Administrative Hearing / DUI Formal Review Hearing
If arrested for DUI in Palm Beach County, Florida, you will be taken to jail and held for a minimum of eight (8) hours. Upon your release, you will no longer have your driver’s license as police confiscate it (if you had a blood alcohol level of.08 or higher or if you refused to give a sample). In its place, you receive a DUI citation, it looks like a traffic ticket but it’s a “Notice of Suspension.” It is notice that your privilege to drive an automobile has been suspended or revoked administratively by the Florida Department of Highway Safety and Motor Vehicle, hereinafter referred to as DMV. This Notice of Suspension also acts as your driver’s license for 10 days.
Ten (10) days from your date of arrest, you or your DUI attorney must request a hearing to contest or invalidate the suspension or Waive your right. This administrative hearing is often referred to as a formal review hearing. Failure to request this hearing will result in suspension/revocation of your driver’s license. The administrative hearing/formal review hearing is separate and apart from your Palm Beach county criminal case. It is crucial that you contact a Palm Beach County DUI lawyer within the 10-day period so that they may assist you in the administrative hearing.
Administrative License Suspension Hearings- An Overview
- Waiver of Formal Review Hearing (Instant Driving Privileges)
- DUI License Suspensions in Palm Beach County
- Probable Cause-Every DUI must begin with PC to stop the motor vehicle
- DUI Administration Suspension of your driver’s license can be invalidated
- Why would I want a Formal Review Hearing?
- What the Hearing Officer looks for in deciding to keep or return your Driver’s license
- How will the Hearing Officer decide if there is a “preponderance of evidence?”
- Does a Formal Review Hearing affect my criminal case?
- Sworn testimony equals transcripts, another reason to fight the DUI administrative suspension
Waiver of Formal Review Hearing Within 10 days Qualifies for a Hardship License (Instant Driving Privileges)
After a DUI arrest, you have Ten (10) days to either request a formal review hearing or a waiver of that hearing so that you may acquire a driver’s license or business purposes only license. If you don’t request then you will have a period of time wherein you cannot drive. To apply for a waiver, the individual must:
- Be a first- time DUI offender with no other history of DUI, wet reckless driving or alcohol related suspensions
- Provide proof of enrollment in a DUI School Level 1 within 10 days of arrest
- Must apply for waiver in person at DMV
Note: if you have prior DUI case in Florida or any state then a waiver is not an option and your only chance of acquiring your license is through an administrative hearing.
Administrative hearings can be held in person or electronically (phone or video).
Formal Review Hearing (Administrative Hearing) in Palm Beach County, Florida
Florida is one of the most difficult places in the country to live without a driver’s license. Stores, businesses, and universities are spread out and difficult to visit. Public transportation is time consuming and limited to certain areas. There are two shopping malls in Palm Beach County, one in Boca Raton and the other in Palm Beach Gardens, Florida. If you can’t drive, you will certainly have difficulty. Accordingly, the Law Office of Roger P. Foley understands and will challenge the validity of the administrative suspension. We will request a formal review hearing on your behalf and obtain a temporary permit for you.
The Law Office of Roger P. Foley has been defending DUI cases since 2004. We are very experienced in defending administrative suspensions caused by a DUI arrest. Regardless of the law enforcement agency that arrested you; Palm Beach Sherriff’s office, West Palm Beach Police Department, Boca Raton police department, Delray Beach PD, Florida Highway patrol or any other agency, we have the knowledge and experience to help you. DUI attorney, Roger P. Foley is a member of the National College of DUI Defense, has successfully completed many DUI courses and is recognized by the National Highway Traffic Safety Administration, or NHTSA, as DUI Instructor. Attorney Roger P. Foley has successfully completed the same course given to police in the academy as well as the advanced DUI course given to select police officers. DUI Attorney became a NHTSA DUI instructor in 2019. Teaching the same material taught to police officers is an advantage when challenging DUI suspensions. The Law Office of Roger P. Foley is available to defend your administrative suspension and DUI criminal case. Call the office at (561) 746-7076.
DUI License Suspensions in Palm Beach County
When arrested for Driving Under the Influence of drugs and/or alcohol (Breath Alcohol Content of .08 or greater) you license will be administratively suspended by DMV for a period of six (6) months. If you failed to submit (refused), for the first time, to give a breath, urine or blood test when requested by police, you will receive a twelve-month (12) license suspension. First time suspensions are eligible for a Hardship license. See below. If it’s a second or subsequent refusal then your privilege to drive will be suspended for eighteen (18) months. You are not eligible for a hardship/business purposes only license.
