How to Guide for the DHSMV DUI Formal Review Hearing in Florida

This “how to guide” is intended for attorneys only. If you have never requested a formal review hearing before, this article goes over the basics. This guide is not intended to be legal advice. If you disagree with our strategy or have an easier way to do it – please feel free to make a suggestion below in the comments section.

For the DUI attorneys at the Sammis Law Firm in Tampa, Hillsborough County, FL, we are still conducting formal review hearings in almost every DUI case. We certainly explain the different options to our clients, but the people that hire us almost always want a formal review hearing.

Read more about the benefits of requesting a formal review hearing after a Florida DUI.


Why Request a Formal Review Hearing after a DUI Arrest?

After a DUI arrest, the arresting officer will usually issue a DUI citation that also operates as a notice of the administrative suspension. The administrative suspension starts immediately after the arrest.

Although with a first DUI, the driver has the option of stipulating to the DUI for administrative purposes during a “waiver review hearing,” it is better to demand a formal review hearing to contest the suspension.

The only downside is that if you are not successful in invalidating the suspension after the formal review hearing then the driver will suffer a hard suspension. For a first DUBAL the hard suspension is for 30 days and for a first refusal the suspension is for 90 days. The hard suspension is a small price to pay for all the benefits that come from conducting the formal review hearing.

The upside of having the formal review hearing is that in many of these cases the suspension will be invalidated (removed completely) because the arresting officer or breath test operator fails to appear. Even if the suspension isn’t invalidated, the criminal defense attorney gets the opportunity to question under oath each of the witnesses in the case before the prosecutor even sees the file.

In these types of cases, there is NO real downside to demanding the formal review hearing:

  1. If your client has a prior conviction or administrative suspension for DUI (in that case the client is not even eligible for a “waiver review hearing”);
  2. If your client had one breath test reading over .08 and one below .08 (because you should win the hearing); or
  3. If your client doesn’t need to drive in Florida during those 30 or 90 days when the hard suspension would be in effect.

Step One – Request the Formal Review Hearing at the DMV within 10 Days

The driver has 10 days after receiving the notice of suspension (which is usually included in the DUI citation given to the driver after the arrest) to demand a formal review hearing. If the license is valid when you make the request then you should immediately receive a 42 day permit that will let your client drive for hardship purposes while you are waiting for the hearing.

To request the formal review hearing you should fill out the Application for FRDLSD form (HSMV 78065 S (8.09)) and check the box to request a formal review hearing instead of an informal review hearing. You also need to attach a legible copy of the DUI citation that operates as the notice of suspension and a check for $25.00 made payable to the “Department of Highway Safety and Motor Vehicles.”

We also include a cover letter requesting a copy of the packet submitted by law enforcement and any other documents the hearing officer intends to introduce at the hearing. The cover letter should also request either a one hour or two hour time allotment for the hearing. [The hearing officer will schedule the hearing for one hour even if you request more time, but the request for extra time might come in handy if you have a lot of witnesses or a long video and end up asking for extra time during the hearing.]

In the cover letter you can also request specific dates or times for the hearing within the next 30 days which the hearing officer might accommodate.

It is probably best to hand deliver the documents to the Bureau of Administrative Reviews so that you can obtain the 42 day permit the same day. The 42 day permit allows the driver to drive for business purposes only. Our office has a courier hand deliver the documents and then pick up the 42 day permit at the same time.

If your client needs the 42 day permit, it is probably a good idea to check that the driver’s license is valid before you make the request. For instance, if the driver has a suspension for an unpaid civil ticket you can probably get that issue cleared up within the 10 days so that your client is eligible for the 42 day permit when you make the request.

If the license is not otherwise valid and you can’t get the issue cleared, then you should still demand the formal review hearing (but you will probably not receive the 42 day permit).

In a few cases, I have seen the person make the request a few days outside of the 10 days (usually because of a notice issue). In many of those cases, at least in the Tampa BAR, the DHSMV will accommodate the demand for a formal review hearing requested outside of the 10 days but they will refuse to issue the 42 day permit.

Can the driver change his or her mind about a formal review hearing? If the driver already applied for a Review Waiver Hearing and and obtained hardship reinstatement, then the DHSMV will probably take the position that the driver cannot then request a formal review hearing (even if still within the 10 days) although that is not a well settled issue under Florida law. If the client had a waiver review hearing but hasn’t obtained the hardship reinstatement yet, then the DHSMV will probably still honor the request for a Formal Review Hearing made within the 10 day period.


