Almost all of the DUI enforcement officers in Hillsborough County attended this training. Several of our local hearing officers, including the supervisor of the Tampa BAR, were also involved in this training. So the same arguments can be used in Hillsborough County for a Motion To Disqualify and the Motion To Invalidate based on due process.

Second, the opinion explains why the breath test operator’s failure to appear, even in a refusal case, requires the administrative suspension to be invalidated.

Read the opinion below (additional paragraph breaks were added):

NICOLE XXXXXX, Petitioner, v. STATE OF FLORIDA, DEPARTMENT OF HIGHWAY SAFETY AND MOTOR VEHICLES, Respondent. Circuit Court, 4th Judicial Circuit (Appellate) in and for Duval County. Case No. 2017-AP-000108. March 28, 2018. L. Lee Lockett, Jacksonville Beach, for Petitioner. Brandi Thompson, for Respondent.

ORDER GRANTING PETITIONER’S PETITION FOR WRIT OF CERTIORARI (COX, J.) This matter is before the Court on Petitioner Nicole XXXXX’ (“Petitioner”) Petition for Writ of Certiorari filed September 6, 2017. The Court heard oral argument on the Petition on January 3, 2018. Having reviewed the Petition, Respondent’s Response, and Petitioner’s Reply, considered the arguments of counsel, examined the record before this Court, and being otherwise fully advised, the Court grants the Petition.

Petitioner asserts three grounds in support of her Petition: (i) denial of due process; (ii) the breath test operator failed to appear; and (iii) lawfulness of the detention and arrest.

The Supreme Court of Florida has set forth the standard of review for a Petition for Writ of Certiorari such as the one before this Court.

Where a party is entitled as a matter of right to seek review in Circuit Court for administrative action, the Circuit Court must determine whether the procedural due process is accorded, whether the essential requirements of law have been observed, and whether the administrative findings and judgment are supported by competent substantial evidence.

City of Deerfield Beach v. Vailant, 419 So. 2d 624, 626 (Fla. 1982). In fulfilling its duties, the circuit court is not permitted to reweigh the evidence below. However, the circuit court is not required to ignore evidence, when that evidence contradicts witness testimony, or findings of fact by the hearing officer below. Wiggins v. Dep’t of Highway Safety & Motor Vehicles, 209 So. 3d 1165 (Fla. 2017) [42 Fla. L. Weekly S85a].

Due Process

The Petitioner argues due process was denied because the Bureau of Administrative Review (hereafter, “B.A.R.”) has provided training to law enforcement officers regarding their appearances in license suspension hearings. Other judges in this circuit have previously rejected this argument. See, e.g., Spear v. Dep’t of Highway Safety and Motor Vehicles, No. 2017-CA-579 (Fla. 4th Cir. Ct. June 15, 2017); Dicicco v. Dep’t of Highway Safety and Motor Vehicles, No. 2017-AP-62 (Fla. 4th Cir. Ct. August 25, 2017); Goode v. Dep’t of Highway Safety and Motor Vehicles, No. 2017-AP- 85 (Fla. 4th Cir. Ct. October 11, 2017); Arnold v. Dept of Highway Safety and Motor Vehicles, No. 2017-CA002318 (Fla. 4th Cir. Ct. December 21, 2017).

The B.A.R.’s statewide campaign instructs police officers on the issues that arise at formal review hearings, how to testify at them, and what information should be included and what information should be excluded from their probable cause affidavits. Petitioner included a voluminous set of attachments as well as the curriculum offered to police at these seminars. These have been reviewed by this Court.

One of the attachments contains a flyer sent out by the B.A.R. regarding these seminars. It is solely addressed to law enforcement and boldly proclaimsThis is your opportunity to find out the facts and issues that directly affect the results of your hard work! We encourage you to attend! See you there.(no emphasis added). This training session was held in Jacksonville at the Jacksonville Sheriff’s Office on July 19, 2016. Another Jacksonville training session was held at the Florida Highway Patrol’s Office on July 18, 2016. As can be seen by the provided sign in sheets, all the attendees are from law enforcement.

Another announcement entitled “TRAINING FOR ALL LAW ENFORCEMENT AGENCIES” (Cape Coral Police Dept. 9/13/16), included a section in it addressing the covered topics. Under it, topics such as “Administrative suspension 322.2616 (zero tolerance),” “Probable Cause Affidavits,” and “Statistics for your area and your agency” were included. What is most troubling about this particular flyer is that it includes an advisement to police officers, who are actual litigants/parties/witnesses to a formal review hearing, thatWe will discuss what is required to be in a probable cause affidavit and what should not be in there.(emphasis added).

The Petitioner’s attachments also establish that the B.A.R. not only sponsored and administered these training seminars, but that hearing officers throughout the state were directly involved as well. As can be seen in the attachments, hearing officers were used as instructors at these seminars.

Motorists in Florida are entitled to a formal review hearing that is fair and that is presided over by a neutral and detached magistrate. Motorists are also entitled to due process. “Our supreme court has defined the elements of due process as notice and an opportunity to be heard [that is] full and fair, not merely colorable or illusive……Due process of law means a course of legal proceedings according to those rules and principles which have been established in our system of jurisprudence for the protection and enforcement of private rights.” DHSMV v. Griffin, 909 So.2d 538 (Fla. 4th DCA 2005) [30 Fla. L. Weekly D2065a] (citing Ryan’s Furniture Exchange, Inc. McNair, 120 Fla. 109, 162 So. 483,487 (1935)).

Hearing officers in Florida are required to be neutral and any action on the part of the B.A.R. or its hearing officers that amounts to advocating for one side over the other is a violation of due process. Id. at 542 (“We agree that the hearing officer departed from her neutral role as magistrate when she stopped the hearing, located the registration certificate. . . and entered it as evidence during the hearing.”).

A litigant is entitled to have confidence that the hearing officer before whom he or she appears is acting impartially as a fact finder.” Id. at 542; Ducre v. State, 768 So.2d 1159 (Fla. 2nd DCA 2000) [25 Fla. L. Weekly D2212b]. It is troubling to this Court that anyone could feel confident that a hearing presided over by the B.A.R. would be fair or presided over by a magistrate who is neutral considering that the B.A.R. seems to be just as concerned about invalidation rates as those in law enforcement would be.

When reviewing the training manual:

a) The very first page of the B.A.R.’s training manual states that the percentage of suspensions that are sustained at formal review hearings stands at an incredible 95.3%.

b) In commenting on this successful campaign to keep such rates high, the manual asks the police officers, “While sustained rates of 95% and 90% are good and indicative of the fine work you are doing, how many of you would like to see those numbers even higher?” This also is a comment by the hearing officers and the B.A.R. as a whole that there is a firmly held belief that the police officers are doing “fine work” in all cases.

c) The B.A.R. goes on to try and offer the police tips on how to reduce the number of invalidations. “Let’s look at the reasons for those invalidations and what might be done to reduce the number that are invalidated.” The manual goes on to list the common reasons why suspensions are invalidated and how to avoid them.

d)The training also includes tips on what information should go into the probable cause affidavit.

e) The training also discussed case law that can be considered “law enforcement friendly.”

It should go without saying that parties to an adversarial hearing such as this should never be provided with strategic tips by the judge or magistrate. McFadden v. State, 732 So.2d 1180 (Fla.4th DCA 1999) [24 Fla. L. Weekly D1040b] (judge departed from neutral role when he invited the state to cure the defects in its case by revising its complaint to meet the elements of the violation and was actively examining witnesses); Chastine v. Broome, 629 So.2d 293 (Fla. 4th DCA 1993) (judge was advocating for the state when he passed a note to the prosecutor giving the attorney strategy tips).

“While we see no constitutional infirmity in non-lawyers serving as hearing officers under sec. 322.2615, we do strongly caution those hearing officers that they must take extraordinary care to be as impartial and neutral as the members of the judiciary are required to be.” Griffin v. State, 909 So.2d at 542. As one local circuit judge has noted, the minds of the hearing officers “. . .are made up before the hearing, and indeed, an order affirming the suspension is already drawn.” Detlefsen v. DHSMV, Case No. 16-2012-CA-6869 (4th Jud. Cir. Ct. 8/1/13).

The Florida Supreme Court in the Wiggins case (cited herein) addressed these hearings and how unfair they often times can be. Wiggins v. Fla. Dep’t of Highway Safety and Motor Vehicles, No. SC14-2195 (Fla. 2017) [42 Fla. L. Weekly S85a]. In distinguishing administrative tribunals conducted by the B.A.R. from other types of administrative proceedings such as those conducted by zoning boards, the high Court commented that B.A.R. hearings should be reviewed differently by circuit courts as those hearings tend to involve less fairness than other administrative hearings.

“However, this Court and others have voiced concerns with fairness and due process specifically in the context of hearings held before Department hearing officers under section 322.2615.” Id.; Forth v. Fla. Dep’t of Highway Safety & Motor Vehicles, 148 So.3d 781 (Fla. 2d DCA 2014) [39 Fla. L. Weekly D1352a] (quashing the circuit court’s decision to remand to the Dep’t after it was found that the hearing officer was not impartial); Fla. Dep’t of Highway Safety & Motor Vehicles v. Dean, 662 So.2d 371 (Fla. 5th DCA 1995) [20 Fla. L. Weekly D2179c], cause dismissed, 667 So.2d 774 (Fla. 1996)(“The frequency with which conscientious trial judges of this state issue decisions that have the effect of providing more procedural safeguards to licensees in these revocation hearings suggests a continuing concern about the fairness of this statutory procedure.”).

The Respondent contends that the issue involving Disqualification was “squarely addressed by this circuit” and cited to Spear v. Department of Highway Safety Motor Vehicles, Case No. 2017-CA-000579 (Fla. 4th Cir. Ct., June 15, 2017) and Diccico v. Department of Highway Safety and Motor Vehicles, Case No. 16-2017-AP-000062 (Fla. 4th Cir. 2017). This is not entirely so. The Spear Court did not address the conflict of interest issue that exists when analyzing disqualification.