DMV License Suspensions for DUI begin from the moment of arrest. DMV suspensions are administrative and separate and apart from your criminal court case. The police take your driver’s license when you are arrested. When released from jail, eight or more hours later, they keep your license, and give you a DUI citation that gives you “Notice of Suspension”. Most people say, “DMV” however the official name in Florida is Department of Highway Safety and Motor Vehicle (DHSMV). Within DHSMV, the Bureau of Administrative Review (BAR) Office deals with DUI administrative suspension.
Palm Beach County Bureau of Administrative Review BAR Office is located at 1299 W. Lantana Road, Lantana, FL 33462
Probable Cause-Every DUI Must Begin with PC to Stop the Motor Vehicle
In order for a police officer to make observations consistent with alcohol or drug impairment there must be personal contact with the driver of the vehicle. Accordingly, he must have a reason for that contact. Probable cause for the stop of the vehicle often comes from a traffic violation, such as speeding, or failure to maintain a single lane. If a police officer observes such a violation it gives that officer probable cause for the stop.
Traffic violations are not the only way an officer can have contact with a driver. It can be through a consensual encounter. For example, one can be sitting in their car outside a bar or restaurant and the police officer approaches and starts a conversation and during that conversations the police alleged to observe signs of impairment giving them reasonable suspension to begin a dui investigation.
A “Welfare Check” is another way police can come into contact with a driver. If the police receive a call that someone is passed out behind the wheel they can do a public welfare check wherein they are on scene to medically assist a sick or injured person. They may observe indicia of impairment that gives them sufficient reason to begin a DUI investigation.
DUI Checkpoints are another way police can have contact with a driver. The driver may not have committed any traffic infractions but when they drove through the required checkpoint their car may have been randomly stopped. During that brief encounter police may observe indicia of impairment, giving them reason to begin a DUI investigation.
Each and every DUI defense attorney must attack the stop of the vehicle in both the administrative hearing and in the criminal case. Successfully attacking the stop, a 4th amendment issue, will lead to invalidation of the license suspension and dismissal of the charges.
DUI Administration Suspension of Your Driver’s License can be Invalidated
When your license is suspended based on a DUI arrest, and you request a Formal Review hearing, it is difficult to invalidate the suspension but not impossible. Most successful arguments at the DUI administrative hearing are:
- Mistakes in the evidence packet that police provide to the BAR office, For example, police reports, DUI citation, etc.,
- Refusal affidavit not attested to,
- No probable cause (pc) for stop of vehicle,
- Police officer fails to show for hearing, after subpoena, and does not supply good cause within 48 hours of hearing.
- Breath Tech operator fails to show after subpoena and no good cause given,
- DUI packet not submitted prior to hearing,
- “Arrest Affidavit” not sworn/attested to,
- Defendant did not refuse to supply breath, blood or urine,
- No reasonable suspicion to begin DUI investigation (rarely granted),
- Missing element of DUI- no actual physical control,
- Failure to read implied consent,
- Police lacked prerequisite observations to establish impairment, ie. odor, flush face, bloodshot watery eyes, slurred speech,
- Credibility of officer- rare but established by conflicting testimony of officers or civilian witnesses,
- Intoxilizer 8000 (the breath testing machine) not in compliance,
- Documents fail to establish PC for stop or arrest or missing vital information in same and DUI defense attorney strategically chooses not to subpoena arresting officer. Personal favorite of attorney Foley.
- Breath Samples invalid- for example machine error or law enforcement failure to observe 20-minute rule
Requesting a Hardship License Through an Administrative Hearing or Waiver
When a person is arrested for Driving Under the Influence in West Palm Beach, their driver’s license is automatically suspended by the Department of Highway Safety and Motor Vehicles (DHSMV). However, Florida Statute 322.2615(6) now gives a person charged with Driving Under the Influence two options to deal with this automatic suspension:
- The person facing the suspended driver’s license can challenge the suspension by requesting a “Formal Review Hearing;” or
- The person facing the suspension can waive the right to challenge the driver’s license suspension with a Formal Review Hearing, and receive a hardship license right away, which would permit driving for Business Purposes Only (work, school, church, and medical purposes).
A Formal Review Hearing is the first opportunity you will have to challenge your West Palm Beach DUI case. During a formal review hearing, you will have the opportunity to cross-examine the police officers in your case in front of a hearing officer. Hearing Officers aren’t judges or magistrates, they are DMV employees that have been trained in some respect to the law as applicable to Formal Review Hearings. After the evidence is presented, a hearing officer will determine by a “preponderance of the evidence” (or, “more likely than not”) presented at the hearing whether sufficient cause exists to sustain the suspension. If the hearing officer thinks the evidence was sufficient to establish that it was more likely than not that you were over the legal limit of .08, your faculties were impaired, or you refused a BAC test, the license suspension will remain and you will have a 30 day hard suspension (meaning no driving for any reason) before you are eligible for a hardship license. However, if the hearing officer finds that the evidence was not sufficient, your suspension may be invalidated all together. It is important to remember that if you choose a Formal Review Hearing, even if you lose, the officer’s testimony can provide you with valuable information that you would not otherwise have to help defend your criminal case.
