The Florida Association of Criminal Defense Lawyers (FACDL) suggests that a proposed bill requiring individuals arrested for driving under the influence (DUI) who refuse breathalyzer tests to install similar devices in their vehicles may run afoul of due process rights, Aaron Wayt, legislative chair for FACDL, cautioned.

Presently, when an individual refuses a breathalyzer test, their license is promptly suspended through an administrative process at the Florida Department of Highway Safety and Motor Vehicles. For a first refusal, the suspension lasts a year, and for subsequent refusals, it extends to 18 months.

Under identical House and Senate bills, HB 39 and SB 260, individuals facing suspension would additionally be mandated to install an ignition interlock device in their vehicles, incurring costs ranging from $670 to $1,610 for the first year, as per a Senate staff analysis.

Wayt expressed concerns, stating, "If their intent is to impose it immediately after the arrest, our organization finds fault with the government imposing a penalty prior to any form of due process." He emphasized ambiguity in the bill regarding when exactly the ignition interlock device would be required during the administrative process.

Although the bill sponsors' intentions were commendable in aiming to reduce DUI incidents, mandating the device during administrative proceedings poses complications, partly due to its intricacy, according to Wayt.

FACDL recommends lawmakers focus on imposing penalties post-conviction, which already include ignition interlock device requirements, rather than complicating administrative suspensions. Moreover, administrative suspensions are complex because individuals often continue driving under temporary or restricted licenses.

During the 10 days post-arrest, individuals utilize their citation to drive while contemplating contesting the administrative suspension. If contested, they obtain a restricted license to travel to specific destinations like work or school until their administrative hearing. Subsequently, if they lose the hearing, they face a 90-day wait under existing law, following which they can reinstate their restricted license for the duration of their suspension.

However, even in this scenario, Wayt said that we still have a concern that the person hasn’t had their day in court.

At a recent Senate Committee on Transportation meeting where the bill unanimously passed, Wayt urged lawmakers to consult DUI criminal defense attorneys in their localities for insights into ongoing administrative hearings, as this is the facet of the law proposed for modification.

Administrative hearings for contested license suspensions often face considerable delays, Wayt also stated that we’re not getting to have the hearing until two to three to four months after the person’s arrested. He attributed to the backlog to overloaded hearing officers.

Supporting Wayt's observations, a Senate staff analysis revealed the department anticipated requiring eight additional full-time hearing officers and four more administrative assistants to implement the legislation, at an annual cost exceeding $1.1 million.

The department's foresight may stem from concerns that the legislation, if passed, could disrupt an arrangement established years ago to reduce hearing volumes. Under this arrangement, individuals relinquishing their hearings and accepting administrative suspensions are promptly granted restricted licenses if they meet departmental criteria. This incentive particularly benefits rural or low-income individuals, Wayt explained, as losing a hearing entails a three-month wait to apply for a restricted license (a penalty reduced to one month under the proposed bill).

However, if individuals forego their administrative hearings, accept suspensions, and are obligated to install an ignition interlock device, the arrangement loses its allure. Wayt said that you’re forcing them to make that choice of, ‘Hey, you want to drive the whole year, put this $1,000 device on, forgo your due process and if you want to fight us, then you risk the time where you can’t drive.'

Considering the administrative complexities, due process concerns, and financial burden on drivers, FACDL advocates integrating the proposed ignition interlock device mandate as an additional penalty post-conviction. Present laws already necessitate installing the device under certain circumstances, such as after a second conviction. Legislators could seamlessly incorporate the mandate for convictions arising from initial breath test refusals.

Wayt proposed, if you’re ever convicted in court, before you’re able to get your hardship license, you have to show proof that this thing’s on your car and it is just adding another requirement rather than muddying up the administrative side of things.

Moreover, attaching the proposed ignition interlock device penalty to convictions offers a solution to assist low-income individuals in meeting associated costs. "Your typical court costs and fines are $990 here in Tallahassee for a first-offense DUI. There’s a statute that says that amount can be applied to your ignition interlock device," Wayt revealed. "So, it helps indigent people, the less privileged, be able to still put this device on their car." He also emphasized, "If you’re doing this before the court conviction, during the administrative process, there is no statutory offset for that."