How to Guide for the DHSMV DUI Formal Review Hearing in Florida
Update: The procedures for the Formal Review Hearing change over time, so we updated this guide recently. The most drastic changes occurred after March 9, 2020, when Governor Ron DeSantis issued Executive Order 20-52, declaring a State of Emergency for COVID-19. As a result, all formal review hearings are being conducted telephonically.
This “how to guide” is intended for attorneys only. This article goes over the basics. This guide is not intended to be legal advice.
If you disagree with our strategy or have an easier way to do it – please feel free to make a suggestion below in the comments section.
The DUI attorneys at Sammis Law Firm in Tampa, Hillsborough County, FL, are still conducting formal review hearings in almost every DUI case.
We certainly explain the different options to our clients, but our clients almost always want a formal review hearing after they understand the options.
Why Request a Formal Review Hearing after a DUI Arrest?
After a DUI arrest, the arresting officer will issue a DUI citation that also operates as a notice of the administrative suspension.
Although with a first DUI, the driver has the option of stipulating to the DUI for administrative purposes during a “waiver review hearing,” it is better to demand a formal review hearing to contest the suspension.
What is the downside to requesting a formal review hearing for a first DUI? If you are not successful in invalidating the suspension after the formal review hearing, then the driver will suffer the following hard suspension:
- for a first DUBAL, the hard suspension is for 30 days;
- for a first refusal, the hard suspension is for 90 days.
Most client will agree that the hard suspension is a small price to pay for all the benefits that might come with conducting the formal review hearing.
The upside of having the formal review hearing is that the suspension might be invalidated (removed completely from the driving record).
The formal review hearing provides a chance to question each witness under oath before the prosecutor even opens the file.
The transcript from the formal review hearing is extremely useful in the criminal case during any pre-trial motion or trial.
If you don’t conduct the formal review hearing, then you have lost all of those benefits.
Fourteen Ways to Win the Formal Review Hearing
The most common reason for winning the formal review hearing is that the arresting officer or breath test operator fails to appear. Thirteen (13) other reasons exist for winning a formal review hearing including:
- the DUI Packet isn’t received by the DHSMV BAR before the formal review hearing;
- the stop was invalid;
- conflicting evidence;
- no valid breath or blood test;
- the officer didn’t attest to the probable cause statement;
- no evidence of driving or actual physical control;
- missing or illegible documents;
- the driver did not refuse;
- no (or improper) implied consent warnings;
- the refusal affidavit wasn’t attested to;
- no probable cause that the driver was under 21 (for a zero-tolerance suspension);
- no .02 agreement between the Intoxilyzer 8000 breathalyzer test; or
- one of the BAC tests is under .08 (even if the other is over .08).
When No Downside Exist to Requesting a Formal Review Hearing
In these types of cases, there is NO real downside to demanding the formal review hearing:
- If your client has a prior DUI arrest (because the client is not eligible for a “waiver review hearing”);
- If your client had one breath test reading over .08 and one below .08 (because the suspension must be invalidated if the hearing is requested); or
- If your client doesn’t need to drive in Florida during those 30 or 90 days when the hard suspension would be in effect.
If the person has an out of state driver’s license and is returning to that state, then the out of state license can still be used to drive outside of Florida during the hard suspension period.
Even if the person has an out of state license, they still need to contest the administrative suspension. Living out of state doesn’t change the fact that they must get the administrative suspension cleared in Florida (unless the suspension is invalidated at the formal review hearing).
Step One – Request the Formal Review Hearing at the DMV within 10 Days of the Arrest
The driver has ten (10) calendar days after receiving the notice of suspension (which is usually included in the DUI citation given to the driver after the arrest) to demand a formal review hearing.
If the license is valid when you make the request then you should immediately receive a 42-day permit that will let your client drive for hardship purposes while you are waiting for the hearing.
To request the formal review hearing you should fill out Form 78065: Application for Formal or Informal Review Hearing. Check the box to request a formal review hearing instead of an informal review hearing.
You also need to attach a legible copy of the DUI citation that operates as the notice of suspension and a check for $25.00 made payable to the “Department of Highway Safety and Motor Vehicles.”
We also include a cover letter requesting a copy of the packet submitted by law enforcement and any other documents the hearing officer intends to introduce at the hearing.
The cover letter should also request either a one hour or two-hour time allotment for the hearing. Include the number you want the hearing officer to call for the telephonic hearing.
The hearing officer might schedule the hearing for one hour even if you request more time, but the request for the extra time might come in handy if you have a lot of witnesses or a long video.