The choice to waive the hearing and automatically receive a hardship license, or proceed with the hearing and try to challenge the suspension, is entirely a personal decision. However, the choice must be made within 10 DAYS. The statute requires that you apply for a formal review hearing within 10 days of your arrest, or you will waive the hearing.
In a West Palm Beach DUI Formal Review Hearing, a hearing officer is charged with determining the following issues:
- 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.
- Whether the person whose license was suspended refused to submit to a urine test or a test of his breath-alcohol or blood-alcohol level after being requested to do so by a law enforcement officer.
- Whether the person whose license was suspended was told that if he refused to submit to such test his 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.
In criminal cases, the standard of proving guilt is “beyond all reasonable doubt.” In a Formal Review Hearing, the standard at the review hearing is only a preponderance of the evidence. This means that during the Formal Review Hearing, if the police officer proves his side of the case 50.1%, the suspension of your driver’s license will stay in effect.
During the Palm Beach County Formal Review Hearing, the police officer, or the police report, only has to convince the hearing officer that it is more likely than not that you were driving while under the influence of alcohol or drugs. To do this, the arresting police officer will need to establish that you had actual, physical control of a vehicle (meaning, you had the keys in the ignition or near the ignition) and that either your normal faculties were impaired (your eyes were bloodshot, your face was flushed, he smelled the odor of an alcoholic beverage on your breath, you performed poorly on the Field Sobriety Exercises) or you provided a breath sample of .08% Breath Alcohol Content or higher. The officer could also establish that you refused to take a breath test after he requested you to do so, as long as he proves that he had reasonable suspicion you were under the influence. If those elements are proven by at least 50.1%, your license will remain suspended.
If your attorney is successful then your full driving privileges will be restored.
If unsuccessful, you will have “hard time,” meaning that if your breath was over .08 then you will need to wait for a minimum of 30 days prior to acquiring a hardship license and you cannot drive at all during that period. If you refused to give a breath, then you must wait a minimum of 90 days prior to applying for a hardship and cannot drive at all during those 90 days.
*Note if you are caught driving during “hard time” you will likely be incarcerated.
The Former Review Hearing purely deals with the administrative suspension of your license; it is a separate and distinct issue from your criminal case. However, a Formal Reviewing Hearing can help in defending your criminal case because of the sworn testimony the officers will give during the hearing. The police officer who stopped you or arrested you in Palm Beach for Driving Under the Influence will give sworn testimony during the hearing, which you may be able to use in motion practice or during a trial to impeach the credibility of the officer and weaken the State’s case against you. There could be flaws or contradictions in that testimony that may help your Palm Beach County DUI criminal case later on.
Contact the Law Office of Roger P. Foley
If you are facing DUI charges in Florida, contact a criminal defense DUI lawyer from our Palm Beach County Criminal Defense firm to guide you through the process and help you decide if you would like to request a formal review hearing. When the firm accepts a case, we accept it with the ultimate goal of obtaining the best outcome possible. Never accept a plea bargain without the advice of an experienced attorney. With an attorney on your side, you may possibly be acquitted, have your charges dismissed, or be able to complete a diversion program in lieu of criminal proceedings. Mr. Foley may be able to negotiate reduced charges, and, depending on the circumstances, may be able to get the charges dismissed altogether - that is always the goal. If you have been arrested for DUI in the Boca Raton, West Palm Beach or Boynton Beach area, take quick action and contact a Palm Beach County DUI Defense Attorney today.
Sworn Testimony Equals Transcripts, Another Reason to Fight the DUI Administrative Suspension
The Law Office of Roger P. Foley understands that good cause must be shown for a Palm Beach County Judge to allow depositions in a Misdemeanor DUI case so he often uses the sworn recorded testimony of police officers and civilian witnesses from the DUI Administrative hearing/Formal Review hearing to compare and contrast reports and use in lieu of a deposition. This sworn testimony often provides the information necessary to file motions to suppress in the DUI criminal case. Frequently, the Law Office of Roger P. Foley requests and are granted depositions in misdemeanor DUI cases. Having multiple sources of information, police reports, sometimes DUI video, BAR transcript of sworn testimony from DUI administrative hearing/Formal Review Hearing, and the deposition can prove useful in defending DUI cases. These materials are searched for conflicts and inconsistencies. Conflicts and inconsistencies often lead to reduced police credibility and can lead to reasonable doubt in a DUI trial. Formal Review Hearings/ Administrative hearings from DUI suspensions in Palm Beach County are extremely important in fighting your West Palm Beach DUI charges. Do not hesitate. Call the Law Office of Roger P. Foley at (561) 746-7076.