Florida DUI Rules for the Administrative Suspension – It’s Complicated…

This article was last updated on Friday, November 13, 2020.

After an arrest in Florida for DUI, the officer might take your driver’s license and issue you an “on the spot” administrative suspension. You only have ten (10) calendar days to protect your driver’s license and ability to drive.

Some attorneys might tell you to waive all your rights by going to the DHSMV to request a waiver review hearing. We take a different approach by ALWAYS demanding a “formal review hearing.”

By demanding a “formal review hearing,” we help our client get the 42-day permit so they can drive while we fight the administrative suspension.

Three Choices within the Ten Days after the DUI Arrest

Within the ten days after the DUI arrest, you have three choices:

  1. do nothing;
  2. hire an attorney to demand a “formal review hearing” and 42-day driving permit;
  3. stipulate to the administrative suspension during a “waiver review hearing” in exchange for the immediate reinstatement of hardship privileges.

For most people facing a first DUI who can afford to hire a DUI defense attorney willing to fight the suspension, Option 2 is the best option. Option 2 involves fighting to invalidate the suspension (so it disappears from your driving record) in a “formal review hearing.”

Option 3 means that you are stipulating to the suspension and that you were DUI for administrative purposes. If you waive all your rights to contest the suspension, then your driving record will show for the next 75 years that you received an administrative suspension for DUI even if your criminal charges are ultimately dismissed or reduced to avoid a DUI conviction.

If you are eligible for Hillsborough County’s new DUI Diversion program call “RIDR” for a first DUI and plan on sealing your record after completing the program, it is particularly important to hire an attorney to demand a “formal review hearing” to contest the administrative suspension.


Click here to read more about our recent case results in DUI cases in Tampa, FL, and the surrounding areas, including our recent results in administrative hearings to invalidate a suspension.


Option 1: Do Nothing 

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Most people don’t understand the rules. As a result, they do nothing during the first ten (10) days after the DUI arrest.

Read the citation carefully. The citation operates as your notice of the suspension. The citation also contains your 10-day driving permit. After the 10-day permit expires, the 30-day hard suspension begins for a breath test case with a BAC over .08 or a 90-day suspension begins if you are accused of refusing to take the breath, blood or urine test.

If you do nothing, then that administrative suspension that you were DUI will remain on your driving record for the next 75 years even if you avoid a DUI conviction in court.


Option 2: Demand a Formal Review Hearing

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If you can afford a DUI defense attorney, then demanding the formal review hearing is the best option. Option 2 is the only option that gives the driver the ability to fight to invalidate the suspension so that it is forever removed from the driving record.

Unless you get it invalidated, the administrative suspension remains on your driving record for 75 years, even if you get the charges reduced to reckless driving or get a not guilty verdict at trial.

The only exception to that rule is that if you get a “not guilty” verdict at trial in a breath test case, then the administrative suspension will be removed from your driving record. See Florida Statute Section 322.2615 (14)(b) and (16).

If you demand a formal review hearing, you are entitled to a 42-day permit so that you can keep driving for hardship purposes. You are entitled to the 42-day permit if you request the formal review hearing (as long as your driving privileges were valid before the DUI arrest).

If the arresting officer or breath test technician fails to appear at the formal review hearing, then the suspension SHALL be invalidated. That means that any mention of DUI for the administrative suspension disappears off the driver’s record. You can then get a duplicate driver’s license and avoid paying any reinstatement fee.

Other reasons for winning the hearing include insufficient evidence in the documents submitted to the hearing officer or inconsistencies in the evidence. Click here to read recent statistics showing why DUI administrative suspensions are invalidated.

Even if the driver loses the hearing, by attending the hearing, the attorney has gathered important evidence that can be used to fight the criminal charges. The only downside to contesting the formal review hearing is that the driver might still suffer the 30-day hard suspension (or 90 days in a refusal case).

After the hard suspension is over, the driver can then obtain a hardship license with proof of enrollment in DUI school.


Option 3: Request a Waiver Review Hearing for Immediate Reinstatement

Request Waiver Review Hearing for Immediate Reinstatement

For a driver with no prior DUI cases, the driver can go to the Bureau of Administrative Review to file a Request for Eligibility Review Form (sometimes called the “waiver review”).

The driver must personally appear within 10 calendar days.* The driver must also enroll in and pay for DUI school during those 10 days. The registration fee for Level I DUI School in Hillsborough County is $263.00.

Although the DHSMV originally took the position that the driver could only request the waiver review within the first 10 days after the arrest, at least one circuit court level decision has found that the 10-day time limit doesn’t apply to a waiver review hearing. See Bichaci v. DHSMV (2013).

The person must also pay a $25 fee for the hearing and then pay the reinstatement fee.

The benefit to this process is avoiding the 30-day hard suspension for a DUI with a BAC over .08 (or 90-day suspension for a refusal). But the downside to waiver review is that the driver has NO chance of getting the suspension invalidated ever (unless he obtains a “not guilty” verdict at trial in a breath test case).


The Rules are Complicated

How do you explain the ridiculously complicated new rules for the administrative suspension? The rules have gotten so complicated that I needed to create these diagrams to explain it.

The diagrams used in this article apply to a driver (with no prior DUI arrest) who took the breath test and blew over the legal limit. If you are accused of refusing to submit to a breath, blood or urine test, then the administrative suspension is for 12 months for a first refusal or 18 months for a second or subsequent refusal.

The hard suspension is for 90 days, unless you already have two DUIs on your driving record, in which case, the entire suspension is considered to be hard time because you will not qualify for hardship reinstatement.

Hopefully, these diagrams will help me explain these complicated rules – at least until the next legislative session when our lawmakers come up with something even more complicated.

Call 813-250-0500 if you would like to discuss your case with an experienced criminal defense attorney at Sammis Law Firm.

Florida’s DUI Diversion Pilot Program

In 2018, Florida had 43,725 criminal violations for DUI. Although that number has steadily declined over the years, it is still a huge number of cases prosecuted in county court.

As a way to discourage recidivism in DUI cases, make the system more fair for those arrested, and to protect the public, the Florida Legislature is considering creating a state-wide statutory diversion program for DUI cases.

The goal of protecting the public is best accomplished by discouraging drunk driving through enhanced sanctions and reducing the re-arrest rates for alcohol-impaired driving. Most importantly, the diversion programs allow the prosecutor to focus on the most serious cases in the system instead of using up all of their resources on first-time offenders.

As a criminal defense attorney focused on DUI defense in Tampa, FL, and the greater Tampa Bay area, I think this program would work well. As it stands now, people who can afford to hire a good attorney to fight the DUI charge often see their DUI charge reduced to reckless driving with a withhold of adjudication. Whether the case is reduced has less to do with the merits of the case and more to do with:

  • the skill of the criminal defense attorney;
  • how motivated the prosecutor is to try the case; and
  • the views of the judge when it comes to accepting the negotiated plea.

Diversion programs help level the playing field by giving everyone the same opportunity to avoid a DUI conviction in exchange for completing enhanced sanctions.

What is Senate Bill 1396?

Senate Bill 1396 was introduced by Senator David H. Simmons, a Republican, on February 3, 2020. Since 2010, Senator Simmons has represented parts of the greater Orlando area. An identical bill in the house, House Bill 1145, was sponsored by Rep. Thad Altman, a Republican, representing parts of the Melbourne area in central Brevard County.

If passed into law, SB 1396 / HB 1145 would create a “Driving Under the Influence (DUI) Diversion Pilot Program” under s. 316.19395, F.S. The legislation would require the State Attorney’s Office in each judicial circuit to create the pilot program in their jurisdiction.

The purpose of the pilot program is to offer a person with a first offense of driving under the influence (DUI), an opportunity to avoid a criminal history record associated with a DUI, while ensuring the person receives substance abuse treatment and completes enhanced sanctions.

In essence, 2020 S.B. 1396 / H.B. 1145 would create exceptions to many of the requirements of Florida’s current DUI statute found at s. 316.193, F.S. (although judges and prosecutors already have ways around those requirements throughout the plea bargaining process).

The proposed legislation also sets out eligibility requirements for participation in the pilot program and the requirements for successful completion. Successful completion of the pilot program results in a plea offer for the offense of reckless driving. Under the requirements of the pilot program, if the person accepts the offer, the court must withhold adjudication.

The proposed legislation also creates a number of reporting requirements for the state attorney from each judicial circuit. The State Attorney’s Office in each jurisdiction would be required to report on an annual basis the results of the pilot program.

The bill would also require the Department of Highway Safety and Motor Vehicles (DHSMV) to maintain a statewide database of participants of the pilot program by July 1, 2023.

If the bill becomes law then it would take effect on July 1, 2020.

What’s the Difference Between SB 1396 and RIDR?

The eligibility requirements and enhanced sanctions under the proposed s. 316.19395, F.S., are nearly identical to the eligibility requirements and enhanced sanctions in the DUI diversion program in Hillsborough County called “RIDR”.

Hillsborough County’s newly elected State Attorney, Andrew Warren, enacted the RIDR program effective on March 1, 2018. For RIDR, the person completes some of the special conditions before entering the plea to reckless and then the rest of the conditions are completed while on probation.

If a person is diligent about starting the conditions immediately, then the person is ready to enter RIDR within 60 days after the arrest for DUI. At the 60 day point, the person is sentenced to 12 months probation on a reckless driving with a withhold of adjudication and required to complete the rest of the terms while on probation. Most people qualify for early termination, usually after six (6) months of being on probation.

Under RIDR, if the person completes the pre-plea sanctions but then fails to complete the other sanctions while on probation (or violates probation for any other reason), the court has the option of imposing the statutory maximum jail time of 90 days and adjudicating the person guilty of reckless driving, but there is no possibility of a DUI conviction.

For the DUI Diversion Pilot Program outlined in SB 1396/HB 1145, however, it looks like a person has to complete all of the conditions before entering the plea to reckless driving. Then if the person fails to complete the DUI diversion pilot program, the prosecutor gets a chance to prosecute the person for DUI.

Other than that, I don’t see a lot of differences between the DUI Diversion Pilot Program in SB 1396 and Hillsborough County’s RIDR program.

What are the Benefits of Diversion Programs?

In many jurisdictions in Florida, the State Attorney’s Office has already created different types of pre-trial diversion programs for all kinds of misdemeanor and third-degree felony offenses. The general purpose of a diversion program is to divert individuals charged with crimes away from the traditional requirements within the criminal justice system.

Although a few diversion programs were developed through statute, most were independently created by the State Attorney’s Office in different jurisdictions in Florida. Each program varies in its eligibility requirements and sanctions. Three diversion programs created by statute include:

  • the pretrial intervention program under Section 948.08
    • allows a first offender with the consent of the victim, prosecutor, and judge to enter a program and have the charges dropped for certain types of misdemeanors or third-degree felony charges
  • the state attorney bad check diversion program under Section 832.08
    • allows the state attorney to divert a defendant away from prosecution after issuing a bad check in order to avoid prosecution
  • the prison diversion program under Section 921.00241
    • allows the court to divert a defendant away from prison by sentencing the defendant to a nonstate prison sanction if the defendant meets certain criteria

Florida’s Current Patchwork Approach to DUI Diversion

For DUI cases, several State Attorney’s Offices have created a patchwork of diversion programs for DUI cases. The following counties each have some form of diversion for DUI cases including:

  • DeSoto County
  • Hillsborough County
  • Manatee County
  • Miami-Dade County
  • Orange County
  • Palm Beach County
  • Sarasota County

Critics complain that the different diversion programs have no uniform standards. For example, the DUI Offender Program in Palm Beach County allows eligible participants to complete program requirements within two months in order to obtain a plea offer to reckless driving. The requirements of the DUI diversion program in Palm Beach include:

  • community service;
  • successful completion of DUI School;
  • successful completion of the Victim Impact Panel; and
  • installation of the Ignition Interlock alcohol monitoring device.

