DMV Formal Review Hearing

Perhaps the most important part of any DUI defense involves challenging the administrative suspension of the driver's privileges to drive in the State of Florida. Even individuals arrested for DUI in Florida who have an out of state driver's license may have the privileges to drive in their home state suspended after receiving notice of the administrative suspension in Florida.

Tallahassee DMV Formal Review Hearing Attorney

Tallahassee DUI Attorney, Don Pumphrey, Jr., recognizes the importance of the formal review hearing for several reasons. First, the administrative suspension can be devastating to the driver particularly for someone who has never before been arrested for DUI. Winning the administrative hearing means the driver can continue to drive pending the outcome of the criminal case. Second, the attorney has an opportunity to question all of the state's witnesses under oath. That testimony can later be used during pre-trial motion hearings to suppress or exclude certain evidence. Of course, that testimony can also be used to impeach the witness at trial if the witness tries to change his or her testimony in front of the jury.

After a DUI arrest you must act quickly to retain an experienced Tallahassee DUI attorney to fight the administrative hearing in Leon County, and the surrounding areas through the Second (2nd) Judicial Circuit including Crawfordville in Wakulla County, Monticello in Jefferson County, Bristol in Liberty County, or Quincy in Gadsden County.

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The Process of Seeking to Invalidate the Administrative Suspension

After a DUI arrest involving a refusal or a blow over the legal limit of 0.08, the arresting officer will take the driver's license. The arresting officer then forwards paperwork to the Florida Department of Highway Safety and Motor Vehicles. If the driver does nothing, the suspension will occur after a 10 day period. During those 10 calendar days after the arrest, the driver must file a written request for a formal review hearing. The DHSMV must schedule the hearing within 30 day after the request is received. A notice will be sent to the driver and his attorney which notifies them of the day, time, and location of the hearing.

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The Hearing Officer

A hearing officer employed by the Bureau of Administrative Reviews will conduct the hearing. The attorney will obtain a "packet" that contains all of the documents the hearing officer intends to admit at the hearing including the citations, police reports, DUI worksheet showing the results of any roadside agility tests, breath test results, or an affidavit stating that a refusal to submit to testing occurred.

Although the hearing officer is not an attorney, the hearing officer is permitted by Florida's statutes and administrative rules to issue subpoenas, put the witnesses under oath, question the witnesses, and admit exhibits into the record. The hearing officer also conducts the hearing and makes a ruling on the issue of whether the administrative suspension should be upheld or invalidated.

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Witnesses Can Be Compelled to Testify at the FRH

The state attorney's office must be notified of the hearing and the issuance of subpoenas. If a witness fails to appear, the subpoena can be enforced through a contempt proceeding which requires a $411 filing fee in the Circuit Court. The courts will typically enforce the subpoena and require the party who failed to appear to pay the costs of the motion of enforcement and reasonable attorney fees. If the hearing officer deems the absent witness to be a "critical witness" than the hearing officer will typically extend the temporary driving permit until after the witness appears, if forced to comply with the subpoena.

The DUI Attorney will typically subpoena all of the witnesses in the case including the officer that conducted the stop, the arresting officer, the breath test technician, and the agency inspector.

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The Formal Review Hearing

The actions of the Department of Motor Vehicles and Highway Safety (DHSMV) must provide and comply with the following:

• A fair process of deciding the case (often called "procedural due process")
• The hearing officer must follow the essential requirements of law; and
• The hearing officer's findings must be supported by competent and substantial evidence.

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The Hearing Officer's Decision to Sustain or Invalidate the Suspension

Within one week of the formal review hearing, the hearing officer must send written notice to the driver and his attorney of the decision. The hearing officer can sustain, invalidate, or amend the suspension. Chapter 322.2615 of Florida Statutes provides the hearing officer must determine by the greater weight of the evidence whether sufficient facts exist to uphold a suspension after a DUI arrest. The scope of the hearing officer's review is limited to very specific issues provided under Florida's statutory scheme including:

• Whether the officer that made the DUI arrest had "probable cause" to believe the person who was arrested was driving or in actual physical control of a motor vehicle in Florida while under the influence of alcohol or drugs;
• Whether the officer that made the DUI arrest lawfully arrested the person for DUI;
• In a breath test case, whether the person arrested for DUI had a breath or blood alcohol level over the legal limit of 0.08 as provided under Florida Statute 316.193.
• In a refusal case whether the individual refused to submit to the chemical test of his breath, blood or urine after being properly advised of Florida's Implied Consent Warning.

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Challenges to the Administrative Suspension

At the review hearing, your attorney can raise certain challenges including but not limited to the following:

• showing the arresting officer did not have probable cause that the person was DUI;
• showing the person was not driving or in actual physical control of the motor vehicle; or
• showing the hearing officer did not comply with an important procedural rule, resulting in a denial of due process or fundamental fairness;
  

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Failure to Conduct the FRH within 30 Days of the Request

The Florida Administrative Code requires the hearing officer conduct the formal review hearing within thirty (30) days. A delay may lead to the license suspension being invalidated so no administrative suspension will occur. The driver may request a delay in the proceedings which would not be a violation of Chapter 15-A-6.013(1) which states, “Upon receipt of a timely request for formal review, the division shall schedule a hearing to be held within 30 days after the request is received by the division, unless waived by the driver. See also Florida Administrative Code, 15-A-6.013 (1).

Furthermore, Chapter 15-A-6.013(1(a) provides that if the hearing officer with the DHSMV's Bureau of Administrative Reviews is unable to conduct the hearing within the 30 day period then "the division shall invalidate the suspension or disqualification.” Florida Administrative Code, 15-A-6.013 (1(a).

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The Law Offices of Don Pumphrey, Jr. - License Suspension Lawyer in Tallahassee

After an arrest for driving under the influence of drugs or alcohol (DUI) you should seek the services of a lawyer with experience in fighting the Formal Review Hearing conducted by a hearing officer with the Florida Department of Motor Vehicles and Highway Safety (DHSMV) Bureau of Administrative Review. Contact Tallahassee DUI lawyer, Don Pumphrey, Jr. to discuss your best strategy for contesting the suspension of your Florida driving privileges in Leon County and the rest of the Second (2nd) Judicial Circuit, including Quincy in Gadsden County, Monticello in Jefferson County, Bristol in Liberty County, or Crawfordville in Wakulla County, Florida.