Litigants need not show a direct, individualized bias against the moving party personally to prevail on a Motion For Disqualification. Conflicts of interest can be sufficient in and of themselves to grant relief. W.I. v. State, 696 So.2d 457 (Fla. 4th DCA 1997) [22 Fla. L. Weekly D1634c] (even where there is no direct conflict of interest, the petitioner still asserted a well-founded fear that he would not receive a fair trial before the judge).

Here, a clear conflict of interest exists with this hearing officer (as an employee of the Department/B.A.R.) due to the Department’s very open and public policy of ensuring that invalidation rates at these hearings are reduced. As an employee of the Department/B.A.R., the hearing officer must be loyal to their policies. Thus, where the conflict of interest at play creates a question as to the judge’s ability to be impartial, a Motion For Disqualification should be granted. Brown ex rel. Preshong-Brown v. Graham, 931 So.2d 961 (Fla. 4th DCA 2006) [31 Fla. L. Weekly D1390a]. A judge shall disqualify herself in a proceeding in which the judge’s impartiality might reasonably be questioned. Code of Judicial Conduct Canon 3.

The Spear case is also distinguishable because it did not deal with an arresting officer who received the B.A.R. training at issue. Here, Trp. Healy did, in fact, receive the training from the B.A.R. and its hearing officers. The record is replete with evidence of hearing officer participation in this training.

Because the officer in Spear was not a part of this training, it allowed the Spear Court to rely on a case that would not apply here. In Dep’t of Highway Safety and Motor Vehicles v. Stewart, 625 So.2d 123 (Fla. 5th DCA 1993), the driver’s argument that the hearing procedure at the B.A.R. was unconstitutional because the hearing officers were fellow employees of the highway troopers whose affidavits and testimony hearing officers are called upon to evaluate was rejected.

However, it’s important to note that in Stewart, there was no evidence of cooperation between the troopers and the hearing officers as we have here. The driver’s attorney in Stewart merely argued that because they worked in the same department that it created an unlawful hearing.

As the Petitioner’s appendix shows, not only is Trp. Healy employed by the same department as the hearing officer, Trp. Healy received training from the B.A.R. on how to testify so as to decrease the number of suspensions that are invalidated.

For similar reasons, the Diccico opinion is inapplicable here. As in Spear, Diccio did not involve an arresting officer who actually received the B.A.R. training at issue. Additionally, the Diccio Court actually found that this training was troubling. The Court there stated that:

“This Court is certainly troubled by the extent to which supposedly neutral hearing officers have engaged in the training now questioned. Such training may have extended to teaching law enforcement officers the best methods for winning their cases.”

(emphasis added). In denying the Petition, the Diccico Court did not address the conflict of interest issue outlined above nor does this opinion involve the separate ground for invalidation asserted here. In addition to the Disqualification motion, the Petitioner here filed a separate motion for invalidation based on the same B.A.R. training that does not involve issues of disqualification and instead focuses on due process violations based on the training.

Consider the holding in Griffin. There, a similar due process challenge was lodged against the B.A.R. The Griffin Court ruled that the use of non-lawyer hearing officers was not unconstitutional so long as the hearing afforded an adjudication of rights that is full and fair. Id. at 541. In Griffin, the drivers, unlike here, did not offer any specific examples of why the hearings were un-fair.

Had the Griffin Court been aware of the issues in the case at bar, it is unlikely that it would have found such activity to be constitutionally sound. The elements of due process include notice and an “opportunity to be heard [that is] full and fair, not merely colorable or illusive. . . Due process of law means a course of legal proceedings according to those rules and principles which have been established in our system of jurisprudence for the protection and enforcement of private rights.” Ryan’s Furniture Exchange, Inc. v. McNair, 120 Fla.109, 162 So. 483 (1935).

The Respondent claims there is no legal provision for disqualification of all hearing officers as a group. Whether or not there is such an administrative rule is not controlling here. Due process is a right that cannot be abridged or denied by an administrative agency.

Even if the absence of such an administrative rule was relevant, the Petition can be granted nonetheless due to the lack of due process in the Petitioner’s proceedings. Thus, the hearing officer erred in denying both the Motion To Disqualify and the Motion To Invalidate based on due process.

Breath Test Operators Failure to Appear

The Petitioner next argues that § 322.2615(11), Fla. Stat., mandates invalidation of the suspension due to the failure of the breath test operator to appear. Here, the Petitioner refused the requested breath test.

Petitioner subpoenaed the breath tech, however, he failed to appear. The hearing officer denied Petitioner’s request to invalidate based on this failure to appear. The Respondent’s position on this issue is that because this case involves a refusal, the Petitioner cannot be afforded relief under section 322.2615, Florida Statutes. Sec. 316.1932 which authorizes a law enforcement officer to request a breath, blood or urine test under certain conditions after a driver is lawfully arrested. S. 316.1932(1)(a)l.a. states,

Any person who accepts the privilege extended by the laws of this state of operating a motor vehicle within this state is, by so operating such vehicle, deemed to have given his or her consent to submit to an approved chemical test or physical test including, but not limited to, an infrared light test of his or her breath for the purpose of determining the alcoholic content of his or her blood or breath if the person is lawfully arrested for any offense allegedly committed while the person was driving or was in actual physical control of a motor vehicle while under the influence of alcoholic beverages.

The chemical or physical breath test must be incidental to a lawful arrest and administered at the request of a law enforcement officer who has reasonable cause to believe such person was driving or was in actual physical control of the motor vehicle within this state while under the influence of alcoholic beverages. The administration of a breath test does not preclude the administration of another type of test.

The person shall be told that his or her failure to submit to any lawful test of his or her breath will result in the suspension of the person’s privilege to operate a motor vehicle for a period of 1 year for a first refusal, or for a period of 18 months if the driving privilege of such person has been previously suspended as a result of a refusal to submit to such a test or tests, and shall also be told that if he or she refuses to submit to a lawful test of his or her breath and his or her driving privilege has been previously suspended for a prior refusal to submit to a lawful test of his or her breath, urine, or blood, he or she commits a misdemeanor in addition to any other penalties.

The refusal to submit to a chemical or physical breath test upon the request of a law enforcement officer as provided in this section is admissible into evidence in any criminal proceeding.

(emphasis added). As set out in this section, there are very specific requirements for when such a test may be requested and specific directives as to what must be done if a driver indicates a desire to refuse such a test.

Sec. 322.2615, Florida Statutes, establishes the statutory guidelines for the formal review hearing to review a driver’s license suspension imposed due to an unlawful breath test result or the refusal to submit to a breath, blood, or urine test that is required by s. 316.1932. Among the guidelines set out in s. 322.2615 is the scope of review for the Hearing Officer at these proceedings, the authority of the Hearing Officer as it relates to these proceedings, and the rights and protections afforded a driver. Among these rights and protections afforded the driver are the guidelines setting out the witnesses who can be subpoenaed and the remedies available if a witness fails to appear at the hearing.

The issue resulted from the amendment of Sec. 322.2615, effective July 1, 2013. The changes pertinent to this petition are set out in s. 322.2615(6) and s. 322.2615(11). S. 322.2615(6) states,

(6)(a) If the person whose license was suspended requests a formal review, the department must schedule a hearing within 30 days after such request is received by the department and must notify the person of the date, time, and place of the hearing.

(b) Such formal review hearing shall be held before a hearing officer designated by the department, and the hearing officer shall be authorized to administer oaths, examine witnesses and take testimony, receive relevant evidence, issue subpoenas for the officers and witnesses identified in documents provided under paragraph (2)(a), regulate the course and conduct of the hearing, question witnesses, and make a ruling on the suspension. The hearing officer may conduct hearings using communications technology. The party requesting the presence of a witness shall be responsible for the payment of any witness fees and for notifying in writing the state attorney’s office in the appropriate circuit of the issuance of the subpoena. If the person who requests a formal review hearing fails to appear and the hearing officer finds such failure to be without just cause, the right to a formal hearing is waived and the suspension shall be sustained.

(c) The failure of a subpoenaed witness to appear at the formal review hearing is not grounds to invalidate the suspension. If a witness fails to appear, a party may seek enforcement of a subpoena under paragraph (b) by filing a petition for enforcement in the circuit court of the judicial circuit in which the person failing to comply with the subpoena resides or by filing a motion for enforcement in any criminal court case resulting from the driving or actual physical control of a motor vehicle that gave rise to the suspension under this section. A failure to comply with an order of the court shall result in a finding of contempt of court. However, a person is not in contempt while a subpoena is being challenged . . .

The underlined sections are the relevant additions that were made.

Sec. 322.2615(11) states, in its entirety,

The formal review hearing may be conducted upon a review of the reports of a law enforcement officer or a correctional officer, including documents relating to the administration of a breath test or blood test or the refusal to take either test or the refusal to take a urine test. However, as provided in subsection (6), the driver may subpoena the officer or any person who administered or analyzed a breath or blood test. 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.

Again, the underlined section is the section that was added effective July 1, 2013. Although there is a clear distinction between these sections as to the remedy for the failure to appear of an arresting officer or breath test technician and the failure to appear of any other witness, there is no distinction made between breath test cases and refusal cases.

Sec. 322.2615(7) requires the hearing officer to consider, (1) whether the arresting officer had probable cause to believe that the driver was driving or in actual physical control of a motor vehicle while under the influence of an alcoholic beverage or controlled substance, (2) whether the driver was lawfully arrested for DUI, and (3) either whether the driver had an unlawful blood alcohol level; or, in the case of a refusal to submit to a test, whether the driver was advised that if they refused to submit to a breath, blood or urine test, their driving privilege would be suspended, and whether after having been so advised, the driver refused such test. Sec. 322.2615, Fla. Stat. (2016). Thus both scopes of review require consideration of the proper actions by the breath test technician.

The evidence shows that prior to the formal review hearing in this case, the Petitioner requested, and received, a subpoena for Officer Dinkins. Officer Dinkins is the breath test operator who completed the affidavit alleging that the Petitioner refused a breath test, thereby triggering the license suspension. Officer Dinkins was lawfully served with the subpoena to appear at the formal review hearing scheduled for this case on August 3, 2017. Officer Dinkins failed to appear or to request a continuance.

Prior to July 2013, when the arresting officer or breath test operator failed to appear, the only remedy was enforcement in the circuit court as with any other witness. By amending this section in this manner, the legislature clearly recognized that these witnesses were the most significant to the issues before the hearing officer; that being the lawfulness of the arrest, the reasonableness of the request under implied consent; and either an unlawful breath or blood test result, or a refusal to submit. There is no reasonable basis to differentiate between refusal and breath test cases.