Florida’s Current DUI Laws

Florida law currently sets out the crime of Driving Under the Influence in 316.193, F.S. To be guilty of DUI, a person must either drive or be in actual physical control of a vehicle while:

  • under the influence of alcoholic beverages, any controlled substance or any substance controlled to the extent that the person’s normal faculties are impaired; or
  • having a blood or breath alcohol level of 0.08 or more.

The penalties for a DUI depend on a host of factors including:

  • the number of prior convictions;
  • the length of time that passed since the last conviction;
  • whether the defendant’s blood or breath alcohol level was .15 or above;
  • whether a child passenger was in the vehicle at the time of the offense; or
  • whether a crash occurred.

For a first time DUI offense with no crash, no child passenger, no priors, and no BAC level  of .15 or above, the penalties include:

  • 12 months probation (with the possibility of early termination when all conditions are completed);
  • a fine of not less than $500 or more than $1,000 plus court costs and fees;
  • up to 6 months in jail;
  • a mandatory 50 hours of community service;
  • a mandatory ten-day vehicle impoundment;
  • completion of DUI school;
  • completion of substance abuse treatment, if required after the evaluation.

Under Section 316.656, F.S., the court is prohibited from withholding adjudication of guilt after any plea to DUI. Instead, the court must adjudicate the person guilty of DUI. Prosecutors and the courts routinely get around that provision by reducing the DUI charge to reckless driving which then allows the court to withhold adjudication.

Many DUI cases are reduced to reckless driving because of the terrible consequences that come with a conviction including the inability to ever seal or expunge the record. In fact, the conviction makes it impossible for the person to ever obtain a court-ordered seal or expunge of any criminal history record.

Special rules apply under Section 316.656, F.S., which prohibits the court from accepting a plea of guilty to a lesser offense from a person with a BAC level of .15 or more. Prosecutors and judges routinely get around that provision by signing a stipulation that the BAC was actually lower than .15 and then reducing the charge to a simple DUI or even reckless driving.

In most first DUI cases that result in a conviction, the judge never orders the defendant to install an Ignition Interlock Device (IID) because it is not required by statute. Instead, Florida’s DUI statute gives the judge the discretion to order the IID for up to 6 months.

Eligibility for the DUI Diversion Pilot Program

Under SB 1396, a person would be ineligible for the DUI diversion program if:

  • there was a prior alcohol-related or drug-related criminal traffic offense regardless of disposition;
  • there was a prior or pending felony conviction;
  • there were more than two prior misdemeanor convictions;
  • the offense resulted in a motor vehicle crash or accident relating to the charge of DUI;
  • a child passenger was in the vehicle at the time of the offense;
  • the BAC level was .20 or above; or
  • the defendant previously participated in the pilot program.

Requirements of the DUI Diversion Pilot Program

The requirements of Florida’s DUI Diversion Pilot Program under SB 1396 would include:

  • participate in the program for 12 months
  • during the program, the defendant must not possess or consume alcohol, illegal drugs, or prescription drugs not prescribed for him or her
  • complete DUI school and any required follow up treatment
  • complete fifty (50) hours of community service if the BAC is below .15
  • complete seventy-five (75) hours of community service for:
    • a refusal to submit to chemical testing
    • if the defendant had a BAC of .15 but less than .20
  • complete a victim’s impact panel (VIP) session
  • pay fines and court costs
  • a 10-day vehicle impoundment or immobilization
  • install and use an ignition interlock device for a period of:
    • three months if the person had a BAC level below .15
    • six months if the person:
      • had a BAC of 0.15 but less than .20; or
      • refused to submit to chemical testing.

Benefits of Completing the DUI Diversion Pilot Program

Under SB 1396, the benefits of completing the DUI Diversion Program successfully is being “offered an agreement providing for a plea of guilty to the offense of reckless driving as provided in s. 316.192. If the person accepts the plea agreement, the trial judge “shall” withhold adjudication for reckless driving.

But if the person fails to successfully complete the DUI Diversion pilot program, then the state attorney may discharge the person from the pilot program and pursue prosecution for the offense of DUI.

So what do you think about the bill proposing the creation of section 316.19395 of the Florida Statutes?

Should I take the breath test or refuse?

ImagePeople sometimes ask: “If I get arrested for DUI, should I take the breath test or refuse?”

The answer used to be, “It depends.”

Recent changes in Florida law now compel many DUI defense attorneys to answer the question this way, “For a first DUI, most people would be better off refusing to take the breath test unless they know they will blow under the legal limit of .08.”

Florida’s Intoxilyzer 8000 Machines are Really Old

Florida’s Intoxilyzer 8000 machines were put into service in 2006. As the machines age, the chances of an accurate and reliable reading decrease.

These machines cost approximately $6,000 when they were originally purchased. Now that the machines are more than 12 years old, repairs are needed more frequently, and the repairs become more expensive.

The agencies that maintain the machines are good at finding ways to avoid sending the machine off for repairs.

Over the years, agency inspectors have deleted error/exception messages from the comments section of “Form 40” by repeatedly hitting the backspace button to delete the message.

In Pasco County, a former agency inspector admitted he was trained to hit the backspace button when certain errors occurred, including on the alcohol-free or mouth alcohol test.

Budget Cuts Mean the Machines Are Less Likely to Work Properly

Recent budget cuts mean that the FDLE has slashed the number of Departmental Inspectors. FDLE previously required its Departmental Inspectors to travel at least once a year to the Central Breath Testing Unit (CBTU) of the Hillsborough County Sheriff’s Office (HCSO) for an inspection.

The Departmental Inspector was responsible for inspecting the location where the instruments were set up to ensure they were working properly and that all rules were followed.

Because of the budget cuts, the breathalyzer machines in Tampa are now boxed up and sent by UPS or another common carrier to Tallahassee for the annual inspections.

Inspecting the instruments at the location where the test was conducted used to be critical, and that requirement was eliminated just because of budget cuts.

.20 BAC Means You are NOT Eligible for the RIDR Program

The State Attorneys Office (SAO) in Hillsborough County recently created a new diversion program called Reducing Impaired Driving Recidivism (RIDR).

This program allows first-time offenders to completely AVOID a conviction and even makes them eligible to seal their record after completing the program.

You are automatically ineligible for the program; however, if you submit to a breath test blow a .20% or above.

How many people blow a .20% or above BAC? Recent DUI statistics released by the Tampa Police Department show that in 2016, 10.3% of the people who submitted to a breath test blew a .20 or above.

That 10.3% of drivers would be far better off refusing to submit because after that breath test, they are AUTOMATICALLY not eligible for the new RIDR diversion program.

They won’t qualify for the RIDR DUI diversion program. They might face a DUI conviction with enhanced penalties for blowing over .15. The DUI conviction means they can never seal or expunge the criminal history o the arrest and prosecution.

.15 BAC Means Enhanced DUI Penalties

Florida law provides for several enhanced penalties if you blow over a .15. That’s right – the penalties are worse if blow over a .15 compared with just refusing the test.

In fact, the fine is $500 to $1,500 higher for a high-blow DUI compared with a DUI refusal. Also, if you blow over the .15, the court will order you to install the ignition interlock device installed in your vehicle for at least 6 months. No such requirement exists if you simply refuse to take the breath test.

If you look at the DUI statistics published by the FDLE for all of 2012, the average breath alcohol concentration was exactly .150 for more than 38,000 individuals that submitted to the breath tests.

In 2011 the average breath alcohol concentration was .148. And if you look at everyone who blew in all of 2012, 56% of those individuals blew over a .15.

# of Breath Samples <0.08 g/210L

9219 16%

# of Breath Samples >/= 0.08 g/210L

47785 84%

# of Breath Samples >/=0.15 g/210L

31697 56%

Since 56% of the individuals blew over a .15, most individuals with a first DUI would have avoided the enhanced penalties by refusing the chemical testing.

The Main Deterrent to Refusing Was Eliminated in Florida

For anyone arrested for a first DUI after July 1, 2013, Florida created a way to avoid the main deterrent to refusing to take the breathalyzer test – the dreaded 90-day hard suspension.

A person accused of refusing the breath test after a first DUI arrest can avoid the 90-day hard suspension by requesting the immediate reinstatement of their hardship privileges. This is a good option for people who cannot afford a private attorney to fight the administrative suspension.

[[At the Sammis Law Firm in Tampa, FL, we still tell our clients that they should let us demand the “formal review hearing” within 10 days of the arrest even if they are eligible for immediate reinstatement. Click here to find out why the formal review hearing should never be waived if you can afford a good DUI attorney to help you fight to invalidate the suspension]]

But for anyone who doesn’t contest the suspension, it doesn’t matter whether you take the breath test or refuse – for a first offense, you can go to the Bureau of Administrative Review (BAR) Office to obtain a hardship license if:

  1. you personally appear at the BAR Office within 10 days of the arrest to request immediate reinstatement;
  2. you stipulate to the administrative finding that you were DUI (which then remains on your driving record for 75 years);
  3. show proof that you enrolled in DUI school;
  4. have no prior DUI administrative suspensions or convictions; and
  5. have a driver’s license that is otherwise valid with no other holds that make you ineligible for the hardship.

Should You Take the DUI Breath Test or Refuse?

So remind me again… Why would anyone want to submit to a breath test for a first DUI?

Given the unreliable nature of the breath test machine used in Florida, the Intoxilyzer 8000, and the enhanced penalties that can occur with a high BAC, many people refuse to submit to the breath test.

Although a refusal comes with a longer administrative suspension, recent changes in DUI law make refusal a better alternative for many.

Call 813-250-0500 for more information.

Leslie Sammis is a DUI defense attorney in Tampa, FL. Read more about DUI cases for a refusal. This article was last updated on Friday, November 1, 2019.

DHSMV Training 2017

According to the Florida Impaired Driving Coalition (FIDC) Meeting Report from August 24-25, 2017, Kathy Jimenez-Morales indicated that the BAR Class on administrative suspensions was available in an online format that could be provided to officers at the upcoming FDOT Law Enforcement Challenge. Kathy Jimenez-Morales is the Chief Counsel of Driver Licenses with the DHSMV Office of General Counsel.

Since we wanted to see the online training material, we made a public records request. Last week, Joseph Gillespie, the Public Records Operations Administrator for the Office of General Counsel at the Florida DHSMV, informed us that the BAR had NOT actually provided any online training for law enforcement officers.

Instead, we were provided with these slides used during July and August of 2017 to train law enforcement officers on BAR procedures.

This training material was not nearly as interesting as the material previously obtained through a public records request on the Statistics on Administrative Suspensions in Florida.

That training material was based on the statistics gathered in 2015 about why suspensions were being invalidated across Florida. That training material showed the fourteen (14) reasons why a hearing officer could invalidate a suspension and the corresponding percentage for each reason.

Although the Bureau of Administrative Reviews is supposed to be neutral, the training material was not. That material also provided:

  • the percentage of suspensions that are sustained at formal review hearings stands at an incredible 95.3% (although in many of those cases, the person making the request never even shows up for the hearing or hires an attorney to represent them at the hearing);
  • in commenting on this successful campaign to keep such rates high, the manual asks the police officers, “While sustained rates of 95% and 90% are good and indicative of the fine work you are doing, how many of you would like to see those numbers even higher?”
  • the training material offered the police tips on how to reduce the number of invalidations. “Let’s look at the reasons for those invalidations and what might be done to reduce the number that are invalidated.”

This training material appears to be far more neutral. It provides a general overview of the process. If you are interested in this training material, you can see the slides below.

