The Hillsborough County Sheriff’s Office has started handing out a flyer after releasing individuals charged with DUI. The flyer reads:
Bureau of Administrative Reviews (BAR)
First Time DUI Offenders
Effective 07/01/2013 – First time DUI offenders can apply for a waiver review and may obtain a restricted driver license within 10 days of the suspension if otherwise eligible. To request the waiver review, a non-refundable filing fee of $25.00 and proof of DUI school enrollment must be submitted with your application for a waiver review hearing within 10 days of the driver license suspension. You may submit your request by appearing at the local BAR office indicated on the DUI citation.
The flyer doesn’t mention anything about the downside to submitting an application for a waiver review hearing. The biggest problem is that if you apply for the “waiver review hearing” and receive immediate reinstatement of your driving privileges for hardship purposes then you must waive any right to contest the suspension. In other words, if you apply for the waiver review then you are agreeing that your driver license should be suspended for:
- 6 months if your Breath or Blood Alcohol Concentration was over .08; or
- 12 months if you refused to submit to a lawful and approved breath, blood or urine test after your DUI arrest.
Waiver Review vs. Formal Review Hearing
The best alternative to the waiver review is hiring an attorney to demand a formal review hearing. If your driver license was valid when you were arrested for DUI, then you should be eligible for a 42 day permit. Then you can drive on the hardship permit while your attorney fights to invalidate the administrative suspension. The only downside to fighting the administrative suspension is that if the hearing officer does not invalidate the suspension, then the following hard suspension will start after the 42 day permit expires:
- 30 days if your Breath of Blood Alcohol Concentration was over .08; or
- 90 days if you refused to submit to a lawful and approved breath, blood or urine test after your DUI arrest.
During that hard suspension period you cannot drive for any reason.
Problem with the Waiver Review
Keep in mind that the waiver review hearing is to determine whether you should receive immediate reinstatement of hardship driving privileges. If you are deemed eligible, the DHSMV will only give you a hardship license to drive for business purposes only pursuant to F.S. 322.271.
In many cases, requesting the formal review hearing to contest the suspension is the better option. This is particularly true for anyone with a prior DUI, anyone who doesn’t need to drive in Florida, anyone who lives out of state, or anyone interested in increasing the chance that they win their criminal case at trial.
You May Not Qualify for Immediate Reinstatement
If you have a prior DUI arrest or administrative driver’s license suspension after a DUI arrest (even if you ultimately avoided a DUI conviction) then you are not eligible for immediate reinstatement. The hearing officer will also have access to certain out of state records that might show whether you had a DUI, DWI, OUI, or any other type of driving-under-the-influence-type charge.
You May Not Need Immediate Reinstatement
The administrative suspension only impacts your privileges to drive in the State of Florida. If you live out of state, your home state may not take any action on the administrative suspension. If you are returning to your home state and have no intention of driving in Florida during any 30 or 90 day period for the hard suspension, then you have nothing to lose by demanding the formal review hearing to invalidate the suspension completely.
The Administrative Suspension is Almost as Bad as a DUI Conviction
The administrative suspension is a finding that you were DUI. It triggers certain reporting requirements for certain occupations such as airline pilots. Additionally, even if you avoid the DUI conviction in court, the administrative suspension stays with you forever. Before you waive the right to contest the administrative suspension, you should understand the important rights you are giving up.
You May Not Be Able to Jump Through the Hoops within 10 Calendar Days
Another problem occurs because of the tight deadlines for compliance. Not all people are able to jump through the hoops necessary to obtain immediate reinstatement within 10 calendar days of the arrest. And “within 10 calendar days of the arrest” means that if the 10th day falls on a holiday or a weekend, then you missed the deadline. For someone arrested on a Thursday night, they have only 6 business days to complete all of the requirements for immediate reinstatement. If they miss that deadline then they will suffer the 30 or 90 day hard suspension period before being eligible for a hardship license. The hoops for immediate reinstatement include:
- enrolling in DUI school and getting proof of enrollment (including proof of payment);
- personally appearing at the Administrative Review Hearing Office (for DUI arrests in Hillsborough County, the Tampa office is located at 2814 East Hillsborough Avenue, Tampa, FL);
- complying with the Florida ID act.
*Note: even if you miss the 10 day deadline for waiver review because the 10th day falls on a holiday or weekend, you might still be able to request the formal review hearing and obtain the 42 day permit on the next business day.
You Can’t Invalidate the Suspension if You Don’t Request the Formal Review Hearing
You might win the formal review hearing which invalidates the administrative suspension. But if you don’t request the formal review hearing then you have NO chance that the administrative suspension will be invalidated.
Your chances of winning the hearing increase significantly with changes to the statute that took effect on July 1, 2013 which now require the suspension to be invalidated if the arresting officer or the breath test technician fail to appear at the formal review hearing. There are many other reasons why the individual might win the hearing even if all of the witnesses appear. But the driver has NO chance of invalidating the suspension if they apply for waiver review.
The Formal Review Hearing Lets Your Attorney Gather Important Information
At the formal review hearing your attorney has an opportunity to subpoena all of the witnesses in the case and ask them questions under oath. The Department of Highway Safety and Motor Vehicles (DHSMV) bears the burden of production and the burden of proof at this hearing. The hearing officer must determine whether competent evidence has been presented as to each and every required element in the case.
Your attorney can subpoena the following witnesses for the formal review hearing:
- The officer that conducted the stop of your vehicle;
- The arresting officer (who might be different than the stop officer);
- The backup officer (if listed in the report);
- Any civilian witnesses listed in the reports;
- The breath test technician (even in a refusal case if listed in the packet); and
- The agency inspector that maintains the Intoxilyzer 8000 machine used in your case (if you submitted to a breath test).
No matter the outcome of the hearing, being able to question all of those witnesses early in the case is extremely valuable to the criminal defense attorney. Your attorney can also require the witnesses to bring certain documents to the hearing such as the repair or maintenance records for the breath test machine. A court reporter can type up a transcript from the hearing that can be used at trial to impeach the witness if the witness gives an inconsistent statement.
Most of My Clients Want a Formal Review Hearing
I initially thought that most of my clients would want to waive the formal review hearing and request immediate reinstatement. However, once my clients understand the rights they are giving up, most of them are opting for the formal review hearing. I’m curious whether other attorneys are having the same experience. Leave a message below if you have an opinion on the matter.
I’m also interested in hearing from anyone about problems they had when requesting the waiver review or obtaining immediate reinstatement. Please leave a comment below.
Read more about the New 10 Day Rule in Florida DUI Cases.