Administrative DUI Proceedings in St. Petersburg, Clearwater, and Tampa

Generally

In most instances, upon being arrested for DUI, the investigating officer will take your plastic driver's license (assuming that you have one and that it is with you) and issue you a traffic citation. You can expect this to occur in a situation where you submit to a breath test, and the results are above a 0.08, or where you are asked to submit to a lawful test of your blood, breath or urine, and refuse. Where a blood test is sought, and a sample is taken, the process may be delayed until the results are obtained, but there will still be an administrative component to your DUI case and, potentially, an administrative license suspension. In Florida, if you are requested to submit to a urine test, and do so, there is no administrative proceeding and, therefore, no applicable administrative suspension of your privilege to drive. If a urine test is requested and you refuse, then here again, there is an administrative component to your DUI case and, potentially, an administrative suspension.

Toward the bottom of your DUI citation, just below your signature, will see the following:

"Effective immediately, your driving privilege is suspended for:

• Driving with an unlawful breath or blood level. This suspension is for a period of six months if this is a first violation or one year if previously suspended for driving with an unlawful blood or breath alcohol level. If you hold a CDL or you are operating a CMV, your commercial driver license/privilege will also be disqualified for one year for a first offense or permanently disqualified for a subsequent offense.
• Refusal to submit to lawful breath, blood, or urine test section 322.2615, F.S. This suspension is for a period of one year if this is a first refusal or 18 months if previously suspended for this offense. If you hold a CDL or you are operating a CMV, your commercial driver license/privilege will also be disqualified for a period of one year for a first refusal or permanently disqualified for a second refusal."

Each paragraph will have a small box beside it, which the arresting officer will check, as applicable (it's either/or, not both). There will also be a box to check indicating whether the license was surrendered (or not and, if not, the reason) and whether the driver is eligible for a permit (or not and, if not, the reason). The most common reason a person is ineligible for a permit is that his or her license is already suspended.

Just below this portion of the citation, you will see the following words printed:

"Unless ineligible, this citation shall serve as a temporary driver's license and will expire at midnight on the 10th day following the date of suspension".

At the Bureau of Administrative Reviews Office, you may request, within 10 days after the date of suspension, a review of suspension by the Department of Highway Safety and Motor Vehicles to determine your eligibility for a restricted driver's license if this is your first DUI related offense.

This is what is commonly referred to as the 10 day rule. You have 10 days, from the date the citation was issued, to take some action with the DMV in order to challenge the propriety of the suspension, or to avoid a "hard" period of suspension from taking effect. A hard period of suspension is any period of time wherein no hardship or restricted license is permitted and you cannot drive for any purpose. During this initial 10 day period, assuming your privilege to drive was otherwise intact, the citation issued to you by the arresting officer will serve as an unrestricted driver's license (this means you can drive for any purpose). You should always keep your citation with you when driving during this ten day period because if another officer runs your tag, DMV records will, in all likelihood, reflect that the suspension has gone into effect.

What Are My Options?

During this 10 day period, you have up to three options: (1) waive your right to a formal or informal review hearing, and request a review of your eligibility for an immediate hardship license (for the entirety of the applicable period of suspension); (2) request a formal or informal review hearing to challenge the propriety of the administrative suspension; or (3) do nothing. The first option is available only for persons with no prior DUI offenses. The third option really isn't viable: you should always make an effort to challenge the suspension and attempt to have it rescinded or set aside. If you take no action, the applicable period of suspension will go into effect on the 11th day following your arrest, including any associated "hard" period of suspension. Once the applicable "hard" suspension is served, you may be entitled to a hardship license for the balance of the total period of suspension (see below for details). As far as the second option is concerned, there is really no good reason to request an informal hearing; if you are going to have a hearing on the administrative suspension, you should request a formal hearing. An experienced St. Petersburg DUI attorney can explain the differences in greater detail.

