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DUI Seminole County Florida Amendments to the License Suspension Statute

Date Updated: 07-15-2017

On July 1st of 2013, the statute, Florida Statute 322.2615, governing the license suspension as a result of being arrested for DUI in Florida changed.

Before I address the changes lets discuss the process. You were arrested for DUI in the State of Florida, whether it be in Seminole County or Orange County, or for that matter, anywhere in the State of Florida. The officer took away your driver’s license, at least he should have. The question you are probably asking is what now? Can I drive?

The answer is a bit more complicated than a simple yes or no. Initially, the ticket the Officer gave you for DUI will be your driver’s license for ten days. That has not changed. What comes next, however, is a change from the previous statute.

It used to be, under the former statute 322.2615, in order to get a permit to drive that the arrested had to request a formal review hearing. The formal review hearing would be set and prior to said hearing, the arrested would receive a permit to drive. Now, under the new section 322.2615(1)(b)3, if you are otherwise eligible for a hardship license under now Florida Statute 322.271(7), you can apply for a hardship license for the duration of the license suspension in lieu of requesting a formal or informal review hearing.

Florida Statute 322.271(7) reads as follows:

(7) Notwithstanding the provisions of s. 322.2615(10)(a) and (b), a person who has never previously had a driver license suspended under s. 322.2615, has never been disqualified under section s. 322.64, has never been convicted of a violation of s. 316.193, and whose driving privilege is now suspended under section s. 322.2615 is eligible for a restricted driving privilege pursuant to a hearing under section (2).(a) For purposes of this subsection, a previous conviction outside of this state for driving under the influence, driving while intoxicated, driving with an unlawful blood-alcohol level, or any other alcohol-related or drug-related traffic offense similar to the offense of driving under the influence as provided in s. 316.193 will be considered a previous conviction for a violation of s. 316.193, and a conviction for violation of former s. 316.028, former s. 316.1931, or former s. 860.01 is considered a conviction for a violation of s. 316.193.

(b) The reinstatement shall be restricted to business purposes only, as defined in this section, for the duration of the suspension imposed under s. 322.2615.

(c) Acceptance of the reinstated driving privilege as provided in this subsection is deemed a waiver of the right to formal and informal review under s. 322.2615. The waiver may not be used as evidence in any other proceeding.

Thus, now, after you are arrested, within 10 days of this arrest you must decide whether you want to apply for a hearing to review your driver license suspension or request a hearing to get your permit. The DHSMV has informed this attorney that you will have to have the hardship hearing within 10 days of your arrest. Further, in order to get your hardship license, you must be in compliance with Florida Statute 322.271, which means you must have enrolled in a DUI class pursuant to Florida Statute 316.193(5).

It may seem like a no brainer to simply enroll in the DUI class and to get a hardship license. However, this is a costly process, number one. Number two, if you got in an accident, or can’t afford any indication of this offense on your record it may benefit you to have a formal review hearing.

Ultimately, despite this major change, that will inure to the benefit of many, it is my recommendation that you consult an attorney immediately. The determination of how to proceed after being arrested for DUI, whether it be in Seminole County, Orange County or anywhere else in Florida must be done quickly.

Unfortunately, if you have previously been convicted of DUI or had your driver’s license suspended as a result of being arrested for DUI you are not eligible for this new option of forgoing a review hearing and getting a hardship permit for the duration of your license suspension.

In order to assist attorneys and those recently arrested for DUI I have included the new Florida Statute 322.2615 below:

322.2615. Suspension of license; right to review

(1)(a) A law enforcement officer or correctional officer shall, on behalf of the department, suspend the driving privilege of a person who is driving or in actual physical control of a motor vehicle and who has an unlawful blood-alcohol level or breath-alcohol level of 0.08 or higher, or of a person who has refused to submit to a urine test or a test of his or her breath-alcohol or blood-alcohol level. The officer shall take the person’s driver’s license and issue the person a 10–day temporary permit if the person is otherwise eligible for the driving privilege and shall issue the person a notice of suspension. If a blood test has been administered, the officer or the agency employing the officer shall transmit such results to the department within 5 days after receipt of the results. If the department then determines that the person had a blood-alcohol level or breath-alcohol level of 0.08 or higher, the department shall suspend the person’s driver’s license pursuant to subsection (3).(b) The suspension under paragraph (a) shall be pursuant to, and the notice of suspension shall inform the driver of, the following:

1. a. The driver refused to submit to a lawful breath, blood, or urine test and his or her driving privilege is suspended for a period of 1 year for a first refusal or for a period of 18 months if his or her driving privilege has been previously suspended as a result of a refusal to submit to such a test; or

b. The driver was driving or in actual physical control of a motor vehicle and had an unlawful blood-alcohol level or breath-alcohol level of 0.08 or higher and his or her driving privilege is suspended for a period of 6 months for a first offense or for a period of 1 year if his or her driving privilege has been previously suspended under this section.