Basic rules of statutory construction mandate that a subsection of a statute must be considered in its entirety when interpreting the language of the individual sentences. Roberts v. State, 685 So. 2d 1277 (Fla. 1996) [22 Fla. L. Weekly S5a]; Calhoun, Dreggors & Assoc. v. Volusia Cty, 26 So. 3d 624 (Fla. 5th DCA 2009) [35 Fla. L. Weekly D77a]; Richardson v. Showell Farms, 734 So. 2d 590 (Fla. 1st DCA 1999) [24 Fla. L. Weekly D1500b]. “When analyzing a statute, courts look to legislative intent and to determine such intent, the language and plain meaning of the statute must be examined first. Fla. Dep’t of Children & Family Servs. v. P.E., 14 So.3d 228, 234 (Fla.2009) [34 Fla. L. Weekly S449a].

When the statutory language is clear, courts may not explore legislative history nor apply canons of statutory construction. Daniels v. Fla. Dep’t of Health, 898 So.2d 61, 64 (Fla.2005).” [30 Fla. L. Weekly S143a] Ellsworth v. State, 89 So. 3d. 1076 (Fla. 2d DCA 2012) [37 Fla. L. Weekly D1364b]. In the case at bar, the plain language of the statute makes no distinction between hearings where a driver has submitted to a breath, blood or urine test or where they have refused such test. When the legislature detailed that the suspension shall be invalidated based on a breath technician’s failure to appear they could have very well made the distinction between breath tests and refusal, but they did not. See Fla. Carry, Inc. v. Univ. of Fla., 180 So. 3d 137, 145-146 (Fla. 1st DCA 2015) [40 Fla. L. Weekly D2432c]. As a result, the hearing officer erred in denying the Petitioner’s request to invalidate.

Lawfulness of Detention and Arrest

In order to detain a citizen for purposes of conducting a criminal investigation, the officer must have reasonable suspicion that a crime is occurring. Terry v. Ohio, 391 U.S. 1 (1968). Reasonable suspicion has been described as something that is more than a mere hunch. Wallace v. State, 8 So. 3d 492 (Fla. 5th DCA 2009) [34 Fla. L. Weekly D925b].

Signs of impairment leading up to the detention in this case were scarce. Typically in a DUI case, an officer observes erratic driving coupled with real indicators of impairment such as stumbling, incoherent sentences, or fumbling through documents. Here, the driving pattern observed was a u-turn made after the light turned green and without interfering with any traffic. Although an infraction did occur (making a u-turn where not permitted), nothing about the turn or the subsequent driving pattern indicated impairment. To the contrary, Trp. Healy testified that the u-turn was the only driving pattern he noticed and that after turning on the blue lights she responded to the blue lights in a timely manner and made a right hand turn safely to stop. The video bears this out as well.

Post stop observations included an allegation that Petitioner had bloodshot, watery eyes, a flushed face, slurred speech, and an odor of an alcoholic beverage. Although Trp. Healy said he detected slurred speech, the video contradicts that assertion, especially the officer’s claim that it was the “entire time.”

The DVD reflects a coherent, clear speech pattern. In stating so, this Court is not re-weighing the evidence, but merely commenting on the contents of the video which clearly contradicts the allegations of the officer. In Wiggins, the high court found the circuit court’s review of the DUI DVD on appeal to be permissible in finding that the officer’s claim (as well as the hearing officer’s findings) of an erratic driving pattern was contradicted by the DVD. “Evidence that is confirmed untruthful or nonexistent is not competent, substantial evidence.” Id.

The remaining observations leading up to the detention were merely signs of alcohol consumption, not impairment. The officer conceded that he did not know why her face was flushed or why her eyes were red. Additionally, the officer also stated the obvious, that is one cannot determine if someone’s normal faculties are impaired by the odor of an alcoholic beverage. These are all observations of possible alcohol consumption, not impairment.

Furthermore, the video belies the officer’s allegation that Petitioner put her foot down during the one leg stand. The video shows that Petitioner never once put her foot down during this exercise.

Additionally, Petitioner’s performance on the other exercises refutes any claims that she struggled or looked impaired in any way. As a result, probable cause for the arrest was lacking as well. The contradicted testimony of the trooper is not sufficient to amount to competent, substantial evidence.

It is, therefore

ORDERED AND ADJUDGED that:

1. The Petition for Certiorari is hereby GRANTED and the Order of License Suspension entered on August 7, 2017 is hereby QUASHED.

2. The Department of Highway Safety and Motor Vehicles shall remove the administrative suspension from the Petitioner’s driving record, and shall immediately reinstate the Petitioner’s driving privilege if she is otherwise eligible.

* * *

Tampa’s Central Breath Testing (CBT) Unit Compromised

After a DUI arrest in Hillsborough County, FL, you will be taken to a room at the Central Breath Testing (CBT) unit located within the Orient Road Jail in Tampa, FL, and asked to submit to a breath test on an Intoxilyzer 8000.

In order for the breath test result to be admissible at trial, certain rules must be complied with, including the rules found in Florida Administrative Code (FAC) 11D-8.007.

FAC 11D-8.007 provides in subsection one (1) that

“[e]videntiary breath test instruments shall only be accessible to a person issued a valid permit by the Department and to persons authorized by a permit holder….

Subsection 2 of FAC 11D-8.007 requires that

“[t]he instrument will be located in a secured environment which limits access to authorized persons described in subsection (1)….”

When there is a lack of compliance with the administrative rules, your DUI defense attorney can file and litigate a motion to suppress your breath test reading so that it cannot be used against you at trial.

If you are charged with a DUI in Tampa, FL, involving a breath test reading, then contact an experienced criminal defense attorney at Sammis Law Firm to discuss your case.

Our Tampa DUI Defense attorneys are experienced in filing and litigating motions to suppress breath test readings for a variety of reasons, including a lack of compliance with the administrative rules.

Call 813-250-0500 to discuss your case.

Violation of FAC 11D-8.007(1) and (2)

It appears that a serious violation of the Florida Administrative Code (FAC) 11D-8.007(1) and (2) occurred on January 23, 2018.

Supervisor Roger G. Skipper, Central Breath Testing Unit Supervisor sent a memorandum to Master Sergeant Timothy R. Bell, explaining that an “unescorted instrument access” occurred on January 23, 2018, which compromised the breath test room and instruments being stored in that room.

The unescorted instrument access occurred at the Central Breath Testing location at the Orient Road Jail in Tampa, FL (often identified as ORJ – Building 10 – CBT).

According to Supervisor Roger Skipper, at 10:51 hours on January 23, 2018, Alcohol Breath Analysis Technician Melanie Snyder #4113 told Mr. Skipper that a locksmith had accessed Room SI-01 (breath test room) as a pass-through to Room FR-01 (CBTU File Room) to finish a lock repair.

The locksmith, identified as Samuel Ramirez, Jr. #242169, had been previously escorted into the breath test room at the Orient Road Jail by Technician Melanie Snyder.

Upon returning from court, Mr. Skipper told Master Sergeant Bell #4152 about the intrusion into the breath test room by an unauthorized person. Mr. Skipper also reported the access violation to the State Inspector Danielle Bell of the Florida Department of Law Enforcement’s Alcohol Testing Program (FDLE/ATP).

Mr. Roger Skipper reportedly conducted a System Check breath test on the four instruments located in the testing room with no issues noted. He also conducted a dry gas standard stability check (10 repetitions each) on all four instruments involved with no issues noted.

The four instruments were removed from service and were reportedly shipped to FDLE/ATP after an agency inspection. Those four instruments were identified as 80—000833, 80-003387, 80-003388 and 80-006567.

Along with this disclosure, FDLE was notified that on January 22, 2018, it was determined that keys to some of the staff lockers at CBT were not working. For some reason, the staff lockers in CBT are located in the restricted access area. In response to this problem with the keys, Master Sergeant Timothy R. Bell created a ticket number 026263 that was printed on 1/22/18 at 20:04:18.

Inspection of the Hillsborough County Central Breath Testing Unit

The Department Inspector Field Notes indicate that on February 13, 2018, Danielle Miller Bell arrived to inspect and audit the Hillsborough County Central Breath Testing Unit. According to the field notes, entered on the FDLE/ATP Form 44, there are several rooms separated by keys (with differing locks to facilitate different access levels).

Access levels were reportedly well defined. New signs on the entrance clearly define authorized personnel allowed to enter rooms containing Intozilyzers. The department inspector reportedly observed a total of eight evidential instruments present. (Four in service and four separated ready for inspection later that evening). The report indicated that the equipment is kept clean and dry.

The solutions in use are in date and well labeled. The department inspector did not observe an agency inspection, although she did audit several files. All filed are well kept and in order. The department inspector reported that all files were present and keep for the required time frame at a minimum.

The department inspector did not check any of the comprised instruments for compliance with Rule 11D-8.

Electronic COBRA Data for the Breath Test Machines

We looked at the COBRA Data and found that all of these machines, 80-000833, 80—3387, 80-003388 and 80-006567 were pulled from service on 1/23/2018.

No subject tests were done on these machines in January after 1/23/18 or at anytime in February of 2018. The electronic data for March has not been uploaded to FDLE as of yet.

80-000833
“Test” completed on 1/23/2018 by Roger Skipper
Agency Inspection (AI) completed on 2/3/2018
Department Inspection (DI) completed on 3/5/2018

80-003387
“Test” completed on 1/23/2018 by Roger Skipper
AI completed on 2/13/2018
DI completed on 3/5/2018

80-003388
“Test” completed on 1/23/2018 by Roger Skipper
AI completed on 2/13/2018
DI completed on 3/5/2018

80-006567
“Test” completed on 1/23/2018 by Roger Skipper
AI completed on 2/13/2018
DI completed on 3/5/2018

For instance, 80-003387, arrived at FDLE on 2/16/2018 and a department inspection was conducted on 3/5/18. The R-Value was found to be 101. The notes on the FDLE/ATP Form 48 show that Danielle Miller Bell, a Department Inspector with FDLE, recommended sending the machine to Enforcement Electronics for Flow Sensor replacement due to the R-value reading low.

