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.
Battling the DHSMV
Lawyers across the state often express frustration at the manner in which 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 often 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 exasperating to the attorneys, but it can be equally annoying to the court system. See the two brief 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)
Police Officer Fails to Show at DHSMV Hearing
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 or breath test operator) 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, our client’s 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. This meant that our client would have his driving privileges reinstated.
However, the DHSMV started taking the position that the officer's failure to appear no longer should cause an automatic win for the driver. Instead, the motorist's attorney was 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 was required to pay a $400.00 filing fee with the Clerk of Court. The DHSMV, in turn would grant an extended driving permit for the motorist to continue lawfully driving until after the matter was heard by the court and remanded back to the DHSMV. As unfair as this may sound, Circuit Court judges would often limit their involvement to typically reprimanding the police officer for his failure to appear and instructing him to properly show up at the next DHSMV hearing.
We Didn’t Think This Was Right... So We Did Something About it
Our view was that the policy change taken by the DHSMV concerning “no shows” was clearly inconsistent with legal precedent. In fact a court 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.
The attorneys at Russo & Russo challenged the conduct of the DHSMV all the way to the Florida Supreme Court. Our position was affirmed by the Second District Court of Appeal and left undisturbed by the Florida Supreme Court. Our success in this case enabled all Pinellas County DUI Defense Attorneys the ability to seek the invalidation of their clients’ driver’s license suspensions when law enforcement failed to appear at formal review hearings.
The Florida Legislature Subsequently Agrees With Our Position
On July 1, 2013, a new law was enacted with respect to the policies and procedures to be implemented by the DHSMV at Formal Review Hearings. One of the primary changes to Florida Statute Section 322.2615(11) was that if the arresting officer or breath test operator fails to appear at a motorist’s Formal Review Hearing, the DHSMV has been instructed, by the legislature, to invalidate the suspension unless the subpoenaed witness can provide good cause for his absence. In sum, the legislature codified the ruling that our office achieved through the Second District of Appeal and had been left undisturbed by the Florida Supreme Court. As such, “the law of the land” in the State of Florida is now clear - - if the arresting officer or breath test operator fails to appear at your hearing and does not timely provide good cause for his absence, your driving privileges must be reinstated.
DHSMV Hearings Often Fraught With Issues and Opportunities
This example is but one scenario arising out of the DHSMV administrative review hearing process. 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 lawyers have handled hundreds of these hearings. As a result, we have developed a keen eye for identifying the issues and arguments that could lead to getting your driver's license back.
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Related Links:
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