It’s Back – “Lawfulness of the DUI Arrest” Again an Issue at the DHSMV Administrative Review Hearing

After a DUI arrest in Florida the driver can request a formal or informal review hearing to contest the administrative suspension of the driver’s license. That administrative suspension can range from 6 months to 18 months. The hard suspension (no driving for any reason) that can range from 30 days to 18 months.

The administrative review hearing is one of the most important parts of the case. Since last summer the hearing officers have once again started considering the lawfulness of the arrest as an issue that can be raised during the hearing. But recently the hearing officers have starting saying that the “lawfulness of the arrest” is only an issue in a refusal case and will not be considered in DUBAL case (a case involving a breath or blood test).

Why the distinction? Kathy A. Jimenez-Morales, Chief of the Bureau of Administrative Reviews with the Florida Department of Highway Safety and Motor Vehicles (DHSMV) just released a memo dated March 23, 2012, which directs hearing officers to NOT determine the lawfulness of an arrest in DUBAL case. The term DUBAL is defined as a DUI cases that involves an allegation of an unlawful blood or breath alcohol level.

As you all know, since the Florida Supreme Court’s decision in DHSMV v. Hernandez [36 Fla. L. Weekly S243 (Fla. Jun 9, 2011)], you have been deciding whether the DUI arrest was lawful in both refusal and DUBAL (driving with an unlawful breath alcohol level) cases that come before you. As you also know, the Supreme Court in Hernandez held that hearing officers had to determine the lawfulness of the arrest in order to uphold a valid refusal in refusal cases because the implied consent warning is implicated. The Court did not however decide whether the hearing officers should also determine the lawfulness of the arrest in DUBAL cases, even though that question was expressly asked in the Department’s Motion for Clarification.

In 2009, the Second District Court of Appeals in [DHSMV v. Escobio, 6 So.3d 638 (2d DCA 2009)] held that the implied consent warning is not implicated in DUBAL cases. No other District Court has ruled otherwise, and Escobio is therefore binding precedent state-wide. Accordingly, you are not obligated to determine the lawfulness of the arrest in DUBAL cases and should not do so since it is outside the limited scope of review established by s. 322.2615(7)(a).

When the arrest paperwork submitted by [the] officer shows that the driver refused to submit [to] the offered test, you shall continue to determine the lawfulness of the arrest in such cases.

In cases involving unlawful blood or breath alcohol levels, the hearing officer should not determine the lawfulness of the arrest, but should base their decision on the current scope as set forth in s. 322.2615 F.S. This applies to all formal and informal review hearings….

Scope of the Review in a Formal or Informal Review Hearing

In a formal or informal review hearing to contest the administrative suspension of the driver’s license, the hearing officer will announce that the scope of the review is limited to the issue listed in Florida Statute Section 322.2615(7). That statutes provides, in part:

In a formal review hearing under subsection (6) or an informal review hearing under subsection (4), the hearing officer shall determine by a preponderance of the evidence whether sufficient cause exists to sustain, amend, or invalidate the suspension. The scope of the review shall be limited to the following issues:

(a) If the license was suspended for driving with an unlawful blood-alcohol level or breath-alcohol level of 0.08 or higher:

1. Whether the law enforcement officer had probable cause to believe that the person whose license was suspended was driving or in actual physical control of a motor vehicle in this state while under the influence of alcoholic beverages or chemical or controlled substances.

2. Whether the person whose license was suspended had an unlawful blood-alcohol level or breath-alcohol level of 0.08 or higher as provided in s. 316.193.

(b) If the license was suspended for refusal to submit to a breath, blood, or urine test:

1. Whether the law enforcement officer had probable cause to believe that the person whose license was suspended was driving or in actual physical control of a motor vehicle in this state while under the influence of alcoholic beverages or chemical or controlled substances.

2. Whether the person whose license was suspended refused to submit to any such test after being requested to do so by a law enforcement officer or correctional officer.

3. Whether the person whose license was suspended was told that if he or she refused to submit to such test his or her privilege to operate a motor 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.