Motions to Suppress Breath Test Readings for a Lack of Compliance

When our DUI defense attorney take a DUI case involving a breath test reading over .08, we conduct an audit on the breath test machine.

During the audit, we search all of the records to find whether the breath test machine was properly registered, whether it passed all of the required department and agency inspections, and whether there are any usual subject tests. We look for error or exception messages on your subject tests, or other subject tests on your breath test instrument.

In some cases, we find problems with your breath test or the way your breath test machine was maintained. These problems might lead to the filing of a viable motion to suppress the breath test reading because of a lack of compliance with the administrative rules.

Call us at 813-250-0500 to discuss your breath test case in Tampa or Hillsborough County, FL.

central breath testing orient road jail

Picture from the former Central Breath Testing (CBT) Unit at the Orient Road Jail, Hillsborough County Sheriff’s Office, in Tampa.

 

RIDR – DUI Diversion in Hillsborough County, FL

On February 19, 2018, the State Attorney’s Office announced the creation of a new DUI initiative called Reducing Impaired Driving Recidivism (RIDR).

According to Rena J. Frazier, the Chief of Policy and Communication with the Office of State Attorney in Hillsborough County, the DUI diversion program is “aimed at reducing impaired driving through enhanced sanctions.”

The new DUI diversion program became effective on March 1, 2018. Florida Statute Section §948.08 and §948.16 allows criminal cases to be resolved through pretrial intervention.

On February 26, 2018, the State Attorney’s Office invited DUI defense attorneys to attend an informational meeting about the new DUI diversion program, RIDR, at the Edgecomb Courthouse in downtown Tampa, FL. More than 100 criminal defense attorneys came to the meeting.

At the informational meeting, the State Attorney’s Office explained the eligibility and procedural requirements. The State Attorney’s Office also passed out a sheet explaining the program.

RIDR Info Sheet Hillsborough DUI Diversion

The attorneys were given an opportunity to ask questions. We learned that only about 20% of people arrested for DUI would be eligible for the diversion program. Even for those who are eligible, the State Attorney’s Office reserves the right to not allow someone to enter the program.

Several people pointed out that RIDR gave a huge incentive for people to refuse to take the breath test since anyone who blew over .20% would be automatically ineligible.

Several people asked if the judges in Hillsborough County were onboard with the initiative because a judge always has the right to refuse to accept the negotiated plea and force the case to trial.

Consequences of Entering the DUI Diversion Program

If you are eligible and the SAO agrees to let you enter the program, then the following will occur:

  • the DUI will be reduced to reckless driving;
  • the court will withhold adjudication; and
  • the court will sentence you to twelve (12) months probation to complete the enhanced sanctions.

If you complete the probation successfully, then you would be eligible to seal the record entirely.

Eligibility Requirements for the RIDR Initiative

The following eligibility requirements limit the number of people who can take advantage of the RIDR initiative:

  • The pending charge must be for a first DUI charged as a misdemeanor offense;
  • The defendant submitted to a breath or blood test, the BAC result was at .20 or below;
  • No crash with property damage occurred;
  • At the time of the stop, no minor passenger under 18 years old was in the vehicle;
  • The defendant is not currently being supervised in any Pre-Trial Intervention (PTI) program or on probation;
  • The defendant does not have a prior record for:
    • any prior DUI offense;
    • any alcohol-related reckless driving;
    • any charge of leaving the scene of an accident with injury or death;
    • any vehicular homicide;
    • any DUI diversion program or more than one non-DUI diversion program as an adult; or
    • any adjudication or withhold of adjudication to any felony within the last five years before the date of this offense.
  • The defendant does not have any pending:
    • Florida Driver’s License Suspension;
    • Driving Under the Influence (DUI) charges;
    • Driving while license suspended (DWLS) with serious bodily injury or death charges;
    • Leaving the scene of an accident with injury or death charges; or
    • Vehicular homicide charges.

The State Attorney’s Office in Tampa, FL, reserves the right to use other factors not listed here to find that a defendant will NOT be allowed to participate in RIDR.

Procedures for Entering the DUI Diversion Program

The enhanced sanctions depend on the following classification system:

  • Level 1 – BAC at or below .15;
  • Level 2 – BAC above .15 or no breath sample (or a refusal to submit to a breath, blood or urine test); or
  • Level 3 – Drug-related DUIs.

To enter the program, the defendant or the criminal defense attorney must appear at arraignment to waive speedy trial and set the case for a final disposition approximately sixty (60) days out.

Before the next court date, the defendant must provide proof of completion of the Pre-Plea Sanctions to the SAO including:

  • completing DUI school and recommended treatment;
  • attending the MADD victim impact panel; and
  • completing ten (10) community service hours.

For the Level 1 and Level 2 program, the defendant must also show:

  • provide proof of installation of an ignition interlock alcohol monitoring device; or
  • provide proof of installation of a continuous alcohol monitoring device, e.g. SCRAM.

For the Level 3 program, the defendant must also:

  • not possess or consume alcohol, illegal drugs, or non-prescribed drugs; and
  • use the PharmCheck Drugs of Abuse Patch with results provided to the SAO.

Enhanced Probation Sanctions for the RIDR Plea

After the satisfactory completion of the Pre-Plea Sanctions the offender will be offered a plea to reckless driving with a withhold of adjudication and 12 months probation:

  • Standard court costs and conditions of probation;
  • Ten-day vehicle immobilization;
  • No possession or consumption of alcohol, illegal drugs or non-prescription drugs during probation; and
  • Successful completion of DUI school and any recommended treatment.

For Level 1, the defendant must further complete:

  • Fifty (50) hours of community service; and
  • Install the ignition interlock alcohol monitoring device or any continuous alcohol monitoring device for three (3) months.

For Level 2, the defendant must further complete:

  • Seventy-five (75) hours of community service; and
  • Install the ignition interlock alcohol monitoring device or any continuous alcohol monitoring device for six (6) months.

For Level 3, the defendant must further complete:

  • Fifty (50) hours of community service; and
  • Wear a PharmCheck Drug of Abuse Patch (PharmChek® Drugs of Abuse Sweat Patch) for three (3) months with results provided to HCSO probation.

Finding an Attorney for RIDR in Tampa, FL

If you have questions about your eligibility to enter the RIDR diversion program in Hillsborough County, FL, for a first DUI, then contact an experienced DUI defense attorney at Sammis Law Firm.

We fight DUI cases in Hillsborough County at the courthouse in Tampa and Plant City, FL.

Call 813-250-0500.

 

ridr information sheet dui diverison hillsborough county

This article was last updated on Friday, April 20, 2018.

DUI Statistics in Tampa, FL

2016 Tampa Police Department DUI Arrests Summary

This article was last updated on Monday, June 18, 2018.

The Tampa Police Department gathers statistics to monitor the activities of the DUI enforcement officers. We have obtained these summaries for 2015, 2016, and 2017.

The summary keeps track of the number of people arrested for DUI each year. The documents how the following number of DUI arrests:

  • 1,729 DUI arrests in 2017 with 44.48% refusing rate;
  • 2,087 DUI arrests in 2016 (with the refusal rate not being listed); and
  • 1,568 DUI arrests in 2015 with a 43% refusal rate.

The summary distinguishes between self-initiated stops and investigations that involve the DUI enforcement officer being dispatched.

The 2017 DUI Enforcement Unit combined year to date statistics (including FDOT grant) show a total of 1,729 DUI arrests in all of 2017 (with 54.71% being self initiated and 45.29% being dispatched).

Only 5 cases involve a .02 violation. Only fifteen (15) DRE evaluations were performed the entire year. 243 of those cases were classified as “DUI Crash.” As far as chemical tests, 44.48% were classified as a refusal, 1.04% as blood, and 4.80% as urine. The rest were breath test cases with more people blowing over .15 than under.

According to the Tampa Police Department DUI Arrests Summary for 2016, Tampa Police Department made 2,087 DUI arrests. Just over one-half of those arrests were self-initiated. The other 1,008 arrests involved the DUI enforcement officer being dispatched.

The summary also distinguishes between different types of DUI related cases including:

  • Crash (DUI related) at 13.8%;
  • Wrong way driver (DUI arrest) at 5.7%;
  • DUI checkpoint arrests at 0.5%;
  • Superior Response to Fatal / SBI Crash at 0%; or
  • Supervisor DUI Assist at 5.3%.

The summary also distinguishes between different types of DUI tests:

  • Breath above .08% BrAC 49.1%
  • Urine, Blood or Refusal 49.3%
  • .000-.079% 1.6%

It is weird how the chart tries to carve out the DUI cases with a BrAC reading below the legal limit in this manner. Why not include the low BrAC cases in the BAC Range? If you look at the totals, it appears that if the low BrAC were included in the range, then approximately 3.2% of people who submit to breath testing blow under the legal limit.

Also, the refusal rate is lumped in with the urine and blood test cases.

Out of those DUI arrests in 2016 by the Tampa Police Department with a breath test reading over the legal limit, the BAC Range is broken down as follows:

  • .080-.149 at 21.5%
  • .150-.199 at 17.3%
  • .200-.249 at 7.4%
  • .250-.299 at 2.5%
  • .300 or over at .04%

If you were arrested by an officer with the Tampa Police Department for DUI, then contact an experienced criminal defense attorney at Sammis Law Firm. Our offices are located in downtown Tampa, just a few blocks from the courthouse.

We understand the tactics used by officers with the Tampa Police Department. Call us to discuss the facts of your case, the typical penalties imposed in DUI cases, and the best ways to fight the case for an outright dismissal or reduction to a less serious charge.

Call 813-250-0500 today.

2015 Tampa Police DUI Enforcement Unit Summary

Update: We recently obtained the TPD DUI Enforcement Unit 2017 Combined Year to Date Statistics by Sector (including FDOT Grant)

Tampa Police TPD DUI enforcement unit 2017 combined year statistics

Do you lose your driver’s license for a DUI?

During the initial consultation, one of the most frequent questions is: “Will I lose my driver’s license because of the DUI?” The short answer is that it depends. 

After a DUI arrest, your driver’s license is impacted in two ways – the administrative suspension and the court ordered suspension.

