The Florida Administrative Driver License Suspension Law can be complicated and confusing. I strongly recommend that you consult with an experienced DUI defense attorney before deciding how to proceed. An experienced DUI defense attorney will understand the time limits and technicalities of this process and is well-suited to defend you at this stage of your case.
Arrested for DUI and Driving Privileges Suspended
In Florida, anyone arrested for DUI and who provides a breath test result over.08 will have their driving privileges suspended for six months by the Florida Department of Highway Safety and Motor Vehicles (DHSMV). In the case of a refusal to submit to a breath test, blood test or urine test (where applicable) DHSMV imposes a one year suspension, or an eighteen month suspension if the driver has had their privilege suspended previously for refusing to submit to the breath test, blood test or urine test.
What Happens Next?
The Florida Uniform Traffic Citation (yellow traffic ticket) charging you with DUI serves as a temporary driver license for ten calendar days from the date of your arrest. This "permit" allows driving for business or employment purposes. That means to and from work, on the job driving, food shopping, banking, court, your lawyer’s office…no pleasure driving.
Within ten days you can, and should, file an application for a Formal Review Hearing. This hearing affords you an opportunity to challenge the legality of the suspension of your driving privileges. An experienced DUI attorney will have the application for this hearing and can file it for you. In Miami, the DHSMV Field Hearing Office is located at 2515 West Flagler Street, Miami, Fl 33135. A filing fee of $25.00 is required. Assuming that your license was otherwise valid at the time of the arrest, you will get an extension of the ten-day permit which lasts an additional forty-two days. DHSMV must schedule the Formal Review Hearing within 30 days from the date it was requested.
Here is the text of the Florida Statute section applicable to this process:
What if You Don't Request the Review?
If you don’t request a Formal Review Hearing within ten days from the date of the arrest, DHSMV will sustain the suspension for the applicable period (six months, one year or eighteen months). In the case of a six month suspension, once the temporary permits expire, you are ineligible to drive for 30 days, as part of the six month suspension. After that period is up you can apply for a business purposes license (hardship license) after you provide proof of enrollment in an approved alcohol/substance abuse education program. In the case of a refusal suspension (one year) there is a 90 day ineligibility period as part of the one year suspension. In the case of a second or subsequent refusal, Florida law prohibits the issuance of any temporary/business or hardship permit for the entire eighteen month suspension period.
The Formal Review Hearing
Once you receive the Notice of Hearing from DHSMV, you will need to prepare a pre-hearing statement, defining the issues to be considered at the hearing. This is also the opportunity to request the issuance of subpoenas for any witness you want to question, including the police. You will also have the opportunity to review the entire file before you decide which witnesses you want to subpoena. Subpoenas need to be prepared, issued by DHSMV and served on the witnesses.
On the day of the hearing you should bring all of your witnesses. You will have the opportunity to question the police officers and witnesses.
The Florida Administrative Code 15A-6 governs the conduct of these hearings:
Scope of the Review
The scope of the Formal Review Hearing is fairly narrow. The burden of proof is whether the hearing officer has competent and substantial evidence to believe that
The arresting law enforcement officer had probable cause to believe that the driver was driving or in actual physical control of a motor vehicle in this state
The driver had a breath alcohol level over a .08
In the case of a refusal, whether the driver refused after being told that his driving privileges would be suspended if he refused
As you can see, it doesn’t take a lot of evidence to sustain this administrative suspension. However, experienced DUI defense lawyers are trained to challenge these hearings, often with notable success.
If You Win/If You Lose
If you win the hearing, your driving privileges are reinstated. If you lose the hearing, you will have to endure either a 30 or 90 day period during which you cannot drive. After those periods are up, you must provide DHSMV with proof of enrollment in an alcohol education program for consideration for a hardship license. If you are approved you must present this approval to a driver license examining office, take a written examination, and pay an administrative fee and a reinstatement fee and any license fee and provide proof of liability insurance on the arrest date.
The results of this hearing have no bearing or effect on the disposition of your criminal case, and vice versa.