Hello? New Procedures for Formal Review Hearings by Telephone

Update on Friday, August 14, 2020: 

In DHSMV v. Edenfield, 58 So. 3d 904, 907 (Fla. 1st DCA 2011), the court held that witness may appear for the formal review hearing hearing by telephone.

In DHSMV v. Bennett, 125 So. 3d 367, 369 (Fla. 3d DCA 2013), the court held that a party does not have a right to require a police officer’s live appearance at an administrative hearing dealing with a driver’s license suspension. Instead, the hearing officer may determine whether a telephonic appearance is adequate.

In DHSMV v. Canalejo, 179 So.3d 360, 362 (3d DCA 2015), the court found that a party does not have a right to require an officer’s live appearance at an administrative hearing dealing with license suspension.

In Graca, v. DHSMV, 24 Fla. L. Weekly Supp. 329c (Fla. 20th Jud. Cir. [Appellate] 2016), the petitioner did not object to the telephonic appearance of the witness. , but, as here, he expected that the requirements to appear be of the State’s subpoena would be upheld and that rules concerning the use of communication equipment would apply.

DHSMV Changed Their Policy

Effective June 6, 2019, the DSHMV changed their policy to exempt law enforcement who appear by telephone from appearing at a duty station or before a notary.

Under the new policy, the memo explained that hearing officers were permitted to administer witness oaths telephonically without independent verification of a witness’s identity. Prior to that policy being deemed to be a due process violation by the court, the departmental memo advised hearing officers to overrule attorneys’ objections to the policy.

The DHSMV based the policy change on §322.2615(6)(b), which provides:

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), 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. . . .

Due Process Violation to Administer Oath Telephonically

In Eckert vs. DHSMV, Circuit Court, 13th Judicial Circuit in and for Hillsborough County, Circuit Civil Division. Case No. 19-CA-10990, Division E (July 1, 2020), the court granted a writ based on a due process violation and held:

“a hearing officer may conduct hearings through electronic means, including the telephone, but when a witness appears telephonically without independent verification of the witness’s identity, a hearing officer may not administer an oath to that witness through solely audio equipment such as a telephone.”

To preserve this issue, you can object to the hearing officer attempting to administer an oath to a witness over the phone based on:

  1. Eckert vs. DHSMV, Circuit Court, 13th Judicial Circuit in and for Hillsborough County, Circuit Civil Division. Case No. 19-CA-10990, Division E (July 1, 2020)
  2. Section 322.2615(6)(b), F.S., allows hearing officers to, among other things, administer oaths. It also allows them to conduct hearings electronically
  3. Rule 15A-6.013(4), (8), Florida Administrative Code requires that witnesses testify under oath, but they also provide no required method or safeguards for administering oaths
  4. Rule 2.530, Florida Rules of Judicial Administration states, “[t]estimony may be taken through communication equipment only if a notary public or other person authorized to administer oaths in the witness’ jurisdiction is present and administers the oath consistent with the laws of the jurisdiction.

You can also point at that Op. Atty. Gen. Fla. 92-95 (1992) concludes that oaths may not be administered by a notary over the phone if that person was not in the notary’s presence even if the parties stipulated to the witness’s identity.

Bureau of Administrative Reviews Reorganized

Updated on Friday, June 14, 2019: According to the State of Florida, DHSMV, Statewide Reorganization of the Bureau of Administrative Reviews Research in conjunction with the Florida Gubernatorial Fellows Program written by Joshua Winograd, Class XIII 3/16/2018:

  1. Hearing officers have the power to swear witnesses and take their testimony under oath.Fla. Admin. Code Ann. r. 15A-6.014 (2007).
  2. Despite there being no law that prohibits administering oaths via communicative technology, the BAR manual requires that witnesses in a telephonic hearing be sworn in-person by a licensed notary. Bureau of Administrative Reviews Operations Manual. Ch 10. (2017).
  3. This current practice is not a promulgated rule.
  4. The one exception is LEOs who may swear in each other.
  5. F.A.C. states that hearing officers are authorized to conduct all hearings using communications technology approved by the department. Fla. Admin. Code Ann. R. 15A-6.009 (2013).
  6. Hardship hearings are to be held pursuant to the Administrative Procedure Act which permits “means of communications media technology”. Fla.Stat.§120.54(2017)

Original blog post:

We just received the following memorandum from the Bureau of Administrative Reviews (BAR) of the Florida Department of Highway Safety and Motor Vehicle (DHSMV). The BAR is quickly rolling out telephone conferences across the state.

Witnesses will be testifying by phone, at least in certain offices including Pasco County, Manatee County, and Hardee County, FL.

Can someone explain to me how the petitioner is going to get the items listed in the subpoena duces tecum? If you subpoena a video, the witness is supposed to bring it an hour in advance. 

Criminal defense attorneys that focus on DUI cases will have to quickly adjust their strategies to maintain every advantage of getting the administrative suspensions invalidated while still preserving the testimony of the witnesses.

Bureau of Administrative Reviews

TO: Counsel for the Petitioner
FROM: Cindy VanDunk, HSMV Field Supervisor
Date: October 17, 2014
RE: New Telephone Formal Procedures

Effective immediately this office will no longer be holding formal review hearings at the following locations:

  • [PASCO COUNTY] Pasco County Tax Collector, 4720 U.S. Highway 19 North, New Port Richey
  • [HARDEE COUNTY] Hardee County Tax Collector, 110 W. Oak Street, Suite 102, Wauchula
  • [MANATEE COUNTY] Judicial Center, 8th Floor/Room 8032, 1051 Manatee Ave W., Bradenton

All formal review hearings at those locations will be held telephonically. When requesting a formal review hearing, please include a phone number for the hearing officer to call you.

Witnesses will also be appearing by phone. Attached is a copy of the subpoena format for telephonic hearings. Please begin using this format immediately. If a subpoena is received that is not the correct format, it will be returned to you unsigned.

We hope to make this transition as easy as possible. If you have questions, feel free to contact me at 727-507-4405.

Telephone Formal Review Hearings in DUI Cases in Florida

Read more about the rules for obtaining and serving the subpoena / subpoena duces tecum for the formal review hearing.


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