The “On-the-Spot” Administrative Suspension

First, the officer will often trigger an “on-the-spot” suspension when he makes the arrest and seizes your driver’s license on the spot. This suspension is called the “administrative” suspension because it occurs at the Florida Department of Motor Vehicles and Highway Safety (DHSMV).

The administrative suspension will last from 6 months for a first DUBAL (driving with a breath / blood alcohol level over .08) to 18 months for a second or subsequent refusal to submit to a breath, blood or urine test. The hard suspension is the period during which you are not eligible for a hardship license.

That hard suspension can last for any of the follow periods:

  • 30 days for a first BAL over .08;
  • 90 days for a first refusal; or
  • 18 months for a second refusal.

If you hire a DUI defense attorney at the Sammis Law Firm in Tampa, FL, we will demand a formal review hearing on your behalf to fight the administrative suspension. We can also hand you a 42-day permit so that you can keep driving during the time we are preparing for the formal review hearing.

If the administrative suspension is invalidated, then you will not lose your driver’s license on an administrative basis. If you don’t get the suspension invalidated then you will need to complete DUI school, attend a hardship hearing, pay a reinstatement fee, and wait seventy-five (75) years for the DUI suspension to drop off your driving record.

The Court Ordered DUI Suspension

Second, the court will impose another “court order” suspension, but only if you are convicted of DUI. That court ordered suspension can be avoided by getting the DUI dropped, dismissed, or at least reduced to reckless driving (often called the “wet reckless”).

The length of the suspension depends on the number of the prior convictions including:

  • first DUI is 6 months to 12 months;
  • second DUI within 5 years of a prior conviction is 5 years;
  • third DUI within 10 years of a prior conviction is 10 years; or
  • fourth DUI in a lifetime is a lifetime revocation.

Ways to Avoid a Suspension of Your Driver’s License after a DUI Arrest

So although most people lose their license after a DUI, some people avoid it entirely. You will not lose your driver’s license if your DUI defense lawyer is able to:

  • get your administrative suspension invalidated at the formal review hearing; and
  • avoid a DUI conviction in court.

Contact a DUI defense attorney at the Sammis Law Firm to learn more about the consequences to your driver’s license after a DUI arrest in Tampa or Hillsborough County, FL.

Call 813-250-0500 to discuss your case.


Additional Resources

Pros and Cons of Demanding a Formal Review Hearing – Instead of just stipulating that you were DUI for administrative purposes during the Review Waiver Hearing, read more about the pros and cons of demanding a formal review hearing. Find out why you lose your license immediately after a DUI arrest and how to contest the suspension. Find out how long you might lose your license for a first DUI, second DUI, third DUI, or fourth DUI after an administrative suspension or a court ordered suspension. Find out how to get a 42 day temporary hardship license so that you can drive to work, school or church after the arrest.

Suppressing the DUI Intoxilyzer 8000 Results for a Lack of Substantial Compliance

The goal for the attorney in a DUI case involving a breath test reading over .08 is getting the breath test result thrown out of evidence. In order to get the breath test results thrown out, the DUI defense attorney can file a motion to suppress the breath test reading when the machine used during the subject’s test was not in substantial compliance with the administrative and statutory rules.

Below you will find a summary of all of the trial court orders on Florida Law Weekly in which the trial court suppressed the breath test result because of a lack of compliance with the administrative rules. This article gives you examples of the most common problems that can arise during the monthly inspections of Florida’s Intoxilyzer 8000 breath test machine.

If you find a case we missed, please let us know and we will be happy to add it to this list.

State v. Larkin, 23 Fla. L. Weekly Supp. 271b (Hillsborough Cty. Ct. 2015) – The defendant was arrested for DUI and filed a motion to suppress “because unapproved alcohol reference solutions were used in both the September 2013 department inspection as well as the monthly agency inspections” of the breath test machine. The court granted the motion, stating:

The State argues that FDLE was permitted to reanalyze the solution per the FDLE alcohol testing program procedures manual, the defense on the other hand argues that the promulgated rule (11D-8.0035) prohibits re-analysis. The issue is resolved by the FDLE procedures manual. On page 2 of the FDLE alcohol testing program manual, it states that the purpose of the manual “is to document the procedures of the Florida Department of Law Enforcement alcohol testing program. It is not intended to supersede, and when in conflict, is subordinate to, information and processes in the Florida Statutes, Florida Administrative Code, or FDLE policies and procedures”. Since FDLE 11D-8.0035 requires all results to fall within acceptable range, this court finds that the promulgated rule and section 2.14 of the FDLE alcohol testing program procedures manual to be in conflict and therefore section 2.14 is subordinate to the promulgated rule (11D-8.0035) and therefore, retesting is not permitted since 11D-8.0035 requires all of the results must fall within acceptable range.

The lot at issue was not properly approved, and the use of the non-approved solutions during the department inspections rendered the results inadmissible.

The court further stated that “[s]ince the State made no argument for substantial compliance, this court need not make any ultimate legal findings on this point of law. But, since the State is seeking further appellate review, it should be noted that (Thirteenth Circuit courts) found that the doctrine of substantial compliance did not apply to FDLE or rule 11D-8.0035. Had the State argued this point during the hearing, the court would have rejected the State’s position.”

The court also stated that a Brady violation had probably occurred, but “by granting the motion to suppress for violating FDLE Rule 11D-8.0035, the court does not have to go any further on this issue as it has been rendered moot.”

State v. Brink, 20 Fla. L. Weekly Supp. 772a (Fla. 17th Cir. Ct. 2013) – The circuit court, sitting in its appellate capacity, affirmed the lower this granting of the defendant’s motion to suppress evidence related to breathalyzer testing in this driving under the influence case, holding that there was no error in granting the motion to suppress where the trial court, after hearing conflicting evidence regarding inspection of Intoxilyzers, found that fraudulent practices and intentional systematic destruction of evidence occurred when “plug pulls” (a loss of power to the machine, causing it to lose data) erased data from failed inspections, and holding that the finding was supported by competent, substantial evidence. See also State of Florida v. Medina, Case No. 09-78AC10A [18 Fla. L. Weekly Supp. 170a].

State v. Hoover, 20 Fla. L. Weekly Supp. 776a (Fla. 17th Cir. Ct. 2013) – The circuit court, sitting in its appellate capacity, affirmed the lower court’s granting of the defendant’s motion to suppress evidence related to breathalyzer testing in this driving under the influence case, holding that it was not an abuse of discretion to suppress breath test results based on a lack of substantial compliance with the rules governing Intoxilyzer 8000 (the breathalyzer testing machine used) inspections, where the rules require that inspectors rinse their own mouths with alcohol before blowing into the machine. In this case, the inspector rubbed alcohol on her own lips and gums before testing the machine, and did not rinse with the solution; this was the only inspector known to use this technique.

State v. Ikramelahai, 20 Fla. L. Weekly Supp. 772b (Fla. 17th Cir. Ct. 2013) – The circuit court, sitting in its appellate capacity, affirmed the lower this granting of the defendant’s motion to suppress evidence related to breathalyzer testing in driving under the influence case, holding that there was no error in granting the motion to suppress where the trial court, after hearing conflicting evidence regarding inspection of Intoxilyzers, found that fraudulent practices and intentional systematic destruction of evidence occurred when “plug pulls” (a loss of power to the machine, causing it to lose data) erased data from failed inspections, and holding that the finding was supported by competent, substantial evidence.

State v. Viera, 20 Fla. L. Weekly Supp. 773a (Fla. 17th Cir. Ct. 2013) – The circuit court, sitting in its appellate capacity, affirmed the lower court’s granting of the defendant’s motion to suppress evidence related to breathalyzer testing in driving under the influence case, holding that there was no error in granting the motion to suppress where the trial court, after hearing conflicting evidence regarding inspection of Intoxilyzers, found that fraudulent practices and intentional systematic destruction of evidence occurred when “plug pulls” (a loss of power to the machine, causing it to lose data) erased data from failed inspections, and holding that the finding was supported by competent, substantial evidence.

State v. Hoover, 20 Fla. L. Weekly Supp. 776a (Fla. 17th Cir. Ct. 2013) – The circuit court, sitting in its appellate capacity, affirmed the lower court’s granting of the defendant’s motion to suppress evidence related to breathalyzer testing in this driving under the influence case, holding that it was not an abuse of discretion to suppress breath test results based on a lack of substantial compliance with the rules governing Intoxilyzer 8000 (the breathalyzer testing machine used) inspections, where the rules require that inspectors rinse their own mouths with alcohol before blowing into the machine. In this case, the inspector rubbed alcohol on her own lips and gums before testing the machine, and did not rinse with the solution; this was the only inspector known to use this technique.

State v. Osorio, 19 Fla. L. Weekly Supp. 734 (May 18, 2012, 7th Judicial Circuit) – During the first inspection the Agency Inspector performed on this Intoxilyzer 8000 breath test machine, he testified he took too long and the intoxilyzer timed out. A second inspection was done and during this attempt, the Inspector believes he used too much mouth alcohol causing the machine to reflect “slope not met” causing the Inspector to abort this second test and start a third one. During the third test, that was aborted by the inspector due to the possibility that a radio frequency interferent would be detected in the room. Finally, a fourth inspection was started which resulted in a successful inspection. During these four attempts, the inspector did not contact the FDLE Department Inspector or record the reasons for the non-compliant rest results in the remark section of Form 40 as required. The Court ruled that since the machine was never taken out of service as required by Form 39, the department inspector was never contacted as required by the rules, and the remarks were not recorded on Form 40 as required by the rules the machine was not in substantial compliance. As this cases show, multiple compounded deviations from the procedures set forth by the Administrative Rules cause the Intoxilyzer 8000 machine to not be in substantial compliance.

Bruns v. State, 15 Fla. L. Weekly Supp. 958b (August 14, 2008, 8th Judicial Circuit). The machine in question was inspected on January 23 and did not pass the simulator test. During the retest, the machine failed again. The Intoxilyzer 8000 breath test machine was not removed from service according to Form 39 and was instead tested again on January 24. During this test, the intoxilyzer failed both the initial and retest. The machine was again left in service. Two days later, the testing procedure was performed again and the test completed successfully. The machine was never removed from service before the subject provided a breath sample and the Court ruled that because the agency deviated from the requirements of Form 39 the breath machine was not in substantial compliance.