In the prior version of the statute, the scope of review included deciding “[w]hether the person was placed under lawful arrest for a violation of s. 316.193.” See § 322.2615(7)(b)(2), Fla. Stat. (2005), amended by ch.2006–290, § 45, Laws of Fla. After the statute was amended but prior to the Hernandez decision, hearing officer had been instructed to  NOT consider the lawfulness issued.

The Department reasoned that because the Legislature deleted this statutory language it expressed its intention to remove this consideration from the administrative review hearings. When Hernandez was decided criminal defense attorneys again started demanding that hearing officer follow the ruling of the Florida Supreme Court and decide the issue of whether the arrest was lawful.

Doesn’t Hernandez Overrule Escobio?

The Florida Supreme Court considered the narrow issue of whether the lawfulness of the arrest must be decided during the administrative review hearing but ignored the issue of whether the lawfulness of the arrest must also be decided when the driver has an “unlawful blood-alcohol level or breath-alcohol level of 0.08 or higher as provided in s. 316.193.”

Criminal defense attorneys who fight to invalidate the administrative suspension after their client’s arrest for DUI should assert at the hearing that the lawfulness of the arrest is an issue. Even under this category of cases, two common scenarios arise. First, a person may be asked “Will you take the breath test?” and immediately agree.

Secondly, the person may only agree to take the breath test after being read Florida’s Implied Consent Warnings. In other case, the person may only agree to take the breath test after the officer tells them “if you refuse to take the DUI breath test your license will be suspended” without reading the entire warning.

It seems to me that if the person is read implied consent and consents to the breath test only because they are told they must submit to a “lawful” breath test, then the issue of whether the arrest was lawful should be considered at the DHSMV hearing to contest the administrative suspension under the reasoning used in Hernandez.

This distinction between being read implied consent or not read implied consent really ignores the fact that each driver is presumed to know the law and that he or she must only submit to a “lawful” breath or blood test. Therefore, no meaningful distinction can be drawn between a person who refuses the DUI chemical test verses a person who submits and had a reading over 0.08.

If you submit to a breath test you are doing so because you “know” that refusing a “lawful” breath test has tremendous consequences. Therefore, the lawfulness of the arrest is necessarily an issue at the DMV hearing under any logical reading of the statutory scheme.

Too bad the Florida Supreme Court didn’t just decide both issues. But it makes for lots of drama during the formal review hearing as criminal defense attorneys must now fight to preserve the issues related to the lawfulness of the arrest while the hearing officer argues it is irrelevant in a case involving a breath or blood test over 0.08.

Leslie Sammis is a DUI attorney at the Sammis Law Firm. She focuses her practice on defending individuals charged with driving under the influence in Tampa, Hillsborough County, Florida and the surrounding counties in the greater Tampa Bay area.

4 Comments

  1. Researching DUI Law in various states
    Posted April 25, 2012 at 13:49 | Permalink | Reply

    Great blog and writing! Its amazing to me that different states handle these cases so differently, but also how contentious the matter is in every state.

    Thanks for posting!
    Ben

  2. Dianna S (Ogden Attorney Blog)
    Posted May 10, 2012 at 13:05 | Permalink | Reply

    When is the formal review hearing? Any updates – did the Florida Supreme Court decide on the DUI cases?

  3. Posted September 18, 2012 at 22:12 | Permalink | Reply

    Nice article. I love how DMV and FDLE just change the rules if the defense wins on the issue or if they are difficult to comply with. They did it in 2010 with the subpoenas. If the legality of the stop and arrest are not an issue that gives police the green light to stop everybody for absolutely no reason. They might not get the DUI but they still get your license.

  4. Tim Hayes
    Posted November 21, 2012 at 18:55 | Permalink | Reply

    If the accused refused to blow and hired an attorney to represent them, does the accused have the right to be present at the DHSMV administrative review hearing whether formal or informal and offer testimony regarding the circumstances for the initial stop by the officer (illegal turn)?

Post a Comment

%d bloggers like this: