What Happens When The Arresting Officer Is Subpoenaed To Appear At A Driver’s License Suspension Hearing And Fails To Show?

A breath test administered after a DUI traffic stop and arrest indicated the driver’s blood alcohol level exceeded 0.08 percent. The driver requested a formal review of the license suspension at the Bureau of Administrative  Reviews. The arresting officer was properly subpoenaed and did not appear at, the formal review hearing.  

DUI License Suspension Case Summary

The driver got his license back. The arresting officer was properly subpoenaed for, but did not appear at, the formal review hearing conducted by the Department of Highway Safety (“the Department”). The controlling statutory provision is clear: “If the arresting officer . . . fails to appear [at the formal review hearing] pursuant to subpoena . . . the department shall invalidate the suspension.” § 322.2615(11), Fla. Stat. (2014). Under the circumstances of this case, we find that the circuit court, acting in its appellate capacity, applied the incorrect law when it affirmed the hearing officer’s order sustaining the suspension.  

The Court’s Ruling In A DUI Suspension Case

One court just ruled “The circuit court did not apply section 322.2615(11), and thus, it did not apply the correct law in reaching its decision (enforcing /  sustaining a DUI suspension). Accordingly, we grant the petition and quash (dismiss) the circuit court’s order affirming the hearing officer’s order sustaining the suspension. We . . .  direct that [thedriver’s] suspension be invalidated . . . “

COMPLETE TEXT OF OPINION

IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA FIFTH DISTRICT NOT FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND DISPOSITION THEREOF IF FILED

Case No. 5D15-769

JEFFREY M. OBJIO,
Petitioner,
 
v. 
 
STATE OF FLORIDA, DEPARTMENT OF HIGHWAY SAFETY AND MOTOR VEHICLES,
Respondent.
____________________/
Opinion filed November 20, 2015
 
EDWARDS, J.

    Through a petition for certiorari, Jeffrey Objio asks this court to consider whether the suspension of his driver’s license for driving under the influence of alcohol, must be invalidated where the arresting officer was properly subpoenaed for, but did not appear at, the formal review hearing conducted by the Department of Highway Safety (“the Department”). The controlling statutory provision is clear: “If the arresting officer . . . fails to appear [at the formal review hearing] pursuant to subpoena . . . the department shall invalidate the suspension.” § 322.2615(11), Fla. Stat. (2014). Under the circumstances of this case, we find that the circuit court, acting in its appellate capacity, applied the incorrect law when it affirmed the hearing officer’s order sustaining the suspension.¹ Accordingly, we grant the petition and quash the circuit court’s order.

BACKGROUND FACTS

    Objio was stopped by Officer Dunn and ultimately arrested by Officer Fowler for driving under the influence of alcohol. A breath test administered by Ray Garcia revealed that Objio’s blood alcohol level exceeded 0.08 percent. Pursuant to section 322.2615, Florida Statutes (2014), Objio’s driver’s license was suspended, and he was issued a temporary business-only driving permit. In accordance with section 322.2615(6), Objio sought a formal review of the suspension. Subpoenas were issued and timely served on Dunn, Fowler, and Garcia. The subpoenas required them to attend the formal review hearing scheduled by the Department.  

    When Officer Fowler did not appear at the hearing, Objio moved for invalidation of the suspension pursuant to section 322.2615(11), which provides that “[i]f the arresting officer . . . fails to appear pursuant to a subpoena . . ., the department shall invalidate the suspension.” The hearing proceeded in part, during which time Objio’s counsel questioned Dunn and Garcia. Although the hearing officer stated that he would be willing to continue the case and would extend the duration of Objio’s temporary driving permit,  

¹ This is not a situation where the formal hearing was continued based upon the arresting officer’s pre-hearing written request for a continuance.

    Objio’s counsel declined. Objio reiterated his position that section 322.2615(11) was absolute in its terms and required the hearing officer to invalidate the suspension. At this point, the hearing officer asked whether Objio would object to a continuance; when Objio’s counsel did not provide an immediate answer, the hearing officer said he would check back with him later. The hearing officer wanted time to consider this issue because section 322.2615(11) was recently revised, so he informed Objio’s counsel that they would reconvene by recorded telephone call to complete the argument and ruling on this specific issue.

