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DUI Officer Misses Hearing – Driver Gets License Back

The arresting officer was properly subpoenaed and did not appear at, the formal review hearing

The arresting officer was properly subpoenaed and did not appear at, the formal review hearing

What Happens When The Arresting Officer Is Subpoenaed To Appear At A Driver’s License Suspension Hearing And Fails To Show?

A breath test administered after a DUI traffic stop and arrest indicated the driver’s blood alcohol level exceeded 0.08 percent. The driver requested a formal review of the license suspension at the Bureau of Administrative  Reviews. The arresting officer was properly subpoenaed and did not appear at, the formal review hearing.  

DUI License Suspension Case Summary

The driver got his license back. The arresting officer was properly subpoenaed for, but did not appear at, the formal review hearing conducted by the Department of Highway Safety (“the Department”). The controlling statutory provision is clear: “If the arresting officer . . . fails to appear [at the formal review hearing] pursuant to subpoena . . . the department shall invalidate the suspension.” § 322.2615(11), Fla. Stat. (2014). Under the circumstances of this case, we find that the circuit court, acting in its appellate capacity, applied the incorrect law when it affirmed the hearing officer’s order sustaining the suspension.  

The Court’s Ruling In A DUI Suspension Case

One court just ruledThe circuit court did not apply section 322.2615(11), and thus, it did not apply the correct law in reaching its decision (enforcing /  sustaining a DUI suspension). Accordingly, we grant the petition and quash (dismiss) the circuit court’s order affirming the hearing officer’s order sustaining the suspension. We . . .  direct that [thedriver’s] suspension be invalidated . . . “

COMPLETE TEXT OF OPINION

IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA FIFTH DISTRICT NOT FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND DISPOSITION THEREOF IF FILED

Case No. 5D15-769

JEFFREY M. OBJIO, 
Petitioner,
 
v. 
 
STATE OF FLORIDA, DEPARTMENT OF HIGHWAY SAFETY AND MOTOR VEHICLES,
Respondent.
________________________________/
Opinion filed November 20, 2015
 
EDWARDS, J.
 

    Through a petition for certiorari, Jeffrey Objio asks this court to consider whether the suspension of his driver’s license for driving under the influence of alcohol, must be invalidated where the arresting officer was properly subpoenaed for, but did not appear at, the formal review hearing conducted by the Department of Highway Safety (“the Department”). The controlling statutory provision is clear: “If the arresting officer . . . fails to appear [at the formal review hearing] pursuant to subpoena . . . the department shall invalidate the suspension.” § 322.2615(11), Fla. Stat. (2014). Under the circumstances of this case, we find that the circuit court, acting in its appellate capacity, applied the incorrect law when it affirmed the hearing officer’s order sustaining the suspension.1 Accordingly, we grant the petition and quash the circuit court’s order.

BACKGROUND FACTS

    Objio was stopped by Officer Dunn and ultimately arrested by Officer Fowler for driving under the influence of alcohol. A breath test administered by Ray Garcia revealed that Objio’s blood alcohol level exceeded 0.08 percent. Pursuant to section 322.2615, Florida Statutes (2014), Objio’s driver’s license was suspended, and he was issued a temporary business-only driving permit. In accordance with section 322.2615(6), Objio sought a formal review of the suspension. Subpoenas were issued and timely served on Dunn, Fowler, and Garcia. The subpoenas required them to attend the formal review hearing scheduled by the Department.  

    When Officer Fowler did not appear at the hearing, Objio moved for invalidation of the suspension pursuant to section 322.2615(11), which provides that “[i]f the arresting officer . . . fails to appear pursuant to a subpoena . . ., the department shall invalidate the suspension.” The hearing proceeded in part, during which time Objio’s counsel questioned Dunn and Garcia. Although the hearing officer stated that he would be willing to continue the case and would extend the duration of Objio’s temporary driving permit,  

1 This is not a situation where the formal hearing was continued based upon the arresting officer’s pre-hearing written request for a continuance.