2. The suspension period shall commence on the date of issuance of the notice of suspension.

3. The driver may request a formal or informal review of the suspension by the department within 10 days after the date of issuance of the notice of suspension or may request a review of eligibility for a restricted driving privilege under s. 322.271(7).

4. The temporary permit issued at the time of suspension expires at midnight of the 10th day following the date of issuance of the notice of suspension.

5. The driver may submit to the department any materials relevant to the suspension.

(2)(a) Except as provided in paragraph (1)(a), the law enforcement officer shall forward to the department, within 5 days after issuing the notice of suspension, the driver’s license; an affidavit stating the officer’s grounds for belief that the person was driving or in actual physical control of a motor vehicle while under the influence of alcoholic beverages or chemical or controlled substances; the results of any breath or blood test or an affidavit stating that a breath, blood, or urine test was requested by a law enforcement officer or correctional officer and that the person refused to submit; the officer’s description of the person’s field sobriety test, if any; and the notice of suspension. The failure of the officer to submit materials within the 5–day period specified in this subsection and in subsection (1) does not affect the department’s ability to consider any evidence submitted at or prior to the hearing.

(b) The officer may also submit a copy of the crash report and a copy of a video recording of the field sobriety test or the attempt to administer such test. Materials submitted to the department by a law enforcement agency or correctional agency shall be considered self-authenticating and shall be in the record for consideration by the hearing officer. Notwithstanding s. 316.066(5), the crash report shall be considered by the hearing officer.

(3) If the department determines that the license should be suspended pursuant to this section and if the notice of suspension has not already been served upon the person by a law enforcement officer or correctional officer as provided in subsection (1), the department shall issue a notice of suspension and, unless the notice is mailed pursuant to s. 322.251, a temporary permit that expires 10 days after the date of issuance if the driver is otherwise eligible.

(4) If the person whose license was suspended requests an informal review pursuant to subparagraph (1)(b)3., the department shall conduct the informal review by a hearing officer designated by the department. Such informal review hearing shall consist solely of an examination by the department of the materials submitted by a law enforcement officer or correctional officer and by the person whose license was suspended, and the presence of an officer or witness is not required.

(5) After completion of the informal review, notice of the department’s decision sustaining, amending, or invalidating the suspension of the driver’s license of the person whose license was suspended must be provided to such person. Such notice must be mailed to the person at the last known address shown on the department’s records, or to the address provided in the law enforcement officer’s report if such address differs from the address of record, within 21 days after the expiration of the temporary permit issued pursuant to subsection (1) or subsection (3).

(6)(a) If the person whose license was suspended requests a formal review, the department must schedule a hearing within 30 days after such request is received by the department and must notify the person of the date, time, and place of the hearing.

(b) 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 provided under paragraph (2)(a) in subsection (2), regulate the course and conduct of the hearing, question witnesses, and make a ruling on the suspension. The hearing officer may conduct hearings using communications technology. The party requesting the presence of a witness shall be responsible for the payment of any witness fees and for notifying in writing the state attorney’s office in the appropriate circuit of the issuance of the subpoena. If the person who requests a formal review hearing fails to appear and the hearing officer finds such failure to be without just cause, the right to a formal hearing is waived and the suspension shall be sustained.

(c) The failure of a subpoenaed witness to appear at the formal review hearing is not grounds to invalidate the suspension. If a witness fails to appear, a party may seek enforcement of a subpoena under paragraph (b) by filing a petition for enforcement in the circuit court of the judicial circuit in which the person failing to comply with the subpoena resides or by filing a motion for enforcement in any criminal court case resulting from the driving or actual physical control of a motor vehicle that gave rise to the suspension under this section. A failure to comply with an order of the court shall result in a finding of contempt of court. However, a person is not in contempt while a subpoena is being challenged.

(d) The department must, within 7 working days after a formal review hearing, send notice to the person of the hearing officer’s decision as to whether sufficient cause exists to sustain, amend, or invalidate the suspension.

(7) In a formal review hearing under subsection (6) or an informal review hearing under subsection (4), the hearing officer shall determine by a preponderance of the evidence whether sufficient cause exists to sustain, amend, or invalidate the suspension. 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:

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.

