When a driver in Florida is arrested for DUI, the Florida Department of Highway Safety, Division of Drivers Licenses imposes a 6 month "administrative" drivers license suspension for a .08 breath test or above. The suspension period is bumped to one year if the motorist refused to submit to the Intoxilyzer machine. This suspension is in addition to the Florida minimum mandatory DUI penalties the driver would suffer if he were to be convicted of the offense in court.
However, the U.S. Constitution provides for "due process," which generally means the government cannot take a property interest from you without an opportunity for your attorney to be heard at a hearing where he can raise defenses and challenge the government's intended action. In the case of these DUI related administrative suspensions, this due process right translates into what is called a "DHSMV Formal Review Hearing."
Although requesting a Formal Review Hearing typically results in the issuance of a temporary driving permit, this hearing should not be confused with a business or employment hardship license hearing. The purpose of a Formal Review Hearing is to challenge the administrative suspension, whereas a hardship license hearing typically takes place after a driver has been convicted of the DUI in court and he seeks limited driving privileges during his court imposed drivers license suspension period.
Lawyers across the state often express frustration at the manner in which these DHSMV Formal Review hearings are sometimes conducted. DHSMV Hearing Officers are neither lawyers or judges. In fact, they have no formal legal training and yet are expected to rule on complex issues of law. This shortcoming can often result in rulings that are inconsistent with Florida statutory law or appellate court decisions. An unjust ruling can necessitate an appeal to the Circuit Court, where a panel of three "authentic" judges reviews the action of the DHSMV to decide if the DHSMV Hearing Officer's decision should be overturned.
Sometimes, even after being directed by the Circuit Court to "clean up their act," the DHSMV will continue down the same course of inappropriate rulings. Not only can this be frustrating to the attorneys, but it can be equally exasperating to the court system. See two appellate court opinion excerpts below that illustrates this point:
"This court finds on this record a Due Process violation so obvious that Respondent (DHSMV) should have recognized it. This court is concerned about repeated Due Process violations by Respondent at Formal Review Hearings on administrative drivers license suspensions even after entry of opinions in this circuit identifying those violations and granting certiorari."
_The Honorable L. Haldane Taylor, Brown v. Department of Highway Safety and Motor Vehicles, (Fla. 4th Cir. Ct., September 13, 2003)
"This court is cognizant of the consistent pattern of Due Process violations by the Department of Highway Safety and the Bureau of Administrative Reviews in this circuit. Previous warnings, including prior orders, have gone unheeded. Prior orders awarding attorney's fees and costs have had no affect. Thus, the sanction of imposing attorney's fees under these circumstances is an appropriate remedy for DHSMV's repeated bad faith and inequitable conduct."
_The Honorable Charles O. Mitchell, Jr., Lovely v. Department of Highway Safety and Motor Vehicles (Fla. 4th Cir. Ct., Nov. 1, 2004)
Our office handles a large number of Pinellas County (St. Petersburg / Clearwater) DUI cases in criminal and traffic court. (See: Why choose us to help with your Pinellas DUI.) We also routinely challenge the administrative suspensions at the DHSMV level. Sometimes, a law enforcement officer (often the arresting police officer) is subpoenaed to appear at the DHSMV Formal Review Hearing, but fails to show. In the past, an officer “no show” was an automatic win for the driver. As a result, his administrative drivers license suspension, caused by a .08 B.A.C. or above, or his administrative suspension caused by his refusal to submit to the Intoxilyzer would be invalidated.
However, the DHSMV has now taken the position that the officer's failure to appear no longer causes an automatic win for the driver. Instead, the motorist's attorney is expected to seek enforcement of the subpoena through the Circuit Court in a "show cause" hearing. To commence this ancillary and corrective proceeding, the driver is required to pay a $400.00 filing fee with the Clerk of Court. The DHSMV, in turn will grant an extended driving permit for the motorist to continue lawfully driving until after the matter is heard by the court and remanded back to the DHSMV. As unfair as this may sound, Circuit Court judges will limit their involvement to typically reprimanding the police officer for his failure to appear and instruct him to properly show up at the next DHSMV hearing.
Our view is that the policy taken by the DHSMV is clearly inconsistent with a ruling on May 20th, 2011 in Pfleger v. State of Florida, DHSMV which was decided by the Pinellas Circuit court acting in its appellate capacity on May 20th, 2011. The court in Pfleger found that is improper to require the motorist to seek relief in the form of a "show cause" hearing. The court further stated that when a material witness fails to comply with a subpoena that commands his attendance at a DHSMV formal review hearing, DHSMV must rule in the driver's favor and invalidate the administrative suspension.
Our office has recently filed an appeal to the Pinellas County Circuit Court requesting the court to order the DHSMV to reimburse our client for attorney's fees and court costs due to the DHSMV's failure to follow the Pfleger decision. It is our belief that if the DHSMV is sanctioned financially, the agency will thereafter correct its future rulings to the benefit of our future and current clients.
This example is but one scenario arising out of the DHSMV administrative review hearing. There are a multitude of legal and factual issues that can be explored by our office in seeking to overturn an administrative driver license suspension. Throughout the years, our office has handled hundreds of these hearings. As a result, we have developed a keen eye for identifying the issues and arguments that may lead to getting your driver's license back.
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Related Links:
Learn about Florida DUI Hardship License Tips
How to evaluate the merits of a Florida DUI Case
Getting an Immediate Head Start after being Arrested for DUI
Info for Out of Town Drivers arrested in St. Petersburg / Clearwater
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