Pre-Covid-19, we would have a runner hand-deliver the documents to the Bureau of Administrative Reviews so that we could obtain the 42-day permit on the same day. The 42-day permit allows driving for business purposes only.
After the Covid-19 lockdown began, the BAR starting allowing us to email the request for a formal review hearing and make payment over the phone. The hearing officer would then email us a color copy of the 42-day permit.
Is your client eligible for the 42 day permit?
If your client needs the 42-day permit, it is probably a good idea to check that the driver’s license is valid before you make the request. If you find a problem, see if you can get it cleared before demanding the formal review hearing.
If the driver’s license is expired, canceled, suspended, or revoked for some other reason on the day that you make the request, then the hearing officer will not issue a 42 day permit.
What if more than 10 days have passed since the arrest?
If your client hires you after the 10th day from the arrest, then ask them when they actually received notice of the administrative suspension. In many of these cases, the person never signs the notice and doesn’t receive a copy when they are released from jail.
In those cases, make the demand for the formal review hearing and explain how the demand was made within 10 days of when your client actually received the notice.
At least in the Tampa BAR, the DHSMV will usually accommodate the demand for a formal review hearing requested outside of the 10 day window if you show good cause, but they will refuse to issue the 42-day permit (which is fine since several days of the hard suspension have already passed).
Can the driver change his or her mind about wanting formal review hearing?
If the driver already applied for a Review Waiver Hearing and obtained hardship reinstatement, then the DHSMV will probably take the position that the driver cannot then request a formal review hearing, although that is not a well-settled issue under Florida law.
If the client had a waiver review hearing but hasn’t yet obtained the hardship reinstatement yet, then the DHSMV will probably honor the request for a Formal Review Hearing made within the 10 day period.
Step Two – Receiving the Notice of the FRH and the Driver’s Pre-hearing Statement
If you make the demand for a formal review hearing within the 10 days after the arrest (or notice of the administrative suspension), then the hearing officer will send you a notice of the time and place for the Formal Review Hearing and a form called the driver’s “pre-hearing statement.”
The Bureau of Administrative Reviews (BAR) will often write the copy costs on the notice. We then send a check for that amount to the BAR.
Update: Effective June 6, 2019, the DHSMV has started to email a scanned/digital copy of the evidentiary packet at no charge (but the $0.50 per page fee applies to any photocopied documents).
What documents can you obtain from the DHSMV?
Under Florida Statute Section 322.2615(2) the arresting officer has five (5) days after issuing the notice of suspension, to submit the following documents to the DHSMV:
- the driver license;
- an affidavit stating the officer’s grounds for the belief that the person was DUI;
- 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 hearing officer can still consider any documents submitted late, but only if they are received “at or prior to” the hearing.
You need the DMV packet in order to know how to fill out the pre-hearing statement. You only have 10 days to submit the pre-hearing statement from the day of the notice.
Sometimes there is a delay in getting the notice which cuts into the ten (10) days to submit the pre-hearing statement. We always submit the pre-hearing statement within the ten (10) days and keep a blank copy of it for our records.
If you need to update the pre-hearing statement before the hearing. then an amended pre-hearing statement can be submitted after the 10-day deadline but before the hearing. Just write “amended” at the top of the form and add the new information.
If the hearing officer doesn’t have the packet by the start of the hearing, then you should move to invalidate on that basis and the request to invalidate should be granted since there is no information in the record to uphold the suspension.
If the packet suddenly appears on the day of the hearing (or too late to get the subpoenas issued), then you can request a continuance showing your efforts to obtain the packet ahead of time.
It is best to arrive at the hearing with a written request to continue already prepared but wait to submit it until after you read the packet to make sure the evidence in the packet is sufficient to uphold the suspension.
If you get the packet at the last minute and end up requesting the continuance, the hearing officer should issue you an extended 42-day permit since the delay was not caused by the driver. Ask for the extended permit in the written continuance request.
Before the hearing, you can also request many of these documents from the arresting agency (although they might refuse to release them before the state has complied with a discovery demand). At a minimum, you can always obtain a copy of the citation, the probable cause affidavit, and a crash report (if any).
Getting the DUI video ahead of the hearing is more difficult. You might want to continue the hearing so that you have time to watch the video with your client.
We usually serve a subpoena duces tecum that requires the arresting officer to bring a copy of the video to the hearing. If the arresting officer claims not to be the custodian of the video, then the hearing officer will usually let us subpoena the custodian of records.
Once the custodian is served with the subpoena, the custodian will usually release the video immediately to the attorney to avoid attending the hearing (or at least they become more accommodating).
