150 new laws are going into effect today in Florida, but one includes a change to Florida’s DUI suspension review that will have a major impact for drivers charged with DUI. Florida provides that all drivers who are arrested for DUI and refuse to take a breathalyzer, or who take a breathalyzer and blow over .08 receive an automatic suspension of their driver’s license. This suspension starts immediately (the arresting officer will actually take a driver’s license from him as he’s booked into jail) and is independent of the criminal case. Drivers can be found not guilty of DUI, but still lose their license for a year if they refuse to blow.
The new change to the law will leave those suspension intact, but will change how the suspensions go into effect. Starting today, drivers can avoid the “hard suspension” period of the suspension; which means they will be able to get a “hardship” license – a business or work purposes permit – right away if it is their first arrest. Drivers have always had the right to challenge the DUI suspension, but have been subject to the hard suspension period with no permit: 30 days for DUBAL (Driving with Unlawful Breath Alcohol Level) and 90 days for refusal. That’s three months with no permit or driving privilege whatsoever for refusing to take the breath (or blood or urine) test.
The new law allows drivers the possibility of waiving their right to challenge the validity of the suspension (for first time offenders). The will be able to get a permit right away, as long as their driving privilege is otherwise valid. This will be a huge relief for drivers who cannot afford to lose their driving privilege: for school, work, kids, medical necessity, or any other reason. It will discourage the first time offenders from challenging their suspensions, but as a DUI defense practitioner, I expect that the majority of drivers will forego their hearing to avoid the risk of completely losing their driving privilege.
I do not encourage drinking and driving, but this new law means that it will make sense for more people to refuse to take their breath test. You are better off on the criminal case with a refusal than a high blow – it is generally easier to justify a refusal to a jury than to fight the breathalyzer, although reliability issues abound with the machines. Now, even if you refuse on a first offense, you will be able to get a permit right away. That doesn’t go for second offenses, and a second refusal is a criminal act by itself in Florida, in addition to the DUI charge. Think before you drink and drive.
The law makes another big change for attorneys to know about, as it affects how subpoenas are going to work for Formal Review hearings. In the past, if the cop didn’t show up, the petitioner (driver) would have to file a petition in circuit court to enforce the subpoena: basically to sue the cop to make him show up. It’s complicated and expensive, and very prohibitive from getting being able to make a witness show up for a hearing. The law has been amended to allow petitioners to seek enforcement by filing a motion in the criminal court where their charges lie. It’s an elegant solution to a cumbersome problem.
Also, petitioners may now ask to invalidate the suspension if the arresting officer or breath technician fails to appear on their subpoena. The new law is written unclearly on this point, as in one place it says that the failure of a witness to appear is not grounds to invalidate the suspension. However, later on it specifically says that the failure of the arresting officer or breath tech is grounds to invalidate (which used to be the practice of DHSMV, until a few years ago). It appears the intent of the law is that other witnesses should not lead to invalidation for non-appearance, but that the arresting officer and breath tech should lead to invalidation. Hopefully, that is how DHSMV will interperet the law, as that appears to be the only reasonable intent of the legislature. There is no other reason for them to include the language allowing invalidation. Attorneys should definitely move for invalidation upon the non-appearance of arresting officers and breath techs.
Collectively, these statutory changes will greatly streamline the Refusal and DUBAL suspension and review process. There are benefits to both sides, as drivers can speed up getting permits, and the state should see wildly reduced numbers of formal and informal review hearings on suspensions. It remains to be seen what complications will arise, but the system will almost certainly flow more smoothly.
You can brush up on some of the new laws HERE. Here’s a snippet of the language from the bill:
MOTOR VEHICLES—RULES AND REGULATIONS, 2013 Fla. Sess. Law Serv. Ch. 2013-160 (C.S.C.S.H.B. 7125) (WEST)
(7) Notwithstanding the provisions of s. 322.2615(10)(a) and (b), a person who has never previously had a driver license suspended under s. 322.2615, has never been disqualified under section s. 322.64, has never been convicted of a violation of s. 316.193, and whose driving privilege is now suspended under section s. 322.2615 is eligible for a restricted driving privilege pursuant to a hearing under section (2).
(a) For purposes of this subsection, a previous conviction outside of this state for driving under the influence, driving while intoxicated, driving with an unlawful blood-alcohol level, or any other alcohol-related or drug-related traffic offense similar to the offense of driving under the influence as provided in s. 316.193 will be considered a previous conviction for a violation of s. 316.193, and a conviction for violation of former s. 316.028, former s. 316.1931, or former s. 860.01 is considered a conviction for a violation of s. 316.193.
(b) The reinstatement shall be restricted to business purposes only, as defined in this section, for the duration of the suspension imposed under s. 322.2615.
(c) Acceptance of the reinstated driving privilege as provided in this subsection is deemed a waiver of the right to formal and informal review under s. 322.2615. The waiver may not be used as evidence in any other proceeding.