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

After an arrest for DUI you have 10 days to protect your driver’s license. The driver has three options:

  1. do nothing;
  2. hire an attorney to request a formal review hearing to contest the suspension; or
  3. go to the DHSMV to request a waiver review hearing for immediate reinstatement of hardship privileges.

For most people facing a first DUI who can afford to hire an DUI defense attorney willing to fight the suspension, Option 2 is the best option. Option 2 involves fighting to invalidate the suspension in a formal review hearing.

Option 1 is the worst option.


Option 1: Do Nothing 

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

Read the citation carefully. The notice of suspension is contained on the citation and operates as the 10 day driving permit. After the 10 day permit expires, the 30 day hard suspension begins. During those 30 days the person cannot drive for any reason. On the 31st day after the arrest for DUI involving a breath test reading over .08, the person can apply for a hardship license at the Bureau of Administrative Review with proof of enrollment in DUI school. The hardship license last for the rest of the six month suspension.


Option 2: Demand a Formal Review Hearing

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As a criminal defense attorney, I see a lot of benefits to demanding the formal review hearing. Option 2 is the only option that gives the driver the ability to fight to invalidate the suspension. It is important to fight the administrative suspension because unless you get it invalidated, it will remain on your driving record forever. (Except in a breath test case, if you go to trial and obtain a “not guilty” verdict the DHSMV will remove the suspension from your driving record).

This notation on your driving record is an administrative finding that you were DUI. It remains on your driving record even if you win a not guilty verdict in a DUI refusal case or enter a plea to a lesser charge such as reckless driving.

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

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

If the arresting officer or breath test technician fails to appear at the formal review hearing than the suspension SHALL be invalidated. That means that any mention of DUI for the administrative suspension disappears off the driver’s record. You can then get a duplicate driver’s license and avoid paying any reinstatement fee. Other reasons for winning the hearing include insufficient evidence in the documents submitted to the hearing officer or inconsistencies in the evidence.

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


Option 3: Request a Waiver Review Hearing for Immediate Reinstatement

Request Waiver Review Hearing for Immediate Reinstatement

For a driver with no prior DUI cases, the driver can go to the Bureau of Administrative Review to file a Request for Eligibility Review Form.

The driver must personally appear within 10 calendar days. The driver must pay for DUI school during those 10 days. After paying the $25 fee for the hearing, the driver must pay hundreds of dollars for reinstatement.

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


The Rules are Complicated

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

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

Article last updated on Monday, July 6, 2015.

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

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

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

2. Reckless Driving.

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

You can refer to your local telephone directory yellow pages under “Driving Instructions” or “Traffic School” to locate a Driver Improvement school that teaches Basic Driver Improvement courses in your area. You can also take this course online by visiting http://www.flhsmv.gov/ddl/drivingcourses.html. When you enroll in the course let them know that you are registering for the class in order to comply with this requirement. The DHSMV will not accept out of state schools to meet this requirement.


Additional Resources:

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

The Corrupt DUI Investigation of a New Port Richey Detective

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

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

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

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

The DUI Cover Up and the Reveal

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

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

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

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

Official Findings Concerning the Administrative Review of Detective Christopher Denton

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

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

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

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

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

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

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

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

Allowing Resignation in Lieu of Termination

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

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

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

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

Formal Grievance Filed on Behalf of Detective Christopher Denton

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

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

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

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

Memorandum From Lieutenant Steven Kostas

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

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

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

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

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

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

Lieutenant Steven Kostas found that:

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

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

Conclusion

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

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

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

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

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

Christopher Denton DUI Text


Article Updated on May 23, 2015

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

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

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

Definition of “Business Purposes Only” Drivers License

Florida Driver License Business Purpose only

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

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

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

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

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

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

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

What about driving to the grocery store?

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

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


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


Additional Resources:

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

#UberOn in Hillsborough County, FL

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

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

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

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

EMAIL or CALL THE PTC TODAY

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

Original Article:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

The Rules for the Subpoena for Medical Records

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

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

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

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

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

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

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

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

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

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

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

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

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

What Might the Subpoena Require?

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

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

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

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

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

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

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

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

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

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

October 2014 DUI Arrests in Polk County

The Facebook picture had this message with it:

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

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

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

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

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

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

Rule 3.8. Special responsibilities of prosecutor.

A prosecutor in a criminal case shall:…

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

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

Those standards provide:

Standard 3-1.4 Public Statements

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

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

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

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

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

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

The Subpoena Duces Tecum at the Formal Review Hearing

The Bureau of Administrative Reviews (BAR) of the Florida DHSMV has been busy writing memorandums explaining their interpretation of the administrative rules and how the rules apply to the new telephonic hearings. Please leave a comment if you disagree with our strategy or use a different strategy.