The first time offender has an advantage over the multiple time DUI offender: he or she can elect to waive his or her right to a hearing and obtain a hardship license, for the applicable period of suspension, immediately. If the first time DUI offender goes this route, there is no danger of a hard period of suspension. This option is available whether you submit to the requested breath or blood test, or refuse it. It is also available to drivers under the age of 21. If approved (and I have not yet had a case involving a first time DUI offender where it wasn't) you can drive for work, church, medical, or educational purposes, or to maintain a livelihood. Driving for fun or leisure is not permitted (think movies or sporting events). The total period of suspension for a first time DUI offense, where the driver submitted to a lawful test of his or her breath or blood, with a result of 0.08 or higher, is six months. The total period of suspension for a first time DUI offense, where the driver refused to submit to a lawful test of his or her breath, blood, or urine is one year. The clock begins to tick on the date of arrest (and not upon the expiration of the 10 days wherein the person is driving with his or her citation as a license). Thus, the first time DUI offender who submits to the requested test, waives a hearing, and requests a "review of eligibility" will have a hardship license for six months and no period of hard suspension. The first time DUI offender who refuses the requested test, waives a hearing and requests a "review of eligibility" will have a hardship license for a year and no period of hard suspension.

Prior to July 1st, 2013, not even a first time DUI offender had this option in Florida. He or she had no option but to request a hearing and attempt, through his or her attorney, to have the administrative suspension set aside. This is not always an easy thing to accomplish. The Department's burden at these hearings is quite low (what must be proven is set forth in greater detail below) and, in many instances, the suspension is upheld. The first time DUI offender who submitted to a lawful test of his or her breath or blood (with a result of 0.08 or higher), would be subject to a 30 day hard period of suspension, as part of the sixth month total period of suspension (following the 30 day hard suspension, he or she could obtain a "hardship" license" for the duration). The first time DUI offender who refused to submit to a lawful test of his or her breath, blood, or urine would be subject to a 90 day hard period of suspension, as part of the one year total period of suspension (following the 90 day hard suspension, he or she could obtain a "hardship" license for the duration).

The first time offender is not required to make this election however; he or she can certainly request a hearing and challenge the suspension. The disadvantage, to reiterate, is the applicable period of hard suspension in the event the offender is not successful at the formal review hearing. The advantage, however, is that a successful attempt will result in the administrative suspension being rescinded or set aside. In that scenario, there is no hard period of suspension and no hardship license is needed. The person takes the order setting the suspension aside (which is issued by the DMV hearing officer) to any DMV office and can fully reinstate his or her privilege to drive. Under these circumstances, the person does not need to be concerned about the loss of his or her privilege to drive until the matter is resolved in criminal court by way of a guilty or no contest plea, or a finding of guilt by a judge or jury (once again, there are almost always two suspensions to contend with in a DUI case). More information on the court imposed suspension can be found in the "criminal proceeding" subsection herein.

The multiple time offender will have no choice but to request a hearing (or do nothing which, again, is not advisable). When a hearing is requested, the petition must be filed with 10 days following the arrest (the "10 day rule"). When the proper paperwork is filed, the Department of Motor Vehicles will issue a permit, which will allow the person to drive beyond the initial 10 day period following the arrest and until a hearing can be scheduled. The permit will allow a person to drive for the same purposes as a hardship license: (1) work; (2) church; (3) medical (doctor's appointments); (4) educational (school); and/or (5) to maintain a livelihood. You have a right to have the hearing within 30 days of the request. There is really no good reason to waive the 30 day requirement unless you have a scheduling issue with an essential witness or there is some other compelling circumstance. If the department fails to hold the hearing within 30 days, the administrative suspension can be set aside. If successful, the multiple time offender (like the first time offender who elects to have a hearing) is not subject to an administrative suspension and can immediately reinstate his or her privilege to drive. If unsuccessful, the administrative penalties are more punitive for the recidivist offender, as set forth in greater detail below.

If you reside out of state, it is highly unlikely that your home state will take any action on Florida's administrative suspension. For example, if you live in Georgia, get arrested for a DUI in Florida, and either blow above the legal limit or refuse, your privilege to drive in Florida may very well be suspended, but your privilege to drive in Georgia will not be. In fact, I don't believe I have had a case yet where the administrative suspension followed the client to his or her home state. Often times, I will give the client the option of setting a formal review hearing, or taking no action. If, however, the client travels to Florida regularly, the hearing avenue should be pursued.

The court imposed suspension, which takes effect at the time the case is resolved before the judge, is a different matter. That suspension is inputted into the National Driver's Registry and will, in all likelihood, result in your license being suspended in your home state. For more information, see the "Criminal Proceeding" section herein.

