What to Expect at a Florida DMV Formal Review Hearing After a DUI Arrest

If you were arrested for DUI in Florida and your driver's license was administratively suspended, one of the first decisions you may face is whether to challenge that suspension through a Formal Review Hearing with the Florida Department of Highway Safety and Motor Vehicles (FLHSMV).

This proceeding is separate from your criminal DUI case.

In many cases, the Formal Review Hearing is one of the first opportunities your DUI attorney has to examine the government's evidence, identify weaknesses in the case, question witnesses under oath when appropriate, and potentially challenge the administrative suspension of your driver's license.

But there is a very short deadline to act.

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6 Steps of a Formal Review Hearing in Florida

If you've been arrested for DUI in Florida, understanding the six steps of a Formal Review Hearing can help you protect your driving privileges and challenge your license suspension.

Step 1: The 10-Day Rule After a Florida DUI Arrest

Under Florida law, you generally have only 10 days after receiving notice of the administrative suspension to request review of the suspension.

For many drivers arrested for DUI, the DUI citation itself serves as notice of the suspension.

That means this is not something you should put off until your first court date.

Your criminal court case and your driver's license suspension are two different proceedings. Your first criminal court date may occur well after the deadline to address the administrative suspension.

A Formal Review Hearing may be available when your license was suspended because:

• You allegedly had a breath or blood alcohol level of .08 or higher; or

• You allegedly refused to submit to a lawful breath, blood, or urine test.

The precise issues considered by the hearing officer depend upon the basis for the suspension.

Important: Florida law also provides circumstances in which certain drivers may waive review and seek restricted driving privileges instead. Whether requesting a Formal Review Hearing or pursuing another option makes sense should be evaluated based upon the individual case.

Step 2: Request the Formal Review Hearing

If we decide to challenge the suspension, the next step is requesting a Formal Review Hearing with FLHSMV.

This is important for two reasons.

First, we are attempting to invalidate the administrative suspension.

Second, the hearing gives us an early opportunity to examine evidence relating to the DUI investigation.

Under Florida's administrative review procedure, the Formal Review Hearing is generally required to be scheduled within 30 days after the department receives a timely request.

Depending upon the driver's eligibility and circumstances, a temporary driving permit may also be available while the challenge is pending.

Step 3: Get the DMV Packet

Once we have requested the hearing, one of the next things our office wants is the DMV packet.

We contact the appropriate Bureau of Administrative Reviews office and request a copy of the documents submitted to the Department.

This packet can contain important evidence from the DUI investigation, including items such as:

• DUI citations;

• Arrest reports and probable cause affidavits;

• Breath test documentation;

• Refusal documentation;

• Implied consent warnings;

• Officer reports;

• Witness statements; and

• Other documents submitted to support the suspension.

One of the first things we want to know is simple:

Does the paperwork actually establish everything necessary to sustain the suspension?

We are also looking for inconsistencies, omissions, timing problems, conflicting statements, or other issues that could become important both at the Formal Review Hearing and later in the criminal case.

Step 4: Decide Whether Witnesses Should Be Subpoenaed

A Formal Review Hearing gives the defense subpoena power.

That can be extremely valuable.

Depending upon the facts of the case, we may consider subpoenaing:

• The officer who made the traffic stop;

• The arresting officer;

• The breath test operator;

• A civilian witness;

• A crash investigator; or

• Another person whose testimony relates to an important issue in the suspension.

But subpoenaing every officer is not automatically the right strategy.

There needs to be a reason.

For example, if the documents reveal a potential problem concerning the initial stop, probable cause, implied consent warning, refusal, or testing procedure, questioning a witness under oath may help develop that issue.

It may also create sworn testimony very early in the DUI case.

That testimony can potentially become important later if the witness gives a different account during a deposition, motion hearing, or trial.

At the same time, putting a witness on the stand can sometimes allow that witness to explain an ambiguity or fill a hole that exists in the written documents.

That is why the decision to issue subpoenas should be strategic rather than automatic.

Step 5: Prepare for the Hearing

A Formal Review Hearing is not the same thing as your DUI criminal case.

There is no jury.

A judge does not preside over it.

Instead, the hearing is conducted before a FLHSMV hearing officer.

The hearing officer's job is to determine whether the administrative suspension should be sustained or invalidated based upon the statutory issues that apply to the case.

Before the hearing, we want to know:

1. What evidence has been submitted?

2. What elements must the Department establish?

3. Is anything missing?

4. Are there legal objections to the evidence?

5. Do we want testimony from any witnesses?

6. Is there additional evidence we want to introduce?

7. What legal arguments or motions should be made?

This is why simply requesting the hearing is only the beginning. Preparation matters.

