Effective on July 1, 2013, the rules regulating the administrative suspension of a driver's license after a DUI arrest, and the right to review that administrative suspension, change.
Changes to Florida's DUI Administrative Hearings
If you have no prior DUI convictions or administrative suspensions or convictions for an alcohol/drug-related offense, there are three options:
DHSMV is taking the position that the date of the DUI arrest controls. So, for example, if the arrest and notice of suspension are dated before July 1, 2013 there is no option to avoid the “hard time" suspension by immediately requesting a “review of eligibility." However, if the DUI arrest date and/or notice of suspension are dated July 1, 2013, or later, then the new regulations apply.
The New Formal Review Hearing Process
Florida Statute Section 322.2615 (amended)
Florida Statute Section 322.2615, “Suspension of license; right to review" will provide:
“[t]he driver may request a formal or informal review of the suspension by the department within 10 days after the date of issuance of the notice of suspension or may request a review of eligibility for a restricted driving privilege under s. 322.271(7).“
Florida Statute Section 322.271(7) (amended)
Effective July 1, 2013, Florida Statute Section 322.271(7) will provide:
Notwithstanding the provisions of s. 322.2615(10)(a) and (b), a person who has never previously had a driver license suspended under s. 322.2615 [an administrative suspension], has never been disqualified under section s. 322.64 [related to operating a commercial vehicle while under the influence], has never been convicted of a violation of s. 316.193 [DUI], and whose driving privilege is now suspended under section s. 322.2615 is eligible for a restricted driving privilege pursuant to a hearing under section (2).
(a) For purposes of this subsection, a previous conviction outside of this state for driving under the influence, driving while intoxicated, driving with an unlawful blood-alcohol level, or any other alcohol-related or drug-related traffic offense similar to the offense of driving under the influence as provided in s. 316.193 will be considered a previous conviction for a violation of s. 316.193, and a conviction for violation of former s. 316.028, former s. 316.1931, or former s. 860.01 is considered a conviction for a violation of s. 316.193.
(b) The reinstatement shall be restricted to business purposes only, as defined in this section, for the duration of the suspension imposed under s. 322.2615.(c) Acceptance of the reinstated driving privilege as provided in this subsection is deemed a waiver of the right to formal and informal review under s. 322.2615. The waiver may not be used as evidence in any other proceeding.
The Good, the Bad and the Ugly
These changes are long time in coming. They are the result of legal challenges to the process by writs of prohibition and appeals. A lot of lawyers fought hard to get to this point. However, as with any forged compromise there is some upside and some downside.
If you apply for the Formal Review Hearing, F.S. 322.2615(11) now provides that if the arresting officer or the breath technician fails to appear pursuant to a subpoena as provided in subsection (6), the department shall invalidate the suspension. If a witness other than the arresting officer or breath technician fails to appear, then the driver can seek enforcement from the judge in the criminal case.
Someone other than a DHSMV employee can be designated as a hearing officer. (Like who, the barrista at Starbucks?)
The hearing officer may conduct hearings using communications technology
The decision to apply for a Formal Review Hearing must be made within the first 10 days after the DUI arrest. At that point in the process, there is little opportunity for the defense lawyer to know what documents, if any, will be submitted at a formal review hearing. Lawyers will have to advise their clients about waiving their right to that hearing before knowing much about the case. If you request the formal review hearing, you can't change your mind and request the “review of eligibility." Only one bite of the apple.
It is hard to imagine a client willing to risk a 30 or 90 day “hard suspension" on a chance of winning the Formal Review Hearing hearing. Since most people need to drive to work, you are being squeezed into waiving the Formal Review Hearing, which could have long lasting consequences. Remember, a second refusal can be charged as a misdemeanor.