Read the new rules carefully. It is not particularly difficult to comply with the rules. Although there is no set format for many of the notice requirements, we use this method:

  • File a notice in the criminal case that discloses each subpoena / subpoena duces tecum issued with a copy of each subpoena attached as an exhibit and mail a copy to the prosecutor. (You may be going back later to see the judge to enforcement the subpoena / subpoena duces tecum. The prosecutor must be notified of the subpoenas so filing a notice is just as easy).
  • Write a $5.00 witness compensation check to the witness and attach the check to the subpoena. (If you are serving a subpoena duces tecum on the witness then include a second check to cover the copy costs).
  • Have your process server serve the subpoena / subpoena duces tecum and check(s) on each witness;
  • Make sure the process server provides you with proof of service prior to the hearing that references:
    • date and time of service;
    • the name of the person served;
    • a certification of service by the person who served the subpoena;
    • proof of payment of witness compensation pursuant to Chapter 92, F.S. (a copy of the $5.00 check); and
    • proof of payment of any other check intended to cover copy costs for a subpoena duces tecum.

How do you make arrangements to pay any costs to obtain subpoena duces tecum items, manuals, cumbersome items or DVDs from the law enforcement agency?

It might be a good idea to send a separate check with the subpoena for the anticipated costs and a formal request for the items. If you are requesting the DUI video, then you could include a blank DVD.

Then if the items are not provided to you before the hearing, move to continue the hearing with a temporary permit to enforce the subpoena. You can file the motion to enforce the subpoena in front of the judge that has the criminal case. You can use the request and check for the reasonable copy costs to prove that you complied with the rules.


Viewing the DUI Video at the Telephonic Formal Review Hearing

So what does the memo mean when it says: “If the video is to be viewed at the hearing, all parties must have the ability to view the video at the time of the hearing in their respective offices.” How is that suppose to happen in a telephonic hearing?

In a memorandum circulated to law enforcement for formal review hearings in Monroe County, FL, it provides that the “video will need to be submitted to the hearing officer and to petitioner/petitioner’s attorney by hand delivery or mail at least one hour prior to the hearing. (Note: These are the same procedures as in the past.)”

The Monroe County memo also provided: “Everyone will be allowed to view the video at the same time by logging onto the department approved website (WebEx). The link to the website will be sent to the individual’s email. The hearing officer will advise all parties when to join the WebEx. Please check with your agency to make sure this website is NOT blocked. https://suncom.webex [dot] com.”

The memo also provides: “The witness will need to have access to a system where they can retrieve their email and log onto the Internet. It is very important to notify the hearing officer of your e-mail address once you have been issued a subpoena for the hearing.”

So if you serve a subpoena duces tecum for the DUI video, object to a procedural due process violation if you do not receive a copy of the video in advance of the hearing. Alternatively, you can ask the hearing officer to play the video during the hearing and object to due process if you, the witness, and the hearing officer are not all able to view the video at the same time.


Memorandums Circulated in the Tampa Bay Area 

The memorandums circulated for cases in Manatee County, Hardee County, and Pasco County provide:


State of Florida
Department of Highway Safety and Motor Vehicles
Bureau of Administrative Reviews


GENERAL INFORMATION
SUBPOENA / SUBPOENA DUCES TECUM


Subpoenas are issued for the officers and witnesses identified in documents pursuant to sections 322.2615(2), 322.64(2) and 322.2616(3), Florida Statutes, and pursuant to R. 15A-6.012, F.A.C. If a subpoena duces tecum is requested, it shall be described with particularity and specificity any materials to be produced and the relevancy of such materials pursuant to R. 15A-6.012(1), F.A.C.

Pursuant to section 92.142, Florida Statute, witness fees are $5.00 per day plus 6 cents per mile round trip. Section 112.061(7)(a)(d), Florida Statutes, allows public officers, employees and authorized personnel 44.5 cents a mile whenever travel is by privately owned vehicles. Subpoenas should be served pursuant to section 48.031, 92.141 and 92.142, Florida Statutes.

Written notice, including a copy of the subpoena, must be provided to the individual Assistant Sate Attorney assigned to the DUI case, or the appropriate state attorney’s office if no prosecutor has been assigned to the DUI case pursuant to R. 15A-6.012(5), F.A.C.

Proof of service must include: date and time of service; payment of witness fee; names of person who accepted service; certification of service by the person who served the subpoena; and written notice to the appropriate state attorney’s office. See, R. 15A-6.012(4), F.A.C.