    Several days later, as agreed, the hearing officer contacted Objio’s counsel by telephone and was informed that Objio was not going to request a continuance because section 322.2615(9) provides that a temporary driving “permit may not be issued to a person who sought and obtained a continuance of the hearing.” The hearing officer entered a written order that denied Objio’s request for invalidation of the suspension under section 322.2615(11); and sustained the license suspension.

    Objio appealed the hearing officer’s ruling to the circuit court by petition for certiorari. The circuit court noted that Fowler timely submitted a written request for continuance of Objio’s formal review hearing. However, no continuance was ever ordered by the hearing officer. A Department rule, that predates the revision of section 322.2615(11), provides that a properly subpoenaed witness who fails to appear at a scheduled hearing may submit a written statement showing just cause for the failure to appear within two days of the hearing. Fla. Admin. Code R. 15A-6.015 (2014). “[J]ust cause shall mean extraordinary circumstances beyond the control of . . . the witness which prevent that person from attending the hearing.” Id. The reason given for requesting the continuance was that Fowler would be on leave on the date of the hearing. The circuit court agreed with the Department that the arresting officer did not “[fail] to appear” at the hearing since he had sought a continuance, rather than simply not showing up. The circuit court reasoned that Fowler’s absence did not trigger the mandatory invalidation provision of section 322.2615(11) and found that Objio could not avoid the consequences of license suspension by refusing to accept the hearing officer’s initial offer of a continuance. The circuit court upheld the hearing officer’s order sustaining the suspension of Objio’s license and noted that there seemed to be a conflict between sections 322.2615(6) and (11). Objio timely petitioned for certiorari review by this court.

STANDARD OF REVIEW

    When a party seeks review of the circuit court’s ruling on an administrative action, the district court of appeal conducts what is known as “second-tier” review and must determine “[1] whether the circuit court afforded procedural due process and [2] applied the correct law.” Broward Cty. v. G.B.V. Int’l, Ltd., 787 So. 2d 838, 843 (Fla. 2001) (quoting City of Deerfield Beach v. Vaillant, 419 So. 2d 624, 626 (Fla. 1982)). Objio does not claim that he was denied procedural due process, so we only need to decide if the circuit court applied the correct law in reaching its decision.

APPLICABLE LAW

    The applicable law regarding the consequences of the failure of an arresting officer to appear at a review hearing is section 322.2615 (11). When it comes to a formal review hearing, section 322.2615 treats the non-attendance of subpoenaed arresting officers differently than the non-attendance of other subpoenaed witnesses. Section 322.2615(6)(c) provides that “failure of a subpoenaed witness to appear at the formal review hearing is not grounds to invalidate suspension.” (emphasis added). Even a driver’s failure to appear at his own hearing will be excused unless “the hearing officer finds such failure to be without just cause.” Id. § 322.2615(6)(b). However, in a situation such as this, where no continuance is ordered, section 322.2615(11) is absolute, mandatory, and quite clear when it states that “[i]f the arresting officer . . . fails to appear pursuant to a subpoena as provided in subsection (6), the department shall invalidate the suspension.” Id. (emphasis added). Because there is no ambiguity in the wording of subsection (11), there is no need to resort to any other source for explanation or definition, such as Florida Administrative Code Rule 15A-6.015, which was discussed above. Thus, when the arresting officer, Fowler, failed to appear at the hearing after being duly subpoenaed, the hearing officer was required, under section 322.2615(11), to invalidate the suspension of Objio’s driver’s license. 

    The circuit court did not apply section 322.2615(11), and thus, it did not apply the correct law in reaching its decision. Accordingly, we grant the petition and quash the circuit court’s order affirming the hearing officer’s order sustaining the suspension. We remand with instructions to the circuit court to grant Objio’s original petition for certiorari, reverse the hearing officer’s order, direct that Objio’s suspension be invalidated, and ordering the Department to revise its records relating to him accordingly.

PETITION GRANTED; ORDER QUASHED; REMANDED WITH INSTRUCTIONS. 