 

1-adminstrative-suspension-process
2-fdot-provides-funding-for-training
3-florida-traffic-related-fatalities-on-roadways
4-florida-fatalities-related-to-impaired-driving5-dual-processes-criminal-justice-system-and-administrative-suspension-process6-administrative-dui-suspensions-based-on-statute-majority-done-by-law-enforcement7-admin-process-bac-of-08-or-02-if-under-21-license-suspended-for-6-months-refusal-is-suspended-for-1-year-or-18-months-for-2nd8-admin-suspension-process-starts-when-officer-takes-license-within-10-days-do-nothing-or-do-1-of-3-elections9-admin-suspension-process-review-waiver-informal-review-formal-review10-review-waiver-waive-for-1st-time-dui-enroll-in-dui-school-hardship-permit-immediately11-hardship-permits-after-30-or-90-days-after-informal-or-formal-review-hearing12-informal-review-no-witnesses-testify-based-off-material-submitted-by-law-enforcement-hearing-officer-determines-to-sustain-amend-or-invalidate13-scope-of-review-hearing-officer-determines-probable-cause-actual-physical-control-while-under-the-influence-and-whether-the-person-had-an-unlawful-blood-alcohol-level-or-breath-level-of-08-or14-scope-of-review-contd-refusal-did-person-actually-refuse-implied-consent-read15-formal-review-similar-to-motion-to-suppress-testimony-taken-from-witnesses-under-oath-evidence-presented-standard-for-evidence-is-relevance16-formal-review-per-statute-316-26152a-evidence-must-be-submitted-by-law-enforcement17-formal-review-evidence-affidavit-breath-or-blood-results-affidavit-stating-a-breath-blood-or-urine-test-was-requested-and-the-person-refused18-formal-review-evidence-officers-description-of-field-sobriety-exercises-notice-of-suspension-crash-report-video-may-be-submitted-without-a-subpoena19-formal-review-lawful-basis-to-challenge-reasonable-suspicion-for-stop-actual-physical-control-insufficient-basis-for-fses-probable-cause-for-arrest-reading-of-implied-consent20-formal-review-conducted-by-calling-witnesses-and-presenting-evidence-or-soley-by-relying-on-the-evidence-previously-discussed-without-calling-any-witnesses21-formal-review-who-attends-the-driver-may-request-hearing-officer-to-issue-subpoena-to-officers-and-or-witnesses22-formal-review-if-a-witness-fails-to-appear-a-party-may-seek-enforcement-in-a-court-may-seek-attorneys-fees-by-statute-a-failure-to-comply-with-an-order-shall-result-in-a-finding-of-contempt23-formal-review-if-a-witness-cannot-appear-they-must-notify-hearing-officer-if-arresting-officer-or-breath-technician-fail-to-appear-hearing-officer-is-required-by-statute-to-invalidate24-larmer-v-dhsmv-whether-a-refusal-by-a-driver-constitutes-a-refusal-when-the-driver-changes-his-mind25-larmer-v-dhsmv-totality-of-circumstances-approach-driver-may-change-mind-and-avoid-refusal26-dhsmv-v-green-does-a-driver-have-a-right-to-select-a-different-initial-test-to-be-used-to-determine-bac27-dhsmv-v-green-officer-requests-the-test-not-the-driver-who-selects-it-a-driver-has-no-right-to-demand-a-blood-test-instead-of-a-breath-test-however-driver-at-their-expense-can-do-an-indepen28-kaiser-v-state-did-technician-observe-kaiser-prior-to-the-breath-test-during-the-20-min-observation-period-do-so-properly29-kaiser-v-state-finder-of-fact-technician-is-not-required-to-stare-fixedly-at-the-driver-for-the-whole-time-tech-must-observe-driver-for-the-entire-observation-period30-gallardo-v-state-is-a-visual-estimation-of-speed-alone-a-lawful-basis-for-a-traffic-stop31-gallardo-v-state-visual-estimate-of-speed-alone-is-sufficient-vantage-point-training-and-experience-must-be-articulated-if-a-speed-device-was-used-they-must-state-which-device32-questions

The Administrative Suspension Process

DUI and Zero Tolerance Driver License Administrative Review

The Florida Department of Transportation (FDOT) funded this training. According to the FDOT:

  • Florida has 122,659 miles of highway
  • Florida is the 3rd most populous state (with an approximate population of 20.5 million)
  • 107 million people visit yearly

Traffic-Related Fatalities in Florida

In 2016, there were 3,175 traffic-related fatalities on Florida roadways. As of July 1, 2017, there have been 1,403 traffic-related fatalities on Florida roadways. The number of traffic-related fatalities in 2017 is expected to surpass 2016.

A significant number of traffic crashes were alcohol-related. The 2016 numbers are not out yet, however, in 2015 there were 908 alcohol suspected fatalities. There were 6,847 alcohol suspected injuries. The 2016 numbers are also expected to have increased.

Dual Processes to Combat Impaired Driving

The Florida Legislature has passed laws that combat impaired driving through dual processes that are independent of each other including:

  • the criminal justice system
  • the administrative suspension process

All administrative DUI suspensions are based on statute and the majority are done by law enforcement officers at the time of the arrest including:

  • 322.2615
  • 322.2616
  • 322.64

A driver with a breath or blood alcohol concentration (BAC) of at least .08 (0.02 if under 21) will have their license suspended for 6 months, or one year if they have a previous suspension.

A driver who refuses to blow, provide urine, or blood will have their license suspended for 1 year for a first refusal or 18 months if they have a previous refusal.

The suspension period starts at the time law enforcement takes a person’s license and issues a notice of suspension. Within 10 days after the issuance of the notice of suspension, a driver may do nothing, or make one of three elections regarding their suspension including:

  • review waiver
  • informal review
  • formal review

As of July 1, 2013, a driver may waive a formal review for a first time DUI. The driver must have enrolled in a DUI substance abuse education course and evaluation period to be eligible. This allows the driver to obtain a hardship permit immediately. By

By choosing this option, the driver must waive their right to an informal or formal review to contest the administrative suspension. The administrative suspension for DUI then remains on their driving record for the next 75 years.

After the formal review hearing is requested, the driver is not eligible for a hardship (business purposes only) permit for 30 days (BAC of .08) or 90 days (refusal) if the suspension is sustained. By waiving review, there is no 30 or 90 day wait, often called “hard time,” before the driver may obtain a hardship permit.

Informal Review Hearing

An informal review hearing involves a review of all of the material submitted by law enforcement and the driver. No witnesses testify.

The hearing officer determines by a preponderance of the evidence whether sufficient cause exists to sustain, amend, or invalidate a suspension.

Scope of Review at the Formal or Information Review Hearing

What is the Hearing Officer determining?

Breath/Blood/Urine provided:

  1. Whether the officer had probable cause to believe that the person whose license was suspended was driving or in actual physical control of a vehicle while under the influence of alcoholic beverages or chemical or controlled substances.
  2. Whether the person…had an unlawful blood-alcohol level or breath-alcohol level of .08 or higher…

Refusal:

  1. Whether the officer had probable cause to believe that the person whose license was suspended was driving or in actual physical control of a vehicle while under the influence of alcoholic beverages or chemical or controlled substances.
  2. Whether the person…refused to submit to any such test after being requested to do so by a law enforcement officer.
  3. Whether the person… was told that if he/she refused to submit to such test his/her privileges to operate a vehicle would be suspended for a period of 1 year, or in the case of a second or subsequent refusal, for a period of 18 months.

Procedures for the Formal Review Hearing

From the law enforcement officer’s perspective, a formal review hearing is similar to a motion to suppress. However, there is no prosecutor to present the law enforcement officer’s case. Testimony is under oath, witnesses testify and may be cross-examined, and the hearing officer may receive evidence. The standard for the admission of evidence is relevance.

Pursuant to 316.2615(2)(a), the following evidence must be submitted by law enforcement for consideration (if applicable):

  • affidavit stating officer’s grounds for believing the driver was DUI
  • breath or blood results
  • affidavit stating a breath, blood or urine test was requested and the person refused to submit

The evidence at the formal review hearing includes:

  • the officer’s description of the field sobriety exercises
  • notice of suspension
  • crash report (if any)
  • video may be submitted without a subpoena

Like a motion to suppress, any lawful basis may be used to challenge the action or inaction of the law enforcement officer in order to attempt to invalidate the license suspension including:

  • no reasonable basis for the stop
  • no driving or actual physical control
  • an insufficient basis for requesting FSEs
  • no probable cause for arrest
  • no reading of implied consent

A formal review may be conducted by calling witnesses and presenting evidence, or solely by relying on evidence previously discussed without calling any witnesses.

So how do I know whether to attend a formal review hearing? The driver may request that the hearing officer issues a subpoena to the officer(s) and witnesses identified in the material submitted.

If a witness fails to appear, a party may seek enforcement of the subpoena by filing a petition for enforcement in court. A party may then seek attorney’s fees against the witness that failed to appear. By statute, a failure to comply with an order of the court shall result in a finding of contempt.

If a witness cannot appear the witness must notify the hearing officer in writing prior to the formal review. If the arresting officer or the breath test technician fails to appear the hearing officer is required by statute to invalidate the suspension.

Case Law

Larmer v. DHSMV – Whether the driver’s refusal to provide a breath sample constitutes a refusal when the driver changes his mind? A totality of the circumstances approach must be used. The driver may change his mind and avoid the refusal penalty where the retraction comes shortly after the refusal, the driver is still in the presence of law enforcement, and when there is no inconvenience to officers.

DHSMV v. Green – Does a driver arrested for DUI have a right to select a different initial test to be used to determine their BAC? It is the officer who requests the test, not the driver who selects it. A driver has no right to demand a blood test instead of a breath test. However, following a breath test, Florida law provides that the driver may, at his own expense, have an independent test and an officer must provide timely telephone access and not hinder the driver.

Kaiser v. State – Did the breath test technician observing Kaiser prior to the breath test during the 20 minute observation period do so properly? This is a question for the finder of fact. A technician is not required to stare fixedly at the driver for the entire period of time. However, the technician must observe the driver for the entire observation period and restart the period if necessary.

Gallardo v. State – Is a visual estimation of speed alone a lawful basis for a traffic stop? Visual estimation of speed alone is sufficient if the officer articulates enough information about the officer’s vantage point, the opportunity to observe the vehicle, and training and experience. If a speed measuring device is then used, the officer must describe and explain which devise was used.

This information was last updated on Friday, June 28, 2019.

14 Ways to Win a Formal Review Hearing

Why have a formal review hearing?

For anyone who can afford to hire an attorney to contest the administrative suspension after a DUI arrest, the benefits of having the hearing often outweigh any potential downside.

Let’s start with the fact that there are fourteen (14) different ways to win a formal review hearing according to the Bureau of Administrative Review Office’s own training materials – click here to download the 2017 Administrative Suspension Training Slides.

The training materials explains the different reasons why the administrative suspension might be invalidated and how frequently each reason occurs.

This training material, entitled “2016 Administrative Suspension Training for Law Enforcement” was presented to DUI enforcement officers at the Hillsborough County Sheriff Office (HCSO) Faulkenburg Road Jail on September 28, 2016.

Although criminal defense attorneys were not invited to attend, we can still learn a lot from just reading the material. The material was obtained through a public record request to DHSMV.

