14 Ways to Win a Formal Review Hearing
Why have a formal review hearing?
For anyone who can afford to hire an attorney to contest the administrative suspension after a DUI arrest, the benefits of having the hearing often outweigh any potential downside.
Let’s start with the fact that there are fourteen (14) different ways to win a formal review hearing, according to the Bureau of Administrative Review Office’s training materials – click here to download the 2017 Administrative Suspension Training Slides.
The training materials explain the different reasons why the administrative suspension might be invalidated and how frequently each reason occurs.
This training material, entitled “2016 Administrative Suspension Training for Law Enforcement,” was presented to DUI enforcement officers at the Hillsborough County Sheriff’s Office (HCSO) Faulkenburg Road Jail on September 28, 2016.
Although criminal defense attorneys were not invited to attend, we can still learn a lot from just reading the material. The material was obtained through a public record request to DHSMV.
According to the training materials, these are the reasons the administrative suspension is invalidated after a formal review hearing:
- The Arresting Officers Fails to Appear at the Formal Review Hearing – 32.7%
- No DUI Packet Received by the BAR before the Review Hearing – 10.8%
- The Breath Test Operator Fails to Appear at the Formal Review Hearing – 7.9%
- Invalid Stop – 6.4%
- Conflicting Evidence – 6.3%
- No Valid Breath Test – 5.6%
- The Officer Didn’t Attest to the Probable Cause Statement – 5.5%
- No Physical Control – 4.9%
- Missing or Illegible Documents – 4.9%
- The Driver Did Not Refuse – 4.4%
- No or Improper Implied Consent Warnings – 4.4%
- Refusal Affidavit Not Attested To -.98%
- No Probable Cause Under 21 – .17%
- No .02 Agreement on the Intoxilyzer Breathalyzer Test -.05%
The only downside to requesting the formal review hearing is that the client will suffer a 30 or 90-day hard suspension if we request the formal review hearing but are not successful in getting the suspension invalidated.
That 30 or 90-day suspension is a small price to pay for the chance of getting the administrative suspension invalidated.
When my clients understand the pros and cons, they almost always choose to go forward with the formal review hearings.
The benefits of requesting the formal review hearing include:
- getting a 42-day permit to keep driving while challenging the administrative suspension;
- invalidating the suspension is the only way to get the notation removed from the driving record (otherwise, the notation will stay on the driving record for the next 75 years);
- getting the opportunity to question each of the witnesses under oath before the prosecutor even sees the file;
- getting permission from the court to take depositions in a typical DUI case is difficult, so the formal review hearing might be the attorney’s only chance to question the witnesses under oath on a pre-trial basis;
- by requesting the subpoena duces tecum, you can require the witnesses to bring additional evidence to the hearing, including body cam video and dashcam video;
- obtaining evidence related to the maintenance of the Intoxilyzer 8000 faster, which is important if there was a lack of substantial compliance with the administrative rules;
- finding evidence that can be used to win the criminal case;
- locking the witnesses into their testimony so that it can’t be changed after filing a motion to dismiss or motion to suppress;
- being able to use the transcript of the FRH testimony at trial and impeach the witness if they try to change their story in court.
- Being able to provide the client with an audio recording of the testimony can help the client better understand the allegations.
So if your client has an administrative suspension under Florida Statute Section 322.2616 after a DUI arrest or under Florida Statute Section 322.2616 after a zero-tolerance violation for an underage 21 driver, consider the benefits of seeking the formal review hearing.
I wrote another article that goes into greater detail about the training material on reasons why the DUI administrative suspension is invalidated at the formal review hearing.
Contact us to find out more about pros and cons of requesting a formal review hearing.
This article was last updated on Thursday, September 17, 2020.
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