Do I Have to Testify at the Administrative Hearing?

A Florida Criminal Defense Attorney Explains Your Rights and Why You Need Legal Help

When you're facing an administrative hearing in Florida—perhaps arising from a DUI license revocation, professional disciplinary matter, or another agency action—you may wonder: must I testify under oath? I'll speak plainly, section by section, telling you exactly what the statutes say and why having a private attorney matters at every turn.

What the Law Says About Testifying

Florida's Administrative Procedure Act, in Chapter 120, sets the rules for formal hearings. Under section 120.569(1)(f), the presiding officer "has the power to swear witnesses and take their testimony under oath…". Rule 28‑106.213(5)(b) of the Florida Administrative Code requires that if the testimony is by telephone, a notary must swear in the witness in person. So yes, formal hearings involve sworn testimony.

But section 120.57(1)(b) guarantees that all parties have the opportunity to present evidence, cross‑examine witnesses, submit rebuttal, and have counsel present. You're not forced to testify—but if you do, it must be on the record, under oath.

Do You Have to Testify?

No. You're not required to testify at the administrative hearing. But there are important practical reasons why you might choose to—especially if you have a private attorney guiding you:

• Providing testimony lets you put your own version of events into the record before an administrative law judge (ALJ).
• If you don't testify, the agency's witnesses may speak without your version on the record.
• Anything you say is under oath and can later be used in criminal or licensing proceedings.

Without your attorney there to prep you, you could inadvertently concede critical facts or weaken defenses later used in court.

Types of Hearings: Formal vs. Informal

If there is a disputed issue of material fact, you're entitled to a formal hearing under section 120.57(1). Hearsay is admissible only if it would be allowed over objection in civil court, and all parties may cross‑examine witnesses and submit evidence.

If you instead agree with the agency's facts and only want to argue penalties or mitigation, you might opt for an informal hearing (under 120.57(2)). But in that case, you waive your chance to contest facts—and you definitely won't be calling witnesses or giving sworn testimony. Informal hearings limit your ability to protect your rights. That's why I almost always recommend formal hearings—and private counsel—to clients.

Common Defenses and Why Legal Help Matters

At a formal hearing, we can challenge:

• Actual probable cause for a stop or arrest (e.g. in a DUI context under § 316.193 or implied consent law § 316.1932).
• Errors in testing procedures or machine calibration.
• Due process violations, like inadequate notice under § 120.569(2)(b).
• Invalid agency rules if the agency is relying on an unadopted rule or rule beyond its authority—defenses under § 120.57(1)(e).

Without an attorney, you may miss deadlines, fail to submit the required petition, or accept an unfavorable informal hearing. A lawyer ensures proper procedure, subpoenas needed witnesses, unde rstands evidentiary rules, and preserves the record for possible judicial review.

Real Case Example

I once represented a client in Miami facing an administrative license suspension after a DUI arrest. The client refused breath testing and received a Notice of Intent to Suspend under § 322.2615. We requested a formal hearing within 10 days, which kept the license valid pending review.

At the hearing, I swore in and cross‑examined the arresting officer under oath. His testimony contradicted his earlier written statement: he admitted the stop wasn't based on any traffic violation, only a vague "hunch." I also raised security footage showing no erratic driving. That testimony, preserved on the record, allowed us to file a motion to suppress in criminal court. The judge granted it, all charges were dropped, and the driver kept their license.

If my client had only attended an informal hearing—or tried to handle the matter alone—they never would have locked in the officer's under‑oath admission. The result would have been different in criminal court.

What Happens If You Decline to Testify

If you choose not to testify:

• The agency's witnesses can give testimony that stands uncontested.
• You lose the ability to establish your own facts under oath.
• You limit your ability to bring rebuttal evidence effectively.
• The record may be weaker when a criminal or licensing appeal follows.

Your attorney can still perform cross‑examination, object to inadmissible evidence, and make argument—but your personal testimony can be powerful when used strategically.

Why You Need a Private Attorney

At every step:

• An attorney ensures your right to request a formal hearing and identifies every factual dispute.
• We can issue subpoenas, call witnesses, and take sworn testimony under § 120.569(1)(f).
• We know how to preserve the record, file exceptions to recommended orders, and use the hearing transcript later.
• We can spot procedural traps, such as missed deadlines under § 120.569(2)(b) and petition requirements under § 120.57(1)(e) .
• We can challenge unadopted rules and improper agency actions under § 120.57(1)(e).

You're up against trained agency lawyers and career ALJs. Without representation, you're outmatched.

Florida Criminal Case Frequently Asked Questions

Can I simply show up and speak on my own behalf without swearing under oath?

Yes, but if you opt not to testify or to speak only off the record, you forfeit the chance to put your version of events into the official record. That may weaken your position in later criminal or licensing proceedings.

What exactly is a formal vs. informal hearing—and which gives me the right to testify?

A formal hearing under § 120.57(1) lets you contest facts, subpoena witnesses, cross‑examine, and testify under oath. An informal hearing under § 120.57(2) limits you to mitigation—you agree with the facts and address only penalty. Only formal hearings allow sworn testimony and adversarial process .

If I testify, can my testimony be used against me later in criminal court?

Yes. Anything you say under oath is part of the public hearing record. If the same facts appear in a criminal or licensing case, your testimony can be used. With a lawyer's help, however, that record is controlled, accurate, and used tactically.

What if I'm too nervous to testify? Can my attorney testify for me?

Your attorney cannot testify in your place—that's your voice under oath. But we'll prep you, practice questions, and even reduce anxiety. Your presence is essential as a firsthand witness.

Do I lose any rights if I'm under oath at the hearing?

No. You still have rights: to counsel, to remain silent, to object. But once sworn, you must tell the truth—or risk sanctions. An attorney ensures you understand exactly what questions mean before answering.

Can I call witnesses too?

Absolutely. At a formal hearing you can subpoena witnesses and documents. An attorney manages all of that for you and helps ensure their testimony supports your defense.

If you're facing an administrative hearing that could affect your driving privileges, professional license, or criminal case, take it seriously. A private attorney isn't just there to speak for you—they shape the strategy, preserve your rights, and create a record that can protect you in court.

Contact Musca Law 24/7/365 at 1‑888‑484‑5057 for your FREE consultation.

Musca Law, P.A. has a team of experienced criminal defense attorneys dedicated to defending people charged with a criminal or traffic offense. We are available 24/7/365 at 1‑888‑484‑5057 for your FREE consultation. We have 30 office locations in Florida and serve all counties in Florida.