Step Two – Receiving the Notice of the FRH and the Driver’s Pre-hearing Statement

If you make the demand for a formal review hearing within the 10 days after the arrest (or notice of the administrative suspension) then the hearing officer will send you a notice of the time and place for the Formal Review Hearing and a form called the driver’s “pre-hearing statement.”

In our cases, the Bureau of Administrative Reviews (BAR) will write the copy costs on the notice. We then write a check for that amount and pick up the packet of documents to be introduced at the hearing which are submitted by the arresting agency.

Under Florida Statute Section 322.2615(2) the arresting officer has 5 days after issuing the notice of suspension, to submit the following documents to the DHSMV: 

  1. the driver license;
  2. an affidavit stating the officer’s grounds for belief that the person was DUI;
  3. the results of any breath or blood test or an affidavit stating that a breath, blood, or urine test was requested by a law enforcement officer or correctional officer and that the person refused to submit;
  4. the officer’s description of the person’s field sobriety test, if any; and
  5. the notice of suspension.

The statute also provides that the hearing officer can still consider any documents submitted late as long as the are received “at or prior to” the hearing.

You need the DMV packet in order to know how to fill out the pre-hearing statement. You only have 10 days to submit the pre-hearing statement from the day of the notice. Sometimes there is a delay in getting the notice in the mail which cuts into the 10 days to submit the pre-hearing statement.

We always submit the pre-hearing statement within the 10 days and keep a blank copy of it for our records. If it needs to be updated before the hearing then an amended pre-hearing statement can be submitted after the 10 day deadline but before the hearing. Just write “amended” at the top and add the new information.

If the DMV doesn’t have the packet by the start of the hearing, then you should move to invalidate on that basis and the request to invalidate should be granted since there is no information in the record to uphold the suspension. If the packet suddenly appears on the day of the hearing (or too late to get the subpoenas issued), then you can request a continuance showing your efforts to obtain the packet ahead of time. It is best to arrive at the hearing with a written request to continue already prepared but wait to file it until after you read the packet to make sure the evidence in the packet is sufficient to uphold the suspension.

If you end up requesting the continuance, the hearing officer should issue you an extended 42 day permit since the delay was not caused by the driver. Ask for the extended permit in the written continuance request.

Before the hearing, you can also request many of these documents from the arresting agency although they might refuse to release them before the state has complied with a discovery demand. At a minimum, you can always obtain a copy of the citation and an crash report (if any).

Getting the DUI video ahead of the hearing is more difficult. In some cases, you might want to continue the hearing until after you are able to obtain the video. The hearing officers in Tampa will usually let us subpoena the custodian of records from the agency holding the video to bring it to the hearing since the arresting officer will often complain that he or she is not the “custodian” of the video. Once the custodian is served with the subpoena, the custodian will usually release it immediately to the attorney to avoid attending the hearing (or at least they become more accommodating).


Step Three – Completing the Pre-Hearing Statement and Subpoenas

Review the packet carefully. You should also compare any documents in the packet with any documents in the discovery.  Then go through the packet to identify any witnesses that you want to testify at the hearing and list them on the pre-hearing statement.

You also need to prepare a subpoena for each witness either with or without a subpoena duces tecum. Read more about the subpoena duces tecum at the DUI BAR formal review hearing.

At least in the Tampa Bay area, if the hearing is being conducted in a county outside of the county where the arresting agency is located then the BAR will schedule a telephonic formal review hearing after the DUI arrest.

In most cases, you will prepare a subpoena for each witness identified in the packet unless you have a really good reason not to subpoena that witness. [If the information in the packet is insufficient to uphold the suspension then you certainly don’t want to subpoena the witness who can fill in the missing information.]

Witnesses that can be issued a subpoena include:

  • the officer that conducted the initial stop of the vehicle;
  • the arresting officer;
  • any backup officer listed in the reports;
  • the breath test operator (in Hillsborough County, the breath test operator will be listed in the report as a witness to the refusal and can be issued a subpoena to the hearing even if it is an alleged refusal case);
  • the agency inspector (in a breath test case);
  • in a blood test case, subpoena any listed witness to the blood withdraw, the person withdrawing the blood and the crime laboratory analyst at the FDLE Toxicology Section (for FDLE you must include FDLE number, the submission number, and the agency number).

