DUI Formal Review Hearing

Alternatively, a law enforcement officer may also suspend the driving privilege of one who refuses to submit to a urine, breath, or blood-alcohol test. § 322.2615(1)(a), Fla. Stat. (2011).

If the driver refuses to perform a lawfully requested urine, breath, or blood test, the officer must notify the driver that his or her license will be suspended for a year, or eighteen months if the driver has previously had his or her license suspended for failure to submit to such tests. § 322.2615(1)(b)1.a.

Section 322.2615 is to be read in pari materia with section 316.1932, Florida Department of Highway Safety & Motor Vehicles v. Hernandez, 74 So.3d 1070, 1076 (Fla. 2011), as revised on denial of rehearing (Nov. 10, 2011), a statute which provides that the requested sobriety tests “must be incidental to a lawful arrest” and that the officer must have “reasonable cause to believe such person was driving or was in actual physical control of the motor vehicle within this state while under the influence of alcoholic beverages.” § 316.1932(1)(a)1.a., Fla. Stat. (2015). Once the license is suspended, the driver may request

Once the license is suspended, the driver may request review by the Department of Highway Safety and Motor Vehicles (often called the "DMV") through an administrative hearing before the Department within ten days after issuance of the notice of suspension. § 322.2615(1)(b) 3.

The statute further provides that the review hearing will essentially function as a trial before the Department of Highway Safety and Motor Vehicles (DMV):

Such formal review hearing shall be held before a hearing officer designated by the department, and the hearing officer shall be authorized to administer oaths, examine witnesses and take testimony, receive relevant evidence, issue subpoenas for the officers and witnesses identified in documents [submitted for review], regulate the course and conduct of the hearing, question witnesses, and make a ruling on the suspension.

§ 322.2615(6)(b).

Formal Review Hearings for the DUI Administrative Suspensions

Under Florida Statute Sections 322.2615 and s. 322.64, the Department of Highway Safety and Motor Vehicles is authorized to conduct a formal review hearing of the administrative suspension upon the request of the driver. At the formal review hearing, the hearing officer can sustain, amend or invalidate the administrative suspensions and disqualifications.

The decisions of the hearing officer with the Department of Highway Safety and Motor Vehicles (DHSMV) shall not be considered in any trial for a violation of Florida Statute Section 316.193, nor shall any written statement submitted by a person in his request for review be admissible into evidence against him in any such trial. The disposition of any related criminal proceedings shall not affect a suspension/disqualification.

Questions During the Formal Review Hearing in Miami, FL

During a formal review hearing for the license suspension, the hearing officer in Miami, FL, is limited to the following questions, which must be established by a preponderance of the evidence:

1. Whether the law enforcement officer had probable cause to believe that the person whose license was suspended was driving or in actual physical control of a motor vehicle in this state while under the influence of alcoholic beverages or chemical or controlled substances.
2. Whether the person whose license was suspended refused to submit to any such test after being requested to do so by a law enforcement officer or correctional officer.
3. Whether the person whose license was suspended was told that if he or she refused to submit to such test his or her privilege to operate a motor vehicle would be suspended for a period of 1 year or, in the case of a second or subsequent refusal, for a period of 18 months.
4. Or in a case involving a breath or blood alcohol concentration reading, whether the driver's BAC was over the legal limit of .08.

§ 322.2615(7)(b).

The hearing officer's authorization to determine the “lawfulness of the stop” is built into the provision of the essential element of whether probable cause existed. Schwartz v. Fla. Dep't of Highway Safety & Motor Vehicles, 920 So.2d 664, 665 (Fla. 3d DCA 2005) (quoting Fla. Dep't of Highway Safety & Motor Vehicles v. DeShong, 603 So.2d 1349, 1351 (Fla. 2d DCA 1992)).

Concerns about Fairness in Formal Review Hearings

Recently, the Florida Supreme Court voiced concerns with fairness and due process specifically in the context of hearings held before Department hearing officers under section 322.2615. The Court noted concerns about:

• whether the process used by the Bureau of Administrative Review really provides reasonable notice and meaningful review of the lawfulness of the suspension;
• the constitutional infirmity in non-lawyers serving as hearing officers under section 322.2615;
• whether hearing officers are really as impartial and neutral as the members of the judiciary are required to be; and
• whether the frequency with which conscientious trial judges in Florida issue decisions that have the effect of providing more procedural safeguards to licensees in these revocation hearings suggests a continuing concern about the fairness of this statutory procedure.

Petition for Writ of Certiorari After a Formal Review Hearing

If the hearing officer upholds the administrative suspension, then the driver can file a file a Petition for Writ of Certiorari in the Circuit Court pursuant to section 322.2615, Florida Statutes. The first level of review in the circuit court is limited to whether the driver was accorded procedural due process, whether the essential requirements of the law had been observed by the Department, and whether the administrative findings and judgment of the Department were supported by competent, substantial evidence.

In other words, the hearing officer's decision may be reviewed by an Article V judge or judges in a circuit court by a writ of certiorari. § 322.2615(13).

Following the circuit court's decision, either the Department or the driver can seek review in the District Court of Appeal. The district court's second-tier review of the circuit court's order was further limited to only two questions:

1. whether the circuit court afforded the driver procedural due process; and
2. whether the circuit court applied the correct law.