State v. Reich, 13 Fla. L. Weekly Supp 631a (January 9, 2006, 16th Judicial Circuit). During the hearing, the Defendant presented evidence that the reading during the February 2004 agency inspection was out of the acceptable range. This was not noticed by the maintenance witness and no corrective action was taken—the machine was not removed from service. The State argued that even with this out of tolerance on the .08 test, the machine was in range on the .05 and .20 test. The State also argued that subsequent inspections were within tolerance. The Court disagreed and stated that substantial compliance means unequivocally that instrument passes all of the tests which it did not. Additionally, the following problems were found:

  • the mouth alcohol test run in December 2004 produced an incorrect result—giving an actual reading instead of detecting alcohol presence;
  • the January 2005 alcohol free acetone test provided an error of “unable to obtain stable reference” with no credible explanation from the technician;
  • the radio frequency interference tests were conducted improperly.

As a result, the Court ruled that the State could not meet its burden of demonstrating substantial compliance and the breath test results were excluded from the trial.

State v. Stephenson, 13 Fla. L. Weekly Supp. 797c (April 28, 2006, 16th Judicial Circuit). The Intoxilyzer 8000 machine in this case presented an “out of tolerance” reading of .086 during the February 2004 agency inspection. The agency inspector did not take any corrective action and FDLE later discovered error and informed the inspector. The Court ruled that this reading is per se failure. The State attempted to argue that the other tests performed on that inspection were within range and the inspections in subsequent months were within tolerance so there was substantial compliance. The Court disagreed and found that Deputy’s inability to remember possible explanations for the results and any steps he took to correction the problems show a lack of substantial compliance. So in that case, the breath test reading was suppressed because the State did not meet their burden of demonstrating substantial compliance given the number of irregularities and the lack of correction or maintenance of the machine.

State v. Wright, 14 Fla. L. Weekly Supp. 167c (December 15, 2006, 7th Judicial Circuit). During the April monthly inspection, the Intoxilyzer 8000 used in that case did not detect acetone in any of the test solutions, even after the inspector submitted the solution a second time (thereby doing two tests). The inspector did not include any comments in the remarks portion of Form 40 to explain any reasoning for this abnormality. The inspector informed the State Attorney’s office that he did not know why the machine did not detect the acetone, and immediately began another test—which was normal. Another test was done a month later which was also normal. The Court pointed out that the substantial compliance rules dictate that if a check or test is repeated, the reason for that repeat must be entered when prompted and recorded on the Form 40-which was not done on the first or second test. The Court also pointed out that if the machine does not comply, the inspector is required to remove the instrument from service and notify the Department inspector, which was not done in this case. The Court found the machine not to be in substantial compliance based on the April test being repeated and then restarted (in violation of the rule that the test can only be repeated once), the fact that the machine was not taken out of service after it failed to comply, and the fact that the inspector did not know why the machine was malfunctioning and failed to indicate a reason on Form 40.

State v. McGrath, 9 Fla. L. Weekly Supp. 631b (July 17, 2002, 14th Judicial Circuit) The Intoxilyzer 8000 in that case emitted high and low tones during breath test of the subject. The defense expert testified this was an indication of a malfunction of the instrument. Inspections were done in August 2001, September 2001, October 2001, November 2001, and December 2001. During each inspection, the printer was not functioning properly and the print cards had numerous errors. According to FDLE Form 16, print cards must be legible. Experts testified that printer problems may result from malfunction of the test instrument’s microprocessor or computer functions. The prosecution argued that because the instrument’s test results fell within acceptable ranges, this problem went to the weight rather than admissibility of the breath test reading. The court disagreed and found that numerous problems render the test results in the case unreliable.

If you are charged with a DUI case involving a breath test reading over .08 in Tampa, FL, or the surrounding counties in Tampa Bay, then contact an experienced criminal defense attorney. Our Tampa DUI attorneys are experienced in fighting DUBAL (driving with unlawful BAC level) cases in Hillsborough County and the surrounding counties of Hernando County, Pasco County, Manatee County and Polk County, FL.

Call 813-250-0500 to discuss your DUI BAC case today.

Statistics on Administrative Suspensions in 2015

Administrative Suspensions 2016 DHSMV Bureau of Administrative Reviews Michael G. Blain

Recent statistics from the Bureau of Administrative Review Office shows that for all of the administrative suspensions invalidated in 2015, the hearing officers gave the following reasons listed in order by percentage:

  • No .02 Agreement on the Intoxilyzer Breathalyzer Test -.05%
  • No Probable Cause Under 21 – .17%
  • Refusal Affidavit Not Attested To -.98%
  • No or Improper Implied Consent Warnings – 4.4%
  • The Driver Did Not Refuse – 4.4%
  • Missing or Illegible Documents – 4.9%
  • No Physical Control – 4.9%
  • The Officer Didn’t Attest to the Probable Cause Statement – 5.5%
  • No Valid Breath Test – 5.6%
  • Conflicting Evidence – 6.3%
  • Invalid Stop – 6.4%
  • The Breath Test Operator Fails to Appear at the Formal Review Hearing – 7.9%
  • No DUI Packet Received by the BAR before the Review Hearing – 10.8%
  • The Arresting Officers Fails to Appear at the Formal Review Hearing – 32.7%

I ended up getting this information after reading an article in the FACDL’s Florida Defender Publication. The article was about seminars being conducted by the DHSMV to train DUI enforcement officers on ways to avoid the invalidation of the administrative suspension. I wanted to know if these training sessions were occurring in Hillsborough County, FL.

For those of us who regularly attend these hearings – what could be better than reading the training material?

After making the public record request from the BAR in Tampa, I learned the local HSMV Field Supervisor conducted “The Administrative Suspension 2016” training at the HCSO Falkenburg Jail location on September 28, 2016. More than 40 officers with the Hillsborough County Sheriff’s Office attended the training. Many of them were DUI enforcement officers.

The material promoting the “Administrative Suspension Training for Law Enforcement Officers” promised to cover the following topic:

  • administrative suspensions under Florida Statute Section 322.2616
  • administrative suspensions under Florida Statute Section 322.2616 (zero tolerance)
  • probable cause affidavits
  • refusals
  • invalidations
  • case law

The handout promoting the training promised to provide “statistics for your area and agency.” This handout indicates to me that the DHSMV keeps statistics for each area and agency (and possibility each hearing officer).

I’ve made another public record request to see the statistics they keep for the number or type of notice of suspension issued under 322.2615 and 322.1615 (hereinafter referred to as “administrative suspension”) for 2015.

I’d also like to see the statistics for the administrative suspensions for each area, agency and hearing officer including a breakdown of the reason for the invalidation. How many of those sustained suspensions involved a formal review hearing vs. an informal review hearing vs. a waiver review hearing?

It looks like the purpose of the training sessions is to help law enforcement officers, breath test operators, and agency inspectors avoid the most common reason for suspensions being invalidated.

In fact, the training materials even disclose a 95.3% sustain rate for administrative suspensions under Section 322.2615 (for adults requested to submit to testing) and a 90.3% percent rate for administrative suspensions under Section 322.2616 (related to individuals under age 21 years old).

Those numbers are really skewed because most of those people requested a hearing without an attorney or any plan to contest the suspension. For experienced DUI defense attorneys in Florida, the rate of getting an administrative suspension invalidated is much higher.

How the Training Material Can Help DUI Defense Attorneys

What can DUI defense attorneys learn from the training material? The material actually shows you what to look for and what arguments to make during the formal review hearing. The hearing officer is given a number of choices for their reason to invalidate.

It looks like they are receiving the same type of training as the officers – find a way to uphold the suspension so the sustain rate is even higher. Knowing those reasons used by the hearing officer and how frequently they occur is extremely informative for DUI defense attorneys.

If you have never done a formal review hearing before, this material is a MUST read because it contains the best issues to look for and the best arguments to make when you find those issues.

The Statistics on 2015 Administrative Suspensions – Sustained Rates

The statistics in 2015 show there were 34,449 administrative suspensions in 2015. That number seems a little high since other statistics show there were 31,783 DUI arrests in Florida in 2015 (see FDLE Annual 2015 Florida uniform crime report).

Out of those, 32,848 administrative suspensions were sustained. Therefore the percentage of sustained suspensions was 95.3%. These statistics are really misleading because most of these “sustained” suspensions were completely uncontested by an attorney.

In 2015, there were only 393 administrative suspensions under §322.2616 for drivers under the age of 21. Of those, 355 were sustained. That is a 90.3% suspension rate. Keep in mind that the vast majority of those suspensions went uncontested by an attorney.

In 2015, the DHSMV reported 468 administrative disqualifications under §322.64 for commercial drivers. Out of those, 438 disqualifications were sustained which equals a 93.5% rate of sustained suspensions. Most of those disqualifications were uncontested.

For my clients, I always recommend filing for a formal review hearing within the first 10 days of the arrest and contesting the suspension or disqualification.

The training materials then ask:

While sustain rates of 95% and 90% are good and indicative of the fine work you are doing, how many of you would like to see those numbers even higher?…. Let’s look at the reasons for those invalidations and what might be done to reduce the number that are invalidated.