    Objio’s counsel declined. Objio reiterated his position that section 322.2615(11) was absolute in its terms and required the hearing officer to invalidate the suspension. At this point, the hearing officer asked whether Objio would object to a continuance; when Objio’s counsel did not provide an immediate answer, the hearing officer said he would check back with him later. The hearing officer wanted time to consider this issue because section 322.2615(11) was recently revised, so he informed Objio’s counsel that they would reconvene by recorded telephone call to complete the argument and ruling on this specific issue.

    Several days later, as agreed, the hearing officer contacted Objio’s counsel by telephone and was informed that Objio was not going to request a continuance because section 322.2615(9) provides that a temporary driving “permit may not be issued to a person who sought and obtained a continuance of the hearing.” The hearing officer entered a written order that denied Objio’s request for invalidation of the suspension under section 322.2615(11); and sustained the license suspension.

    Objio appealed the hearing officer’s ruling to the circuit court by petition for certiorari. The circuit court noted that Fowler timely submitted a written request for continuance of Objio’s formal review hearing. However, no continuance was ever ordered by the hearing officer. A Department rule, that predates the revision of section 322.2615(11), provides that a properly subpoenaed witness who fails to appear at a scheduled hearing may submit a written statement showing just cause for the failure to appear within two days of the hearing. Fla. Admin. Code R. 15A-6.015 (2014). “[J]ust cause shall mean extraordinary circumstances beyond the control of . . . the witness which prevent that person from attending the hearing.” Id. The reason given for requesting the continuance was that Fowler would be on leave on the date of the hearing. The circuit court agreed with the Department that the arresting officer did not “[fail] to appear” at the hearing since he had sought a continuance, rather than simply not showing up. The circuit court reasoned that Fowler’s absence did not trigger the mandatory invalidation provision of section 322.2615(11) and found that Objio could not avoid the consequences of license suspension by refusing to accept the hearing officer’s initial offer of a continuance. The circuit court upheld the hearing officer’s order sustaining the suspension of Objio’s license and noted that there seemed to be a conflict between sections 322.2615(6) and (11). Objio timely petitioned for certiorari review by this court.

STANDARD OF REVIEW

    When a party seeks review of the circuit court’s ruling on an administrative action, the district court of appeal conducts what is known as “second-tier” review and must determine “[1] whether the circuit court afforded procedural due process and [2] applied the correct law.” Broward Cty. v. G.B.V. Int’l, Ltd., 787 So. 2d 838, 843 (Fla. 2001) (quoting City of Deerfield Beach v. Vaillant, 419 So. 2d 624, 626 (Fla. 1982)). Objio does not claim that he was denied procedural due process, so we only need to decide if the circuit court applied the correct law in reaching its decision.

APPLICABLE LAW

    The applicable law regarding the consequences of the failure of an arresting officer to appear at a review hearing is section 322.2615 (11). When it comes to a formal review hearing, section 322.2615 treats the non-attendance of subpoenaed arresting officers differently than the non-attendance of other subpoenaed witnesses. Section 322.2615(6)(c) provides that “failure of a subpoenaed witness to appear at the formal review hearing is not grounds to invalidate suspension.” (emphasis added). Even a driver’s failure to appear at his own hearing will be excused unless “the hearing officer finds such failure to be without just cause.” Id. § 322.2615(6)(b). However, in a situation such as this, where no continuance is ordered, section 322.2615(11) is absolute, mandatory, and quite clear when it states that “[i]f the arresting officer . . . fails to appear pursuant to a subpoena as provided in subsection (6), the department shall invalidate the suspension.” Id. (emphasis added). Because there is no ambiguity in the wording of subsection (11), there is no need to resort to any other source for explanation or definition, such as Florida Administrative Code Rule 15A-6.015, which was discussed above. Thus, when the arresting officer, Fowler, failed to appear at the hearing after being duly subpoenaed, the hearing officer was required, under section 322.2615(11), to invalidate the suspension of Objio’s driver’s license. 

