Florida DUI Rules for the Administrative Suspension – It’s Complicated…
After an arrest in Florida for DUI, the officer might take your driver’s license and issue you an “on the spot” administrative suspension. You only have ten (10) calendar days to protect your driver’s license and ability to drive.
Some people might tell you to waive all your rights by going to the DHSMV to request a waiver review hearing. We take a different approach by telling our clients to demand a “formal review hearing.”
By demanding a “formal review hearing,” we help our clients get the 42-day permit so they can drive while we fight the administrative suspension.
Three Choices within the Ten Days after the DUI Arrest
How do you explain the ridiculously complicated new rules for the administrative suspension? The rules have gotten so complicated that I needed to create these diagrams to explain them.
Within the ten days after the DUI arrest, you have three choices:
- do nothing;
- hire an attorney to demand a “formal review hearing” and a 42-day driving permit;
- stipulate to the administrative suspension during a “waiver review hearing” in exchange for the immediate reinstatement of hardship privileges.
For most people facing a first DUI who can afford to hire a DUI defense attorney willing to fight the suspension, Option 2 is the best. Option 2 involves fighting to invalidate the suspension (so it disappears from your driving record) in a “formal review hearing.”
Option 3 means that you are stipulating to the suspension and that you were DUI for administrative purposes. If you waive all your rights to contest the suspension, your driving record will show for the next 75 years that you received an administrative suspension for DUI, even if your criminal charges are ultimately dismissed or reduced to avoid a DUI conviction.
If you are eligible for Hillsborough County’s new DUI Diversion program called “RIDR” for a first DUI and plan on sealing your record after completing the program, it is particularly important to hire an attorney to demand a “formal review hearing” to contest the administrative suspension.
Option 1: Do Nothing
Some people don’t understand the rules. As a result, they do nothing during the first ten (10) days after the DUI arrest.
Read the citation carefully. The citation operates as your notice of the suspension. The citation also contains your 10-day driving permit. After the 10-day permit expires, the 30-day hard suspension begins for a breath test case with a BAC over .08, or a 90-day suspension begins if you are accused of refusing to take the breath, blood, or urine test.
If you do nothing, then that administrative suspension that you were DUI will remain on your driving record for the next 75 years even if you avoid a DUI conviction in court. With this choice, you will also face a 30-day, 90-day, or 18-month hard suspension. You will not be eligible for hardship driving privileges during that 30-day, 90-day or 18-month hard suspension.
Option 2: Demand a Formal Review Hearing
If you can afford a DUI defense attorney, demanding a formal review hearing is best. Option 2 is the only option that allows the driver to fight to invalidate the suspension so that it is forever removed from the driving record.
Unless you get it invalidated, the administrative suspension remains on your driving record for 75 years, even if you get the charges reduced to reckless driving or get a “not guilty” verdict at trial.
The only exception to that rule is that if you get a “not guilty” verdict at trial in a breath test case, then the administrative suspension will be removed from your driving record. See Florida Statute Section 322.2615 (14)(b) and (16).
If you demand a formal review hearing, you are entitled to a 42-day permit so that you can keep driving for hardship purposes. You are entitled to the 42-day permit if you request the formal review hearing (as long as your driving privileges were valid before the DUI arrest).
If the arresting officer or breath test technician fails to appear at the formal review hearing, then the suspension SHALL be invalidated. If so, any mention of DUI for the administrative suspension disappears from the driver’s record. You can then get a duplicate driver’s license and avoid paying any reinstatement fee.
Other reasons for winning the hearing include insufficient evidence in the documents submitted to the hearing officer or inconsistencies in the evidence.
Even if the driver loses the hearing, by attending the hearing, the attorney has gathered important evidence that can be used to fight the criminal charges. The only downside to contesting the formal review hearing is that the driver might still suffer the 30-day hard suspension (or 90 days in a refusal case).
After the hard suspension, the driver can obtain a hardship license with proof of enrollment in DUI school.
Option 3: Request a Waiver Review Hearing for Immediate Reinstatement
A driver with no prior DUI cases can go to the Bureau of Administrative Review to file a Request for Eligibility Review Form (sometimes called the “waiver review”).
The driver must personally appear within ten (10) calendar days.* The driver must also enroll in and pay for DUI school during those ten (10) days. The Level I DUI School registration fee in Hillsborough County is $263.00.
Although the DHSMV originally took the position that the driver could only request the waiver review within the first 10 days after the arrest, at least one circuit court-level decision has found that the 10-day time limit doesn’t apply to a waiver review hearing. See Bichaci v. DHSMV (2013).
The person must also pay a $25 hearing fee and the reinstatement fee.
The benefit to this process is avoiding the 30-day hard suspension for a DUI with a BAC over .08 (or 90-day suspension for a refusal). But the downside to waiver review is that the driver has NO chance of getting the suspension invalidated ever (unless he obtains a “not guilty” verdict at trial in a breath test case).
The Rules are Complicated
The diagrams used in this article apply to a driver (with no prior DUI arrest) who took the breath test and blew over the legal limit. If you are accused of refusing to submit to a breath, blood, or urine test, then the administrative suspension is for 12 months for a first refusal or 18 months for a second or subsequent refusal.
The hard suspension is for 90 days unless you already have two DUIs on your driving record. If you have two DUI convictions, the entire suspension is considered “hard time” because you will not qualify for hardship reinstatement.
Hopefully, these diagrams will help me explain these complicated rules – at least until the next legislative session when our lawmakers come up with something even more complicated.
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