DHSMV Training 2017

According to the Florida Impaired Driving Coalition (FIDC) Meeting Report from August 24-25, 2017, Kathy Jimenez-Morales indicated that the BAR Class on administrative suspensions was available in an online format that could be provided to officers at the upcoming FDOT Law Enforcement Challenge. Kathy Jimenez-Morales is the Chief Counsel of Driver Licenses with the DHSMV Office of General Counsel.

We made a public records request for the online training material. Last week, Joseph Gillespie, the Public Records Operations Administrator for the Office of General Counsel at the Florida DHSMV, informed us that the BAR had NOT actually provided any online training for law enforcement officers. Instead, we were provided with these slides used during July and August of 2017 to train law enforcement officers on BAR procedures.

This training material was not nearly as interesting as the material previously obtained through a public records request on the Statistics on Administrative Suspensions in Florida.

That training material was based on the statistics gathered in 2015 about why suspensions were being invalidated across Florida. That training material showed the fourteen (14) reasons why a hearing officer could invalidate a suspension and the corresponding percentage for each reason.

Although the Bureau of Administrative Reviews is supposed to be neutral, the training material was not. That material also provided:

  • the percentage of suspensions that are sustained at formal review hearings stands at an incredible 95.3% (although in many of those cases, the person making the request never even shows up for the hearing or hires an attorney to represent them at the hearing);
  • in commenting on this successful campaign to keep such rates high, the manual asks the police officers, “While sustained rates of 95% and 90% are good and indicative of the fine work you are doing, how many of you would like to see those numbers even higher?”
  • the training material offered the police tips on how to reduce the number of invalidations. “Let’s look at the reasons for those invalidations and what might be done to reduce the number that are invalidated.”

This training material appears to be far more neutral. It provides a general overview of the process. If you are interested in this training material, you can see the slides below.

 

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4-florida-fatalities-related-to-impaired-driving5-dual-processes-criminal-justice-system-and-administrative-suspension-process6-administrative-dui-suspensions-based-on-statute-majority-done-by-law-enforcement7-admin-process-bac-of-08-or-02-if-under-21-license-suspended-for-6-months-refusal-is-suspended-for-1-year-or-18-months-for-2nd8-admin-suspension-process-starts-when-officer-takes-license-within-10-days-do-nothing-or-do-1-of-3-elections9-admin-suspension-process-review-waiver-informal-review-formal-review10-review-waiver-waive-for-1st-time-dui-enroll-in-dui-school-hardship-permit-immediately11-hardship-permits-after-30-or-90-days-after-informal-or-formal-review-hearing12-informal-review-no-witnesses-testify-based-off-material-submitted-by-law-enforcement-hearing-officer-determines-to-sustain-amend-or-invalidate13-scope-of-review-hearing-officer-determines-probable-cause-actual-physical-control-while-under-the-influence-and-whether-the-person-had-an-unlawful-blood-alcohol-level-or-breath-level-of-08-or14-scope-of-review-contd-refusal-did-person-actually-refuse-implied-consent-read15-formal-review-similar-to-motion-to-suppress-testimony-taken-from-witnesses-under-oath-evidence-presented-standard-for-evidence-is-relevance16-formal-review-per-statute-316-26152a-evidence-must-be-submitted-by-law-enforcement17-formal-review-evidence-affidavit-breath-or-blood-results-affidavit-stating-a-breath-blood-or-urine-test-was-requested-and-the-person-refused18-formal-review-evidence-officers-description-of-field-sobriety-exercises-notice-of-suspension-crash-report-video-may-be-submitted-without-a-subpoena19-formal-review-lawful-basis-to-challenge-reasonable-suspicion-for-stop-actual-physical-control-insufficient-basis-for-fses-probable-cause-for-arrest-reading-of-implied-consent20-formal-review-conducted-by-calling-witnesses-and-presenting-evidence-or-soley-by-relying-on-the-evidence-previously-discussed-without-calling-any-witnesses21-formal-review-who-attends-the-driver-may-request-hearing-officer-to-issue-subpoena-to-officers-and-or-witnesses22-formal-review-if-a-witness-fails-to-appear-a-party-may-seek-enforcement-in-a-court-may-seek-attorneys-fees-by-statute-a-failure-to-comply-with-an-order-shall-result-in-a-finding-of-contempt23-formal-review-if-a-witness-cannot-appear-they-must-notify-hearing-officer-if-arresting-officer-or-breath-technician-fail-to-appear-hearing-officer-is-required-by-statute-to-invalidate24-larmer-v-dhsmv-whether-a-refusal-by-a-driver-constitutes-a-refusal-when-the-driver-changes-his-mind25-larmer-v-dhsmv-totality-of-circumstances-approach-driver-may-change-mind-and-avoid-refusal26-dhsmv-v-green-does-a-driver-have-a-right-to-select-a-different-initial-test-to-be-used-to-determine-bac27-dhsmv-v-green-officer-requests-the-test-not-the-driver-who-selects-it-a-driver-has-no-right-to-demand-a-blood-test-instead-of-a-breath-test-however-driver-at-their-expense-can-do-an-indepen28-kaiser-v-state-did-technician-observe-kaiser-prior-to-the-breath-test-during-the-20-min-observation-period-do-so-properly29-kaiser-v-state-finder-of-fact-technician-is-not-required-to-stare-fixedly-at-the-driver-for-the-whole-time-tech-must-observe-driver-for-the-entire-observation-period30-gallardo-v-state-is-a-visual-estimation-of-speed-alone-a-lawful-basis-for-a-traffic-stop31-gallardo-v-state-visual-estimate-of-speed-alone-is-sufficient-vantage-point-training-and-experience-must-be-articulated-if-a-speed-device-was-used-they-must-state-which-device32-questions

