If you are arrested for DUI in Florida, you should know what important decisions you need to make immediately to protect your rights and improve your chances of retaining your driver’s license, and weaken the prosecution’s case against you.
Stechschulte Nell, Attorneys at Law, is one of Tampa’s most experienced DUI defense law firms. We know how stressful a DUI arrest can be and how disruptive it is to the person’s personal and working life. We are among the few certified criminal defense lawyers practicing in Hillsborough and Pinellas County, and our years of experience enable us to help our clients fight DUI charges in courts and fight license suspension in the Florida Department of Highway Safety and Motor Vehicles.
Challenging a DUI Arrest Automatic License Suspension
In Florida, when a person is arrested and charged with DUI, they face both immediate and longer-term penalties. The immediate punishment is the suspension of the driver’s license to operate any motor vehicle.
The police officer who arrests the driver will issue a “uniform traffic citation” for DUI. This citation is not just a notice of the formal charge and court summons. The citation is a temporary permit to continue driving for business (work) purposes only (BPO) for 10 days following the citation’s date. After that, the driver’s license is automatically suspended at least until the criminal DUI charge is resolved unless, within those 10 days, the driver files a request for an informal administrative review or a formal administrative hearing at the DHSMV.
Why Request a DMV Hearing within 10 days?
If a driver has recorded a 0.08 or higher BAC on the breathalyzer, but less than 0.15, then requesting a DMV administrative hearing to contest a license suspension has several valuable benefits.
- Better chance of retaining license by overturning suspension (though still difficult)
- Your lawyer can learn details about the police procedures followed in your case,
- The police officer’s testimony can be locked before they know your defense
- Defense is enabled to thoroughly assess the strength of the prosecution’s case at trial
- 45-day license extension if granted to permit the hearing to be scheduled and conducted within 30 days of the hearing request’s filing date,
- Even if unsuccessful, a driver can still petition for a hardship license after 30 days.
There is no downside to requesting an administrative hearing at the DMV to contest a DUI license suspension. If the suspension is successfully challenged, the driver can continue to drive legally. If the suspension is sustained, the result cannot be used by the prosecution in the criminal case. Failing to request a DMV hearing to contest the license suspension within 10 days will allow the automatic license suspension to continue for the minimum statutory period of 180 days.
What Happens at a DUI Administrative Hearing to Challenge a License Suspension?
The purpose of the DHSMV administrative hearing is for a hearing officer, who is a DMV employee trained in DUI, to consider the evidence presented in the case to determine whether the officer had probable cause to believe the driver was in driving or physical control of the vehicle and the driver was under the influence of alcohol or other chemical substance at that time to a degree which impaired their normal faculties.
After hearing and considering the evidence presented, including the facts developed under cross-examination by your DUI defense attorney, the hearing officer will decide whether the preponderance of the evidence supports the suspension being sustained. The “preponderance of the evidence” standard of proof means that the evidence shows something is more probable than not.
What Evidence Is Presented at the DMV Administrative Review Hearing?
The police submit their package of documents to the hearing officer as an exhibit. The documents are numerous and must be complete and consistent to persuade a hearing officer to credit them. This evidence usually includes these documents:
- General Offense Police Report
- Criminal Report Affidavit which alleges DUI
- Florida DUI Uniform Traffic Citation
- Vehicle Impound Form
- County Sheriff’s Office Detention BAC Analysis Report documenting 20-minute observation
- Arresting officer’s DUI worksheet completed
- Florida Official Breath Alcohol Test Affidavit
- Both State Agency and Arresting Department Inspection Report – Intoxilyzer 8000
The law permits the driver (more likely the DUI defense attorney) to issue subpoenas to anyone named in these documents to give first-hand testimony about the contents of the documents.
Police Officer Testimony
The arresting officer and the Intoxilyzer-8000 operator will need to testify at the DMV administrative review hearing. If either officer fails to appear, then the driver will win, and the license suspension will be overturned. Other witnesses may also need to appear if subpoenaed. If those witnesses failed to appear, then the hearing can be rescheduled to another date, but the driver’s temporary driver’s license will also be extended at least until the future hearing date.
Witnesses Open to Cross-Examination by Your DUI Defense Lawyer
An experienced DUI defense lawyer can obtain extremely valuable testimony from the arresting officer and other witnesses during the administrative hearing, regardless of the outcome.
Pinning down the police testimony early in the case can be of immense value if the criminal case proceeds to a trial. Even during pretrial discussions and negotiations with the criminal prosecutor, any useful admissions of errors the police officer make during the administrative hearing can persuade a prosecutor to reduce the charge to a less serious offense or dismiss the charge altogether.
Since a DUI conviction cannot be expunged, sealed, or erased from the public record in Florida, a reduction of the DUI to a reckless driving charge allows the driver to request a complete expungement of the conviction from the records as soon as the sentence is completed.
How Your DUI Defense Lawyer Can Win a DMV Administrative Review Hearing
An experienced DUI defense lawyer like Ben Stechschulte and Amy Nell can expose serious inconsistencies and procedural errors committed by the police during the arrest that can cause serious doubts about the case for suspension.
- Incomplete DUI package, not properly attested to, not submitted before hearing,
- Insufficient grounds to initiate the traffic stop of the driver,
- Insufficient opportunity to observe the driver’s “normal faculties,” slurred speech, bloodshot eyes, etc.
- Administering field sobriety tests so improperly that conclusions based on driver’s performance are unreliable,
- Required field sobriety test and other important protocols not followed by police
- Improper certification or calibration evidence relating to the Intoxilyzer-8000
- Failure to read the rights for use at breathalyzer to driver
- Disputing the driver’s refusal to take a breath test
These are just a few of the possible grounds to attack the DUI charge brought against the driver.
Keep Reading > Request a DMV Hearing Immediately After a DUI Arrest
Tampa DUI Defense
Remember, you only have 10 Days to request a DMV administrative review hearing. Call Tampa’s experienced DUI defense and license suspension defense lawyers at Stechschulte Nell today; 813-280-1244.
