Call Us 24 hours / 7 days a week

When you are arrested for DUI in Florida there are two independent legal processes you need to be aware of.  The first is the court case which if you are convicted of DUI will result in the Judge suspending your driving privilege for 6 – 12 months for a first offense.  The second is less well known, even though most states have a similar process like Florida, which is the administrative suspension of your driver’s license.  This article will focus on the administrative consequences of a DUI arrest.

You Only Have 10 Days to Protect Your Driving Privilege

You only have 10 days to protect your driving privilege when you are arrested for DUI.  Regardless of whether you have been arrested for DUI before or not, the ticket you receive for DUI usually will allow you to drive for 10 days for any reason whatsoever after your arrest.  Below, you will see a sample Florida DUI Uniform Traffic Citation.
Driver’s License Your DUI ticket should look similar to this one.  This is your driver’s license to drive for the first 10-days after arrest if and only if the box labeled ELIGIBLE FOR PERMIT is marked yes.  This box is located near the bottom of the tickets right above the lowest red writing in the picture.
Driver’s License If you read the red writing below the box indicated, you will see that is says, “Unless ineligible, this citation shall serve as a temporary driver license and will expire at midnight on the 10th day following the date of suspension.”  Unfortunately, if the officer marks this “NO,” even if the officer is wrong, you cannot use the citation as a driver’s license unless you get the error fixed and have the officer issue a new citation.

You have a decision to make.

During this 10-day period you can drive for any reason at all or for no reason whatsoever.  You are completely unrestricted in the use of this temporary driver license.  However, you must decide what the next step you will take is and act on your decision within the first 10-days.  You have three choices all of which will be explained below: 1) Request a formal review hearing; 2) Waive your right to a formal review hearing; 3) Do nothing.

1. Request a Formal Review Hearing

HSMV Form 78065 is available online as a pdf.  This form must be completed and submitted to the DHSMV with a copy of the notice of suspension (Your DUI citation) and a check for $25.00.  The request must be postmarked no more than 10 days from the date of your arrest.  At Katz & Phillips, P.A. we can submit the request for you via tracked email so we have proof the request was submitted timely.

Whether this is your first DUI or a subsequent arrest, you always have a right to a formal review hearing.  If you win this hearing, your regular driving privilege is restored, however, if you lose, there will be a period of either 30 days (if you took the breath test) or 90 days (if you refused testing) for a first offense where you cannot drive at all, no matter what.  We will discuss more about the formal review hearings and the advantages and disadvantages to requesting a formal review hearing later in this article.

2. Waive your Right to a Formal Review Hearing (1st time DUI arrests only)

To waive your right to a formal review hearing, you must submit DHSMV form 72034 in person at the DMV.  However, before you are eligible to waive your hearing, you must register for and enroll in DUI school level 1.  Then take your proof of enrollment and form 72034 with you to the DMV and waive your right to a hearing.  It is important to note that if you have a prior DUI in Florida or any other state, you cannot waive your hearing.  This is clearly the choice that the DHSMV wants you to make.  Several years ago, there was a DHSMV office for the Bureau of Administrative reviews in every county.  Formal review hearings were held in the county where you were arrested, and there was no option to waive the hearing.  However, in an effort to save money and cut the budget, the local offices were closed.  Hearings were allowed to be conducted telephonically, and a few regional offices were opened.  Further, to cut down on the staffing needs, a system was implemented to allow 1st time DUI offenders to waive their right to a formal review hearing.  Instead of requesting a hearing as described above, drivers now have the choice to waive their right to an administrative review of their license suspension.  The pros and cons of waiving the hearing will be discussed in detail below.  However, at this point it is enough to know that if you choose to waive your hearing, the DHSMV will immediately issue you a hardship license that allows you to drive for four purposes for your entire administrative license suspension.  If you waive the hearing, you do not risk the 30-day (took the test) or 90-day (refused to take the test) hard suspension period of no driving whatsoever, but you give up the opportunity to get your full driving privilege back during the administrative suspension.  The four purposes that the hardship license is valid for is: 1) Your own work; 2) Your own education; 3) Attendance at religious services 4) Your own necessary medical appointments.  That is it.  If it is not on the list above, no matter what others tell you, including staff of the DHSMV, if you drive using your hardship license for another purpose, you risk being arrested.

3. Do nothing.

This is the absolute worst choice you can make.  Unfortunately, many people take this option, either because they do not realize that they must act within the 10-day deadline, or because they do not know the proper steps to take to request a hearing or waive their right to one and wait until it is too late to begin the process.  Doing nothing carries the same result as requesting a formal review, hearing and losing, but without the chance to overturn the suspension of your driving privilege.

Should You Waive Your Hearing or Insist on Having a Formal Review Hearing?