Reasons Suspensions are Invalidated

The following “reasons for invalidation” are in descending order by percentage:

  1. The Arresting Officers Fails to Appear at the Formal Review Hearing
    • The arresting officer not showing up to the formal review hearing is the main reason that the suspension is invalidated.
    • In fact, 32.7% of the invalidations occurred for this reason.
    • Additionally, if you combine the number of invalidations for the failure to appear of either the arresting officer or the breath test operator, that number jumps to 40.6%.
    • The BAR suggested the following remedies for this problem:
      • Show up
      • Properly served subpoena – Designated departmental recipient (Court Liaison)
      • Find the BAR email address and telephone number on subpoena to request a continuance
      • Understand the difference between the request for continuance vs. the failure to appear
        • Requests to continue must be made prior to closing the hearing
        • Just cause
          • Not childcare, tired, or going fishing
  2. No DUI Packet
    • The BAR not receiving the DUI packet in time accounts for 187 suspensions being invalidated which is 10.8%.
    • To avoid this problem the BAR suggested to officers and their agencies:
      • The agency should deliver the packet to the Department within 5 days following the issuance of the notice of suspension
      • Deliver ASAP – See Florida Statute Section 322.26151
  3. The Breath Test Operator Fails to Appear at the Formal Review Hearing
    • The breath test operator’s failure to appear accounted for 138 invalidations or 7.9%
    • Skewed – only applies to DUBALS
    • The DHSMV suggested the following ways to avoid a suspension for this reasons:
      • Show up
      • Properly served subpoena – Designated departmental recipient (Court Liaison)
      • Do not list the breath test operator on the probable cause affidavit if they played no role in the case
      • Use the BAR email address to request a continuance
  4. Invalid Stop
    • An invalid stop accounted for 111 or 6.4% of the invalidated suspensions
    • The DHSMV suggests the following ways to avoid that result:
      • Ensure reason for stop by listing how you came into contact with the driver on the probable cause affidavit
      • Explain the driving pattern, concern for well being, speeding….
      • How determined Roberts case law
  5. Conflicting Evidence
    • Convicting evidence accounts for 109 of the suspensions or 6.3%
    • Ways to avoid a suspension being invalidated for this reason include:
      • Review documentation prior to testimony
  6. No Valid Breath Test
    • Not having a valid breath test accounted for 97 or 5.6% of the invalidated suspensions
    • The DMV suggested ways to avoid invalidating the suspension including:
      • Comply with Rule 11D-8
      • Two samples within fifteen minutes within a .02 tolerance
      • 20 minute observation
        • List who conducted the observation (entirely?)
  7. The Officer Didn’t Attest to the Probable Cause Statement
      • The DMV suggests that the probable cause affidavit not being attested to accounted for 96 or 5.5% of the suspensions invalidated
      • The DMV suggested the following ways to avoid the suspension being invalidated including:
        • Ensure copies are made after attestation
        • Ensure legible copies
        • Ensure all sides are copied
      • [[Note from the author – Always look at the criminal report affidavit or any other document being used to show probable cause to make sure it is actually attested to by a notary or signed by another officer that indicates that he or she personally knows the person making the report.  I can’t tell you how many times we see this issue, especially when the arresting officer is a trooper with the Florida Highway Patrol. See Johnston, 553 So. 2d 730 (discussing the requirement for “strict compliance” with the affidavit requirement)]]
  8. No Physical Control
    • The DMV statistics show that 86 or 4.9% suspensions were invalidated because of a lack of evidence of driving or actual physical control
    • The DMV suggested was to avoid the suspension being invalidated for these reasons:
      • How were they placed behind the wheel
      • Fellow Officer Rule
      • Supplemental reports
      • Crash investigation/report
  9. Missing or Illegible Documents
    • The DMV shows that 85 or 4.9% of the suspensions were invalidated because of missing or illegible documents:
      1. Ensure copies are legible
      2. Ensure both sides are copied
  10. Did Not Refuse
    • The 2015 statistics show that 76 or 4.4% suspensions were invalidated because the subject did not refuse
    • The DMV suggested the following ways to avoid a suspension on this basis:
      • How was refusal determined?
        • Stated?
        • Manipulated the system/equipment
        • “Could” not provide a sample
      • Recanted Reasons For Invalidations
  11. No or Improper Implied Consent Warnings
    • 76 of the invalidated suspensions of  4.4% were because of no implied consent warning or an improper implied consent warning
    • The DMV suggested the following ways to avoid an invalidated suspension for this reason:
      • Include the Implied Consent Warning in the packet
      • Include the Refusal Affidavit
      • Include the Disqualification Warning in the packet
  12. Refusal Affidavit Not Attested To
    • The statistics show that 17 or .98% of the suspensions are invalidated because the refusal affidavit are not attested to
    • The DMV suggested these ways to avoid that problem:
      • Ensure copies are made after attestation
      • Ensure legible copies
      • Ensure all sides are copied
  13. No Probable Cause Under 21
    • Three (3) of the suspensions or .17% of the suspensions were invalidated because no probable cause existed that the person was under 21
    • The DMV suggested ways to avoid this type of suspension including:
      • Scope for Section 322.2616
      • Including probable cause about how the officer knew the person was under 21
      • Ensure probable cause affidavit states how you knew
      • Zero Tolerance Notice of Suspension includes checkbox
  14. No .02 Agreement on the Intoxilyzer Breathalyzer Test
    • The statistics show that only 1 or .05% of the suspensions were invalidated because the breath test didn’t show a .02 agreement
    • Ways to avoid this type of suspension included:
      • Ensure reading is documented –If Intoxilizer is used Rule 11D-8 applies

Zero Tolerance Administrative Suspensions Under §322.2616

The training material asks: “Why so few? Let’s Compare and contrast 322.2615 with 322.2616.”

322.2615 Compared to 322.2616

  • Both are administrative actions
  • Both are roadside suspensions
  • Both are DUBAL or Refusal – .08 and .02 respectively
  • Both also allow for criminal charges
  • Florida Statue 322.2616 only applies to under 21
  • Florida Statue 322.2615 “Adult” applies to anyone
  • Florida Statue 322.2616 may use PBT
  • FDLE rules do not apply unless an Intoxilyzer is used
  • Florida Statue 322.2615 requires an evidentiary device so FDLE rules do apply

Florida Statute 322.2615 Contrasted with 322.2616

  • Florida Statue 322.2615 remains on the record for 75+ years
  • Florida Statue 322.2616 remains until 21
  • Florida Statue 322.2615 requires an arrest
  • Florida Statue 322.2616 is not considered an arrest – the driver may be  released to family

Driver’s Choices Within Ten Days of the Issuance of the Notice of Suspension

  • Formal Review – Evidentiary
  • Informal Review – Non-evidentiary
  • Review Waiver

Probable Cause Affidavit

  • What should be there:
    • Place the driver behind the wheel
    • Reasonable suspicion indicia provides probable cause
    • What should not:
      • Do not list the BTO if they played no role –possible subpoena/invalidation

Testimony at the Formal Review Hearing

  • BTO needs to know their certification dates
  • Agency Inspectors need to know their certification dates
  • Hearing Officer determines if questions are within the scope

Case Law – Let’s take a look at some case law

  • DHSMV vs. Brown, Respondent, 40 Fla. Law Weekly D2651 District Court of Appeal of Florida Third District [[explains why hearing officers are upholding suspensions when the affadavit is merely signed and not notarized – they are assuming that the signature is by another law enforcement officer who is authorized to administer oaths as explained in Gupton v. Dep’t of Highway Safety, 987 So. 2d 737, 738 (Fla. 5th DCA 2008) even though there is no way to know that from the four corners of the documents presented at the hearing).]]
  • DHSMV vs. Luttrell, Respondent, 983 So.2d 1215 District Court of Appeal of Florida Fifth District
  • DHSMV v. Fernandez, Respondent, 114 So.3d 266 District Court of Appeal of Florida Third District
  • DHSMV vs. Wiggins, Respondent, 151 So.3d 457 District Court of Appeal of Florida First District

sustained rates for the administrative suspension

The Moral of the Story

The Florida Supreme Court has recently voiced concerns about due process and fairness at these administrative suspensions hearings, specifically when the hearing officer is deciding the suspension under Florida Statute Section 322.2615.

In fact, the courts have noted concerns about:

  • whether drivers are being afforded reasonable notice and meaningful review of the lawfulness of the suspension;
  • whether non-lawyers serving as hearing officers under section 322.2615 results in “constitutional infirmity”
  • whether the hearing officer are really as impartial and neutral as the members of the judiciary are required to be; and
  • whether the frequency with which conscientious trial judges in Florida issue decisions that have the effect of providing more procedural safeguards to licensees in these revocation hearings suggests a continuing concern about the fairness of this statutory procedure.

This training material shows that the Florida Legislature should start over. If the driver requests a formal or informal review hearing, then judges should preside over those hearings but under no circumstances should a hearing officer be allowed to do so.

These training materials show that the hearing officers and their supervisors at the Bureau of Administrative Review (BAR) office have no intention of being impartial and neutral.

The officers at the Hillsborough County Sheriff’s Office certainly know that after receiving this training.

Electronic Warrants in Hillsborough County, Florida

Update on E-Warrants on August 19, 2016: 

Hillsborough’s New Electronic Warrants Should Speed Up Justice – During the week of August 15, 2016, the Hillsborough Circuit Court launched an e-warrant pilot program. The program allows the on-call judge to log on to a secure site and view a warrant right away – the moment that it is uploaded into the system.

In a violation of probation case, it means the judge can get an arrest warrant electronically processed so the person sitting across from clerk can be served with the warrant immediately. The e-warrant system in Hillsborough County is being launched as a pilot program. Only a small group of detectives from the Hillsborough County Sheriff’s Office will be using the new system, but eventually, every agency in the county will be able to use it.

At this time, the new pilot program is not available to Traffic Homicide Investigators requesting a search warrant for blood in a DUI with death or serious injury case in Hillsborough County, FL.

The rest of this article questions why electronic warrants sent by email are not being used in traffic homicide investigations for forced blood draws until the new pilot program is expanded county-wide.

Original Article on e-Signing the e-Warrant in Hillsborough County, FL

The United States Supreme Court in Missouri v. McNeely, 569 U. S. ___ (2013), considered whether exigent circumstances would exist for a DUI-related forced blood draw because of the technological “advances in the last 47 years since Schmerber was decided that allow for more expeditious processing of warrant applications.”

electronic e-warrant in florida and hillsborough county

Even before Fla. Stat. Ann. § 933.07 was amended in 2013 to expressly allow electronic warrants and electronic signatures in Florida, police officers in Palm Bay, expedited the warrant process by emailing an affidavit to the judge and then video conferencing with the judge via Skype. See Palm Bay Florida Police, Innovative Policing Creating a Safer Community (2011). Law enforcement officers acknowledged that the “process takes an average of less than thirty minutes in comparison to several hours it would have taken using traditional means.”

It is important to remember that the Florida legislature had already enacted the “Electronic Signature Act of 1996,” which specifically provides that “[u]nless otherwise prohibited by law, an electronic signature may be used to sign a writing and shall have the same force and effect as a written signature.” Section 668.004 (Fla. Stat. 2003) indicated a clear acceptance of this alternative signature form.