Scope of Review & Burden of Proof

The issues to be resolved by the DHSMV hearing officer at a formal or informal review hearing are limited and set forth in Florida Statutes section 322.2615(7), which provides as follows:

(7) In a formal review hearing under subsection (6) or an informal review hearing under subsection (4), the hearing officer shall determine by a preponderance of the evidence [emphasis added] whether sufficient cause exists to sustain, amend, or invalidate the suspension. The scope of the review shall be limited to the following issues:

(a) If the license was suspended for driving with an unlawful blood-alcohol level or breath alcohol level of 0.08 or higher: 1. Whether the law enforcement officer had probable cause to believe that the person whose license was suspended was driving or in actual physical control of a motor vehicle in this state while under the influence of alcoholic beverages or chemical or controlled substances. 2. Whether the person whose license was suspended had an unlawful blood or breath alcohol level of 0.08 or higher as provided in s. 316.193.

(b) If the license was suspended for a refusal to submit to a breath, blood, or urine test: 1. Whether the law enforcement officer had probable cause to believe that the person whose license was suspended was driving or in actual physical control of a motor vehicle in this state while under the influence of alcoholic beverages or chemical or controlled substances. 2. Whether the person whose license was suspended refused to submit to any such test after being requested to do so by a law enforcement officer or a correctional officer. 3. Whether the person whose license was suspended was told that if he or she refused to submit to such test his or her privilege to operate a motor vehicle would be suspended for a period of one year or, in the case of a second or subsequent refusal, for a period of 18 months.

These are the narrow issues to be determined by the hearing officer at a formal review hearing. The Department of Motor Vehicles' burden of proof in these hearings is, as indicated above, a preponderance of the evidence. In a criminal proceeding, the state's burden of proof is beyond a reasonable doubt, the highest burden of proof in the American legal system. Not so here: a preponderance of the evidence is a much lesser burden of proof. With such a narrowly defined scope of review, and such a low burden of proof, how can one even hope to have the administrative suspension aside? Some of the defenses that can be raised effectively are set forth immediately below.

Defenses

After making the arrest in your DUI case, the officer will forward your driver's license, notice of suspension, and a packet of information to the Department of Motor Vehicles, Bureau of Administrative Reviews Office in the appropriate county. If you elect to have a formal (or informal) review hearing, you are entitled to obtain a copy of the packet of information in the possession of the DMV. The documents will typically include a copy of the police report, arrest affidavit, what is called a "Law Enforcement Oath Form", an affidavit of refusal (if you refused to submit to the test that was requested of you), the intoxilyzer printer card, which shows your breath test results (if you submitted to a breath test), and a copy of the agency inspection report for the intoxilizer machine (again, if you submitted to a breath test).

There are certain documents that must be included in the packet that is forwarded to DMV. One is the "Law Enforcement Oath Form". This is a stand alone sheet of paper wherein the officer swears to the veracity of the the entire packet. I have had several instances over the years wherein the LEO Oath Form was not included and had the administrative suspension invalidated on that basis. I have also had instances wherein the date on the oath form was incorrect, which can also be basis upon which to have the administrative suspension set aside. Where, for example, the offense occurs on January 3rd, 2016, and the LEO Oath Form is dated January 3rd, 2015, there is a problem: you cannot swear to the occurrence of events before they actually take place. While the date issue is really nothing more than an inadvertent scrivener's error, it can make a big difference in the outcome of the hearing.

Because certain things need to occur in a certain order as part of a DUI investigation, other mistakes in dates and times in the various documents can also result in the suspension being set aside. For example, implied consent warnings must be read before a person can be penalized for refusing a breath test. If the documents mistakenly indicate that implied consent was read sometime after the refusal was entered, the suspension may be set aside. These are but two examples. As a St. Petersburg DUI attorney, looking for missing documents, or mistakes in the date and time of certain key events, is the first thing I do upon receiving the discovery packet. If the client submitted to a breath test, and the officer failed to include maintenance records for the intoxilyzer machine, that too can be a basis to set the administrative suspension aside, and I have had it set aside on that basis in the past. While most law enforcement officers are keenly aware of what DUI defense attorneys are looking for, you just never know when one of them may make a mistake that can rescind the otherwise applicable license suspension. For a client that is facing an 18 month hard suspension for a refusal (because he or she refused a breath, blood, or urine test as part of a prior DUI), a sharp set of eyes from an experienced DUI defense attorney can make all the difference in the world.

