Florida’s Under Age 21 Suspension in 322.2616 F.S.

At the Sammis Law Firm, we spend a lot of time fighting the administrative suspensions that occur after a DUI arrest. We believe that the formal review hearing to contest that administrative suspension is one of the most important parts of the DUI case.

We also represent young people who are not arrested for DUI, but who receive a Notice of Suspension for being under the age of 21 and driving while having a breath alcohol level of .02 or higher. This suspension is for a period of 6 months for a first violation, or for a period of 1 year if it is a second violation.

For all of the reason discussed below – there is no downside to requesting a formal review hearing. The request must be made within 10 days after the notice of suspension is issued. One benefit of requesting the formal review hearing is that the department must then issue a 30 day hardship license until the hearing is scheduled to take place.

Also, if the hearing is continued at the department’s initiative, then the department must issue a temporary driving permit until the rescheduled hearing. If you win the hearing then any mention of the administrative suspension is removed from the driving record as if it never happened.

Consequences of the Administrative Suspension

Even without a DUI arrest, the administrative suspension for driving under the influence of alcohol can cause a huge spike in young person’s insurance premiums.

F.S. 322.2616(19) provides that a violation of this section is neither a traffic infraction nor a criminal offense, nor does being detained pursuant to this section constitute an arrest. A violation of this section is subject to the administrative action provisions of this section, which are administered by the department through its administrative processes.

Administrative actions taken pursuant to this section will be recorded in the motor vehicle records maintained by the department. This section does not bar prosecution for DUI under s. 316.193. However, if the department suspends a person’s license under s. 322.2615 for a violation of Florida DUI law under s. 316.193, it may not also suspend the person’s license under this section for the same episode that was the basis for the suspension under s. 322.2615.

So as a practical matter, the administrative suspension under F.S. 322.2616 only takes place when the officer suspects that the young person has been drinking but does not have enough probable cause to make a DUI arrest.

Driving Privileges After the Suspension

If the officer does not arrest the young person for DUI, the officer may decide to issue the notice of suspension and take the young person’s license. If the driver’s license was valid immediately before the officer issues the notice of suspension, then the driver is automatically eligible for a 10 day permit. The officer will note on the citation when the person is eligible for the 10 day permit.

The notice of suspension reads:

“Unless ineligible, this suspension notice shall serve as a temporary driver’s license and will expire at midnight on the 10th day following the date of the issuance of this notice. This permit becomes effective after 12 hours have elapsed from the time of issuance of this notice.

At the Tampa, DHMVS hearing office, located at 2814 E. Hillsborough Avenue, Tampa, FL 33610-4479, you may request within 10 calendar days after the issuance of this suspension notice, a review of the suspension by the Department of Highway Safety and Motor Vehicles.

The notice of suspension can also be issue if the officer alleges that the young person refused to submit to a breath test under F.S. 322.2616. This suspension is for a period of one year if this is the first refusal or 18 months if the driver license was previously suspended for refusal to submit to a breath, blood, or urine test.

The Mobile Handheld Breathalyzer – Alco-Sensor FST

Officers with the Tampa Police Department will also complete a breath test result affidavit for under age 21 suspensions if the young person blew over .02. In the affidavit, the officer will swear or affirm that he administered a breath test to the young person in accordance with s. 322.2616 F.S.

The first breath sample was collected on ____ at ___, resulting in [a reading of] 0.__ grams of alcohol per 210 liters of breath (g/210L). The second breath sample was collected on ___ at ___, resulting in a 0.__ g/210L.

Officers with TPD will usually list the ALCO-SENSOR FST (sometimes called the “ASFST”) and the serial number of the instrument. The instrument used must be listed in the U.S. Department of Transportation’s conforming products list. The ALCO-SENSOR FST is listed on the Conforming Products List.

The affidavit will swear that the instrument has been calibrated and checks in accordance with the manufacturer’s and/or agency’s procedures.