Step Four – Obtain and Serve the Issued Subpoenas

Take the pre-hearing statement and subpoenas to Bureau of Administrative Review (BAR) and the hearing officer will issue the subpoenas by stamping and signing the subpoenas the same day.  Then have your process server go ahead and serve each subpoena.

After obtaining the issued subpoenas but before serving it on the witness you must serve the prosecutor assigned the case, or the State Attorney’s Office if a prosecutor is not assigned, with notice of the hearing and a copy of the issued subpoenas. Under the rule, the notice and copies of the subpoena should be received by the State Attorney’s Office prior to the issued subpoenas being served on the witnesses. Most attorneys probably just mail them a copy of the subpoenas with a cover letter, although it is not clear that this procedure would strictly comply with the very specific notice requirements in the statute.

To comply with this notice requirement, we have found a very quick and easy way to accomplish this task. We prepare a “Notice of Filing” in the criminal case that is instantly served electronically on the State Attorney’s Office via electronic service. Then you can just print out the confirmation that the filing was received with a submission date and time. The Notice of Filing just informs the prosecutor that the formal review hearing has been scheduled and that the attached subpoenas have been issued. Then attach a copy of each subpoena to the Notice of Filing.

Although I invite the prosecutor to attend each time and give them a copy of each subpoena, I’ve never had a prosecutor attend a formal review hearing.

After notifying the State Attorney’s Office of the subpoenas, serve the subpoena on each witness with a $5.00 witness check. The officer is also entitled to be reimbursed for mileage if requested so bring a separate check to the hearing for that purpose. If they tell me their mileage on the record during the hearing and ask for a bigger check then I am happy to whip out the check and write it for the requested amount.

If the subpoena includes a subpoena duces tecum then include with the service a separate check for reasonable costs to provide a copy of that evidence.

If the witness fails to bring the items listed in the subpoena duces tecum then move to continue the hearing so that you have time to file a motion to compel compliance with the subpoena in the courtroom where the criminal case is pending. Or alternatively, if the officer claims no longer to be in possession of the item and denies being the “custodian of the record” then find out who is and request a subpoena deces tecum for that person.

For the agency inspector, our office also includes a public record request for the same documents requested in the subpoena duces tecum so that the Agency Inspector will also bring you a copy that you can take with you after the hearing or a copy that can be submitted into the record. You should bring a check to the hearing to pay for the public record request which is usually only a few dollars. Otherwise, just be aware the agency inspector may object to giving up the documents he brings and different hearing officers have different ways of resolving the issue.


Step Five – Attend the Hearing

The only thing left to do is attend the hearing. The most likely reason that you might win the hearing is because the arresting officer or breath test operator fail to appear.

If the arresting officer or the breath test technician fail to appear – then call the witness to testify. “At this time, I would call [name of witness] to testify.” When the hearing officer puts on the record that the witness is not present, then hand the hearing officer proof that the subpoena and witness fee was served on the witness and that the prosecutor was notified of the subpoena.

Ask that those documents been marked as the petitioner’s exhibits and included into the record. Then move to invalidate under Section 322.2615(11), Fla. Stat., which provides, in pertinent part:

If the arresting officer or breath technician fails to appear pursuant to a subpoena as provided in subsection (6), the department shall invalidate the suspension.

Although the statute does not provide for any discretion for the hearing officer to determine whether the absent witness has “just cause” for the absence, the administrative rules contradict the statute.  The hearing officer will often ignore the plain language of the statute and rely on the administrative rule which provides:

15A-6.015 Failure to Appear.

…(2) …a properly subpoenaed witness who fails to appear at a scheduled hearing may submit to the hearing officer a written statement showing just cause for such failure to appear within two (2) days of the hearing.

(a) For the purpose of this rule, just cause shall mean extraordinary circumstances beyond the control of the driver, the driver’s attorney, or the witness which prevent that person from attending the hearing.

(b) If just cause is shown, the hearing shall be continued and notice given.

(c) No hearing shall be continued for a second failure to appear.

(d) Notification to the department of a witness’s non-appearance with just cause prior to the start of a scheduled formal review shall not be deemed a failure to appear.