The Administrative Suspension Process

DUI and Zero Tolerance Driver License Administrative Review

The Florida Department of Transportation (FDOT) funded this training. According to the FDOT:

  • Florida has 122,659 miles of highway
  • Florida is the 3rd most populous state (with an approximate population of 20.5 million)
  • 107 million people visit yearly

Traffic-Related Fatalities in Florida

In 2016, there were 3,175 traffic-related fatalities on Florida roadways. As of July 1, 2017, there have been 1,403 traffic-related fatalities on Florida roadways. The number of traffic-related fatalities in 2017 is expected to surpass 2016.

A significant number of traffic crashes were alcohol-related. The 2016 numbers are not out yet, however, in 2015 there were 908 alcohol suspected fatalities. There were 6,847 alcohol suspected injuries. The 2016 numbers are also expected to have increased.

Dual Processes to Combat Impaired Driving

The Florida Legislature has passed laws that combat impaired driving through dual processes that are independent of each other including:

  • the criminal justice system
  • the administrative suspension process

All administrative DUI suspensions are based on statute and the majority are done by law enforcement officers at the time of the arrest including:

  • 322.2616
  • 322.2616
  • 322.64

A driver with a breath or blood alcohol concentration (BAC) of at least .08 (0.02 if under 21) will have their license suspended for 6 months, or one year if they have a previous suspension.

A driver who refuses to blow, provide urine, or blood will have their license suspended for 1 year for a first refusal or 18 months if they have a previous refusal.

The suspension period starts at the time law enforcement takes a person’s license and issues a notice of suspension. Within 10 days after the issuance of the notice of suspension, a driver may do nothing, or make one of three elections regarding their suspension including:

  • review waiver
  • informal review
  • formal review

As of July 1, 2013, a driver may waive a formal review for a first time DUI. The driver must have enrolled in a DUI substance abuse education course and evaluation period to be eligible. This allows the driver to obtain a hardship permit immediately. By

By choosing this option, the driver must waive their right to an informal or formal review to contest the administrative suspension. The administrative suspension for DUI then remains on their driving record for the next 75 years.

With an information or formal review, the driver is not eligible for a hardship (business purposes only) permit for 30 days (BAC of .08) or 90 days (refusal) if the suspension is sustained. By waiving review, there is no 30 or 90 day wait, often called “hard time,” before the driver may obtain a hardship permit.