EVANDER and WALLIS, JJ., concur.

Business Purposes Only, Request For Eligibility Review

DUI Request For
Eligibility Review
Business Purposes Only

Business Purposes Only Driver’s License

DUI Defendants have a confusing decision to make. The State Of Florida Department Of Highway Safety And Motor Vehicles Bureau Of Administrative Reviews now allows a Request For Eligibility Review. The program is limited and there are a few drawbacks.

Using this form (HSMV 72034) the DUI Suspension can be limited, but not avoided. Waiver of the suspension hearing results in the automatic entry on your permanent driving record. The entry will indicate an alcohol-related traffic suspension for either refusing to take a breath test or a breath test result over .08.

Nevertheless, you or your lawyers can request a review of your record for the purpose of reviewing and determining eligibility for immediate reinstatement of your driving privilege on a restricted basis as provided in section 322.2615(1)(b)3, Florida Statutes.

The driver must understand the restriction is for Business Purposes Only as defined in section 322.271, Florida Statutes and the driver must pay a $25.00 filing fee for this review,  pursuant to section 322.21(9)(a). The driver must also pay a reinstatement fee of around $200.00 to get the restricted license.

Length of License Suspension for DUI

The driver must understand that the restricted license will be for the duration of the suspension period imposed under section 322.2615, Florida Statutes, as follows:

• Driving with an Unlawful Breath-Alcohol or Blood-Alcohol Level = 6 months suspension
• Refusal to Submit to a Breath, Blood or Urine Test = 1-year suspension

Reinstatement of the driving privilege on a restricted basis as set forth herein is conditioned on statutory eligibility requirements, including but not limited to enrollment in DUI School. A driver must also understand that acceptance of the reinstated driving privilege as provided in section 322.271(7) Florida Statutes, is deemed a waiver of my right to formal and informal review under section 322.2615, Florida  Statutes.

The Form, HSMV 72034 (0512013)  is available by email upon request from our office.

Bureau Of Administrative Reviews

CAUTION: Special Option DUI Hearings for First Time DUI Cases

First, this DHSMV Bureau of Administrative Reviews Office in Tampa 4902 E 10th Ave Tampa, FL 33605 holds many DUI Hearings.

Detailed Information Request For Eligibility Review – Business Purposes Only

Now, DUI Defendants have another confusing decision to make. The State Of Florida Department Of Highway Safety And Motor Vehicles Bureau Of Administrative Reviews allows a Request For Eligibility Review. Furthermore, the program has a few drawbacks.

While requesting this a driver may stay on the road for business purposes only. As a result, selecting this strategy results in a DUI Suspension that cannot be avoided. Waiver of the suspension hearing results in the automatic entry on your permanent driving record. The entry will indicate an alcohol-related traffic suspension for either refusing to take a breath test or a breath test result over .08.

Using this form (HSMV 72034) the DUI Suspension can be limited, but not avoided. Waiver of the suspension hearing results in the automatic entry on your permanent driving record. The entry will indicate an alcohol-related traffic suspension for either refusing to take a breath test or a breath test result over .08.

Nevertheless, you or your lawyers can request a review of your record for the purpose of reviewing and determining eligibility for immediate reinstatement of your driving privilege on a restricted basis as provided in section 322.2615(1)(b)3, Florida Statutes.

DUI Formal Review Hearings in Tampa, FL: Understanding Your Rights

If you’ve recently been arrested for DUI in Tampa, Florida, it’s crucial to be aware of the administrative suspension of your driver’s license. You have a limited window of 10 days after the arrest to request a formal review hearing to contest this suspension. The specific regulations governing this process are outlined in Florida Statute Section 322.2615 and Chapter 15A-6 of the Administrative Code.

The administrative suspension is triggered by a DUI arrest involving either a refusal to take a breath test or a recorded breath test reading above .08. Engaging an experienced DUI attorney at this stage is essential due to the intricacies involved in challenging the administrative suspension of a Florida driver’s license.

