To Waive or Not to Waive – Request for Eligibility Review after a DUI Arrest in Florida
Florida law recently changed the rules on formal review hearings after a DUI arrest. Just because you CAN waive your right to a formal review hearing does not mean you SHOULD waive your rights. I’m still telling my clients to let me file the demand for a formal review hearing (instead of forever waiving those important rights).
If the arresting officer of breath test operator fails to appear – then you will automatically win the hearing. Even if everyone appears, you might still win the hearing for another reason. A 30-day or 90-day hard suspension is a problem, but it pales in comparison to a 75-year notation on your driving record that you were administratively found to be DUI.
Additionally, if the refusal suspension is not invalidated, then a second accusation that you refused will result in a 18-month hard suspension and an additional criminal charge for a first-degree misdemeanor.
If you want to stipulate to the DUI suspension, then you must do the following to waive all your rights and obtain the immediate hardship driving privileges:
- report to the State of Florida Department of Highway Safety and Motor Vehicles (DHSMV) Bureau of Administrative Reviews (BAR) where the hearings;
- fill out the Request for Eligibility Reveiw Form;
- show proof that you enrolled in and paid for DUI school.
A copy of the new official form identified as “HSMV 72034 (05/2013)” is attached to this blog article below.
A hearing officer told me that the form must be signed in the presence of the hearing officer. The text of the form I was provided reads as follows:
STATE OF FLORIDA
DEPARTMENT OF HIGHWAY SAFETY AND MOTOR VEHICLES
BUREAU OF ADMINISTRATIVE REVIEWS
REQUEST FOR ELIGIBILITY REVIEW
Driver Name: _____________DL#:____________
I ______________________ hereby request a review of my record for the purpose of reviewing and determining my eligibility for immediate reinstatement of my driving privilege on a restricted basis as provided in section 322.2615(1)(b)3, Florida Statutes. I understand the restriction is for Business Purposes Only as defined in section 322.271, Florida Statutes and I must pay a $25.00 filing fee for this review, pursuant to section 322.21(9)(a).
I understand that the restricted license will be for the duration of the suspension period under section 322.2615, Florida Statutes, as follows:
__ Driving with an Unlawful Breath-Alcohol or Blood-Alcohol Level = 6 months suspension
__ Refusal to Submit to a Breath, Blood or Urine Test = 1 year suspension
Reinstatement of the driving privilege on a restricted basis as set forth herein is conditioned on statutory eligibility requirements, including but not limited to enrollment in DUI School.
WAIVER OF FORMAL AND/OR INFORMAL REVIEW
I also understand that acceptance of the reinstated driving privilege as provided in section 322.271(7)(c), Florida Statutes, is deemed a waiver of my right to formal and informal review under section 322.2615, Florida Statutes.
___________________ Date: ___________
Signature of Driver
___________________ Date: ___________
Witness Printed Name
HSMV 72034 (5/2013)
Click here to view the older form for Request for Eligibility Review after DUI Administrative Suspension
Update: The DHSMV recently updated the form in June of 2017 – the New HSMV 72034 (6/2017).
So what might happen when a person arrested for DUI shows up at the Bureau of Administrative Reviews DHSMV office in Tampa, Hillsborough County, FL? I have compiled a list of some of the hoops the person might have to jump through to get the Business Purpose Only license under the new immediate reinstatement provision.
- The person arrested for DUI must physically report to the Bureau of Administrative Reviews office within 10 calendar days of the arrest.
- The person must fill out the form and sign it in the presence of the hearing officer.
- The person must have a seat until called up for a hearing on the request for the review of eligibility.
- The person must pay the $25.00 filing fee for this review. Another reinstatement fee of $130 is due when you go to reinstate the license.
- If the person is deemed not eligible for immediate reinstatement because of a prior DUI or DUI related offense, then I have been told that the person has the option to withdraw the request for eligibility review and to demand a formal review hearing. At that point, the person would pay another $25, demand the formal review hearing in writing and request the 42-day driving permit.
I see nothing in the statute that allows or forbids the person from withdrawing the waiver after it is determined that the person is not eligible for immediate reinstatement.
Despite the fact this option is not spelled out in the statute, I have been told the hearing officer will accept the revocation only if it is done at “that moment” during the eligibility hearing. According to what the hearing officer told me if the person does not immediately request a formal review hearing in that moment, then the right to a formal review hearing is forever waived.
I was told by a different hearing officer a few weeks ago that after a determination of ineligibility the person still has the rest of the 10 day period to demand a formal review hearing.
[Update on Monday, October 19, 2015 – at least at the Bureau of Administrative Review in Tampa, they are now accepting a demand for a formal review hearing up until the person gets their license reinstated – so if the immediate reinstatement is denied there is no downside to requesting the formal review hearing and getting the 42 day driving permit within the first 10 days after the arrest].
The form says that the waiver occurs upon “acceptance of the reinstated driving privileges.” Since acceptance of the reinstatement driving privilege did not occur then an argument could be made that requesting a formal review hearing thereafter (but still within the 10 days) would be sufficient.
To be safe, I would not sign the waiver form unless you really want to waive the review hearing. If there is any question about eligibility the DUI attorney should attend the hearing with the client.
- If the person is deemed eligible, the person must pay another $25, show proof of enrollment in DUI school, and show proof that the person has paid for DUI school with the receipt of payment.
- The person must also be in compliance with the Florida Real ID Act. I was told you can look at your driver’s license and see if you are in compliance with the Real ID Act because if so you will have a yellow star in the upper right hand corner of your driver’s license. If not, you must provide various documents required that might include a valid passport, original or certified copy of your birth certificate, social security card and two documents that show your principal residence.
It seems to me that some of these procedures have changed slightly since the last time I spoke to a hearing officer about the new rules. It sounds like the hearing officers are making up some of these rules as they go along.
I’m telling my clients to stick with the formal review hearing even if they are eligible for immediate reinstatement. If you see problems with the new system, let us know below.
Read more about the new law in Florida for DUI administrative suspensions.
Leslie Sammis is a DUI attorney in Tampa, Hillsborough County, FL.
Submit this form to request a free and confidential consultation with one of our attorneys.