Clearwater, St. Petersburg or Tampa DUI Administrative Suspension – Attorney Garry Potts Handles the DMV Hearing as Part of the DUI Representation
You Or Your Attorney Must Act Within the First Ten Days of Your DUI To Preserve Your Rights Under an Administrative Driver’s License Suspension!
An arrest for DUI in Pinellas, Hillsborough or other Florida counties will usually result in the confiscation of your driver’s license by the law enforcement officer. This is required by Florida Statute §322.2615 and is the beginning of the administrative suspension of your driver’s license. The administrative suspension of your license by the Department of Motor Vehicles (DMV) is separate and distinct from the criminal charge of DUI that you will be going to court for. The length of an administrative suspension for DUI varies depending upon the nature of the DUI and the past history of the driver. For example, a first time DUI arrest in which the driver agreed to give a breath sample that resulted in an .08% or higher blood alcohol reading will result in a six (6) month driver’s license suspension, the first thirty (30) days of which will be a “hard” suspension, during which no hardship work or business purposes permit will be allowed. For a second or greater DUI administrative suspension there will be a one year suspension. And the length of the suspensions are longer for those DUI’s in which the driver refused to give a breath sample (or urine or blood, if required by law). For a first time refusal the license suspension is one year, with a ninety (90) day “hard” suspension. New changes to this law, as of July 1, 2013, gives someone who has never before had a DUI Administrative Suspension the option of waiving their rights, explained below, to a Formal Review Hearing to contest the basis for the administrative hearing and to immediately get a “hardship” work or business purposes license, without having to go through the “hard” suspension period.
Even though the administrative suspension is initiated by the police officer who investigated the DUI, there is still a requirement under the U.S. Constitution and Florida law that a driver be given “due process”, or the opportunity to be heard and have both sides of the facts made known and considered before the suspension takes effect.
In the case of a DUI administrative suspension this due process requirement is provided by the issuance of a ten day driving permit by the police officer when the driver’s license is confiscated upon arrest. Each person arrested and charged with a DUI in Florida is normally given a “Florida DUI Uniform Traffic Citation”, which acts as the charging document for the DUI criminal proceedings in traffic court. However, the DUI traffic citation also acts as a temporary ten day driving permit, unless the driver has a previous DUI refusal to provide breath, urine or blood samples in their history. It is very important to keep the DUI Uniform Traffic Citation on the driver’s person while driving during the ten day period, since the Traffic Citation acts as your only driver’s license!
The DUI Traffic Citation also explains that the driver has the right to demand a Review Hearing before the Department of Motor Vehicle’s Bureau of Administrative Reviews within the ten day grace period. As of July 1, 2013, there has been an important change in the law governing these DUI license administrative suspensions. For a first time DUI administrative suspension you now have a choice of waiving the due process right to an administrative review hearing and getting an immediate “hardship license” in the form of either a work purposes or business purposes license. This means that for a first-time DUI you will not have to face either a thirty day “hard” suspension for a breath or blood test over .08% or a ninety day “hard” suspension for a refusal to take a breath, blood or urine test. However, by waiving the right to a Formal Review Hearing you accept the suspension and waive your right to contest it in exchange for not having to endure the “hard” suspension period of no driving at all. In order to prevent the “hard” suspension from automatically taking effect, you must go to the D.M.V. Bureau of Administrative Reviews office in your area before the ten days are up from the date of your DUI and sign a waiver of Formal Review Hearing. You would need to have already enrolled in DUI school and you have to pay a $12 fee for a “hardship” license hearing, present proof of DUI school enrollment and pay a $200.00 driver’s license re-reinstatement fee. At the “hardship” license hearing the D.M.V. will determine if you are eligible for either a work purposes or business purposes hardship license. Reasons why someone would not be eligible for this immediate “hardship” license would include prior DUI’s, a prior refusal of breath, blood or urine DUI tests or if your driver’s license is suspended for other reasons unrelated to your DUI.
For those drivers accused of a DUI who have had prior DUI’s or prior refusals of alcohol tests, the “hard” suspension period will take effect at the end of the ten day grace period. You would still have the right to request a Formal Review Hearing in the first ten days from your DUI arrest in order to have the D.M.V. review whether the police officer had probable cause to confiscate your driver’s license. It is very important to take advantage of the opportunity for this “due process” review of the administrative suspension which was imposed by the police officer, since it not only would be the only opportunity to fight the suspension, but also in some cases allow for an extension of the driving grace period before the “hard” suspension takes effect.
The DMV Review Hearings for DUI administrative suspensions are held by an employee of the Florida DMV Bureau of Administrative Reviews. For a Formal Review Hearing the DMV must provide copies of the DUI “arrest packet” sent to them by the police agency which charged the DUI. Copies of any police reports, Intoxilyzer breath test results, breath test refusal forms and field sobriety test result forms must be provided to the driver or driver’s attorney prior to the hearing. Witnesses, including the arresting officer, the officer who made the traffic stop and the Intoxilyzer operator can be required to appear and testify under subpeona. The DMV hearing officer will have to consider the following issues in deciding whether to uphold or to dismiss the DUI administrative license suspension:
- Whether any traffic stop of the driver by police was lawful;
- Whether police had lawful probable cause that the driver was driving or in actual physical control of a motor vehicle while under the influence of alcoholic beverages or chemical or controlled substances;
- Whether the driver had a blood alcohol level of 0.08 % or higher,
or, if the driver refused to provide a breath, urine or blood sample as required by law,
- Whether the driver refused to submit testing after being asked to do so by the police officer, and
- Whether the driver was told that if he or she refused to submit to testing the privilege to operate a motor vehicle would be suspended for the appropriate periods of time.
In many cases a person who is charged with DUI can receive some benefit from the DMV Administrative Review Hearings process. Whether the administrative license suspension is dismissed completely due to the police or DMV’s failure to follow the requirements of Florida law or procedural requirements, or whether an extension of the initial driving grace period is obtained, there is every reason for a driver charged with DUI to take advantage of the due process afforded by the Review Hearing and no down-side.