Hearsay in a Formal Review Hearing

Is hearsay admissible at a formal review hearing to contest the suspension of driving privileges or a driver’s license after a DUI arrest? The short answer is “Yes.”

In Florida, the statutory and administrative provisions governing formal review hearings allow the hearing officer to consider hearsay. For this reason, if the hearsay contained in the packet submitted by the arresting officer is sufficient to support the suspension, then the criminal defense attorney should subpoena any witnesses named in those documents.

The Florida Legislature has made it clear that Florida’s Administrative Procedure Act (Chapter 120) is inapplicable to the formal review of a driver’s license suspension after a DUI arrest.

Instead, the applicable procedures are outlined in section 322.2615 and in the administrative regulations adopted by the Department in Chapter 15A–6.013 of the Florida Administrative Code.

Pursuant to those provisions, a formal review may be conducted without any witnesses at all, and a hearing officer’s decision may be based solely upon the documents submitted by the arresting agency. See § 322.2615(11), Fla. Stat.

The documents submitted by the arresting agency are admitted into evidence for the hearing officer’s consideration without any further requirement of authenticity. See Ch. 15A–6.013(2), Fla. Admin. Code.

In Florida, the statute and administrative regulation do not prohibit the admission of hearsay evidence. Likewise, these provisions do not require non-hearsay evidence to corroborate any hearsay evidence admitted at the hearing.

These rules are different than the rules that generally govern administrative hearings under Chapter 120, Florida Statutes. For instance, Section 120.57(1)(c), Florida Statutes, provides:

Hearsay evidence may be used for the purpose of supplementing or explaining other evidence, but it shall not be sufficient in itself to support a finding unless it would be admissible over objection in civil actions.

What Happens at the DHSMV Formal Review Hearing?

At the formal review hearing at the DHSMV, the hearing officer will admit into evidence any documents submitted by any law enforcement officer or agency including:

• the DUI citation;
• the notice of the suspension or disqualification (usually contained within the DUI citation);
• the police report completed by the arresting officer;
• any supplemental reports completed by the stopping officer or any backup officers (if any);
• the refusal affidavit;
• the 20 minutes observation form;
• the crash report (if any);
• the breath, blood, or urine result; and
• any agency inspection of the breathalyzer used in the case.

These documents are often admitted into evidence at the administrative suspension hearing after being submitted by the arresting officer or his agency pursuant to section 322.2615(2) and (11), and Chapter 15A–6.013(2). In these hearings, the arrest affidavit and its contents are admissible evidence in a formal review hearing conducted pursuant to section 322.2615 and Chapter 15A–6.013.

The Florida Legislature expressly provided that a formal hearing to review a license suspension under section 322.2615 is not subject to the provisions of Chapter 120. For example, § 322.2615(12), Fla. Statute, provides:

“[t]he formal review hearing and the informal review hearing are exempt from the provisions of chapter 120. The department [of Highway Safety and Motor Vehicles] may adopt rules for the conduct of reviews under this section.”

In adopting rules for the conduct of reviews, the Department of Highway Safety and Motor Vehicle (DHSMV) did not prohibit the admission or consideration of hearsay evidence. Likewise, the Department did not require that hearsay evidence be corroborated by non-hearsay evidence.

For this reason, the normal hearsay rules that apply in Chapter 120, do not apply to the formal review process under section 322.2615. The specific and relevant provisions are found in Section 322.2615, Florida Statutes, and Florida Administrative Code Chapter 15A–6.013.

Florida Statute Section 322.2615

Section 322.2615 provides in pertinent part:

(6)(a) If the person whose license was suspended requests a formal review, the department must schedule a hearing to be held within 30 days after such request is received by the department and must notify the person of the date, time, and place of the hearing.

(b) Such formal review hearing shall be held before a hearing officer employed 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 in subsection (2), regulate the course and conduct of the hearing, question witnesses, and make a ruling on the suspension.

The party requesting the presence of a witness shall be responsible for the payment of any witness fees and for notifying in writing the state attorney’s office in the appropriate circuit of the issuance of the subpoena. If the person who requests a formal review hearing fails to appear and the hearing officer finds such failure to be without just cause, the right to a formal hearing is waived and the suspension shall be sustained.

(c) A party may seek enforcement of a subpoena under paragraph (b) by filing a petition for enforcement in the circuit court of the judicial circuit in which the person failing to comply with the subpoena resides. A failure to comply with an order of the court shall result in a finding of contempt of court. However, *1006 a person is not in contempt while a subpoena is being challenged.

….

(11) The formal review hearing may be conducted upon a review of the reports of a law enforcement officer or a correctional officer, including documents relating to the administration of a breath test or blood test or the refusal to take either test or the refusal to take a urine test.

However, as provided in subsection (6), the driver may subpoena the officer or any person who administered or analyzed a breath or blood test.

(12) The formal review hearing and the informal review hearing are exempt from the provisions of chapter 120. The department may adopt rules for the conduct of reviews under this section.

The statutory authorization for considering hearsay during a formal review hearing is provided in subsection (12) above. In response to that statutory provision, the Department of Highway Safety and Motor Vehicles (DHSMV) adopted Florida Administrative Code, Chapter 15A–6.013, which establishes the procedures to be followed at a formal review hearing.

Florida Administrative Code, Chapter 15A–6.013

In pertinent part, the Florida Administrative Code, Chapter 15A–6.013 provides:

(2) The hearing officer may consider any report or photocopies of such report submitted by a law enforcement officer, correctional officer, or law enforcement or correctional agency relating to the suspension of the driver, the administration or analysis of a breath or blood test, the maintenance of a breath testing instrument, or a refusal to submit to a breath, blood, or urine test, which has been filed prior to or at the review. Any such reports submitted to the hearing officer shall be in the record for consideration by the hearing officer. No extrinsic evidence of authenticity as a condition precedent to admissibility is required.

(3) To be considered as evidence, any relevant document which is not self-authenticating as provided by subsection (2) may be introduced into evidence at the formal review if it has been properly authenticated by a witness or under a statute permitting its introduction by another method of authentication.

(4) Oral evidence shall be taken only on oath or affirmation.

(5) The driver shall have the right to present evidence relevant to the issues, to cross-examine opposing witnesses, to impeach any witness, and to rebut the evidence presented against the driver.

(6) Any relevant evidence shall be admitted, provided that it is timely filed as provided in this rule. Relevant evidence is defined as evidence which tends to prove or disprove a material fact.

(7) The hearing officer shall determine whether the suspension or disqualification is supported by a preponderance of the evidence

(a) The scope of the review shall be limited to the issues delineated in Section 322.2615(7), 322.2616(8) or 322.64(7), F.S.

(b) The hearing officer shall restrict the course of the hearing and the evidence to the issues of fact and law raised in the notice of hearing or in any prehearing statement filed by the driver in response to the prehearing order issued pursuant to Rule 15A–6.011, F.A.C.

(c) The hearing officer is the sole decision maker as to the weight, relevance, and credibility of any evidence presented.

(8) The testimony of any witness shall be under oath.

(9) The hearing officer may question any witness.