According to the training materials, these are the reasons the administrative suspension is invalidated after a formal review hearing:

  • The Arresting Officers Fails to Appear at the Formal Review Hearing – 32.7%
  • No DUI Packet Received by the BAR before the Review Hearing – 10.8%
  • The Breath Test Operator Fails to Appear at the Formal Review Hearing – 7.9%
  • Invalid Stop – 6.4%
  • Conflicting Evidence – 6.3%
  • No Valid Breath Test – 5.6%
  • The Officer Didn’t Attest to the Probable Cause Statement – 5.5%
  • No Physical Control – 4.9%
  • Missing or Illegible Documents – 4.9%
  • The Driver Did Not Refuse – 4.4%
  • No or Improper Implied Consent Warnings – 4.4%
  • Refusal Affidavit Not Attested To -.98%
  • No Probable Cause Under 21 – .17%
  • No .02 Agreement on the Intoxilyzer Breathalyzer Test -.05%

The only downside to requesting the formal review hearing is that the client will suffer a 30 or 90-day hard suspension if we request the formal review hearing but are not successful in getting the suspension invalidated.

That 30 or 90-day suspension is a small price to pay for the chance of getting the administrative suspension invalidated.

When my clients understand the pros and cons, they almost always choose to go forward with the formal review hearings.

The benefits of requesting the formal review hearing include:

  • getting a 42-day permit to keep driving while challenging the administrative suspension;
  • invalidating the suspension is the only way to get the notation removed from the driving record (otherwise the notation will stay on the driving record for the next 75 years);
  • getting the opportunity to question each of the witnesses under oath before the prosecutor even sees the file;
    • getting permission from the court to take depositions in a typical DUI case is difficult, so the formal review hearing might be the attorneys only chance to question the witnesses under oath on a pre-trial basis;
    • by requesting the subpoena duces tecum, you can require the witnesses to bring additional evidence to the hearing including body cam video and dashcam video;
    • obtaining evidence related to the maintenance of the Intoxilyzer 8000 faster which is important if there was a lack of substantial compliance with the administrative rules;
    • finding evidence that can be used to win the criminal case;
    • locking the witnesses into their testimony so that it can’t be changed after filing a motion to dismiss or motion to suppress;
    • being able to use the transcript of the FRH testimony at trial and impeach the witness if they try and change their story in court.
  • being able to provide the client with an audio recording of the testimony which can help the client better understand the allegations.

So if your client has an administrative suspension under Florida Statute Section 322.2616 after a DUI arrest or under Florida Statute Section 322.2616 after a zero tolerance violation for an underage 21 driver, consider the benefits of seeking the formal review hearing.

REASONS TO WIN A FORMAL REVIEW HEARING OFFICER FAILED TO APPEAR

dhsmv hearing officer determination of insufficient evidence reasons officer failed to appear

I wrote another article that goes into greater detail about the training material on reasons why the DUI administrative suspension is invalidated at the formal review hearing.

Click here to find out more about pros and cons of requesting a formal review hearing.

This article was last updated on Thursday, September 17, 2020.

Is the DHSMV Training Officers on How To “Win” the Formal Review Hearing?

Congrats to Lee Lockett, a DUI defense attorney in Jacksonville Beach, FL. I cut and paste below an important ruling he just obtained after filing a petition for a writ of certiorari against the Department of Highway Safety and Motor Vehicles (DHSMV).

The ruling is important for two reasons. First, it points out the problem with hearing officers at the DHSMV training local law enforcement officers on how to “win” formal review hearings.

I wrote a blog article about similar training that occurred in Hillsborough County after hearing about Lee Lockett’s discovery in Duval County, FL. Through a public record request, I was able to obtain the DHSMV training material used when DHSMV hearing officers taught the class at HSCO in Hillsborough County, FL. Apparently, this training was occurring throughout the State of Florida.

Lee Locket argued, on behalf of this client, that due process was denied because the Bureau of Administrative Review (hereafter, “B.A.R.”) has provided training to law enforcement officers regarding their appearances in license suspension hearings. In the opinion below, the court AGREED with that argument.

Almost all of the DUI enforcement officers in Hillsborough County attended this training. Several of our local hearing officers, including the supervisor of the Tampa BAR, were also involved in this training. So the same arguments can be used in Hillsborough County for a Motion To Disqualify and the Motion To Invalidate based on due process.

Second, the opinion explains why the breath test operator’s failure to appear, even in a refusal case, requires the administrative suspension to be invalidated.

Read the opinion below (additional paragraph breaks were added):

NICOLE XXXXXX, Petitioner, v. STATE OF FLORIDA, DEPARTMENT OF HIGHWAY SAFETY AND MOTOR VEHICLES, Respondent. Circuit Court, 4th Judicial Circuit (Appellate) in and for Duval County. Case No. 2017-AP-000108. March 28, 2018. L. Lee Lockett, Jacksonville Beach, for Petitioner. Brandi Thompson, for Respondent.

ORDER GRANTING PETITIONER’S PETITION FOR WRIT OF CERTIORARI (COX, J.) This matter is before the Court on Petitioner Nicole XXXXX’ (“Petitioner”) Petition for Writ of Certiorari filed September 6, 2017. The Court heard oral argument on the Petition on January 3, 2018. Having reviewed the Petition, Respondent’s Response, and Petitioner’s Reply, considered the arguments of counsel, examined the record before this Court, and being otherwise fully advised, the Court grants the Petition.

Petitioner asserts three grounds in support of her Petition: (i) denial of due process; (ii) the breath test operator failed to appear; and (iii) lawfulness of the detention and arrest.

The Supreme Court of Florida has set forth the standard of review for a Petition for Writ of Certiorari such as the one before this Court.

Where a party is entitled as a matter of right to seek review in Circuit Court for administrative action, the Circuit Court must determine whether the procedural due process is accorded, whether the essential requirements of law have been observed, and whether the administrative findings and judgment are supported by competent substantial evidence.

City of Deerfield Beach v. Vailant, 419 So. 2d 624, 626 (Fla. 1982). In fulfilling its duties, the circuit court is not permitted to reweigh the evidence below. However, the circuit court is not required to ignore evidence, when that evidence contradicts witness testimony, or findings of fact by the hearing officer below. Wiggins v. Dep’t of Highway Safety & Motor Vehicles, 209 So. 3d 1165 (Fla. 2017) [42 Fla. L. Weekly S85a].

Due Process

The Petitioner argues due process was denied because the Bureau of Administrative Review (hereafter, “B.A.R.”) has provided training to law enforcement officers regarding their appearances in license suspension hearings. Other judges in this circuit have previously rejected this argument. See, e.g., Spear v. Dep’t of Highway Safety and Motor Vehicles, No. 2017-CA-579 (Fla. 4th Cir. Ct. June 15, 2017); Dicicco v. Dep’t of Highway Safety and Motor Vehicles, No. 2017-AP-62 (Fla. 4th Cir. Ct. August 25, 2017); Goode v. Dep’t of Highway Safety and Motor Vehicles, No. 2017-AP- 85 (Fla. 4th Cir. Ct. October 11, 2017); Arnold v. Dept of Highway Safety and Motor Vehicles, No. 2017-CA002318 (Fla. 4th Cir. Ct. December 21, 2017).

The B.A.R.’s statewide campaign instructs police officers on the issues that arise at formal review hearings, how to testify at them, and what information should be included and what information should be excluded from their probable cause affidavits. Petitioner included a voluminous set of attachments as well as the curriculum offered to police at these seminars. These have been reviewed by this Court.

One of the attachments contains a flyer sent out by the B.A.R. regarding these seminars. It is solely addressed to law enforcement and boldly proclaimsThis is your opportunity to find out the facts and issues that directly affect the results of your hard work! We encourage you to attend! See you there.(no emphasis added). This training session was held in Jacksonville at the Jacksonville Sheriff’s Office on July 19, 2016. Another Jacksonville training session was held at the Florida Highway Patrol’s Office on July 18, 2016. As can be seen by the provided sign in sheets, all the attendees are from law enforcement.

Another announcement entitled “TRAINING FOR ALL LAW ENFORCEMENT AGENCIES” (Cape Coral Police Dept. 9/13/16), included a section in it addressing the covered topics. Under it, topics such as “Administrative suspension 322.2616 (zero tolerance),” “Probable Cause Affidavits,” and “Statistics for your area and your agency” were included. What is most troubling about this particular flyer is that it includes an advisement to police officers, who are actual litigants/parties/witnesses to a formal review hearing, thatWe will discuss what is required to be in a probable cause affidavit and what should not be in there.(emphasis added).

The Petitioner’s attachments also establish that the B.A.R. not only sponsored and administered these training seminars, but that hearing officers throughout the state were directly involved as well. As can be seen in the attachments, hearing officers were used as instructors at these seminars.

Motorists in Florida are entitled to a formal review hearing that is fair and that is presided over by a neutral and detached magistrate. Motorists are also entitled to due process. “Our supreme court has defined the elements of due process as notice and an opportunity to be heard [that is] full and fair, not merely colorable or illusive……Due process of law means a course of legal proceedings according to those rules and principles which have been established in our system of jurisprudence for the protection and enforcement of private rights.” DHSMV v. Griffin, 909 So.2d 538 (Fla. 4th DCA 2005) [30 Fla. L. Weekly D2065a] (citing Ryan’s Furniture Exchange, Inc. McNair, 120 Fla. 109, 162 So. 483,487 (1935)).

Hearing officers in Florida are required to be neutral and any action on the part of the B.A.R. or its hearing officers that amounts to advocating for one side over the other is a violation of due process. Id. at 542 (“We agree that the hearing officer departed from her neutral role as magistrate when she stopped the hearing, located the registration certificate. . . and entered it as evidence during the hearing.”).

A litigant is entitled to have confidence that the hearing officer before whom he or she appears is acting impartially as a fact finder.” Id. at 542; Ducre v. State, 768 So.2d 1159 (Fla. 2nd DCA 2000) [25 Fla. L. Weekly D2212b]. It is troubling to this Court that anyone could feel confident that a hearing presided over by the B.A.R. would be fair or presided over by a magistrate who is neutral considering that the B.A.R. seems to be just as concerned about invalidation rates as those in law enforcement would be.

When reviewing the training manual:

a) The very first page of the B.A.R.’s training manual states that the percentage of suspensions that are sustained at formal review hearings stands at an incredible 95.3%.

b) In commenting on this successful campaign to keep such rates high, the manual asks the police officers, “While sustained rates of 95% and 90% are good and indicative of the fine work you are doing, how many of you would like to see those numbers even higher?” This also is a comment by the hearing officers and the B.A.R. as a whole that there is a firmly held belief that the police officers are doing “fine work” in all cases.

c) The B.A.R. goes on to try and offer the police tips on how to reduce the number of invalidations. “Let’s look at the reasons for those invalidations and what might be done to reduce the number that are invalidated.” The manual goes on to list the common reasons why suspensions are invalidated and how to avoid them.

d)The training also includes tips on what information should go into the probable cause affidavit.

e) The training also discussed case law that can be considered “law enforcement friendly.”

It should go without saying that parties to an adversarial hearing such as this should never be provided with strategic tips by the judge or magistrate. McFadden v. State, 732 So.2d 1180 (Fla.4th DCA 1999) [24 Fla. L. Weekly D1040b] (judge departed from neutral role when he invited the state to cure the defects in its case by revising its complaint to meet the elements of the violation and was actively examining witnesses); Chastine v. Broome, 629 So.2d 293 (Fla. 4th DCA 1993) (judge was advocating for the state when he passed a note to the prosecutor giving the attorney strategy tips).

“While we see no constitutional infirmity in non-lawyers serving as hearing officers under sec. 322.2615, we do strongly caution those hearing officers that they must take extraordinary care to be as impartial and neutral as the members of the judiciary are required to be.” Griffin v. State, 909 So.2d at 542. As one local circuit judge has noted, the minds of the hearing officers “. . .are made up before the hearing, and indeed, an order affirming the suspension is already drawn.” Detlefsen v. DHSMV, Case No. 16-2012-CA-6869 (4th Jud. Cir. Ct. 8/1/13).

