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A person's license to drive is suspended for 10 days upon being arrested for a DUI, and blows a .08 or higher, or willfully refuses to take a breath or urine test The suspect's driver license is suspended on the spot and the suspect is issued a citation for the DUI charge which typically will act as a 10 day driving permit

The State is obligated to provide the defendant an chance to contest the legality of his or her driver license suspension in order to comply with due process. Within Ten days after being arrested, the defendant may submit a written request to the DHSMV for either a formal or informal administrative review of the license suspension. The DHSMV issues the defendant a temporary driving permit while the case is awaiting review. If the defendant desires a formal administrative review, the defendant is entitled to have subpoenas issued for witnesses & to present evidence at the administrative hearing. IfIn the event that the defendant chooses to have an informal review, there will be no hearing and no evidence will be presented. The hearing officer will make the decision based upon the documents provided by law enforcement.

In cases where defendant doesn't agree with the administrative hearing officer's ruling, there's an opportunity to appeal. The circuit court serves as an appellate court over administrative hearings carried out by the DHSMV. The defendant must file a Petition for Writ of Certiorari in the appropriate circuit court inside of 30 days after the DHSMV issues its order. The appeal to the circuit court can be described as a request for a discretionary review. Having said that, submitting the appeal won't stay the driver license suspension. As evident inthe Garcia caseset forth below, there's a lot of issues which might be raised on appeal. The circuit court has the discretion to sustain or reverse the order from the DHSMV hearing officer.

In Garcia vs. DHSMV, the circuit court, acting in an appellate capacity, denied defendant's petition for writ of certiorari concerning a DHSMV hearing on a driver license suspension.. The court ruled that certiorari relief was not warranted based on an assumption that the administrative hearing officer who heard this case used revised prehearing forms that required the defendant to specify his disputed issues of law & fact as well as to summarize testimony expected from the witnesses, as the defendant hadn't shown that using these specific forms caused material injury.. The appellate court determined that the DHSMV administrative hearing officer remained impartial even though the defendant was able to establish the fact that the hearing officer relied upon a memo from his supervisor saying that administrative hearing officers weren't legally required to make a determination as to the legality of the arrest in a DUI matter. Lastly, the circuit court determined the defendant's due process rights were not violated by the trooper's failure to show up at his hearing when the the defendant didn't seek enforcement of a subpoena, & the trooper's lack of availability wasn't due to the administrative hearing officer's actions.

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Fort Lauderdale, FL 33301

(954)990-0525