DUI Defense: The Administrative Side
A DUI case is essentially two cases in one. There is an administrative case, and a criminal case. The administrative case deals with whether your driver’s license will be suspended by the Department of Highway Safety and Motor Vehicles (DHSMV). This case is heard before a hearing officer of the Department of Motor Vehicles. Fortunately, you can be represented by an aggressive DUI attorney throughout this administrative case.
For starters, under Florida law, by accepting the privilege of driving a vehicle, the driver is deemed to have given his or her consent to submit to lawful alcohol testing. This is known as “Implied Consent” as defined in in Section 316.1932, Florida Statutes.
Under Florida Statute 322.2615, your driver’s license will be immediately subject to an administrative suspension in either of these two scenarios:
- Your blood alcohol level is .08 or higher, or
- You refuse to submit to a lawfully requested alcohol test
So, the driver being investigated for DUI, can only avoid an administrative suspension by taking the breath alcohol test, and having a result under .08. A reading above .08 requires a 6- month suspension, and a refusal to take the test requires a one-year suspension. Remember, a second refusal nets an 18-month suspension. These are suspensions imposed by the department of Motor Vehicles and are part of the administrative case.
The 10-day rule
Assuming the driver arrested for DUI, either 1) blows over .08 or 2) refuses to take the test, his or her license will be suspended immediately. However, the DUI citation given to the driver by the arresting officer will act as a 10-day temporary driving permit.
This all sounds very confusing, perhaps even arbitrary. But, I’ll explain why. In a nutshell, before the government can take away a citizen’s substantial right(s), that citizen must be afforded due process. Driving a vehicle is such a right. And, therefore due process requires that before such a right is taken, a citizen should (at the very least) be afforded the opportunity to be heard in a proceeding, and to present any defenses he or she may have. Thus, the driver is given 10 days in which he or she may request an administrative hearing with the Department of Motor Vehicles. If a hearing is requested, the driver can and should be represented by a Tampa DUI Lawyer at this hearing.
If such a hearing is requested within the 10-day time frame, the driver will be given an extension to the temporary driving permit, which should last (ideally) until the time of the hearing. On the other hand, if the driver chooses to do nothing within the 10-day time frame, he or she forfeits their right to a hearing, and the suspension goes into effect immediately. There is also a new option that was made available a few years ago. A driver, within ten days, can waive his or her right to a hearing, and be eligible for an immediate hardship permit.
Options regarding the 10-day rule
Option 1: Do nothing
If a driver does nothing, the suspension will go into place on the 10th day. Thus, an alcohol reading of above .08 will incur a 6-month driver’s license suspension. And the driver will not be eligible for a hardship permit within the first 30 days. This is known as a “hard suspension.” A refusal to take the test will incur a 1-year suspension, and the driver will not be eligible for a hardship permit for the first 90 days. Thus, there is a 90-day hard suspension.
Option 2: Request a hearing
If the driver requests an administrative hearing within 10 days, they will be issued a 42-day temporary hardship driving permit. This should ideally last until the date of their scheduled hearing.
The issues to be decided at these hearings are limited. In cases involving a breath test above .08, the hearing officer must examine whether the officer had probable cause to arrest the driver for DUI, and whether the driver submitted to a lawful alcohol test that resulted in a reading over the limit. In cases involving a breath test refusal, the officer must examine whether there was sufficient probable cause to make an arrest for DUI, and whether the driver refused to submit to the test after being instructed and warned properly.
If you win the hearing, the suspension is invalidated. If you lose the hearing, the suspension goes into effect immediately, and the “hard suspensions” above will apply. A driver can appeal a hearing officer’s decision to uphold the suspension. It is important to remember, whether a driver wins or loses this hearing has absolutely nothing to do with his/her pending criminal charges. A driver can win the administrative hearing and receive a harsh sentence on the DUI criminal case. Conversely, a driver can lose the administrative hearing, and then get the DUI criminal case dismissed. The administrative case is independent of the criminal case.
Option 3: Waive the hearing
A newer option that became available in 2013, is known as a “Review Waiver Hearing.” Under this option, a driver (with no prior DUI charges) can report to the DHSMV within 10 days and elect to waive his/her right to a hearing. A simple way to think about it is that a driver is giving up his right to have a hearing, in exchange for not having to contend with a “hard suspension.” Thus, if a driver waives his right to a formal hearing under this option, the suspension goes into effect immediately, but the driver is eligible for a hardship permit right away. This is a good option for those with no prior DUI charges, that wish to driver uninterrupted and avoid the hard suspensions.
The Law Office of William B. Wynne, P.L.L.C., represents clients in all criminal matters, including D.U.I. cases. Consultations are free of charge, and we offer payment plans to those who qualify. Call today for your free consultation!