Florida’s DUI Administrative License Suspension Process
Florida DUI License Suspension is a Dual Procedure
Florida employs a dual system for license suspension following an arrest for suspicion of driving under the influence. Each prong of the dual system works independently and notwithstanding the other. Therefore, a driver’s license in Florida may be suspended for DUI through Florida’s administrative suspension procedure in addition to the criminal justice system. The Dual Procedure is one reason why it is imperative to hire a Florida DUI attorney.
Statutory Authority Granted to Officer to Suspend a Driver’s License
Title XXIII, §322.2615 leaves no discretion for police or correctional officers to administratively suspend a motorist’s drivers license in certain circumstances when a person is under arrest for DUI. Under §322.2615(1)(a), a police officer or corrections officer must suspend the rights of a person to operate a motor vehicle if that person was driving, or had control over a vehicle, with a Blood Alcohol Concentration of 0.08% as shown by a chemical test. The arresting officer shall administratively suspend the operator's right to drive if the operator refused to take a chemical test.
Procedure Florida Uses to Suspend a Driver’s License Administratively
The officer shall issue a ten-day temporary driving permit and take physical custody of the driver’s license if the officer administratively suspends the operator’s license for driving with a Blood Alcohol Concentration of 0.08% or greater or refused to submit to analysis. The administrative suspension period commences when the driver receives notice from the officer that the officer intends to suspend the person’s driver’s license. This procedure takes place in the police department after the officer makes an arrest.
Under subsection (b) of §322.615, the officer must give notice to the driver of the suspension. The notice must be in a form that conforms to the statute. At the outset, the notice shall state the length of suspension the driver faces. The suspension will be one year for a person who refuses any Blood Alcohol Concentration test or for 18 months if the person previously refused an alcohol test. Alternatively, the driver will face a six-month license suspension for failing the breathalyzer test or blood test.
The statutory notice given by the officer to the driver must provide additional important information concerning the procedure to appeal the officer’s decision. The formal notice provided by the officer to the arrestee will contain all of the necessary information concerning the procedure the person must use to request a review. If the driver decides to appeal the officer’s decision to suspend his or her license administratively, then the process begins with an administrative review of the officer’s decision to suspend the driver’s license pursuant to §322.615(1)(a). The operator has ten days to request a review of the suspension.
The Department of Highway Safety and Motor Vehicles, or department for short, must receive the officer’s crash report and supporting documents, including the driver’s license, within a short timeframe after the officer decides to suspend the operator’s license administratively so that the department has the necessary information to hear the person’s appeal. The department could reinstate the operator’s right to drive if the officer fails to comply with those time constraints.
Administrative Review for DUI Suspensions
Florida recognizes two procedural mechanisms to appeal a DUI administrative suspension. The driver can ask for either an informal review or a formal review of the officer’s decision.
During an informal review, the hearing officer will deliberate on all of the evidence offered by the police officer supporting the officer’s decision, including the documentation required by statute. The driver may submit any information he or she wishes the department to consider. The department must issue a decision and notify the driver within 21 days under §322.615(5). The department may elect to sustain, amend, or overturn the officer’s decision to suspend. At that point, the driver may choose to seek a formal review of the officer’s decision to suspend the driver’s license if the hearing officer denies the operator’s petition.
Section 322.615(6)(b) describes the formal review process. The department will designate a hearing officer to hear the driver’s appeal. The hearing officer acts as a judge. He or she has the authority to swear in witnesses who will testify, issue subpoenas, receive evidence, make credibility determinations about the witnesses who testify, and then render an ultimate decision on the case. The person requesting the hearing has an obligation to procure witnesses to testify on his or her behalf and must coordinate service of subpoenas with the state’s attorney’s office having jurisdiction over the circuit court where the appeal is pending.
Although the hearing’s officer has substantial authority granted by statute when conducting formal suspension hearings, subsection 7 of §322.615 limits the scope of the hearing officer’s review. Under §322.615(7)(a), the hearing officer may only inquire:
- if the person had a 0.08 BAC or above —
- whether the arresting officer had probable cause to believe the person arrested was driving or had control over the vehicle, and the driver was influenced by alcohol, chemicals, or drugs, and
- whether the driver had a BAC of 0.08% or higher as defined in §316.193.
- if the officer suspended the driver’s license after refusing a chemical test, then the hearing officer must inquire
- whether there was evidence amounting to probable cause for the officer to believe that the person driving or under control of the vehicle was influenced by alcohol, chemicals, or drugs;
- whether the person in custody refused a chemical test offered by the arresting officer; and
- whether the officer duly told the person in custody about the consequences of chemical test refusal.
After weighing the evidence, the hearing officer will make a ruling. The officer’s ruling will either sustain the decision to suspend, amend the suspension, or overrule the suspension. The department must hold the hearing within 30 days, and if not, then the suspension must be overturned.
Alternative Relief-Hardship Permits Pursuant to Title XXIII, §322.271
A person whose license was suspended for failing a chemical test or chemical test refusal may ask the department to grant him or her permission to drive in certain circumstances. The hearing must be held within the first 30 days after the aggrieved party requests the hearing. Under §322.271(2), the petitioner must show evidence that the administrative license suspension is a serious hardship that prevents the person from working and that the person needs the license to work to support his or her family. The petitioner must complete the DUI program or certified driver training course before he or she is eligible to receive a hardship license.
Formal Appeal under Title XXIII, §322.31
A party aggrieved by a decision made by an administrative hearings officer has the right to petition the circuit court where the person lives for further review of the administrative record. The judicial review under 322.21 is in the nature of certiorari. Certiorari is a procedure in which a circuit court judge reviews the entire record generated by the administrative suspension review process and renders a decision based on the record made during the administrative review hearings. The court does not hear new evidence when it reviews the administrative record. The petition for appeal under 322.31 must be filed in court within 30 days as required by the Florida Rules of Appellate Procedure. Relief may also be sought in the Appeals Courts in Florida after circuit court judge announces a decision.
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