I refused a breath test in Florida. What are my chances of actually winning a DMV administrative hearing?

Asked almost 5 years ago - Jacksonville, FL

I had only drank a couple of beers. I was heading home from an adult intramural game. Pulled over for wreckless driving (85 in a 45). Stepped out and was arrested after FSEs. Refused the breath test only because that's what I've always been told to do over the years. Hindsight I probably should have blown to prove I wasn't under the influence! This has been the ultimate nightmare. 2 years shy of 30 and never arrested in my life. The officer had no dash camera. I technically didn't refuse the breath test. I kept asking for a phone call to call an attorney. They kept telling me no. I said I'm not taking a breath test until I get a phone call. They eventually became annoyed and sent me packing. I remember the entire night. The worst experience of my life.

Attorney answers (3)

  1. Stephen Andrew Mosca

    Contributor Level 17

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    Answered . Winning the DMV Administrative Hearing is a tough one - but it is possible depending on a variety of circumstances. For certain, obtaining a hearing will get you a driving permit until the hearing, and may help your attorney obtain valuable insight into the State's case if the officer(s) show up for the hearing. If they don't show, there is slightly better chance you could prevail. Either way, it is something you shouldn't let pass. As stated above, yo have ten days from midnight of the day you were arrested to set the hearing.

    An attorney can also get any video that exists from the booking area that may show you perfectly in control of your normal faculties. This also must be requested before it is over-written and destroyed.

    The facts alleged in the report as to why the officer believed you exhibited impaired behavior in the first place and detained you for FSEs is also ripe for litigation. You need to get an attorney keyed up on this sooner rather than later. The cost may seem a nuisance but a conviction will cost a lot too, and for years to come.

    Please feel free to contact my office here in Jacksonville for an assessment of your case.

  2. Michael Ray Herron II

    Contributor Level 5

    Answered . Your chances of winning the DMV hearing are slim. These hearings are slanted in favor of suspending your license. The person who is acting as your "administrative prosecutor" also happens to be the person who decides whether or not to uphold your suspension. Implied Consent Law states that by accepting the Florida driving privilages granted by your Florida Driver's License that you pre-agree to take the breath test. Furthermore, Florida Law states that you do not have the right to an Attorney regarding the breath test. Thus asking for a phone call to your Attorney is not a defense to the suspension because your were not entitled to one for the breath test.

    If you hire a local DUI Attorney there in Jacksonville you will have the best chance of winning your license back. If you lose you are looking at a 90 day no driving period and then you can apply for a business purposes permit for the remainder of the year. Business Purposes means: to and from work, on the job, educational, medical and religious purposes.

    If there is no videotape of your driving or field sobrieties and no breath results you might have a good case. A DUI Defense Attorney can sometimes negotiate a reduction to reckless driving (wet reckless) for the DUI and maybe get the Reckless ticket thrown out. You should consult with a Jacksonville DUI Lawyer ASAP. Good Luck!

  3. John Patrick Guidry II

    Contributor Level 15

    Answered . Yes, you do have a chance at winning the DMV hearing, but only if you hire a DUI attorney to handle the situation. There are plenty of ways to win a DMV hearing, and a local DUI lawyer will know exactly how to handle the situation. You don't have much time, only 10 days from the date of arrest to file for a hearing, so make sure you quickly obtain a lawyer --or, if you don't have time to get a lawyer before the 10 days is up, make sure you head over to your local DHSMV Bureau of Administrative Reviews office to fill out the paperwork for a hearing within the 10 days.

    Also, I practice in Orange County, and our state attorney's office runs a DUI diversion program for first offenders such as yourself. Check to see if Duval Co. has a similar program, by completing the program all charges will be dismissed.

    Good Luck

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