DUI enforcement officers with the Tampa Police Department are also trained to fill out an affidavit of probable cause which states:

I _______, hereby swear or affirm that I have probable cause to believe that _______ was on ________ under the age of 21 as determined by the following: __ Driver License, __ I.D. Card, Other __________, and was driving or in actual physical control of a motor vehicle in this state with any blood alcohol or breath alcohol level or while under the influence of alcoholic beverages, to wit:

….. To be admissible at the hearing, the document should be notarized or attested to under the procedure provided by F.S. 117.10.

Issues for the Formal Or Informal Review Hearing

Pursuant to 322.2616(8), at the formal or informal review hearing, the hearing officer must determine by a preponderance of the evidence whether sufficient cause in the form of competent and substantial evidence exists to sustain, amend, or invalidate the suspension. The scope of the review is limited to the following issues:

(a) If the license was suspended because the individual, then under the age of 21, drove with a blood-alcohol or breath-alcohol level of 0.02 or higher:

  1. Whether the law enforcement officer had probable cause to believe that the person was under the age of 21 and was driving or in actual physical control of a motor vehicle in this state with any blood-alcohol or breath-alcohol level or while under the influence of alcoholic beverages.
  2. Whether the person was under the age of 21.
  3. Whether the person had a blood-alcohol or breath-alcohol level of 0.02 or higher.

(b) If the license was suspended because of the individual’s refusal to submit to a breath test:

  1. Whether the law enforcement officer had probable cause to believe that the person was under the age of 21 and was driving or in actual physical control of a motor vehicle in this state with any blood-alcohol or breath-alcohol level or while under the influence of alcoholic beverages.
  2. Whether the person was under the age of 21.
  3. Whether the person refused to submit to a breath test after being requested to do so by a law enforcement officer or correctional officer.
  4. Whether the person was told that if he or she refused to submit to a breath 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.

What Documents are Reviewed?

F.S. 322.2616(3) requires the law enforcement officer to forward to the department, within 5 days after the date of the issuance of the notice of suspension the following documents:

  1. a copy of the notice of suspension;
  2. the driver’s license of the person receiving the notice of suspension, and
  3. an affidavit stating the officer’s grounds for belief that the person was under the age of 21 and was driving or in actual physical control of a motor vehicle with any blood-alcohol or breath-alcohol level; and
  4. the results of any blood or breath test or an affidavit stating that a breath test was requested by a law enforcement officer or correctional officer and that the person refused to submit to such test.

The failure of the officer to submit materials within the 5-day period specified in this subsection does not bar the department from considering any materials submitted at or before the hearing.

What is the Standard for Review Used by the Hearing Officer?

The hearing officer can either sustain the suspension only if he or she finds, by a preponderance of the evidence, that sufficient cause in the form of competent and substantial evidence exists to support each issue in the case. If that evidence is missing, then the suspension should be invalidated.

At the hearing, according to F.S. 322.2616(2)(b)(5), the driver may submit to the department any materials relevant to the suspension of his or her license.

Enhanced Consequences if the BAC is 0.05 or Higher?

F.S. 322.2616(c) provides that if the driver has a BAC of 0.05 or higher, the suspension shall remain in effect until such time as the driver has completed a substance abuse course offered by a DUI program licensed by the department.

The statute requires the driver to assume the reasonable costs for the substance abuse course. As part of the substance abuse course, the program must conduct a substance abuse evaluation of the driver, and notify the parents or legal guardians of drivers under the age of 19 years of the results of the evaluation.

If a driver fails to complete the substance abuse education course and evaluation, the driver’s license shall not be reinstated by the department.

The Informal Review Hearing

The driver can request either a formal or informal review hearing under F.S. 322.2616(2)(b)(3). At the informal review hearing, a hearing officer employed by the department within 30 days after the request is received by the department and shall issue such person a temporary driving permit for business purposes only to expire on the date that such review is scheduled to be conducted if the person is otherwise eligible.