(8) Based on the determination of the hearing officer pursuant to subsection (7) for both informal hearings under subsection (4) and formal hearings under subsection (6), the department shall:

(a) Sustain the suspension of the person’s driving privilege for a period of 1 year for a first refusal, or for a period of 18 months if the driving privilege of such person has been previously suspended as a result of a refusal to submit to such tests, if the person refused to submit to a lawful breath, blood, or urine test. The suspension period commences on the date of issuance of the notice of suspension.

(b) Sustain the suspension of the person’s driving privilege for a period of 6 months for a blood-alcohol level or breath-alcohol level of 0.08 or higher, or for a period of 1 year if the driving privilege of such person has been previously suspended under this section as a result of driving with an unlawful alcohol level. The suspension period commences on the date of issuance of the notice of suspension.

(9) A request for a formal review hearing or an informal review hearing shall not stay the suspension of the person’s driver’s license. If the department fails to schedule the formal review hearing to be held within 30 days after receipt of the request therefor, the department shall invalidate the suspension. If the scheduled hearing is continued at the department’s initiative or the driver enforces the subpoena as provided in subsection (6), the department shall issue a temporary driving permit that shall be valid until the hearing is conducted if the person is otherwise eligible for the driving privilege. Such permit may not be issued to a person who sought and obtained a continuance of the hearing. The permit issued under this subsection shall authorize driving for business or employment use only.

(10) A person whose driver’s license is suspended under subsection (1) or subsection (3) may apply for issuance of a license for business or employment purposes only if the person is otherwise eligible for the driving privilege pursuant to s. 322.271.

(a) If the suspension of the driver’s license of the person for failure to submit to a breath, urine, or blood test is sustained, the person is not eligible to receive a license for business or employment purposes only, pursuant to s. 322.271, until 90 days have elapsed after the expiration of the last temporary permit issued. If the driver is not issued a 10–day permit pursuant to this section or s. 322.64 because he or she is ineligible for the permit and the suspension for failure to submit to a breath, urine, or blood test is not invalidated by the department, the driver is not eligible to receive a business or employment license pursuant to s. 322.271 until 90 days have elapsed from the date of the suspension.

(b) If the suspension of the driver’s license of the person relating to unlawful blood-alcohol level or breath-alcohol level of 0.08 or higher is sustained, the person is not eligible to receive a license for business or employment purposes only pursuant to s. 322.271 until 30 days have elapsed after the expiration of the last temporary permit issued. If the driver is not issued a 10–day permit pursuant to this section or s. 322.64 because he or she is ineligible for the permit and the suspension relating to unlawful blood-alcohol level or breath-alcohol level of 0.08 or higher is not invalidated by the department, the driver is not eligible to receive a business or employment license pursuant to s. 322.271 until 30 days have elapsed from the date of the suspension.

(11) The formal review hearing may be conducted upon a review of the reports of a law enforcement officer or a correctional officer, including documents relating to the administration of a breath test or blood test or the refusal to take either test or the refusal to take a urine test. However, as provided in subsection (6), the driver may subpoena the officer or any person who administered or analyzed a breath or blood test. If the arresting officer or the breath technician fails to appear pursuant to a subpoena as provided in subsection (6), the department shall invalidate the suspension.

(12) The formal review hearing and the informal review hearing are exempt from the provisions of chapter 120. The department may adopt rules for the conduct of reviews under this section.

(13) A person may appeal any decision of the department sustaining a suspension of his or her driver’s license by a petition for writ of certiorari to the circuit court in the county wherein such person resides or wherein a formal or informal review was conducted pursuant to s. 322.31. However, an appeal shall not stay the suspension. A law enforcement agency may appeal any decision of the department invalidating a suspension by a petition for writ of certiorari to the circuit court of the county wherein a formal or informal review was conducted. This subsection shall not be construed to provide for a de novo review.

(14)(a) The decision of the department under this section or any circuit court review thereof may not be considered in any trial for a violation of s. 316.193, and a written statement submitted by a person in his or her request for departmental review under this section may not be admitted into evidence against him or her in any such trial.

(b) The disposition of any related criminal proceedings does not affect a suspension for refusal to submit to a blood, breath, or urine test imposed under this section.

(15) If the department suspends a person’s license under s. 322.2616, it may not also suspend the person’s license under this section for the same episode that was the basis for the suspension under s. 322.2616.

(16) The department shall invalidate a suspension for driving with an unlawful blood-alcohol level or breath-alcohol level imposed under this section if the suspended person is found not guilty at trial of an underlying violation of s. 316.193.

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DUI Seminole County Florida Amendments to the License Suspension Statute

Date Updated: 07-15-2017

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