We are usually able to get the video from the State Attorney’s Office right before the formal review hearing, but we make the request for the video immediately after we are retained.
As a practical matter, you are not going to play the video at the hearing unless it is helpful to your case or impeaches the officer’s testimony (but you won’t know that until after you watch the video).
Step Three – Completing the Pre-Hearing Statement and Subpoenas
Review the packet carefully. You should also compare any documents in the packet with any documents in the discovery. Then go through the packet to identify any witnesses that you want to testify at the hearing and list them on the pre-hearing statement.
You also need to prepare a subpoena for each witness either with or without a subpoena duces tecum. Read more about the subpoena duces tecum at the DUI BAR formal review hearing.
At least in the Tampa Bay area, if the hearing is being conducted in a county outside of the county where the arresting agency is located then the BAR will schedule a telephonic formal review hearing after the DUI arrest. [Post-Covid 19, all formal review hearings are being scheduled telephonically.]
In most cases, you will prepare a subpoena for each witness identified in the packet unless you have a really good reason not to subpoena that witness. [If the information in the packet is insufficient to uphold the suspension then you certainly don’t want to subpoena the witness who can fill in the missing information.]
Witnesses that can be issued a subpoena include:
- the officer that conducted the initial stop of the vehicle;
- the arresting officer;
- any backup officer listed in the reports;
- the breath test operator (in Hillsborough County, the breath test operator will be listed in the report as a witness to the refusal and can be issued a subpoena to the hearing even if it is an alleged refusal case);
- the agency inspector (in a breath test case);
- in a blood test case, subpoena any listed witness to the blood draw, the person withdrawing the blood and the crime laboratory analyst at the FDLE Toxicology Section (for FDLE you must include FDLE number, the submission number, and the agency number).
Rule 15A-6.012(1), FAC, allows a driver to request a subpoena/subpoena duces tecum to be issued by a hearing officer for officers, witnesses, and documents submitted pursuant to Section 322.2615(2), Florida Statutes.
These documents include probable cause/arrest affidavits, results from breath/blood tests or affidavits that these were requested and refused, field sobriety test descriptions, notice of suspension, and a copy of the crash report, if any.
Rule 15A-6.012(1)(b), FAC, requires that if a subpoena is requested, the driver must describe with particularity the material to be produced and its relevancy.
Rule 15A-6.012(1)(c), FAC, states that discovery subpoenas are not allowed.
Pursuant to 15A-6.012(1)(a), the driver is required to submit a typed HSMV Form 78066 containing the name and address of the witness whose attendance is requested.
Acceptable language for video requests in subpoenas:
“…any and all videos from body cameras and/or in car cameras recorded by the officer subpoenaed relating to the Petitioner on the date of (date of incident).”
Step Four – Obtain and Serve the Issued Subpoenas
Update: Post-Covid 19, you can email pre-hearing statement and proposed subpoenas to the Bureau of Administrative Review (BAR) and the hearing officer will issue the subpoenas by stamping and signing the subpoenas and emailing them back (usually the same day). Then have your process server go ahead and serve each subpoena.
After obtaining the issued subpoenas but before serving it on the witness you must serve the prosecutor assigned the case, or the State Attorney’s Office if a prosecutor is not assigned, with notice of the hearing and a copy of the issued subpoenas.
Under the rule, the notice and copies of the subpoena should be received by the State Attorney’s Office prior to the issued subpoenas being served on the witnesses.
To comply with this notice requirement, we have found a very quick and easy way to accomplish this task. We prepare a “Notice of Filing” in the criminal case that is instantly served electronically on the State Attorney’s Office via electronic service.
Then you can just print out the confirmation that the filing was received with a submission date and time.
The Notice of Filing just informs the prosecutor that the formal review hearing has been scheduled. You can attach a copy of each subpoenas to the Notice of Filing if you want, but it is not required.
Although I invite the prosecutor to attend each time and give them a copy of each subpoena, I’ve never had a prosecutor attend a formal review hearing in the past 10 years.
After notifying the State Attorney’s Office of the subpoenas, serve the subpoena on the witness and bring your proof of service to the hearing in case the witness fails to appear.
For non-telephonic hearings before COVID-19, we would also serve each witness with a $10.00 witness check. The officer is also entitled to be reimbursed for mileage, so we would bring a separate check to the hearing for that purpose.
For a subpoena duces tecum that requires the production of documents or video, serve it with a separate check for reasonable costs. You can make that check out to the agency.