Under F.S. 322.2616(10), if the department fails to schedule the hearing to be held within 30 days after receipt of the request therefor, the department shall invalidate the suspension.

The informal review hearing must consist solely of an examination by the department of the materials submitted by a law enforcement officer or correctional officer and by the person whose license is suspended, and the presence of an officer or witness is not required.

After completion of the informal review, notice of the department’s decision sustaining, amending, or invalidating the suspension of the driver’s license must be provided to the person.

The notice must be mailed to the person at the last known address shown on the department’s records, or to the address provided in the law enforcement officer’s report if such address differs from the address of record, within 7 days after completing the review.

The Formal Review Hearing

At the formal review hearing, if a timely request was made by the driver, the department must schedule a hearing to be held within 30 days after the request is received by the department. It must notify the person of the date, time, and place of the hearing. It shall issue such person a temporary driving permit for business purposes only to expire on the date that such review is scheduled to be conducted if the person is otherwise eligible.

Under F.S. 322.2616(10), if the department fails to schedule the formal review hearing to be held within 30 days after receipt of the request therefor, the department shall invalidate the suspension.

The formal review hearing must be held before a hearing officer employed by the department, and the hearing officer may administer oaths, examine witnesses and take testimony, receive relevant evidence, issue subpoenas, regulate the course and conduct of the hearing, and make a ruling on the suspension.

The department and the person whose license was suspended may subpoena witnesses, and the party requesting the presence of a witness is responsible for paying 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 the failure to be without just cause, the right to a formal hearing is waived and the suspension is sustained.

What Happens if You Subpoena a Witness and the Witness Fails to Appear?

If a witness fails to appear after being properly serviced with the subpoena, a party may seek enforcement of a subpoena 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.

A failure to comply with an order of the court constitutes contempt of court. However, a person may not be held in contempt while a subpoena is being challenged.

When Will I Know if the Suspension is Invalidated?

The department must, within 7 days after a formal review hearing, send notice to the person of the hearing officer’s decision as to whether sufficient cause exists to sustain, amend, or invalidate the suspension.

Hardship Permit if the Suspension is Sustained

Under F.S. 322.2616(11), if the suspension is sustained (or if no hearing is request) then the person may apply for issuance of a license for business or employment purposes only, pursuant to s. 322.271, if the person is otherwise eligible for the driving privilege.

However, such a license may not be issued until 30 days have elapsed after the expiration of the last temporary driving permit issued under this section.

This 30 day period during which the driver is not eligible for a hardship license is known as the “hard suspension” period.

Appeal the Order Sustaining the Under Age 21 Suspension

Under F.S. 322.2616, the young person may appeal any decision of the department sustaining a suspension of his or her driver’s license by a petition for writ of certiorari to the circuit court in the county wherein such person resides or wherein a formal or informal review was conducted under s. 322.31.

However, an appeal does not stay the suspension. This subsection does not provide for a de novo appeal.

Policy Behind the Under Age 21 Suspensions

F.S. 322.2616(16) explains that by “applying for and accepting and using a driver’s license, a person under the age of 21 years who holds the driver’s license is deemed to have expressed his or her consent to the provisions of this section.”

A breath test to determine breath-alcohol level pursuant to this section may be conducted as authorized by s. 316.1932 or by a breath-alcohol test device listed in the United States Department of Transportation’s conforming-product list of evidential breath-measurement devices.

The reading from such a device is presumed accurate and is admissible in evidence in any administrative hearing conducted under this section.

Conclusion

Unlike administrative suspensions after a DUI arrest, the under 21 driver given only the suspension under F.S. 322.2616 is not eligible for immediate reinstatement by waiving the right to a formal or informal review hearing (the waiver review hearing). Therefore, no downside exist to demanding the formal review hearing to contest the administrative suspension under F.S. 322.2616.

Jason Sammis represents driver’s under the age of 21 that are served with a notice of suspension for having a breath alcohol concentration over .02 or for refusing to submit to to the handheld breathalyzer. 

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