Our firm is well-versed in effective strategies for conducting formal review hearings in Florida, aiming to contest administrative suspensions successfully. Winning this hearing is a pivotal step in safeguarding your driving record and shielding yourself from the repercussions associated with being deemed to have driven under the influence of alcohol or drugs, even if you later avoid a DUI conviction in the criminal case.

Let us help you 813.222.2220

Business Purposes Only Restrictions

The driver must understand the restriction is for Business Purposes Only as defined in section 322.271, Florida Statutes and the driver must pay a $25.00 filing fee for this review,  pursuant to section 322.21(9)(a). The driver must also pay a reinstatement fee of around $200.00 to get the restricted license.
The driver must understand that the restricted license will be for the duration of the suspension period imposed under section 322.2615, Florida Statutes. First driving with an Unlawful Breath-Alcohol or Blood-Alcohol Level has 6 months suspension. Then Refusal to Submit to a Breath, Blood or Urine Test has 1-year suspension.
Reinstatement of the driving privilege uses statutory eligibility requirements. These include enrollment in DUI School. A driver must also understand that acceptance of the reinstated driving privilege as provided in section 322.271(7) Florida Statutes, is deemed a waiver of my right to formal and informal review under section 322.2615, Florida  Statutes.

The Form, HSMV 72034 (0512013)  is available by email upon request from our office.

Why is the Administrative Hearing Important?

Successfully navigating the formal review hearing process offers several benefits under Florida law:

Temporary Business Purpose Only (BPO) License: Requesting a formal review hearing provides an opportunity to obtain a 42-day BPO license (commonly known as a hardship license), allowing you to continue driving for business purposes while your attorney challenges the administrative suspension.

Non-appearance of Witnesses: If the arresting officer or breath test operator fails to appear after being served with a subpoena, you automatically win the administrative hearing.

Subpoena Power: You can subpoena witnesses, and if they fail to appear, you can secure an extended driving permit while your attorney enforces the subpoena against them.

Insufficient Evidence: If there is inadequate evidence to support the necessary showing required to uphold the suspension, you may win the hearing.

Invalidation of Suspension: Winning the hearing results in the invalidation of the administrative suspension, nullifying the actions taken by the arresting officer at the arrest scene.

Early Defense Exploration: Even if you lose the hearing, your attorney can subpoena witnesses, inspect calibration records, and explore crucial defenses early in your case.

Additionally, questioning officers or civilian witnesses during the hearing allows your attorney to lock them into their testimony, providing an opportunity to exploit inconsistent statements or disprove certain versions of events early in the case.

Let us help you 813.222.2220

Issues at the DUI Formal Review Hearing

During the formal review hearing, the Florida DHSMV hearing officer will assess the evidence presented to determine, by a preponderance, if there is sufficient cause to uphold, modify, or annul the suspension of the driver’s license according to Florida Statutes Section 322.2615.

Key matters to be decided in the DUI formal review hearing when the driver is accused of exceeding the legal limit include:

• Whether the DUI officer had reasonable grounds to believe that the individual was operating or in control of a vehicle in the State of Florida while under the influence of alcohol or controlled substances.
• Whether the individual had an unlawful blood-alcohol level or breath alcohol level (BAL) of .08 or higher, as specified in Florida Statute 316.193.
• For cases where the driver is accused of refusing a breath or urine test, the following issues will be considered:
• Whether law enforcement had reasonable cause to believe the individual was driving or in control of a motor vehicle in the State of Florida under the influence of alcohol or a controlled substance.
• Whether the individual declined to undergo a urine or a test measuring breath or blood alcohol level after being asked by a law enforcement officer.
• Whether the individual was informed that refusing a test would result in a one-year suspension of their privilege to operate a motor vehicle, or in the case of a subsequent refusal, an eighteen-month suspension.
• Additionally, the hearing officer must address whether the refusal to take a breath test occurred in connection with a lawful arrest.

Bureau of Administrative Reviews Office Locations

Tampa DUI Defense Attorney W.F. “Casey” Ebsary, Jr. provides the Bureau of Administrative Reviews office locations as a public service. It is also useful for those who need to fight a DUI over .08 or Refusal to Submit to a Chemical Test Suspension. Therefore, the Locations for DUI Hearings in Florida, held at the Bureau of Administrative Reviews DHSMV are listed below. The hearing is usually requested on a special form, with required documentation,  and a filing fee. Especially relevant, failure to make a proper request, within 10 days of a DUI arrest, results in a license suspension.

