Page 21 - First Coast Vol 3 No 5

L. LEE LOCKETT | Criminal Defense
The Civil Side of DUI: An Entirely Separate
Nightmare
Ifdealing with the harsh penalties doled out in criminal court for DUI convictions weren’t enough,
consider the proverbial “salt in the wound” that is added from the non- criminal side. at’s where the Bureau of Administrative Reviews comes into play and not only creates an additional headache for many clients, but a lot of confusion for lawyers.
Pursuant to Section 322.2615, Florida Statutes, DMV administratively sus- pends a person’s license for either re- fusing a breath, blood, or urine test or for registering a blood or breath alcohol level over the legal limit. e length of the suspension is dependent on a vari- ety of factors. A rst-time refusal will result in a 12-month suspension, while a person who blows over the legal limit for the rst time will receive a six-month suspension. In both cases, the rst-time o ender can waive the right to a for- mal review and immediately apply for a business/hardship license. However, these drivers will have a permanent en- try on their driving records regarding the DUI suspension regardless of how the criminal case is resolved.
ose who request a formal review hearing will su er 30-90 days of what is referred to as “hard time” where they cannot drive for any reason should the suspension be upheld a er the hearing. is group is a orded a business pur- pose license in the interim while the proceedings are pending. ey can then apply for a business purposes license once the hard time is over for the re- maining months of the administrative suspension. Should they win the formal review hearing (don’t hold your breath), then they receive a fully reinstated li- cense and the entry regarding the DUI administrative suspension is removed from their driving record.
If a person refuses one of these tests for a second time, they will not be eli- gible for a hardship if the suspension is upheld and will su er 18 months of no driving. What many people don’t realize is that this punishment is handed down and remains even if the state drops the DUI charges in the criminal case. e only exception is where the person sub- mits to a breath test and is found not guilty at trial.
If a person refuses one of these tests for a second time, they will not be eligible for a hardship if the suspension is upheld and will su er 18 months of no driving.”
AN ODD PROCEDURE
Unlike many other administrative tribunals, formal review hearings held at the Bureau of Administrative reviews are presided over by non-lawyer hear- ing o cers. Not only are these hear- ing o cers tasked with determining what subpoenas will be permitted, but they are required to adjudicate Fourth Amendment issues raised by the at- torneys involving the lawfulness of the stop, detention, and/or the arrest. e hearsay rule is non-existent at these hearings and hearing o cers are essen- tially permitted to admit any document that they deem relevant. It has been estimated by DMV that 95 percent of
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these administrative suspensions have been sustained.
e only way for a person to have an actual Judge review the case is to take an appeal from a ruling sustaining the suspension. Such an “appeal” is made by way of a petition for writ of certio- rari led in the circuit court. e Of- ce of General Counsel, Department of Highway Safety & Motor Vehicles are charged with the duty of defending the hearing o cer’s rulings before the circuit court.
Many courts, including the Florida Supreme Court have been critical of the way the Bureau of Administrative Re- views handles the formal review hear- ing process.
“However, this Court and others have voiced concerns with fairness and due process speci cally in the context of hearings held before the Depart- ment hearing o cers under section 322.2615.” Wiggins v. DHSMV, 209 So.3d 1165 (Fla. 2017). Although a re- cent internal review study at the Bureau recommended substantive changes such as requiring hearing o cers to have law degrees, any such changes may take years to implement.
CONCLUSION
Attorneys taking on DUI clients must grasp the inner workings of the civil side of the case to adequately assist the client in dealing with the administra- tive suspension. e importance of this increases with clients with CDLs and those with priors. For many criminal lawyers learn-
ing these pecu- liar procedures and the Florida Administra- tive Code may seem daunting, but it is a must.
Lee Lockett has been practicing for 20 years and has more than 50 jury trials to his credit. Lee Lockett is the co- chair of Florida’s most recognized statewide annual DUI seminar, blood, breath and tears and has lectured in front of thousands of attorneys about the complexities of DUI defense. Lee also authors the “DUI NOTES” column for the Defender Magazine, a statewide publication of the FACDL. Lee was recently appointed to the Florida Bar grievance committee. He currently serves on the board of directors of the Florida Association of Criminal Defense Lawyers.
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