As part of the formal review hearing, you or your DUI defense lawyer can subpoena witnesses. Often times, your attorney will want to evaluate the pros and cons of subpoenaing the arresting officer. If there are missing documents or issues with dates and times that will result in the suspension being set aside, your attorney will not likely want to to subpoena the officer. If arresting officer is present, then the DMV hearing officer can swear that person in and allow him or her to orally attest to the veracity of the documents. If present, the arresting officer may also correct, on the record, any fatal inconsistencies in the packet as a whole with his or her testimony. Where there are no issues with missing documents or inconsistencies in the paperwork, then subpoenaing the arresting officer, or the breath test operator, may provide the best chance to rescind the suspension. If the arresting officer is under subpoena, and does not appear for the hearing, your DUI defense lawyer will move to have the suspension set aside and the motion will be granted. If you submitted to a breath test, and the breath test operator fails to appear under subpoena, the suspension can be set aside on the same basis.

Another area your DUI defense attorney will want to look for potential issues is to the traffic stop itself. If the stop was without the requisite reasonable suspicion, the administrative suspension can be set aside. An example may be where an officer is given a BOLO (Be On Look Out) from an anonymous source for a potentially impaired driver. If the officer conducts a stop without making any effort at all to corroborate the tip, the stop may be challenged and therefore, the propriety any ensuing administrative suspension as well. When there are issues regarding the propriety of the traffic stop, obtaining the video recording from the arresting agency is a must. I cannot tell you the number of times a video recording shows something different than what the police report purports took place. While the arresting officer may state that the driver as weaving, the video may tell a different story. The video may also provide an important account of what occurred in the breath test room. Was implied consent actually read? Was it read correctly? Were there issues with the breath test machine? Did the officer actually observe the driver for a twenty minute period before administering the breath test to ensure the driver didn't burp or regurgitate (the breath test machine is designed to analyze deep lung air and burping can result in an inaccurate BAC reading because the machine may reading mouth alcohol)?

In other instances, there may not be sufficient evidence to establish that the defendant was the driver (in a single car accident case, for example, the driver may be out of the vehicle before any one else arrives on scene, and that person may elect not to make any statements once the DUI investigation ensues).

These are just a few of the several bases upon which an administrative DUI suspension can be challenged. A St. Petersburg DUI lawyer who has substantial experience in conducting these types of hearings will identify the issues that can prevent you from becoming a pedestrian for many weeks or months. While some individuals elect to proceed on their own, doing so greatly reduces your chance of success in what is an already challenging posture.

If you are unsuccessful at the administrative hearing, you may want to consider appealing the ruling to the Circuit Court. You should know, however, that the filing of a notice of appeal does not stay the suspension. The suspension will go into effect once the permit expires regardless. Also, it can take anywhere from six to nine months (or perhaps longer) to get a ruling from the appellate court. For many individuals, the period of suspension is over before the court rules on its propriety. Thus, your right to appeal is, in many ways, a right without a remedy. Unless you are facing an 18 month hard suspension, and you have a bona fide issue to appeal, it may not be worth the expense or the trouble.

The only other option you have is to take the case to trial in criminal court. In the event of a not guilty verdict, the administrative suspension will be lifted. This is really the only way: even if the state were to nolle prosse the DUI charge, the administrative suspension will remain intact. I had this issue several years ago: my client was an airline pilot and there was an issue as to who was driving the car. I was not successful at the administrative hearing, but did succeed in having the state drop the charge. Because of his status as a pilot, a conviction at trial would have been utterly devastating. Despite the nolle prosse, my client had to wait out the period of hard suspension (this was pre-2013: today he would have qualified for an immediate hardship license as it was a first offense).

Periods of Suspension

As indicated above, the applicable periods of suspension will depend on (1) whether you submitted to a lawful test of your breath or blood, or refused to submit to a lawful test of your blood, breath, or urine; (2) the existence of any prior DUI related convictions/suspensions; and (3) whether, in your prior DUI case, you submitted to a lawful test of your breath or blood, or refused to submit to a lawful test of your blood, breath or urine. The following provides an overview of each potential scenario.