Before deciding to waive your right to challenge a suspension, carefully consider what a waiver of your rights means. Most noteworthy, we request and handle these hearings for our Driving Under the Influence clients.

Let us help you 813.222.2220

33311-0000(954) 714-3552

Let us help you 813.222.2220

Florida Hearing Office in Hillsborough County, Florida.

State of Florida: Driver Licenses Office
2814 East Hillsborough Avenue, Tampa, FL, United States

Bureau Of Administrative Reviews

CAUTION: Special Option for First Time DUI Cases

The Florida DHSMV Bureau of Administrative Reviews Introduces Request for Eligibility Review: Advantages and Drawbacks

The State Of Florida Department Of Highway Safety And Motor Vehicles Bureau Of Administrative Reviews now allows a Request For Eligibility Review. The program waives the driver’s right to challenge the validity of a suspension and will result in a permanent entry of the driving record.. The driving privilege will be limited and there are a few other drawbacks.

With this option selected a driver may stay on the road for business purposes only. Selecting this strategy results in a DUI Suspension that cannot be avoided. Waiver of the suspension hearing results in the automatic entry on your permanent driving record. The entry will indicate an alcohol-related traffic suspension for either refusing to take a breath test or a breath test result over .08.

The Florida DHSMV Bureau of Administrative Reviews Introduces Request for Eligibility Review: Advantages and Drawbacks

Introduction:

The State of Florida Department of Highway Safety and Motor Vehicles (DHSMV) Bureau of Administrative Reviews has a program called the Request for Eligibility Review. This program, while offering certain advantages, comes with a set of limitations and drawbacks that drivers should be aware of before participating. In this blog post, we will explore the key features of this program and discuss its implications.

Advantages of the Request for Eligibility Review:

The Request for Eligibility Review program provides an opportunity for drivers who have received a suspension to regain their driving privileges. By opting for this program, individuals can bypass the process of challenging the validity of their suspension, saving time and effort. Moreover, successfully completing the program results in the restoration of driving privileges, allowing drivers to get back on the road sooner.

Drawbacks and Limitations:

While the Request for Eligibility Review program may appear beneficial, it is important to note its drawbacks and limitations. First and foremost, participating in this program waives the driver’s right to challenge the validity of the suspension. This means that if the suspension was unjust or erroneous, the driver will not have an opportunity to contest it.

Additionally, it is crucial to understand that opting for this program will result in a permanent entry on the driving record. This can have long-term consequences, as a permanent record may affect insurance premiums, future employment opportunities, and other aspects of the driver’s life.

Furthermore, it is essential to recognize that the driving privileges restored through this program will be limited. Drivers may face restrictions such as mandatory completion of driving courses, installation of ignition interlock devices, or other conditions imposed by the DHSMV.

Conclusion:

The Request for Eligibility Review program introduced by the Florida DHSMV Bureau of Administrative Reviews offers an avenue for drivers to regain their driving privileges more quickly. However, it is essential to carefully consider the drawbacks and limitations associated with this program, including the waiver of the right to challenge the suspension’s validity, the permanent entry on the driving record, and the potential for limited driving privileges. As with any significant decision related to driving privileges, it is advisable to consult legal professionals or seek guidance from the DHSMV to fully understand the implications and make an informed choice.

Detailed Information Request For Eligibility Review – Business Purposes Only

Tampa DUI Defense Attorney W.F. “Casey” Ebsary, Jr. provides the Bureau of Administrative Reviews office locations as a public service to those who need to fight a DUI over .08 or Refusal to Submit to a Chemical Test Suspension. The Locations for DUI Hearings in Florida, held at the Bureau of Administrative Reviews, Department of Highway Safety and Motor Vehicles (DHSMV) are listed below. The hearing is usually requested on a special form, with required documentation,  and a filing fee. Failure to make a proper request, within 10 days of a DUI arrest, results in a license suspension.