    The circuit court did not apply section 322.2615(11), and thus, it did not apply the correct law in reaching its decision. Accordingly, we grant the petition and quash the circuit court’s order affirming the hearing officer’s order sustaining the suspension. We remand with instructions to the circuit court to grant Objio’s original petition for certiorari, reverse the hearing officer’s order, direct that Objio’s suspension be invalidated, and ordering the Department to revise its records relating to him accordingly.

PETITION GRANTED; ORDER QUASHED; REMANDED WITH INSTRUCTIONS. 

EVANDER and WALLIS, JJ., concur.

DUI News, Save My License

Request For Eligibility Review – Business Purposes Only – 813-222-2220

Business Purposes Only, Department Of Highway Safety And Motor Vehicles Bureau Of Administrative Reviews, Bureau Of Administrative Reviews, DUI Suspension, HSMV 72034, 322.271, 322.2615(1), 322.21(9)(a), Driving with an Unlawful Breath-Alcohol, DUBAL , Refusal to Submit to a Breath, Blood or Urine Test, Refusal, dui refusal,
Business Purposes Only, Request For Eligibility Review
DUI Request For Eligibility Review Business Purposes Only

Business Purposes Only Driver’s License


DUI Defendants have a confusing decision to make. The State Of Florida Department Of Highway Safety And Motor Vehicles Bureau Of Administrative Reviews now allows a Request For Eligibility Review. The program is limited and there are a few drawbacks.
Using this form (HSMV 72034) the DUI Suspension can be limited, but not avoided. Waiver of the suspension hearing results in the automatic entry on your permanent driving record. The entry will indicate an alcohol-related traffic suspension for either refusing to take a breath test or a breath test result over .08.
Nevertheless, you or your lawyers can request a review of your record for the purpose of reviewing and determining eligibility for immediate reinstatement of your driving privilege on a restricted basis as provided in section 322.2615(1)(b)3, Florida Statutes.
The driver must understand the restriction is for Business Purposes Only as defined in section 322.271, Florida Statutes and the driver must pay a $25.00 filing fee for this review,  pursuant to section 322.21(9)(a). The driver must also pay a reinstatement fee of around $200.00 to get the restricted license.

Length of License Suspension for DUI

The driver must understand that the restricted license will be for the duration of the suspension period imposed 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. A driver must also understand that acceptance of the reinstated driving privilege as provided in section 322.271(7) Florida Statutes, is deemed a waiver of my right to formal and informal review under section 322.2615, Florida  Statutes.

The Form, HSMV 72034 (0512013)  is available by email upon request from our office.

Expert Attorney WF Casey Ebsary Jr, Save My License

Florida DUI Hearings | Bureau of Administrative Reviews

The State Of Florida Department Of Highway Safety And Motor Vehicles

Bureau Of Administrative Reviews

Bureau of Administrative Reviews, DHSMV, fl dui administrative hearing, Florida DUI Hearings
Tampa DUI Bureau of Administrative Reviews Office 2814 E. Hillsborough Ave. 33610-4479

CAUTION: Special Option DUI Hearings for First Time DUI Cases

First, this DHSMV Bureau of Administrative Reviews Office in Tampa 4902 E 10th Ave Tampa, FL 33605 holds many DUI Hearings.