Subpoena duces tecum items for formal reviews, other than what the officer submitted pursuant to sections 322.2615, 322.2616, and 322.64 to the Bureau of Administrative Reviews office prior to the hearing, will need to be submitted to the hearing officer prior to or brought to the hearing.

A copy of the subpoenaed item(s) can be delivered, mailed, or faxed to the hearing officer at least one hour prior to the hearing date and time unless brought to the hearing in person. The petitioner or petitioner’s attorney will need to make arrangements to pay any costs to obtain subpoena duces mecum items, manuals, cumbersome items or DVDs from the law enforcement agency. Discovery subpoenas will not be issued.

Videos are to be copied to a DVD and certified as a true and correct copy by the law enforcement agency, prior to it being submitted to the hearing officer. If the video is to be viewed at the hearing, all parties must have the ability to view the video at the time of the hearing in their respective offices.

(REV 10/11)


Additional Resources:

Read more about the new procedures for telephonic formal review hearings.

Subpoena Duces Tecum Bureau of Administrative Reviews Rules


SUBPOENA/SUBPOENA DUCES TECUM

STATE OF FLORIDA
DEPARTMENT OF HIGHWAY SAFETY AND MOTOR VEHICLES
BUREAU OF ADMINISTRATIVE REVIEWS

ADMINISTRATIVE SUSPENSION CASE NO.: Citation Number

IN RE.:     Driver/Petitioner Name        DRIVER LICENSE NO.: DL #

TO:         Witness Name
Agency and Address

YOU ARE SUMMONED TO APPEAR BY TELEPHONE BEFORE A HEARING OFFICER AT:

DATE:                                                   TIME:

LOCATION: REPORT TO A DUTY STATION WHERE YOU CAN BE SWORN IN BY A FELLOW OFFICER OR NOTARY PUBLIC

TELEPHONE: B.A.R. Office Number and Office Email

and bring with you the following:

You will need to call the telephone number above at least one hour prior to the hearing to confirm out appearance and to leave a call back number for your testimony. Telephone numbers provided must be landline numbers; cellular telephone numbers are not acceptable.

A copy of the subpoena duces tecum items will need to be submitted to the hearing officer by hand delivery, mail, or fax at least one hour prior to the hearing time and date if the witness is appearing by telephone. The petitioner or the petitioner’s attorney will need to make arrangements and pay any costs to obtain subpoena duces tecum items, manuals, cumbersome items or DVDs from the law enforcement agency. Videos are to be copied to a DVD and certified as a true and correct copy by the law enforcement agency prior to being submitted to the hearing officer.

WITNESS my hand and seal of the Department this ____ day of ______________, 2014.

DEPARTMENT OF HIGHWAY SAFETY AND MOTOR VEHICLES
BY:     ___________________, Hearing Officer

Only the Hearing Officer may release you from this subpoena. Inquires regarding your obligations under this subpoena may be directed to the supervisor or designee of the Bureau of Administrative Review office.

Subpoena requested by: Petitioner / Petitioner’s Attorney

NOTICE:      ANY ALTERATIONS TO THIS SUBPOENA WILL RENDER IT NULL AND VOID.

Pursuant to the provisions of the Americans with Disabilities Act, any person requiring special accommodations to participate in the proceedings please contact the Hearing Officer at the address and telephone number above at least seven days before the scheduled hearings.

subpoena duces tecum formal review hearing by telephone


Hello? New Procedures for Formal Review Hearings by Telephone

We just received the following memorandum from the Bureau of Administrative Reviews (BAR) of the Florida Department of Highway Safety and Motor Vehicle (DHSMV). The BAR is quickly rolling out telephone conferences across the state.

Witnesses will be testifying by phone, at least in certain offices including Pasco County, Manatee County, and Hardee County, FL.

Hopefully, these new procedures will result in more attorneys requesting formal review hearings, serving subpoenas on all of the witnesses (unless an essential element is missing from the packet), and obtaining a subpoena duces tecum for the DUI video, Intoxilyzer records and other documents necessary for the defense of the case.

The chaos that results during these transitions often gives the petitioner a big advantage.

Can someone explain to me how the petitioner is going to get the items listed in the subpoena duces tecum? How will the petitioner submit exhibits into the record?

Criminal defense attorneys that focus on DUI cases will have to quickly adjust their strategies to maintain every advantage getting the administrative suspensions invalidated while still preserving the testimony of the witnesses. More writs will be filed with the Circuit Court.

So make sure you review the new rules carefully and get those subpoenas served.


