DUI Driver’s License Suspension &
the Formal Review Hearing: Information from Clearwater DUI
Attorney Charles Holloway, P.A.
If you
have been arrested for DUI in Clearwater, Tampa, St Petersburg,
Pasco County, or anywhere else in the state of Florida, law
enforcement may have suspended and taken your license. This
confiscation and suspension occurs in those cases where the
driver either submitted to a breath test and the results were
.08% or higher, or the driver refused to submit to the test.
In either case, confiscation and suspension are the result.
This is referred to as an “Administrative Suspension” as it
is the result of statutory action taken under the authority
of the Florida Dept. of Highway Safety and Motor Vehicles
(DHSMV or simply DMV).
Anyone
who has lost their license is typically anxious to know how
long the suspension will last, as well as ways to get the
license back. The following is some important information
from Clearwater and Tampa Bay DUI attorney Charles Holloway,
P.A. about a DUI drivers license suspension.
Length
of Suspension
(1)
1st DUI
(a) Test Results .08% or more = suspension for 180 days
(b) Refusal of test = suspension for 1 year
(2)
2nd DUI
(a) Test Results .08% or more and results of .08% or more
in prior DUI = suspension for 1 year
(b) Refusal of test and refusal of test in prior DUI =
suspension for 18 months
Note:
It is also a crime to refuse to take a breath test in a second
DUI, if the driver also refused the test in the prior case.
This misdemeanor crime is punishable by a maximum penalty
of 1 year incarceration, 1 year probation, and $1,000 in fines.
Temporary
Driving
If your
license is administratively suspended as a result of the breath
test or a refusal, you are permitted to drive for a period
of ten days. This 10-day period begins with the day of your
arrest. You must have the DUI ticket in your possession to
drive legally during this period. Whether you can continue
to drive after the 10 days are up, depends on the decisions
you make during this same 10 day period.
If you
take no action during these first 10 days, the following will
result:
(1)
Test Results .08% or more: after the 10 day driving privilege,
your license will be suspended for a period of 30 days.
You will not be able to drive for any reason during this
period. After the 30 day period is complete, you could then
be eligible for a “hardship” license.
(2)
Refusal of test: after the 10 day driving privilege, your
license will be suspended for a period of 90 days. You will
not be able to drive for any reason during this period.
After the 90 day period is complete, you could then be eligible
for a “hardship” license.
Formal
Review Hearing
You have
the right to fight back if your license has been confiscated
and subject to administrative suspension. This right is secured
by the Formal Review Hearing. This hearing is conducted by
an employee of the DMV who has been trained to act as a hearing
officer. The hearing officer decides whether the evidence
supports the continued administrative suspension of your license,
or whether the evidence is insufficient to support suspension,
and your license should be reinstated without restriction.
The hearing process applies rules of administrative law, which
utilizes civil law, not criminal law. Therefore, the outcome
of the Formal Review Hearing has no effect on the outcome
of the DUI case in the criminal court system. It does affect
your ability to drive in the short-term, and your ability
to drive without restriction in the long-term.
In order
to secure your right to a Formal Review Hearing, you have
to make a request in writing within 10 calendar days, from
the day of your arrest. A DUI attorney can make this request
for you, often gaining access to the DMV process that is not
available to the client. A hearing is required to be scheduled
within 30 days of the request. Once a request is made, you
have the ability to receive a temporary driving permit from
the DMV. This permit will allow you to drive for a period
of time that exceeds the date of the hearing.
The hearing
itself involves the review of documents submitted by law enforcement,
and can include the testimony of law enforcement witnesses.
You have the right to attend the hearing and testify, if you
wish. However, attendance and testimony can be inconvenient,
uncomfortable, and subject you to additional scrutiny that
may actually work to your disadvantage. Therefore, a DUI attorney
usually chooses to conduct the hearing without the presence
or participation of the client.
If
you win the hearing, your license will be returned to you,
without restriction. If you lose, your license will continue
to be suspended for the remainder of the applicable period
(i.e. 6 months, 12 months, or 18 months). In addition, a loss
will also subject you to the same 30 or 90 day no-driving
suspension period which would have taken effect had you not
requested the hearing.
Note:
Even if you lose the hearing, you will have gained at least
4 weeks of temporary driving that you would not have enjoyed
if you had not requested the hearing. This temporary permit
can provide you with the time needed to make arrangements
for other transportation when the 30 or 90 day no-driving
suspension takes effect.
The
Attorney’s Role
A
DUI attorney can provide you with the following assistance,
should you decide to challenge your suspension through the
Formal Review Hearing:
(1)
File the written request necessary to secure the hearing
with the DMV.
(2)
Help you obtain your temporary driving permit.
(3)
Obtain and review the documents filed by law enforcement
that will be used at the hearing.
(4)
Subpoena any law enforcement officers and require them to
attend the hearing where they can be subjected to cross-examination.
(5)
Attend the hearing and argue for the dismissal of the suspension
and the reinstatement of your regular license.
Note: Testimony at the Formal Review Hearing is digitally
recorded and can be transcribed for later use in the criminal
court. This transcript may be useful in a motion to suppress
evidence and/or at a trial by jury. In other words, the hearing
may produce testimony that can impact and improve the defense
of your case in the criminal court system.
DUI attorney
Charles Holloway, P.A., serving Clearwater, Tampa, St Petersburg,
and the greater Tampa Bay area, can advise you of your rights
if you experience a DUI drivers license suspension. Attorney
Holloway can also assist you with the Formal Review Hearing.
To
schedule a free initial consultation with DUI attorney Chuck
Holloway at his office in Clearwater, Tampa, or St Petersburg,
please call (727) 446-8303 or e-mail Holloway@PinellasDUI.com.
Phone:
(727) 446-8303
E-Mail: Holloway@PinellasDUI.com
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