Informal Review Hearing

An informal review hearing involves a review of all of the material submitted by law enforcement and the driver. No witnesses testify.

The hearing officer determines by a preponderance of the evidence whether sufficient cause exists to sustain, amend, or invalidate a suspension.

Scope of Review at the Formal or Information Review Hearing

What is the Hearing Officer determining?

Breath/Blood/Urine provided:

  1. Whether the officer had probable cause to believe that the person whose license was suspended was driving or in actual physical control of a vehicle while under the influence of alcoholic beverages or chemical or controlled substances.
  2. Whether the person…had an unlawful blood-alcohol level or breath-alcohol level of .08 or higher…

Refusal:

  1. Whether the officer had probable cause to believe that the person whose license was suspended was driving or in actual physical control of a vehicle while under the influence of alcoholic beverages or chemical or controlled substances.
  2. Whether the person…refused to submit to any such test after being requested to do so by a law enforcement officer.
  3. Whether the person… was told that if he/she refused to submit to such test his/her privileges to operate a 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.

Procedures for the Formal Review Hearing

From the law enforcement officer’s perspective, a formal review hearing is similar to a motion to suppress. However, there is no prosecutor to present the law enforcement officer’s case. Testimony is under oath, witnesses testify and may be cross-examined, and the hearing officer may receive evidence. The standard for the admission of evidence is relevance.

Pursuant to 316.2615(2)(a), the following evidence must be submitted by law enforcement for consideration (if applicable):

  • affidavit stating officer’s grounds for believing the driver was DUI
  • breath or blood results
  • affidavit stating a breath, blood or urine test was requested and the person refused to submit

The evidence at the formal review hearing includes:

  • the officer’s description of the field sobriety exercises
  • notice of suspension
  • crash report (if any)
  • video may be submitted without a subpoena

Like a motion to suppress, any lawful basis may be used to challenge the action or inaction of the law enforcement officer in order to attempt to invalidate the license suspension including:

  • reasonable basis for the stop
  • actual physical control
  • insufficient basis for FSEs
  • probable cause for arrest
  • reading of implied consent

A formal review may be conducted by calling witnesses and presenting evidence, or solely by relying on evidence previously discussed without calling any witnesses.

So how do I know whether to attend a formal review hearing? The driver may request that the hearing officer issues a subpoena to the officer(s) and witnesses identified in the material submitted.

If a witness fails to appear, a party may seek enforcement of the subpoena by filing a petition for enforcement in court. A party may then seek attorney’s fees against the witness that failed to appear. By statute, a failure to comply with an order of the court shall result in a finding of contempt.

If a witness cannot appear the witness must notify the hearing officer in writing prior to the formal review. If the arresting officer or the breath test technician fails to appear the hearing officer is required by statute to invalidate the suspension.

Case Law

Larmer v. DHSMV – Whether the driver’s refusal to provide a breath sample constitutes a refusal when the driver changes his mind? A totality of the circumstances approach must be used. The driver may change his mind and avoid the refusal penalty where the retraction comes shortly after the refusal, the driver is still in the presence of law enforcement, and when there is no inconvenience to officers.

DHSMV v. Green – Does a driver arrested for DUI have a right to select a different initial test to be used to determine their BAC? It is the officer who requests the test, not the driver who selects it. A driver has no right to demand a blood test instead of a breath test. However, following a breath test, Florida law provides that the driver may, at his own expense, have an independent test and an officer must provide timely telephone access and not hinder the driver.

Kaiser v. State – Did the breath test technician observing Kaiser prior to the breath test during the 20 minute observation period do so properly? This is a question for the finder of fact. A technician is not required to stare fixedly at the driver for the entire period of time. However, the technician must observe the driver for the entire observation period and restart the period if necessary.

Gallardo v. State – Is a visual estimation of speed alone a lawful basis for a traffic stop? Visual estimation of speed alone is sufficient if the officer articulates enough information about the officer’s vantage point, opportunity to observe the vehicle, and training and experience. If a speed measuring devise is then used, the officer must describe and explain which devise was used.

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