In all of the following situations, the arrest and notice of suspension starts the clock ticking. The citation is an unrestricted driver's license for 10 days (assuming the license was otherwise valid). Once a hearing is requested, a permit is issued until the hearing can be be held and the issues decided. If no hearing is requested, the applicable suspension goes into effect on the 11th day following the arrest.

First DUI with breath/blood alcohol level 0.08 or higher

The driver may request a review of eligibility for an immediate hardship license. Total period of suspension is 6 months. There is a 30 day hard suspension if a hearing is requested and lost. The hard suspension becomes effective once the permit expires. The driver is eligible for a hardship license for the balance of the six month period after the 30 day hard suspension is served.

Second or subsequent DUI, first offense with breath/blood alcohol level 0.08 or higher

Because this is not a first offense, the driver cannot waive a hearing and request a review of eligibility. Total period of suspension is 6 months. There is at least a 30 hard suspension if a hearing is requested and lost. The hard suspension becomes effective once the permit expires.

The driver may be eligible for a hardship license following the 30 hard suspension if (1) the driver does not have two prior suspensions for a refusal; or (2) the driver has only one prior DUI conviction. In the event of a prior DUI conviction, the hardship license will be effective until the case is resolved in court.

Second or subsequent DUI, second offense with breath/blood alcohol level 0.08 or higher

The driver cannot waive a hearing and request a review of eligibility. The total period of suspension is one year. There is at least a 30 day hard suspension if a hearing is requested and lost. The hard suspension becomes effective once the permit expires.

The driver may be eligible for a hardship license following the 30 day hard suspension if (1) the driver does not have two prior suspensions for a refusal or (2) the driver has only one prior conviction. In the event of a prior conviction, the hardship will be effective until the case is resolved in court.

First DUI, first refusal

Because this is a first offense, the driver may waive a hearing and request a review of eligibility. The total period of suspension is one year. There is a 90 day hard suspension if a hearing is requested and lost. The hard suspension becomes effective once the permit expires. The driver is eligible for a hardship license for the balance of the one year period after the 90 day hard suspension is served.

Second or subsequent DUI, first refusal

Because this is not a first offense, the driver cannot waive a hearing and request a review of eligibility. The total period of suspension is one year. There is at least a 90 day hard suspension if a hearing is requested and lost. The hard suspension is becomes effective once the permit expires.

The driver may be eligible for a hardship license if (1) the driver does not have two prior suspensions for a refusal; or (2) the driver has only one prior DUI conviction. In the event of a prior DUI conviction, the hardship will be effective until the case is resolved in court.

Second or subsequent DUI, second or subsequent refusal

The driver cannot request a hearing and request a review of eligibility. The period of suspension is 18 months. The hard suspension becomes effective once the permit expires. The driver is ineligible for a hardship license.

The Bottom Line

If you are arrested for DUI, and submit to a lawful test of your breath or blood with results that are 0.08 or higher, you will be subject to an administrative suspension proceeding. If you are arrested for DUI, and you refuse a lawful test of your blood, breath or urine you will be subject to an administrative license suspension proceeding. In any event, the citation issued to you by the arresting officer acts as an unrestricted driver's license for the ensuing 10 days. During that time, you must take some action with the DMV to prevent the applicable period of suspension from going into effect. If this is your first DUI offense, you can waive your right to a hearing and obtain a hardship license for the applicable period of suspension. You also have the option of requesting a hearing. If you have priors, you must request a hearing to avoid the suspension from taking effect on the 11th day. Once the hearing is requested, the DMV will issue you a permit to drive beyond the 11th day which is usually good for 40-50 days. During that time, your hearing will be scheduled. If you are successful, there is no administrative suspension. If you are unsuccessful, you will be subject to an administrative suspension. Once the "hard" portion of the suspension is served, you may petition for a hardship license, which the DMV can grant unless you have two or more prior DUI convictions, or you have refused to submit to a lawful test of your blood, breath or urine on two or more occasions.

DUI law is complicated. If you have been arrested for a DUI in the Tampa Bay area, St. Petersburg DUI attorney Donald J. Kilfin can help. Contact us with specific questions about the administrative implications for your driver's license, or any other aspect of your DUI case. Evening and weekend appointments are always available.