(Emphasis added).

So the driver should take the position that the plain language of the statute clearly requires invalidation regardless of any contradictory procedure “deemed” in the administrative rule.

The hearing officer will want you to waive that issue by telling you that you should ask for a continuance. Don’t do it. Instead, object that even under the hearing officer’s reading of administrative rule, no “just cause” has been shown for the continuance and move to invalidate on that basis. Then agree to attend any continued hearing. Renew the objection and request to invalidate on that basis at the end of the continued hearing.

Note on the record any other time the hearing officer violates the procedural rules and explain how that due process violation caused prejudice to your client and move to invalidate on that basis.

Also, to preserve any issues in the case make a motion to invalidate on the basis that the record contains insufficient evidence of one of the issues included in the scope of the review and explain why.

It is also helpful to bring a copy of Section 322.2615 and the 15A-6 administrative rules to the hearing with you in case any unexpected issues arise. In a Breath Test case, bring the Chapter 11D-8, Florida Administrative Code.

If you need help filing the writ of certiorari give us a call. In addition to the attorney fees for the writ (we typically charge $1500 in attorney fees), the client would pay for a transcript from the hearing and a $400 filing fee. The writ must be filed within 30 days of the order so you don’t have much time.

Winning the writ is usually cheaper for the client than living with the administrative suspension on their driving record for the next 75 years so be sure to review that option with the client.

Let us know your tips for the formal review hearing. Add a comment below…

2 Comments

  1. Darrin Kramer
    Posted September 16, 2016 at 20:54 | Permalink | Reply

    Sammis dui blog misinterprets the plain language of statutory construction of subpoenaed witnesses and/or administrative rule. If the officer and/or technician fail to appear while under subpoena, the the suspension must be invalidated. See F.S. 322.2615(6)(c) and compare with administrative rules, i.e., same. When reviewing statutory criteria, a person cannot interpret the language piecemeal. The legislative intent is that the “officer and technician” require invalidation of suspension while “other possible witnesses subpoenaed do not; only a continuance, which makes sense, as those witnesses do not go to the heart of the elements of dui that is required to sustain the charge, i.e., facts of driving a motor vehicle..by officer’s testi, and technician’s testi for level of sobriety. Thus, without proof of both elements, the charge cannot be sustained, which is why the officer and technician are required or the invalidation is rendered. Thank you. However, the blog is and was very helpful in my understanding and I thank all of the people involved in participating in writing the material no matter how right or wrong it may be. Without such, makes things difficult and it’s always good to have another’s perspective about certain matters relevant to my case. Thanks again

  2. Darrin Kramer
    Posted September 16, 2016 at 21:22 | Permalink | Reply

    Tips, I have read the statute, F.S. 322.2615 and I do not understand why a lawyer or firm has not challenged the unconstitutional application of subsection (6)(b) where it states, “….issue subpoenas for the officers and witnesses identified in documents provided under paragraph (2)(a),…”. Thus, the Administrative Hearing Officer will not issue subpoenas for a driver contesting his suspension if the officer did not include the names of the witnesses in his report(s). Thus, the officer can make a predetermination of who will be called as a witness by not including the “res gestae witnesses,” which prevents the driver from presenting a defense to the suspension. Thus, if the driver can not present witnesses on his behalf unless the officer includes them in his report(s), the driver is denied due process of law by not having the ability to subpoena non-voluntary witnesses favorable to his defense. Thus, the officer has the ability to foreclose the driver’s defense by deliberately omitting witnesses to the incident vital to the driver’s defense. Especially when the officer misrepresents the facts of whether or not the alleged driver had physical control of the vehicle. Moreover, the statute only allows the hearing officer to issue subpoenas for officers and witnesses identified in documents. The hearing officer will not issue subpoenas for witnesses the driver requests for his defense, which makes the entire process one-sided and not adversarial. The statute only allows the driver to submit relevant material. see subsection (1)(b)(5). This renders the process fundamentally unfair under the due process clause of the 14th Am., since it forecloses the possibility for the driver to request the hearing officer to subpoena non-voluntary witnesses that are relevant to the controversy. In addition, the civil rules do not allow pro se drivers an opportunity to subpoena witnesses so the pro se driver is entirely deprived of fundamental fairness with presenting his defense to the allegations.

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