If the witness fails to bring the items listed in the subpoena duces tecum, then move to continue the hearing so that you have time to file a motion to compel compliance with the subpoena in the courtroom where the criminal case is pending.
Or alternatively, if the officer claims to no longer to be in possession of the item and denies being the “custodian of the record,” then find out who is and request a subpoena duces tecum for that person.
Step Five – Attend the Hearing
The only thing left to do is attend the hearing. The most likely reason to win the hearing is because the arresting officer or breath test operator fails to appear.
If the arresting officer or the breath test technician fails to appear – then call the witness to testify. “At this time, I would call [name of witness] to testify.”
When the hearing officer puts on the record that the witness has failed to appear, then confirm with the hearing officer that the witness is either the arresting officer or the breath test operator. Then provide (via email) the hearing officer with proof that the subpoena was served and ask to have that document admitted into the record as “driver’s exhibit #1.” Be prepared to show proof that you paid the witness fee and notified the prosecutor of the subpoena if requested.
Then move to invalidate under Section 322.2615(11), Fla. Stat., which provides, in pertinent part:
… If the arresting officer or breath technician fails to appear pursuant to a subpoena as provided in subsection (6), the department shall invalidate the suspension.
Although the statute does not provide for any discretion for the hearing officer to determine whether the absent witness has “just cause” for the absence, the administrative rules contradict the statute.
The hearing officer will often ignore the plain language of the statute and rely on the administrative rule which provides:
15A-6.015 Failure to Appear.
…(2) …a properly subpoenaed witness who fails to appear at a scheduled hearing may submit to the hearing officer a written statement showing just cause for such failure to appear within two (2) days of the hearing.
(a) For the purpose of this rule, just cause shall mean extraordinary circumstances beyond the control of the driver, the driver’s attorney, or the witness which prevent that person from attending the hearing.
(b) If just cause is shown, the hearing shall be continued and notice given.
(c) No hearing shall be continued for a second failure to appear.
(d) Notification to the department of a witness’s non-appearance with just cause prior to the start of a scheduled formal review shall not be deemed a failure to appear.
So the driver should take the position that the plain language of the statute clearly requires invalidation regardless of any contradictory procedure “deemed” in the administrative rule.
The hearing officer will want you to waive that issue by telling you that you should ask for a continuance. Don’t do it. Instead, object that even under the hearing officer’s reading of the administrative rule, no “just cause” has been shown for the continuance and move to invalidate on that basis.
Then agree to attend any continued hearing. Renew the objection and request to invalidate on that basis at the end of the continued hearing.
Note on the record any other time the hearing officer violates the procedural rules and explain how that due process violation caused prejudice to your client and move to invalidate on that basis.
You can also motion to invalidate on the basis that the record contains insufficient evidence of one of the issues included in the scope of the review and explain why.
Step Six – Considering Filing a Writ of Certiorari
If you don’t win the hearing, but you should have won the hearing, then consider filing a writ of certiorari to the circuit court.
In addition to the attorney fees for the writ (we typically charge $2,500 in attorney fees), the client needs to pay for the transcript from the hearing and a $400 filing fee. The writ must be filed within 30 days of the date on the order.
Can you get the DHSMV to pay your attorney fees if you win the writ?
Maybe. To preserve the issue, within 7 days of the order, send the DHSMV a letter asking them to reverse course under the 21-day safe harbor provision of Florida Statute 57.105. Then strictly comply with the notice requirement in Florida Statute 57.105.
In this letter to the hearing officer, explain why the department’s position is not supported by the law or the facts and give the department twenty (21) days to correct the action before you file the writ. We sometimes get the hearing officer to reverse course after getting our request for reconsideration.
If not, winning the writ might be cheaper for the client than living with the administrative suspension on their driving record for the next 75 years. So make sure review those options with the client.
Let us know your tips for the formal review hearing. Add a comment below…
Read more about all of the benefits of requesting a formal review hearing after a Florida DUI.
Before the formal review hearing, be sure to read the following:
- Florida Statute Section 322.2615 – find the statutory rules for the administrative suspension and the right to a formal review hearing;
- Chapter 15A-6 Florida Administrative Rules – find the administrative rules for the hearings including the computation of time, notice of suspension/ disqualification, request for review, location of hearings, motions, prehearing order, subpoenas, and introduction of evidence; and
- Chapter 11D-8, Florida Administrative Code – for a breath or blood test, find the administrative rules for the implied consent program, including the rules for department and agency inspection, breath test operators and agency inspectors, and requirements to maintain a breath test instrument.
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