668.004 Force and effect of electronic signature.Unless otherwise provided by law, an electronic signature may be used to sign a writing and shall have the same force and effect as a written signature.

The Florida Supreme Court, in In re Amendments to the Rules of Judicial Administration-Rule 2.090, 681 So.2d 698, 700 (Fla. 1996), stated its intention to “cooperate with the Secretary of State in implementing any electronic signature processes and procedures in the court system.”

Most importantly, on July 1, 2013 (just a few months after the McNeely decision), legislation in Florida took effect which allowed:

  • officers in the field could e-sign the warrant application;
  • the signature could be sworn to by another officer at the scene;
  • judges could send and receive an e-warrant by any reliable electronic means (which would include e-mail); and
  • judges could e-sign the warrant;
  • the warrant became effective the moment it was e-signed by the judge.

After July 1, 2013, no jurisdiction in Florida can claim that electronic warrants don’t exist in their jurisdiction because it is expressly allowed under Florida law and much easier than the old fashion ways of getting a warrant.

Judges Can Sign an Electronic Warrant in Florida

As of July 1, 2013, the statute was amended so that Florida judges are expressly authorized to sign an electronic warrant (which includes a warrant send via e-mail or any other reliable electronic means).

As explained in 14A Fla. Jur. 2d Criminal Law – Procedure Section 717:

§ 933.07(3), Fla. Stat., as added effective July 1, 2013, provides that a judge may electronically sign a search warrant if the requirements of §§ 933.07(1), (2), Fla. Stat. are met and the judge, based on an examination of the application and proofs submitted, determines that the application: (§ 933.07(3), Fla. Stat.):

(a) Bears the affiant’s signature, or electronic signature if the application was submitted electronically. (§ 933.07(3)(a), Fla. Stat.).

(b) Is supported by an oath or affirmation administered by the judge or other person authorized by law to administer oaths. (§ 933.07(3)(b), Fla. Stat.).

(c) If submitted electronically, is submitted by reliable electronic means. (§ 933.07(3)(c), Fla. Stat.).

Florida Judges Can Attach an Electronic Signature to the Search Warrant

As of July 1, 2013, the statute was amended so that Florida Judges are expressly authorized to sign an electronic warrant with an electronic signature.  14A Fla. Jur. 2d Criminal Law – Procedure Section 717 explains that:

§ 933.07(4), Fla. Stat., as added effective July 1, 2013, provides that a search warrant shall be deemed to be issued by a judge at the time the judge affixes the judge’s signature or electronic signature to the warrant. Furthermore, it provides that the term “electronic signature” has the same meaning as provided in § 933.40, Fla. Stat.

The Definition of an Electronic Signature in Florida is Broad

What is an electronic signature? Well, when I file pleadings in criminal cases, instead of using a pen and ink to sign the document, I just type in “/s/____________” plus my name electronically. And that is all that is required for a judge attaching an electronic signature to an e-warrant in Florida.

The Florida Legislature created a broad definition to cover any electronic signature of a judge on a search warrant. For the electronic warrant statute in Florida, the definition of an electronic signature is set out in § 933.40, Fla. Stat., which provides:

(d) “Electronic signature” means any letters, characters, symbols, or process manifested by electronic or similar means and attached to or logically associated with a record and executed or adopted by a person with the intent to sign the record.

That definition for an electronic signature includes typing into the document “/s/_____________” followed by the judge’s name.

No Legitimate Reason to Drive the Warrant to the Judge’s House

Also, on July 1, 2015, the Florida Legislature created F.S. 117.10 which authorizes the affiant to be sworn in while at the crash scene and to add an electronic signature to the warrant application while still at the scene.

It is important to note that F.S. 117.10 expressly includes “traffic accident investigation officers and traffic infraction enforcement officers” as qualified to administer oaths when engaged in the performance of official duties.

One Officer Can Get the Warrant While Another Gets the Blood Drawn

Florida law does not require that the officer seeking the warrant must be the same officer that serves the warrant for the forced blood draw, especially when the officer that will serve the warrant is actually mentioned in the warrant.

So in a traffic homicide case, one officer needs to do the following:

  1. Draft the application and proposed warrant and mention the officer designated to actually serve the warrant by taking the Defendant for a forced blood draw;
  2. Attach an electronic signature to the application to be verified by another officer under F.S. 117.10;
  3. E-mail the warrant application and warrant to the judge;
  4. Be sworn in by the other officer prior to talking to the judge on the phone if the judge has any questions about the warrant; and
  5. Wait for the judge to e-mail back the warrant with either an e-signature or with pen and ink.

At the moment the judge attaches a signature or electronic signature the warrant is valid under § 933.07(3) and can be served by the affiant or another officer mentioned in the warrant.

This process is extreme effective because it often takes some time to transport the defendant to the facility where the blood will be drawn.

Electronic Warrants Existed in Hillsborough County Since July 1, 2013

As of July 1, 2013, the proper procedure for obtaining a warrant for a forced blood draw with probable cause that a person committed a DUI with serious bodily injury or death was to either drive to the judge’s house to get the warrant signed or to send the warrant to the duty judge by a reliable electronic means which would include e-mail.

It doesn’t matter whether the Thirteenth Judicial Circuit has an updated warrant procedure for all other types of warrants. Nothing prohibits a judge from reviewing an electronic warrant after hours via email in a case seeking a forced blood draw after a DUI death or serious bodily injury investigation.

After the McNeely decision, law enforcement agencies across the county quickly started using these simple technologies that required no technological competence on the part of the recipient beyond being able to open an email, and typing “/s/________.” It is also easy to use a program like DocuSign or Adobe to attach an e-signature.

Judges have the Technological Competence to E-Sign

The Bar Board of Governors, at its July 24 meeting in Coral Gables, approved an amendment to a comment in the Florida Bar Rules to explain that lawyers should have technological competence necessary to protect clients’ interests and necessary for their areas of practice. See Propose Bar Rule on Technological Competence.

Since electronic warrants are expressly authorized under Florida law, traffic homicide investigators, prosecutors who handle traffic homicide cases, and judges who are on jury duty after hours, should all have the technological competence necessary to send or receive an email and attach an electronic signature to a document since it is necessary for their area of practice.

For years, judges in Hillsborough County have been routinely attaching their electronic signature to all kinds of orders issued every day. No one can deny that judges possess the technological competence necessary to simply open the warrant in a Word document, type in “/s/_____________” followed by their name electronically to the document, save the document, and email it back to the sender.

Judges can also just print out a search warrant emailed to them, sign it with pen and ink, take a picture of it with their cell phone, and send the picture electronically back to the officer in the field.

If you think about it for a few minutes, it is easy to image a dozen different ways to use modern technologies to send a warrant electronically from one place to another with e-signatures attached to the final version.

Prosecutors Knew that Electronic Warrants Existed in Hillsborough County in 2013

The State Attorney’s Office in Hillsborough County (as well as the other State Attorney’s Offices throughout Florida) were certainly aware of these statutes and provisions and the Florida Legislature’s efforts to make electronic warrants available after Missouri v. McNeely.

Through several public record request, we have learned that on October 1, 2013, an Assistant State Attorney in the Thirteenth Judicial Circuit sent an email to the General Counsel for the Thirteenth Judicial Circuit, requesting that court administration officially set up formal procedures to recognize the new requirement that electronic warrants via email should be used in forced blood draws in DUI death or serious bodily injury case.

The email from the Assistant State Attorney provided:

Dave,

We would like to establish procedures that give law enforcement and judges the ability to electronically sign a search warrant. This will be helpful when a search warrant is needed quickly, and when the circumstances make it difficult for law enforcement to meet with the judge in a timely manner. We think that that revision to F.S. 933.07 would allow a procedure where the affiant could email the affidavit and search warrant to the judge, and the judge could question the affiant over the phone. The affiant could be placed under oath by a notary or, pursuant to F.S. 117.10, by another law enforcement officer. After being sworn by a qualified person, the judge could question the affiant to verify the affidavit and ask any questions the judge might have.

If we set up a procedure that everyone is comfortable with, we might be able to handle search warrants more quickly, efficiently and conveniently. My suggestion to law enforcement is that we initially try this on the DUI cases where they have been advised to seek search warrants in light of Missouri v. McNeely. If it works well and nobody has any legal concerns, we could expand it to the other cases.

We would need to iron out the details to comply with the statutory requirements, such as the method of providing an electronic signature, both by the affiant and the judge. One suggestion that has been made is that the duty judge have a secure laptop for this purpose. Please let me know what you think, and we are open to any suggestions.

Thanks,

Mike (Assistant State Attorney in Hillsborough County)

Although this email was sent on October 1, 2013, instead of just “ironing out the details,” the State Attorney’s Office now argues in court that electronic warrants do exist in Hillsborough County, FL. The State has to argue e-warrants don’t exist.  Otherwise, their claim of exigent circumstances would be even more absurd.

The only solution to this problem is for the State Attorney’s Office to help train law enforcement officers in the field to secure an e-warrant in a timely manner. Florida Highway Patrol will need the most help. The State Attorney’s Office should be encouraging these officers to send an electronic warrant for a forced blood draw via email to the judge in any DUI-related death or serious bodily injury case. It is time for the State Attorney’s Office to stop encouraging officers in the field from relying on an exigent circumstances exception in these types of case.

The State Attorney’s Office should be encouraging these officers to send an electronic warrant for a forced blood draw via email to the judge in any DUI-related death or serious bodily injury case. It is time for the State Attorney’s Office to stop encouraging officers in the field from relying on an exigent circumstances exception in these types of case.

When warrants aren’t used in a forced blood taking in Florida, the exclusionary rule will often lead to the suppression of the blood. The exclusionary rule is the only thing that encourages law enforcement officers in Traffic Homicide cases use the tools available to them. Traffic Homicide Investigator need to draft a template that they know how to use and have it ready for their next shift.

Are Judges in Your County in Florida e-Signing the e-Warrants?

So what about your jurisdiction?

Are traffic homicide investigators getting a search warrant the old-fashioned way by driving to the judge’s house after hours, getting an e-warrant, or manufacturing their best “exigent circumstances” argument?