The Florida Supreme Court in the Wiggins case (cited herein) addressed these hearings and how unfair they often times can be. Wiggins v. Fla. Dep’t of Highway Safety and Motor Vehicles, No. SC14-2195 (Fla. 2017) [42 Fla. L. Weekly S85a]. In distinguishing administrative tribunals conducted by the B.A.R. from other types of administrative proceedings such as those conducted by zoning boards, the high Court commented that B.A.R. hearings should be reviewed differently by circuit courts as those hearings tend to involve less fairness than other administrative hearings.

“However, this Court and others have voiced concerns with fairness and due process specifically in the context of hearings held before Department hearing officers under section 322.2615.” Id.; Forth v. Fla. Dep’t of Highway Safety & Motor Vehicles, 148 So.3d 781 (Fla. 2d DCA 2014) [39 Fla. L. Weekly D1352a] (quashing the circuit court’s decision to remand to the Dep’t after it was found that the hearing officer was not impartial); Fla. Dep’t of Highway Safety & Motor Vehicles v. Dean, 662 So.2d 371 (Fla. 5th DCA 1995) [20 Fla. L. Weekly D2179c], cause dismissed, 667 So.2d 774 (Fla. 1996)(“The frequency with which conscientious trial judges of this state issue decisions that have the effect of providing more procedural safeguards to licensees in these revocation hearings suggests a continuing concern about the fairness of this statutory procedure.”).

The Respondent contends that the issue involving Disqualification was “squarely addressed by this circuit” and cited to Spear v. Department of Highway Safety Motor Vehicles, Case No. 2017-CA-000579 (Fla. 4th Cir. Ct., June 15, 2017) and Diccico v. Department of Highway Safety and Motor Vehicles, Case No. 16-2017-AP-000062 (Fla. 4th Cir. 2017). This is not entirely so. The Spear Court did not address the conflict of interest issue that exists when analyzing disqualification.

Litigants need not show a direct, individualized bias against the moving party personally to prevail on a Motion For Disqualification. Conflicts of interest can be sufficient in and of themselves to grant relief. W.I. v. State, 696 So.2d 457 (Fla. 4th DCA 1997) [22 Fla. L. Weekly D1634c] (even where there is no direct conflict of interest, the petitioner still asserted a well-founded fear that he would not receive a fair trial before the judge).

Here, a clear conflict of interest exists with this hearing officer (as an employee of the Department/B.A.R.) due to the Department’s very open and public policy of ensuring that invalidation rates at these hearings are reduced. As an employee of the Department/B.A.R., the hearing officer must be loyal to their policies. Thus, where the conflict of interest at play creates a question as to the judge’s ability to be impartial, a Motion For Disqualification should be granted. Brown ex rel. Preshong-Brown v. Graham, 931 So.2d 961 (Fla. 4th DCA 2006) [31 Fla. L. Weekly D1390a]. A judge shall disqualify herself in a proceeding in which the judge’s impartiality might reasonably be questioned. Code of Judicial Conduct Canon 3.

The Spear case is also distinguishable because it did not deal with an arresting officer who received the B.A.R. training at issue. Here, Trp. Healy did, in fact, receive the training from the B.A.R. and its hearing officers. The record is replete with evidence of hearing officer participation in this training.

Because the officer in Spear was not a part of this training, it allowed the Spear Court to rely on a case that would not apply here. In Dep’t of Highway Safety and Motor Vehicles v. Stewart, 625 So.2d 123 (Fla. 5th DCA 1993), the driver’s argument that the hearing procedure at the B.A.R. was unconstitutional because the hearing officers were fellow employees of the highway troopers whose affidavits and testimony hearing officers are called upon to evaluate was rejected.

However, it’s important to note that in Stewart, there was no evidence of cooperation between the troopers and the hearing officers as we have here. The driver’s attorney in Stewart merely argued that because they worked in the same department that it created an unlawful hearing.

As the Petitioner’s appendix shows, not only is Trp. Healy employed by the same department as the hearing officer, Trp. Healy received training from the B.A.R. on how to testify so as to decrease the number of suspensions that are invalidated.

For similar reasons, the Diccico opinion is inapplicable here. As in Spear, Diccio did not involve an arresting officer who actually received the B.A.R. training at issue. Additionally, the Diccio Court actually found that this training was troubling. The Court there stated that:

“This Court is certainly troubled by the extent to which supposedly neutral hearing officers have engaged in the training now questioned. Such training may have extended to teaching law enforcement officers the best methods for winning their cases.”

(emphasis added). In denying the Petition, the Diccico Court did not address the conflict of interest issue outlined above nor does this opinion involve the separate ground for invalidation asserted here. In addition to the Disqualification motion, the Petitioner here filed a separate motion for invalidation based on the same B.A.R. training that does not involve issues of disqualification and instead focuses on due process violations based on the training.

Consider the holding in Griffin. There, a similar due process challenge was lodged against the B.A.R. The Griffin Court ruled that the use of non-lawyer hearing officers was not unconstitutional so long as the hearing afforded an adjudication of rights that is full and fair. Id. at 541. In Griffin, the drivers, unlike here, did not offer any specific examples of why the hearings were un-fair.

Had the Griffin Court been aware of the issues in the case at bar, it is unlikely that it would have found such activity to be constitutionally sound. The elements of due process include notice and an “opportunity to be heard [that is] full and fair, not merely colorable or illusive. . . Due process of law means a course of legal proceedings according to those rules and principles which have been established in our system of jurisprudence for the protection and enforcement of private rights.” Ryan’s Furniture Exchange, Inc. v. McNair, 120 Fla.109, 162 So. 483 (1935).

The Respondent claims there is no legal provision for disqualification of all hearing officers as a group. Whether or not there is such an administrative rule is not controlling here. Due process is a right that cannot be abridged or denied by an administrative agency.

Even if the absence of such an administrative rule was relevant, the Petition can be granted nonetheless due to the lack of due process in the Petitioner’s proceedings. Thus, the hearing officer erred in denying both the Motion To Disqualify and the Motion To Invalidate based on due process.

Breath Test Operators Failure to Appear

The Petitioner next argues that § 322.2615(11), Fla. Stat., mandates invalidation of the suspension due to the failure of the breath test operator to appear. Here, the Petitioner refused the requested breath test.

Petitioner subpoenaed the breath tech, however, he failed to appear. The hearing officer denied Petitioner’s request to invalidate based on this failure to appear. The Respondent’s position on this issue is that because this case involves a refusal, the Petitioner cannot be afforded relief under section 322.2615, Florida Statutes. Sec. 316.1932 which authorizes a law enforcement officer to request a breath, blood or urine test under certain conditions after a driver is lawfully arrested. S. 316.1932(1)(a)l.a. states,

Any person who accepts the privilege extended by the laws of this state of operating a motor vehicle within this state is, by so operating such vehicle, deemed to have given his or her consent to submit to an approved chemical test or physical test including, but not limited to, an infrared light test of his or her breath for the purpose of determining the alcoholic content of his or her blood or breath if the person is lawfully arrested for any offense allegedly committed while the person was driving or was in actual physical control of a motor vehicle while under the influence of alcoholic beverages.

The chemical or physical breath test must be incidental to a lawful arrest and administered at the request of a law enforcement officer who has reasonable cause to believe such person was driving or was in actual physical control of the motor vehicle within this state while under the influence of alcoholic beverages. The administration of a breath test does not preclude the administration of another type of test.

The person shall be told that his or her failure to submit to any lawful test of his or her breath will result in the suspension of the person’s privilege to operate a motor vehicle for a period of 1 year for a first refusal, or for a period of 18 months if the driving privilege of such person has been previously suspended as a result of a refusal to submit to such a test or tests, and shall also be told that if he or she refuses to submit to a lawful test of his or her breath and his or her driving privilege has been previously suspended for a prior refusal to submit to a lawful test of his or her breath, urine, or blood, he or she commits a misdemeanor in addition to any other penalties.

The refusal to submit to a chemical or physical breath test upon the request of a law enforcement officer as provided in this section is admissible into evidence in any criminal proceeding.

(emphasis added). As set out in this section, there are very specific requirements for when such a test may be requested and specific directives as to what must be done if a driver indicates a desire to refuse such a test.

Sec. 322.2615, Florida Statutes, establishes the statutory guidelines for the formal review hearing to review a driver’s license suspension imposed due to an unlawful breath test result or the refusal to submit to a breath, blood, or urine test that is required by s. 316.1932. Among the guidelines set out in s. 322.2615 is the scope of review for the Hearing Officer at these proceedings, the authority of the Hearing Officer as it relates to these proceedings, and the rights and protections afforded a driver. Among these rights and protections afforded the driver are the guidelines setting out the witnesses who can be subpoenaed and the remedies available if a witness fails to appear at the hearing.

The issue resulted from the amendment of Sec. 322.2615, effective July 1, 2013. The changes pertinent to this petition are set out in s. 322.2615(6) and s. 322.2615(11). S. 322.2615(6) states,

(6)(a) If the person whose license was suspended requests a formal review, the department must schedule a hearing within 30 days after such request is received by the department and must notify the person of the date, time, and place of the hearing.

(b) Such formal review hearing shall be held before a hearing officer designated by the department, and the hearing officer shall be authorized to administer oaths, examine witnesses and take testimony, receive relevant evidence, issue subpoenas for the officers and witnesses identified in documents provided under paragraph (2)(a), regulate the course and conduct of the hearing, question witnesses, and make a ruling on the suspension. The hearing officer may conduct hearings using communications technology. The party requesting the presence of a witness shall be responsible for the payment of any witness fees and for notifying in writing the state attorney’s office in the appropriate circuit of the issuance of the subpoena. If the person who requests a formal review hearing fails to appear and the hearing officer finds such failure to be without just cause, the right to a formal hearing is waived and the suspension shall be sustained.

(c) The failure of a subpoenaed witness to appear at the formal review hearing is not grounds to invalidate the suspension. If a witness fails to appear, a party may seek enforcement of a subpoena under paragraph (b) by filing a petition for enforcement in the circuit court of the judicial circuit in which the person failing to comply with the subpoena resides or by filing a motion for enforcement in any criminal court case resulting from the driving or actual physical control of a motor vehicle that gave rise to the suspension under this section. A failure to comply with an order of the court shall result in a finding of contempt of court. However, a person is not in contempt while a subpoena is being challenged . . .

The underlined sections are the relevant additions that were made.

Sec. 322.2615(11) states, in its entirety,

The formal review hearing may be conducted upon a review of the reports of a law enforcement officer or a correctional officer, including documents relating to the administration of a breath test or blood test or the refusal to take either test or the refusal to take a urine test. However, as provided in subsection (6), the driver may subpoena the officer or any person who administered or analyzed a breath or blood test. 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.

Again, the underlined section is the section that was added effective July 1, 2013. Although there is a clear distinction between these sections as to the remedy for the failure to appear of an arresting officer or breath test technician and the failure to appear of any other witness, there is no distinction made between breath test cases and refusal cases.

Sec. 322.2615(7) requires the hearing officer to consider, (1) whether the arresting officer had probable cause to believe that the driver was driving or in actual physical control of a motor vehicle while under the influence of an alcoholic beverage or controlled substance, (2) whether the driver was lawfully arrested for DUI, and (3) either whether the driver had an unlawful blood alcohol level; or, in the case of a refusal to submit to a test, whether the driver was advised that if they refused to submit to a breath, blood or urine test, their driving privilege would be suspended, and whether after having been so advised, the driver refused such test. Sec. 322.2615, Fla. Stat. (2016). Thus both scopes of review require consideration of the proper actions by the breath test technician.

The evidence shows that prior to the formal review hearing in this case, the Petitioner requested, and received, a subpoena for Officer Dinkins. Officer Dinkins is the breath test operator who completed the affidavit alleging that the Petitioner refused a breath test, thereby triggering the license suspension. Officer Dinkins was lawfully served with the subpoena to appear at the formal review hearing scheduled for this case on August 3, 2017. Officer Dinkins failed to appear or to request a continuance.