Unfortunately, there is no one-size fits all answer to that question, although most attorneys treat all their clients’ cases the same way.  Most attorneys advise their clients to waive the hearings, telling them, “you can’t win them anyway.”  This is the mark of a lazy lawyer.  While it is true that winning the administrative hearing is statistically unlikely, there are situations in which the officers do not do their jobs correctly or the evidence to uphold the suspension is simply not present.  An experienced DUI attorney will recognize the deficiencies in your case and can advise you on your chances of winning the formal review hearing.

Other attorneys tell every client to have a hearing.  Those attorneys use the hearings to take the “deposition” of the officers involved and attempt to use that to their advantage in the criminal court case.  This ignores the reality of the clients’ lives.  Many clients simply cannot afford to take the chance that if they lose the formal review hearing, they will be unable to drive at all for 30 or 90 days as described above.  For these clients, the most important thing is to continue to be able to drive throughout the entire DUI process, win or lose.  Many drivers cannot risk a period where there is no driving whatsoever.  For the drivers who cannot take the risk of no driving, the right choice may be to waive the hearing.  If they do so, they know that they will be able to drive to and from work and also do any work related driving they need to.  That way, they can keep their jobs, feed their families, and pay their mortgage.  Expert DUI attorneys will know how to handle the criminal case even if they cannot use the formal review hearing as a deposition of the officers involved.

At Katz & Phillips, P.A. our expert DUI attorneys will advise you based on the facts of your case and your needs.  We will sit down and listen to you and together decide what the right choice for you is.

The Formal Review Hearing & Temporary Driving Permit

If you choose to have a formal review hearing, once you have applied as described above, you will receive a prehearing statement from the DMV, along with a 42-day temporary driving permit.  The temporary driving permit acts as a license for 42 days of restricted driving.  Using the 42-day permit, you can drive only for the following four reasons:   1) Your own work; 2) Your own education; 3) Attendance at religious services 4) Your own necessary medical appointments.  There is no other acceptable reason to drive using this permit.

A blank prehearing statement form can be found below.  This form must be filled out.  If you want to call any witnesses at the hearing, they must be listed on this form.  The DMV will then issue subpoenas for them and return the subpoena’s to you so that you can hire a process server to serve the witness or witnesses.

At the beginning of the formal review hearing, the hearing officer will mark all documents submitted by law enforcement and/or the driver into evidence.  The hearing officer will also make an opening statement to the effect that,

The scope of the review shall be limited to the following issues:

(a) If the license was suspended for driving with an unlawful blood-alcohol level or breath-alcohol level of 0.08 or higher:

  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 had an unlawful blood-alcohol level or breath-alcohol level of 0.08 or higher as provided in s. 316.193.

(b) If the license was suspended for refusal to submit to a breath, blood, or urine test:

  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.

This statement mirrors the wording of Florida Statute 322.2615 (7).  Even though the language is the same as Florida law, this is a completely untrue statement.  Florida law also requires that a breath test can only be requested subsequent to a lawful arrest.  Therefore, the courts have ruled that in order for a request to a driver to take a breath test to be legal, it must be made subsequent to a lawful arrest.  Therefore, an experienced DUI attorney can argue at and potentially win your administrative formal review hearing if the stop, detention, searches, and/or arrest were illegal, or if the request for a breath/urine/blood test was otherwise invalid.

Several years ago, a study was done statewide of the percentage at which the FLHSMV invalidates DUI suspensions at formal review hearings.  Statewide, less than 4% of those that chose to have formal review hearings won and had their driving privileges reinstated.  In part this is due to the hearing officers knowing that it is unlikely that their decisions will be appealed for a variety of reasons including the high cost of appealing those decisions and the length it takes for the appeals court to actually rule on the appeal.  To combat this, the Expert DUI attorneys at Katz & Phillips, P.A. have done the legal work on multiple appeals of DMV rulings at no charge to our clients when the hearing officers clearly did not follow the law.

Ensure the Best DUI Defense in Orlando with Katz & Phillips

Contact the experienced DUI attorneys at Katz & Phillips, P.A. immediately to explore your options within the crucial first 10 days following a DUI arrest. This timeframe is vital as it is your window to decide on requesting or waiving your formal review hearing.

Our legal experts will provide comprehensive guidance on the implications of this decision and how it can impact your case. Understanding the nuances of this choice is critical, as it affects the status of your driving privileges and the course of your legal proceedings. We ensure that you are fully informed about the potential outcomes and legal strategies that may be beneficial in your unique situation.

Don’t navigate these pivotal moments alone; let our seasoned attorneys guide you through every step, ensuring your rights are protected and the best possible path is chosen. Call us today for a detailed consultation and start the process of safeguarding your future with knowledgeable and assertive legal representation.