Before deciding to waive your right to challenge a suspension, carefully consider what a waiver of your rights means. We request and handle these hearings for our Driving Under the Influence clients.

The Form, HSMV 72034 (0512013)  is available here.

Administrative Hearing Location in Tampa | Florida | DUI Administrative Hearing

W.F. Casey Ebsary, Jr.
DUI Tampa Department of Highway Safety and Motor Vehicles Bureau of Administrative Reviews Florida Hearing Office in Hillsborough County, Florida.

State of Florida: Driver Licenses Office

2814 East Hillsborough Avenue, Tampa, FL, United States

Florida DUI Business Purposes License News

Stay informed about the latest developments regarding Florida DUI Business Purposes Licenses. We’re committed to providing up-to-date information to help you navigate the complexities of DUI law in Florida.

Temporary Business Purposes License Updates

We’ve received important updates from Tampa DUI Attorney Michael P. Maddux of Maddux Attorneys, a trusted source and friend of DUI2Go.com. According to Attorney Maddux, the Florida Department of Highway Safety and Motor Vehicles (DHSMV), specifically the Bureau of Administrative Reviews (BAR), is implementing changes to its Business Purposes Only (BPO) license policy.

Key Change: Previously, the duration of a temporary BPO license was subject to variation. Now, a BPO license will be valid for a standardized period: seven (7) working days following the formal review hearing. This provides a clearer timeline for individuals seeking to maintain driving privileges for essential business purposes.

For more detailed information about Business Purposes Only licenses, please visit our dedicated page: Florida Business Purposes Only License.

DHSMV/BAR Policy and Procedural Changes

In addition to the BPO license update, the DHSMV/BAR is implementing new policies concerning the responsibilities of BAR supervisors and hearing officers regarding paperwork issues. This aims to streamline the administrative process and ensure greater accountability.

Furthermore, the DHSMV/BAR has requested a legal review by its legal staff to address the issue of subpoenaed law enforcement officers who fail to appear at formal review hearings. This review is critical for upholding the integrity of the hearing process and ensuring fair proceedings.

The legal staff has been tasked with providing recommendations by mid-September regarding the handling of law enforcement witness failures to appear. This development is closely watched by organizations such as the Florida Association of Criminal Defense Lawyers, who are advocating for a return to fairness in the administrative formal review process. We at DUI2Go.com share these concerns and remain committed to protecting drivers’ rights to fair hearings before the DHSMV/BAR.

For information about your rights and the administrative process, refer to the official Florida DHSMV website: Florida Department of Highway Safety and Motor Vehicles (FLHSMV). You can also review the administrative hearing process on the FLHSMV site here: Administrative Suspension Hearings.

If you’ve been arrested for a DUI in Florida, it’s essential to understand your rights and the steps you need to take. Learn more about Florida DUI Laws and how a qualified DUI attorney can help you.

For more information about the administrative review process, and how to request a formal review, visit: Florida DUI Formal Review Hearing.

Remember, time is of the essence in DUI cases. Contact a knowledgeable attorney immediately to protect your rights.

DUI Florida Attorney from Tampa and friend of the site, Lawyer Michael P. Maddux, www.madduxattorneys.com, just updated us on recent developments at the Department of Highway Safety and Motor Vehicles, Bureau of Administrative Reviews, DHSMV / BAR. Michael tells me that the policy of issuing Business Purposes License is changing. Now, a BPO will be valid through seven (7) working days after the hearing.

Also the DHSMV / BAR is implementing a new policy. This new policy regards the responsibility of the BAR supervisor and hearing officers concerning paperwork issues. The DHSMV / BAR has also asked their legal staff for a legal review of their policy. This review will concentrate on how to handle subpoenaed officers who do not show up for hearings.

So the legal staff has until the middle of September to respond regarding the failure to appear by law enforcement witnesses. Florida Association of Criminal Defense Lawyers is seeking to return the administrative formal review process to some semblance of fairness. We remain concerned about drivers’ rights to a fair hearing at the Department of Highway Safety and Motor Vehicles, Bureau of Administrative Reviews.