Prior to July 2013, when the arresting officer or breath test operator failed to appear, the only remedy was enforcement in the circuit court as with any other witness. By amending this section in this manner, the legislature clearly recognized that these witnesses were the most significant to the issues before the hearing officer; that being the lawfulness of the arrest, the reasonableness of the request under implied consent; and either an unlawful breath or blood test result, or a refusal to submit. There is no reasonable basis to differentiate between refusal and breath test cases.

Basic rules of statutory construction mandate that a subsection of a statute must be considered in its entirety when interpreting the language of the individual sentences. Roberts v. State, 685 So. 2d 1277 (Fla. 1996) [22 Fla. L. Weekly S5a]; Calhoun, Dreggors & Assoc. v. Volusia Cty, 26 So. 3d 624 (Fla. 5th DCA 2009) [35 Fla. L. Weekly D77a]; Richardson v. Showell Farms, 734 So. 2d 590 (Fla. 1st DCA 1999) [24 Fla. L. Weekly D1500b]. “When analyzing a statute, courts look to legislative intent and to determine such intent, the language and plain meaning of the statute must be examined first. Fla. Dep’t of Children & Family Servs. v. P.E., 14 So.3d 228, 234 (Fla.2009) [34 Fla. L. Weekly S449a].

When the statutory language is clear, courts may not explore legislative history nor apply canons of statutory construction. Daniels v. Fla. Dep’t of Health, 898 So.2d 61, 64 (Fla.2005).” [30 Fla. L. Weekly S143a] Ellsworth v. State, 89 So. 3d. 1076 (Fla. 2d DCA 2012) [37 Fla. L. Weekly D1364b]. In the case at bar, the plain language of the statute makes no distinction between hearings where a driver has submitted to a breath, blood or urine test or where they have refused such test. When the legislature detailed that the suspension shall be invalidated based on a breath technician’s failure to appear they could have very well made the distinction between breath tests and refusal, but they did not. See Fla. Carry, Inc. v. Univ. of Fla., 180 So. 3d 137, 145-146 (Fla. 1st DCA 2015) [40 Fla. L. Weekly D2432c]. As a result, the hearing officer erred in denying the Petitioner’s request to invalidate.

Lawfulness of Detention and Arrest

In order to detain a citizen for purposes of conducting a criminal investigation, the officer must have reasonable suspicion that a crime is occurring. Terry v. Ohio, 391 U.S. 1 (1968). Reasonable suspicion has been described as something that is more than a mere hunch. Wallace v. State, 8 So. 3d 492 (Fla. 5th DCA 2009) [34 Fla. L. Weekly D925b].

Signs of impairment leading up to the detention in this case were scarce. Typically in a DUI case, an officer observes erratic driving coupled with real indicators of impairment such as stumbling, incoherent sentences, or fumbling through documents. Here, the driving pattern observed was a u-turn made after the light turned green and without interfering with any traffic. Although an infraction did occur (making a u-turn where not permitted), nothing about the turn or the subsequent driving pattern indicated impairment. To the contrary, Trp. Healy testified that the u-turn was the only driving pattern he noticed and that after turning on the blue lights she responded to the blue lights in a timely manner and made a right hand turn safely to stop. The video bears this out as well.

Post stop observations included an allegation that Petitioner had bloodshot, watery eyes, a flushed face, slurred speech, and an odor of an alcoholic beverage. Although Trp. Healy said he detected slurred speech, the video contradicts that assertion, especially the officer’s claim that it was the “entire time.”

The DVD reflects a coherent, clear speech pattern. In stating so, this Court is not re-weighing the evidence, but merely commenting on the contents of the video which clearly contradicts the allegations of the officer. In Wiggins, the high court found the circuit court’s review of the DUI DVD on appeal to be permissible in finding that the officer’s claim (as well as the hearing officer’s findings) of an erratic driving pattern was contradicted by the DVD. “Evidence that is confirmed untruthful or nonexistent is not competent, substantial evidence.” Id.

The remaining observations leading up to the detention were merely signs of alcohol consumption, not impairment. The officer conceded that he did not know why her face was flushed or why her eyes were red. Additionally, the officer also stated the obvious, that is one cannot determine if someone’s normal faculties are impaired by the odor of an alcoholic beverage. These are all observations of possible alcohol consumption, not impairment.

Furthermore, the video belies the officer’s allegation that Petitioner put her foot down during the one leg stand. The video shows that Petitioner never once put her foot down during this exercise.

Additionally, Petitioner’s performance on the other exercises refutes any claims that she struggled or looked impaired in any way. As a result, probable cause for the arrest was lacking as well. The contradicted testimony of the trooper is not sufficient to amount to competent, substantial evidence.

It is, therefore

ORDERED AND ADJUDGED that:

1. The Petition for Certiorari is hereby GRANTED and the Order of License Suspension entered on August 7, 2017 is hereby QUASHED.

2. The Department of Highway Safety and Motor Vehicles shall remove the administrative suspension from the Petitioner’s driving record, and shall immediately reinstate the Petitioner’s driving privilege if she is otherwise eligible.

* * *

Tampa’s Central Breath Testing (CBT) Unit Compromised

After a DUI arrest in Hillsborough County, FL, you will be taken to a room at the Central Breath Testing (CBT) unit located within the Orient Road Jail in Tampa, FL, and asked to submit to a breath test on an Intoxilyzer 8000.

In order for the breath test result to be admissible at trial, certain rules must be complied with, including the rules found in Florida Administrative Code (FAC) 11D-8.007.

FAC 11D-8.007 provides in subsection one (1) that

“[e]videntiary breath test instruments shall only be accessible to a person issued a valid permit by the Department and to persons authorized by a permit holder….

Subsection 2 of FAC 11D-8.007 requires that

“[t]he instrument will be located in a secured environment which limits access to authorized persons described in subsection (1)….”

When there is a lack of compliance with the administrative rules, your DUI defense attorney can file and litigate a motion to suppress your breath test reading so that it cannot be used against you at trial.

If you are charged with a DUI in Tampa, FL, involving a breath test reading, then contact an experienced criminal defense attorney at Sammis Law Firm to discuss your case.

Our Tampa DUI Defense attorneys are experienced in filing and litigating motions to suppress breath test readings for a variety of reasons, including a lack of compliance with the administrative rules.

Call 813-250-0500 to discuss your case.

Violation of FAC 11D-8.007(1) and (2)

It appears that a serious violation of the Florida Administrative Code (FAC) 11D-8.007(1) and (2) occurred on January 23, 2018.

Supervisor Roger G. Skipper, Central Breath Testing Unit Supervisor sent a memorandum to Master Sergeant Timothy R. Bell, explaining how an “unescorted instrument access” occurred on January 23, 2018. The unescorted instrument access compromised the breath test room and instruments being stored in that room.

The incident occurred at the Central Breath Testing location at the Orient Road Jail in Tampa, FL (often identified as ORJ – Building 10 – CBT).

According to Supervisor Roger Skipper, at 10:51 hours on January 23, 2018, Alcohol Breath Analysis Technician Melanie Snyder #4113 told Mr. Skipper that a locksmith had accessed Room SI-01 (breath test room) as a pass-through to Room FR-01 (CBTU File Room) to finish a lock repair.

The locksmith, identified as Samuel Ramirez, Jr. #242169, had been previously escorted into the breath test room at the Orient Road Jail by Technician Melanie Snyder.

Upon returning from court, Mr. Skipper told Master Sergeant Bell #4152 about the intrusion into the breath test room by an unauthorized person. Mr. Skipper also reported the access violation to the State Inspector Danielle Bell of the Florida Department of Law Enforcement’s Alcohol Testing Program (FDLE/ATP).

Mr. Skipper reportedly conducted a System Check breath test on the four instruments located in the testing room with no issues noted. He also conducted a dry gas standard stability check (10 repetitions each) on all four instruments involved with no issues noted.

The four instruments were removed from service and were reportedly shipped to FDLE/ATP after an agency inspection. Those four instruments were identified as 80—000833, 80-003387, 80-003388 and 80-006567.

Along with this disclosure, FDLE was notified that on January 22, 2018, it was determined that keys to some of the staff lockers at CBT were not working. For some reason, the staff lockers in CBT are located in the restricted access area. In response to this problem with the keys, Master Sergeant Timothy R. Bell created a ticket number 026263 that was printed on 1/22/18 at 20:04:18.

Inspection of the Hillsborough County Central Breath Testing Unit

The Department Inspector Field Notes indicate that on February 13, 2018, Danielle Miller Bell arrived to inspect and audit the Hillsborough County Central Breath Testing Unit.

According to the field notes entered on the FDLE/ATP Form 44, there are several rooms separated by keys (with differing locks to facilitate different access levels).

Access levels were reportedly well defined. New signs on the entrance clearly define authorized personnel allowed to enter rooms containing Intozilyzers.

The department inspector reportedly observed a total of eight evidential instruments present. (Four in service and four separated ready for inspection later that evening). The report indicated that the equipment is kept clean and dry.

The solutions in use are in date and well labeled. The department inspector did not observe an agency inspection, although she did audit several files. All filed are well kept and in order. The department inspector reported that all files were present and keep for the required time frame at a minimum.

The department inspector did not check any of the comprised instruments for compliance with Rule 11D-8.

Electronic COBRA Data for the Breath Test Machines

We looked at the COBRA Data and found that all of these machines, 80-000833, 80—3387, 80-003388 and 80-006567 were pulled from service on 1/23/2018.

No subject tests were done on these machines in January after 1/23/18 or at any time in February of 2018. The electronic data for March has not been uploaded to FDLE as of yet.

80-000833
“Test” completed on 1/23/2018 by Roger Skipper
Agency Inspection (AI) completed on 2/3/2018
Department Inspection (DI) completed on 3/5/2018

80-003387
“Test” completed on 1/23/2018 by Roger Skipper
AI completed on 2/13/2018
DI completed on 3/5/2018

80-003388
“Test” completed on 1/23/2018 by Roger Skipper
AI completed on 2/13/2018
DI completed on 3/5/2018

80-006567
“Test” completed on 1/23/2018 by Roger Skipper
AI completed on 2/13/2018
DI completed on 3/5/2018

For instance, 80-003387, arrived at FDLE on 2/16/2018 and a department inspection was conducted on 3/5/18. The R-Value was found to be 101. The notes on the FDLE/ATP Form 48 show that Danielle Miller Bell, a Department Inspector with FDLE, recommended sending the machine to Enforcement Electronics for Flow Sensor replacement due to the R-value reading low.

Motions to Suppress Breath Test Readings for a Lack of Compliance

When our DUI defense attorneys represent a client in a DUI case involving a breath test reading over .08, we conduct an audit on the breath test machine.

During the audit, we search all of the records to find whether the breath test machine was properly registered, whether it passed all of the required department and agency inspections, and whether there are any usual subject tests. We look for error or exception messages on any of the subject test during the relevant time period.

In some cases, we find problems with your breath test or the way your breath test machine was maintained. These problems might lead to the filing of a viable motion to suppress the breath test reading because of a lack of compliance with the administrative rules.

If you were arrested for a DUI in Tampa, FL, involving a breath test reading over the legal limit of .08, then contact us to discuss the case. Call us at 813-250-0500.

central breath testing orient road jail

Picture from the former Central Breath Testing (CBT) Unit at the Orient Road Jail, Hillsborough County Sheriff’s Office, in Tampa.

 

RIDR – DUI Diversion in Hillsborough County, FL

On February 19, 2018, the State Attorney’s Office announced the creation of a new DUI initiative called Reducing Impaired Driving Recidivism (RIDR).