Step 6: What Happens During the Formal Review Hearing?

Although individual hearings can vary, the general process typically looks something like this.

The DMV's Documents Are Addressed

The hearing officer will identify and consider the documents submitted to the Department and address their admission into the administrative record.

The defense may raise appropriate legal objections or arguments concerning those documents.

This is significant because the Department's case frequently depends heavily upon the written materials submitted by law enforcement.

Witness Testimony

If witnesses have been subpoenaed and appear, they can be called and questioned.

This is where a Formal Review Hearing can become particularly valuable from a defense perspective.

An officer may be questioned about subjects such as:

• Why the vehicle was stopped;

• What the officer allegedly observed;

• When the DUI investigation began;

• What instructions were given;

• Field sobriety exercises;

• Statements allegedly made by the driver;

• Implied consent;

• A breath test or refusal; and

• The sequence and timing of events.

The driver does not automatically have to testify simply because a Formal Review Hearing has been requested. Whether a client should testify is a strategic decision that should be carefully considered with counsel because the criminal DUI case is still pending.

Defense Evidence

The defense can then present appropriate evidence relevant to the administrative suspension.

That could include documents, testimony, video evidence, or other admissible evidence depending upon the circumstances of the case.

Legal Motions and Arguments

After the evidence has been presented, the defense can make the appropriate legal motions and arguments.

The exact argument depends upon the case.

A refusal case, for example, may present different issues than a case involving an alleged breath alcohol concentration of .08 or higher.

The important point is that the hearing is not simply an opportunity to tell the DMV that you need your driver's license.

It is a legal challenge to whether the administrative suspension is valid.

Closing Argument

At the conclusion of the evidence, the attorney can explain why the evidence and applicable law require the suspension to be invalidated.

This is where the evidence, testimony, statutory requirements, and any deficiencies in the government's case are brought together.

What Is the Hearing Officer Deciding?

The scope of a Formal Review Hearing is limited by Florida law.

For an unlawful alcohol level suspension, the issues generally concern whether there was probable cause to believe the driver was operating or in actual physical control of a motor vehicle while under the influence and whether the driver had an unlawful alcohol level.

For a refusal suspension, additional issues include whether the person refused an applicable test after being requested to submit and whether the person was appropriately advised of the consequences of refusing when required.

The hearing is therefore not a complete trial of the criminal DUI charge.

It is an administrative proceeding focused on the driver's license suspension.

When Will I Find Out Whether I Won?

Do not necessarily expect the hearing officer to announce a decision immediately.

Under Florida's administrative review process, a written decision is generally issued within seven working days after the hearing.

The suspension will either be sustained or invalidated.

If it is invalidated, the administrative suspension is removed. That does not mean the criminal DUI charge has automatically been dismissed.

Likewise, losing the Formal Review Hearing does not mean you have been convicted of DUI.

They are separate proceedings.

Why Can the Formal Review Hearing Matter to the Criminal DUI Case?

This is one of the most overlooked aspects of the process.

The obvious purpose of the hearing is to challenge your driver's license suspension.

But a properly prepared Formal Review Hearing may do something else: give your attorney an early look at the DUI case.

We may obtain reports and records, identify missing evidence, question witnesses under oath, identify inconsistencies, and learn how an officer will explain certain aspects of the investigation.

For a professional, executive, licensed professional, or anyone whose ability to drive affects their livelihood, the license issue itself can be extremely important.

But the information developed at the hearing may also help us begin building the defense to the criminal case.

Should Everyone Request a Formal Review Hearing?

Not necessarily.

There can be circumstances where waiving the Formal Review Hearing and pursuing available restricted driving privileges may be preferable.

There can also be cases where challenging the suspension provides significant strategic value.

That decision should be based upon the facts of your case, your driving history, the basis for the suspension, your need to drive, and the potential defenses revealed by the evidence.

What you should not do is ignore the issue.

Ten days goes by very quickly.

Arrested for DUI in Palm Beach County? The First 10 Days Matter.

If you were arrested for DUI in West Palm Beach, Palm Beach Gardens, Jupiter, Boca Raton, or elsewhere in Palm Beach County, the criminal case is only one part of what you are facing.

Your driver's license may already be subject to a separate administrative suspension, and the deadline to challenge it may arrive before your first court appearance.

At The Law Office of Matthew Konecky, P.A., we examine both sides of a DUI case: the criminal prosecution and the administrative driver's license proceeding.

If you have recently been arrested for DUI in Palm Beach Gardens or West Palm Beach, contact DUI attorney Matthew Konecky as soon as possible so we can review the citation, determine the applicable deadline, and discuss whether a Formal Review Hearing should be part of your defense strategy.