Bureau of Administrative Reviews

TO: Counsel for the Petitioner
FROM: Cindy VanDunk, HSMV Field Supervisor
Date: October 17, 2014
RE: New Telephone Formal Procedures

Effective immediately this office will no longer be holding formal review hearings at the following locations:

  • [PASCO COUNTY] Pasco County Tax Collector, 4720 U.S. Highway 19 North, New Port Richey
  • [HARDEE COUNTY] Hardee County Tax Collector, 110 W. Oak Street, Suite 102, Wauchula
  • [MANATEE COUNTY] Judicial Center, 8th Floor/Room 8032, 1051 Manatee Ave W., Bradenton

All formal review hearings at those locations will be held telephonically. When requesting a formal review hearing, please include a phone number for the hearing officer to call you.

Witnesses will also be appearing by phone. Attached is a copy of the subpoena format for telephonic hearings. Please begin using this format immediately. If a subpoena is received that is not the correct format, it will be returned to you unsigned.

We hope to make this transition as easy as possible. If you have questions, feel free to contact me at 727-507-4405.

Telephone Formal Review Hearings in DUI Cases in Florida

Read more about the rules for obtaining and serving the subpoena / subpoena duces tecum for the formal review hearing.

New Procedures for Getting DUI Videos from Florida Highway Patrol

It has always been difficult to get the DUI arrest videos from the Florida Highway Patrol. In many of these cases the defense attorney ends up filing a motion to compel the prosecutor to provide the video. The court then orders the prosecutor to provide the video within a certain number of days or face a sanction (including the exclusion of certain evidence from trial).

Alternatively, the defense attorney can contact the Florida Highway Patrol directly. The old procedure was to provide a blank DVD or CD media to the FHP, with the request and a SASE. The fact that the prosecutors have problems getting the video in a timely manner also explains why defense attorneys often face the same problem.

Under the new procedure just announced by the Troop C – Pinellas Park District of FHP, they are no longer accepting a blank DVD or CD media for security reasons. You can make the request in writing and mail the request to the Senior Clerk in the Records & Court Liaison department. You can also send the request for the DUI video via email or fax.

Once the video has been completed, the Senor Clerk will send an invoice showing the charge for processing. The charge for processing of videos is $3.48 per a quarter hour (15 minutes). The first half-hour is free. There also will be a charge for the blank media, postage, and mailing materials used to complete the request.

Good luck!

Is a DUI in Florida a Misdemeanor or a Felony?

Although the vast majority of DUI cases are charged as a misdemeanor, the answer to that question ultimately depends on a host of factors. In fact, we have counted at least 15 different ways that a DUI could be charged.

Below is a quick summary of the statutory maximum penalties allowed under Florida law for different types of DUI charges.

Different types of misdemeanor DUI charges:

  • First DUI – a misdemeanor with a maximum of 6 months in jail.
  • DUI with a child in the vehicle – a misdemeanor with a maximum of 9 months in jail.
  • DUI with a breath or blood alcohol concentration (BAC) over .15 – a misdemeanor with a maximum of 9 months in jail.
  • Second DUI outside of five years – a misdemeanor with a maximum of 9 months in jail.
  • Second DUI within five years – a second DUI within five years of a prior conviction is a misdemeanor with a maximum of 9 months in jail.
    • (unless it is also proven that the BAC is over .15 or a child was in the car – then the maximum is 12 months in jail).
  • DUI with property damage (or non-serious personal injury) – a first degree misdemeanor with a maximum of 12 months in jail.
  • Third DUI outside of 10 years – a misdemeanor with a maximum of 12 months in jail.

Different types of felony DUI charges in Florida:

  • Third DUI within 10 years – a third DUI can be charged as a felony if the third DUI arrest is within 10 years of any prior DUI conviction. A third DUI within 10 years of a prior is a third degree felony punishable by up to five years in prison.
  • Fourth or Subsequent DUI – any fourth DUI can be charged as a third degree felony punishable by up to five years in prison.
  • DUI with Serious Bodily Injury – a third degree felony with a maximum of five years in prison.
  • DUI Manslaughter – a second degree felony with a maximum of 15 years in prison.
  • DUI Manslaughter / Leaving the Scene – a first degree felony with a maximum of 30 years in prison.
  • Vehicular Homicide – a second degree felony with a maximum of 15 years in prison.
  • Vehicular Homicide / Leaving the Scene – a first degree felony with a maximum of 30 years in prison.

Florida DUI Penalties – Visit the website for the Florida Department of Highway Safety and Motor Vehicles (DHSMV) to learn more about the statutory maximum and mandatory minimum penalties for different types of DUI charges.

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