According to Rena J. Frazier, the Chief of Policy and Communication with the Office of State Attorney in Hillsborough County, the DUI diversion program is “aimed at reducing impaired driving through enhanced sanctions.”

The new DUI diversion program became effective on March 1, 2018. Florida Statute Section §948.08 and §948.16 allow criminal cases to be resolved through pretrial diversion programs.

On February 26, 2018, the State Attorney’s Office invited DUI defense attorneys to attend an informational meeting about the new DUI diversion program, RIDR, at the Edgecomb Courthouse in downtown Tampa, FL. More than 100 criminal defense attorneys came to the meeting.

At the informational meeting, the State Attorney’s Office explained the eligibility and procedural requirements. The State Attorney’s Office also passed out a flyer explaining the program.

RIDR Info Sheet Hillsborough DUI Diversion

The attorneys were given an opportunity to ask questions. We learned that only about 20% of people arrested for DUI would be eligible for the diversion program. Even for those who are eligible, the State Attorney’s Office reserves the right to not allow someone to enter the program.

Several people pointed out that RIDR gave a huge incentive for people to refuse to take the breath test since anyone who blew over .20% would be automatically ineligible.

Several people asked if the judges in Hillsborough County were onboard with the initiative because a judge always has the right to refuse to accept the negotiated plea and force the case to trial.

Consequences of Entering the DUI Diversion Program

If you are eligible and the SAO agrees to let you enter the program, then the following will occur:

  • the DUI will be reduced to reckless driving;
  • the court will withhold adjudication; and
  • the court will sentence you to twelve (12) months probation to complete the enhanced sanctions.

If you complete the probation successfully, then you might be eligible to seal the criminal history record entirely.

Eligibility Requirements for the RIDR Initiative

The following eligibility requirements limit the number of people who can take advantage of the RIDR initiative:

  • The pending charge must be for a first DUI charged as a misdemeanor offense;
  • The defendant submitted to a breath or blood test, the BAC result was at .20 or below;
  • No crash with property damage occurred;
  • At the time of the stop, no minor passenger under 18 years old was in the vehicle;
  • The defendant is not currently being supervised in any Pre-Trial Intervention (PTI) program or on probation;
  • The defendant does not have a prior record for:
    • any prior DUI offense;
    • any alcohol-related reckless driving;
    • any charge of leaving the scene of an accident with injury or death;
    • any vehicular homicide;
    • any DUI diversion program or more than one non-DUI diversion program as an adult; or
    • any adjudication or withhold of adjudication to any felony within the last five years before the date of this offense.
  • The defendant does not have any pending:
    • Florida Driver’s License Suspension;
    • Driving Under the Influence (DUI) charges;
    • Driving while license suspended (DWLS) with serious bodily injury or death charges;
    • Leaving the scene of an accident with injury or death charges; or
    • Vehicular homicide charges.

The State Attorney’s Office in Tampa, FL, reserves the right to use other factors not listed here to find that a defendant will NOT be allowed to participate in RIDR.

Procedures for Entering the DUI Diversion Program

The enhanced sanctions depend on the following classification system:

  • Level 1 – BAC at or below .15;
  • Level 2 – BAC above .15 or no breath sample (or a refusal to submit to a breath, blood or urine test); or
  • Level 3 – Drug-related DUIs.

To enter the program, the defendant or the criminal defense attorney must appear at arraignment to waive speedy trial and set the case for a final disposition approximately sixty (60) days out.

Before the next court date, the defendant must provide proof of completion of the Pre-Plea Sanctions to the SAO including:

  • completing DUI school and recommended treatment;
  • attending the MADD victim impact panel; and
  • completing ten (10) community service hours.

For the Level 1 and Level 2 program, the defendant must also show:

  • provide proof of installation of an ignition interlock alcohol monitoring device; or
  • provide proof of installation of a continuous alcohol monitoring device, e.g. SCRAM.

For the Level 3 program, the defendant must also:

  • not possess or consume alcohol, illegal drugs, or non-prescribed drugs; and
  • use the PharmCheck Drugs of Abuse Patch with results provided to the SAO.

Enhanced Probation Sanctions for the RIDR Plea

After the satisfactory completion of the Pre-Plea Sanctions the offender will be offered a plea to reckless driving with a withhold of adjudication and 12 months probation:

  • Standard court costs and conditions of probation;
  • Ten-day vehicle immobilization;
  • No possession or consumption of alcohol, illegal drugs or non-prescription drugs during probation; and
  • Successful completion of DUI school and any recommended treatment.

For Level 1, the defendant must further complete:

  • Fifty (50) hours of community service; and
  • Install the ignition interlock alcohol monitoring device or any continuous alcohol monitoring device for three (3) months.

For Level 2, the defendant must further complete:

  • Seventy-five (75) hours of community service; and
  • Install the ignition interlock alcohol monitoring device or any continuous alcohol monitoring device for six (6) months.

For Level 3, the defendant must further complete:

  • Fifty (50) hours of community service; and
  • Wear a PharmCheck Drug of Abuse Patch (PharmChek® Drugs of Abuse Sweat Patch) for three (3) months with results provided to HCSO probation.

Finding an Attorney for RIDR in Tampa, FL

If you have questions about your eligibility to enter the RIDR diversion program in Hillsborough County, FL, for a first DUI, then contact an experienced DUI defense attorney at Sammis Law Firm.

We fight DUI cases in Hillsborough County at the courthouse in Tampa and Plant City, FL.

Call 813-250-0500.

ridr information sheet dui diverison hillsborough county

This article was last updated on Friday, June 28, 2019.

DUI Statistics in Tampa, FL

2016 Tampa Police Department DUI Arrests Summary

The Tampa Police Department gathers statistics to monitor the activities of the DUI enforcement officers. We have obtained these summaries for 2015, 2016, and 2017.

The summary keeps track of the number of people arrested for DUI each year along with the corresponding refusal rate:

  • 1,729 DUI arrests in 2017 with 44.48% refusal rate;
  • 2,087 DUI arrests in 2016 (with the refusal rate not being listed); and
  • 1,568 DUI arrests in 2015 with a 43% refusal rate.

The summary distinguishes between self-initiated stops and investigations that involve the DUI enforcement officer being dispatched.

The 2017 DUI Enforcement Unit combined year to date statistics (including FDOT grant) show a total of 1,729 DUI arrests in all of 2017 (with 54.71% being self-initiated and 45.29% being dispatched).

Only 5 cases involve a .02 violation. Only fifteen (15) DRE evaluations were performed the entire year. 243 of those cases were classified as “DUI Crash.” As far as chemical tests, 44.48% were classified as a refusal, 1.04% as blood, and 4.80% as urine. The rest were breath test cases with more people blowing over .15 than under.

According to the Tampa Police Department DUI Arrests Summary for 2016, the agency made 2,087 DUI arrests. Just over one-half of those arrests were self-initiated. The other 1,008 arrests involved the DUI enforcement officer being dispatched.

The summary also distinguishes between different types of DUI related cases including:

  • Crash (DUI related) at 13.8%;
  • Wrong way driver (DUI arrest) at 5.7%;
  • DUI checkpoint arrests at 0.5%;
  • Superior Response to Fatal / SBI Crash at 0%; or
  • Supervisor DUI Assist at 5.3%.

The summary also distinguishes between different types of DUI tests:

  • Breath above .08% BrAC 49.1%
  • Urine, Blood or Refusal 49.3%
  • .000-.079% 1.6%

It is weird how the chart tries to carve out the DUI cases with a BrAC reading below the legal limit in this manner. Why not include the low BrAC cases in the BAC Range?

If you look at the totals, it appears that if the low BrAC were included in the range, then approximately 3.2% of people who submit to breath testing blow under the legal limit.

Also, the refusal rate is lumped in with the urine and blood test cases.

Out of those DUI arrests in 2016 by the Tampa Police Department with a breath test reading over the legal limit, the BAC Range is broken down as follows:

  • .080-.149 at 21.5%
  • .150-.199 at 17.3%
  • .200-.249 at 7.4%
  • .250-.299 at 2.5%
  • .300 or over at .04%

If you were arrested by an officer with the Tampa Police Department for DUI, then contact an experienced criminal defense attorney at Sammis Law Firm. Our offices are located in downtown Tampa, just a few blocks from the courthouse.

We understand the tactics used by officers with the Tampa Police Department. Call us to discuss the facts of your case, the typical penalties imposed in DUI cases, and the best ways to fight the case for an outright dismissal or reduction to a less serious charge.

Call 813-250-0500 today.

2015 Tampa Police DUI Enforcement Unit Summary

Update: We recently obtained the TPD DUI Enforcement Unit 2017 Combined Year to Date Statistics by Sector (including FDOT Grant).

Tampa Police TPD DUI enforcement unit 2017 combined year statistics

This article was last updated on Friday, June 28, 2019.

Do you lose your driver’s license for a DUI?

During the initial consultation, one of the most frequent questions is: “Will I lose my driver’s license because of the DUI?” The short answer is that it depends.

After a DUI arrest, your driver’s license is impacted in two ways – the administrative suspension and the court-ordered suspension.

The “On-the-Spot” Administrative Suspension

First, the officer will often trigger an “on-the-spot” suspension when he makes the arrest and seizes your driver’s license on the spot. This suspension is called the “administrative” suspension because it occurs at the Florida Department of Motor Vehicles and Highway Safety (DHSMV).

The administrative suspension will last from 6 months for a first DUBAL (driving with a breath / blood alcohol level over .08) to 18 months for a second or subsequent refusal to submit to a breath, blood or urine test. The hard suspension is the period during which you are not eligible for a hardship license.

That hard suspension can last for any of the follow periods:

  • 30 days for a first BAL over .08;
  • 90 days for a first refusal; or
  • 18 months for a second refusal.

If you hire a DUI defense attorney at the Sammis Law Firm in Tampa, FL, we will demand a formal review hearing on your behalf to fight the administrative suspension.

We can also hand you a 42-day permit so that you can keep driving during the time we are preparing for the formal review hearing.

If the administrative suspension is invalidated, then you will not lose your driver’s license on an administrative basis.

If you don’t get the suspension invalidated then you will need to complete DUI school, attend a hardship hearing, pay a reinstatement fee, and wait seventy-five (75) years for the DUI suspension to drop off your driving record.

The Court Ordered DUI Suspension

Second, the court might impose a “court order” suspension, but only if you are convicted of DUI. That court ordered suspension can be avoided by getting the DUI dropped, dismissed, or at least reduced to reckless driving (often called the “wet reckless”).

The length of the suspension depends on the number of prior convictions including:

  • first DUI is 6 months to 12 months;
  • second DUI within 5 years of a prior conviction is 5 years;
  • third DUI within 10 years of a prior conviction is 10 years; or
  • fourth DUI in a lifetime is a lifetime revocation.

Ways to Avoid a Suspension of Your Driver’s License after a DUI Arrest

So although most people lose their license after a DUI, some people avoid it entirely. You will not lose your driver’s license if your DUI defense lawyer is able to:

  • get your administrative suspension invalidated at the formal review hearing; and
  • avoid a DUI conviction in court.

Contact a DUI defense attorney at the Sammis Law Firm to learn more about the consequences to your driver’s license after a DUI arrest in Tampa or Hillsborough County, FL.

Call 813-250-0500 to discuss your case.


Additional Resources

Pros and Cons of Demanding a Formal Review Hearing – Instead of just stipulating that you were DUI for administrative purposes during the Review Waiver Hearing, read more about the pros and cons of demanding a formal review hearing. Find out why you lose your license immediately after a DUI arrest and how to contest the suspension. Find out how long you might lose your license for a first DUI, second DUI, third DUI, or fourth DUI after an administrative suspension or a court-ordered suspension. Find out how to get a 42-day temporary hardship license so that you can drive to work, school or church after the arrest while your attorneys challenges the administrative suspension.

This article was last updated on Friday, June 28, 2019.

Suppressing the DUI Intoxilyzer 8000 Results for a Lack of Substantial Compliance

The goal for the attorney in a DUI case involving a breath test reading over .08 is getting the breath test result thrown out of evidence.

In order to get the breath test results thrown out of evidence, the DUI defense attorney might file a motion to suppress the breath test reading when the breath test machine was not in substantial compliance with the administrative and statutory rules.

Below you will find a summary of all of the trial court orders on Florida Law Weekly in which the trial court suppressed the breath test result because of a lack of compliance with the administrative rules.

This article gives you examples of the most common problems that can arise during the monthly inspections of Florida’s Intoxilyzer 8000 breath test machine.

If you find a case we missed, please let us know and we will be happy to add it to this list.

State v. Larkin, 23 Fla. L. Weekly Supp. 271b (Hillsborough Cty. Ct. 2015) – The defendant was arrested for DUI and filed a motion to suppress “because unapproved alcohol reference solutions were used in both the September 2013 department inspection as well as the monthly agency inspections” of the breath test machine. The court granted the motion, stating:

The State argues that FDLE was permitted to reanalyze the solution per the FDLE alcohol testing program procedures manual, the defense, on the other hand, argues that the promulgated rule (11D-8.0035) prohibits re-analysis. The issue is resolved by the FDLE procedures manual. On page 2 of the FDLE alcohol testing program manual, it states that the purpose of the manual “is to document the procedures of the Florida Department of Law Enforcement alcohol testing program. It is not intended to supersede, and when in conflict, is subordinate to, information and processes in the Florida Statutes, Florida Administrative Code, or FDLE policies and procedures”. Since FDLE 11D-8.0035 requires all results to fall within acceptable range, this court finds that the promulgated rule and section 2.14 of the FDLE alcohol testing program procedures manual to be in conflict and therefore section 2.14 is subordinate to the promulgated rule (11D-8.0035) and therefore, retesting is not permitted since 11D-8.0035 requires all of the results must fall within acceptable range.

The lot at issue was not properly approved, and the use of the non-approved solutions during the department inspections rendered the results inadmissible.

The court further stated that “[s]ince the State made no argument for substantial compliance, this court need not make any ultimate legal findings on this point of law. But, since the State is seeking further appellate review, it should be noted that (Thirteenth Circuit courts) found that the doctrine of substantial compliance did not apply to FDLE or rule 11D-8.0035. Had the State argued this point during the hearing, the court would have rejected the State’s position.”

The court also stated that a Brady violation had probably occurred, but “by granting the motion to suppress for violating FDLE Rule 11D-8.0035, the court does not have to go any further on this issue as it has been rendered moot.”

State v. Brink, 20 Fla. L. Weekly Supp. 772a (Fla. 17th Cir. Ct. 2013) – The circuit court, sitting in its appellate capacity, affirmed the lower this granting of the defendant’s motion to suppress evidence related to breathalyzer testing in this driving under the influence case, holding that there was no error in granting the motion to suppress where the trial court, after hearing conflicting evidence regarding inspection of Intoxilyzers, found that fraudulent practices and intentional systematic destruction of evidence occurred when “plug pulls” (a loss of power to the machine, causing it to lose data) erased data from failed inspections, and holding that the finding was supported by competent, substantial evidence. See also State of Florida v. Medina, Case No. 09-78AC10A [18 Fla. L. Weekly Supp. 170a].

State v. Hoover, 20 Fla. L. Weekly Supp. 776a (Fla. 17th Cir. Ct. 2013) – The circuit court, sitting in its appellate capacity, affirmed the lower court’s granting of the defendant’s motion to suppress evidence related to breathalyzer testing in this driving under the influence case, holding that it was not an abuse of discretion to suppress breath test results based on a lack of substantial compliance with the rules governing Intoxilyzer 8000 (the breathalyzer testing machine used) inspections, where the rules require that inspectors rinse their own mouths with alcohol before blowing into the machine. In this case, the inspector rubbed alcohol on her own lips and gums before testing the machine, and did not rinse with the solution; this was the only inspector known to use this technique.

State v. Ikramelahai, 20 Fla. L. Weekly Supp. 772b (Fla. 17th Cir. Ct. 2013) – The circuit court, sitting in its appellate capacity, affirmed the lower this granting of the defendant’s motion to suppress evidence related to breathalyzer testing in driving under the influence case, holding that there was no error in granting the motion to suppress where the trial court, after hearing conflicting evidence regarding inspection of Intoxilyzers, found that fraudulent practices and intentional systematic destruction of evidence occurred when “plug pulls” (a loss of power to the machine, causing it to lose data) erased data from failed inspections, and holding that the finding was supported by competent, substantial evidence.

State v. Viera, 20 Fla. L. Weekly Supp. 773a (Fla. 17th Cir. Ct. 2013) – The circuit court, sitting in its appellate capacity, affirmed the lower court’s granting of the defendant’s motion to suppress evidence related to breathalyzer testing in driving under the influence case, holding that there was no error in granting the motion to suppress where the trial court, after hearing conflicting evidence regarding inspection of Intoxilyzers, found that fraudulent practices and intentional systematic destruction of evidence occurred when “plug pulls” (a loss of power to the machine, causing it to lose data) erased data from failed inspections, and holding that the finding was supported by competent, substantial evidence.

State v. Hoover, 20 Fla. L. Weekly Supp. 776a (Fla. 17th Cir. Ct. 2013) – The circuit court, sitting in its appellate capacity, affirmed the lower court’s granting of the defendant’s motion to suppress evidence related to breathalyzer testing in this driving under the influence case, holding that it was not an abuse of discretion to suppress breath test results based on a lack of substantial compliance with the rules governing Intoxilyzer 8000 (the breathalyzer testing machine used) inspections, where the rules require that inspectors rinse their own mouths with alcohol before blowing into the machine. In this case, the inspector rubbed alcohol on her own lips and gums before testing the machine, and did not rinse with the solution; this was the only inspector known to use this technique.

State v. Osorio, 19 Fla. L. Weekly Supp. 734 (May 18, 2012, 7th Judicial Circuit) – During the first inspection the Agency Inspector performed on this Intoxilyzer 8000 breath test machine, he testified he took too long and the intoxilyzer timed out. A second inspection was done and during this attempt, the Inspector believes he used too much mouth alcohol causing the machine to reflect “slope not met” causing the Inspector to abort this second test and start a third one. During the third test, that was aborted by the inspector due to the possibility that a radio frequency interferent would be detected in the room. Finally, a fourth inspection was started which resulted in a successful inspection. During these four attempts, the inspector did not contact the FDLE Department Inspector or record the reasons for the non-compliant rest results in the remark section of Form 40 as required. The Court ruled that since the machine was never taken out of service as required by Form 39, the department inspector was never contacted as required by the rules, and the remarks were not recorded on Form 40 as required by the rules the machine was not in substantial compliance. As this cases show, multiple compounded deviations from the procedures set forth by the Administrative Rules cause the Intoxilyzer 8000 machine to not be in substantial compliance.

Bruns v. State, 15 Fla. L. Weekly Supp. 958b (August 14, 2008, 8th Judicial Circuit). The machine in question was inspected on January 23 and did not pass the simulator test. During the retest, the machine failed again. The Intoxilyzer 8000 breath test machine was not removed from service according to Form 39 and was instead tested again on January 24. During this test, the intoxilyzer failed both the initial and retest. The machine was again left in service. Two days later, the testing procedure was performed again and the test completed successfully. The machine was never removed from service before the subject provided a breath sample and the Court ruled that because the agency deviated from the requirements of Form 39 the breath machine was not in substantial compliance.

State v. Reich, 13 Fla. L. Weekly Supp 631a (January 9, 2006, 16th Judicial Circuit). During the hearing, the Defendant presented evidence that the reading during the February 2004 agency inspection was out of the acceptable range. This was not noticed by the maintenance witness and no corrective action was taken—the machine was not removed from service. The State argued that even with this out of tolerance on the .08 test, the machine was in range on the .05 and .20 test. The State also argued that subsequent inspections were within tolerance. The Court disagreed and stated that substantial compliance means unequivocally that instrument passes all of the tests which it did not. Additionally, the following problems were found:

  • the mouth alcohol test run in December 2004 produced an incorrect result—giving an actual reading instead of detecting alcohol presence;
  • the January 2005 alcohol free acetone test provided an error of “unable to obtain stable reference” with no credible explanation from the technician;
  • the radio frequency interference tests were conducted improperly.

As a result, the Court ruled that the State could not meet its burden of demonstrating substantial compliance and the breath test results were excluded from the trial.

State v. Stephenson, 13 Fla. L. Weekly Supp. 797c (April 28, 2006, 16th Judicial Circuit). The Intoxilyzer 8000 machine, in this case, presented an “out of tolerance” reading of .086 during the February 2004 agency inspection. The agency inspector did not take any corrective action and FDLE later discovered an error and informed the inspector. The Court ruled that this reading is per se failure. The State attempted to argue that the other tests performed on that inspection were within range and the inspections in subsequent months were within tolerance so there was substantial compliance. The Court disagreed and found that the Deputy’s inability to remember possible explanations for the results and any steps he took to correct the problems show a lack of substantial compliance. So in that case, the breath test reading was suppressed because the State did not meet their burden of demonstrating substantial compliance given the number of irregularities and the lack of correction or maintenance of the machine.

State v. Wright, 14 Fla. L. Weekly Supp. 167c (December 15, 2006, 7th Judicial Circuit). During the April monthly inspection, the Intoxilyzer 8000 used in that case did not detect acetone in any of the test solutions, even after the inspector submitted the solution a second time (thereby doing two tests). The inspector did not include any comments in the remarks portion of Form 40 to explain any reasoning for this abnormality. The inspector informed the State Attorney’s office that he did not know why the machine did not detect the acetone, and immediately began another test—which was normal. Another test was done a month later which was also normal. The Court pointed out that the substantial compliance rules dictate that if a check or test is repeated, the reason for that repeat must be entered when prompted and recorded on the Form 40-which was not done on the first or second test. The Court also pointed out that if the machine does not comply, the inspector is required to remove the instrument from service and notify the Department inspector, which was not done in this case. The Court found the machine not to be in substantial compliance based on the April test being repeated and then restarted (in violation of the rule that the test can only be repeated once), the fact that the machine was not taken out of service after it failed to comply, and the fact that the inspector did not know why the machine was malfunctioning and failed to indicate a reason on Form 40.

State v. McGrath, 9 Fla. L. Weekly Supp. 631b (July 17, 2002, 14th Judicial Circuit) The Intoxilyzer 8000 in that case emitted high and low tones during breath test of the subject. The defense expert testified this was an indication of a malfunction of the instrument. Inspections were done in August 2001, September 2001, October 2001, November 2001, and December 2001. During each inspection, the printer was not functioning properly and the print cards had numerous errors. According to FDLE Form 16, print cards must be legible. Experts testified that printer problems may result from malfunction of the test instrument’s microprocessor or computer functions. The prosecution argued that because the instrument’s test results fell within acceptable ranges, this problem went to the weight rather than the admissibility of the breath test reading. The court disagreed and found that numerous problems render the test results in the case unreliable.

If you are charged with a DUI case involving a breath test reading over .08 in Tampa, FL, or the surrounding counties in Tampa Bay, then contact an experienced criminal defense attorney. Our Tampa DUI attorneys are experienced in fighting DUBAL (driving with unlawful BAC level) cases in Hillsborough County and the surrounding counties of Hernando County, Pasco County, Manatee County, and Polk County, FL.

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