Detailed Information Request For Eligibility Review – Business Purposes Only

Now, DUI Defendants have another confusing decision to make. The State Of Florida Department Of Highway Safety And Motor Vehicles Bureau Of Administrative Reviews allows a Request For Eligibility Review. Furthermore, the program has a few drawbacks.
While requesting this a driver may stay on the road for business purposes only. As a result, selecting this strategy results in a DUI Suspension that cannot be avoided. Waiver of the suspension hearing results in the automatic entry on your permanent driving record. The entry will indicate an alcohol-related traffic suspension for either refusing to take a breath test or a breath test result over .08.
Using this form (HSMV 72034) the DUI Suspension can be limited, but not avoided. Waiver of the suspension hearing results in the automatic entry on your permanent driving record. The entry will indicate an alcohol-related traffic suspension for either refusing to take a breath test or a breath test result over .08.
Business Purposes Only, Department Of Highway Safety And Motor Vehicles Bureau Of Administrative Reviews, Bureau Of Administrative Reviews, DUI Suspension, HSMV 72034, 322.271, 322.2615(1), 322.21(9)(a), Driving with an Unlawful Breath-Alcohol, DUBAL , Refusal to Submit to a Breath, Blood or Urine Test, Refusal, dui refusal,
DUI Request For Eligibility Review Business Purposes Only
Nevertheless, you or your lawyers can request a review of your record for the purpose of reviewing and determining eligibility for immediate reinstatement of your driving privilege on a restricted basis as provided in section 322.2615(1)(b)3, Florida Statutes.

Business Purposes Only Restrictions

The driver must understand the restriction is for Business Purposes Only as defined in section 322.271, Florida Statutes and the driver must pay a $25.00 filing fee for this review,  pursuant to section 322.21(9)(a). The driver must also pay a reinstatement fee of around $200.00 to get the restricted license.
The driver must understand that the restricted license will be for the duration of the suspension period imposed under section 322.2615, Florida Statutes. First driving with an Unlawful Breath-Alcohol or Blood-Alcohol Level has 6 months suspension. Then Refusal to Submit to a Breath, Blood or Urine Test has 1-year suspension.
Reinstatement of the driving privilege uses statutory eligibility requirements. These include enrollment in DUI School. A driver must also understand that acceptance of the reinstated driving privilege as provided in section 322.271(7) Florida Statutes, is deemed a waiver of my right to formal and informal review under section 322.2615, Florida  Statutes.
The Form, HSMV 72034 (0512013)  is available by email upon request from our office.

Bureau of Administrative Reviews Office Locations

Tampa DUI Defense Attorney W.F. “Casey” Ebsary, Jr. provides the Bureau of Administrative Reviews office locations as a public service. It is also useful for those who need to fight a DUI over .08 or Refusal to Submit to a Chemical Test Suspension. Therefore, the Locations for DUI Hearings in Florida, held at the Bureau of Administrative Reviews DHSMV are listed below. The hearing is usually requested on a special form, with required documentation,  and a filing fee. Especially relevant, failure to make a proper request, within 10 days of a DUI arrest, results in a license suspension.
Before deciding to waive your right to challenge a suspension, carefully consider what a waiver of your rights means. Most noteworthy, we request and handle these hearings for our Driving Under the Influence clients.
33311-0000(954) 714-3552

Bureau of Administrative Reviews Office Locations

City Address Zip Code Phone Number
Clearwater 4585 – 140th Avenue, North, 1002 33762-0000 (727) 507-4405
Daytona Beach 995 Orange Avenue 32114-4663 (386) 254-3912
Ft. Myers 4048 Evans Avenue, #305 33901-0000 (239) 278-7421
Ft. Pierce 3223 S. Federal Highway, Suite #8 34982-8105 (772) 460-3660
Ft. Walton Beach 115-A Northwest Racetrack Road 32547-1644 (850) 833-9716
Gainesville 2815 NW 13th Street, Suite 302 32609-2861 (352) 955-2030
Jacksonville 7439 Wilson Blvd. 32210-3597 (904) 777-2132
Lauderdale Lakes 3708 W. Oakland Park Blvd.
Miami 2515 West Flagler Street 33135-1422 (305) 643-7569
Orlando 4101 Clacona Ocoee Road, Suite #152 32810-4221 (407) 445-5581
Palm Bay 2325 S. Babcock St., Suite B 32901-7121 (321) 984-4810
Panama City 237 West 15th Street – Lincoln Center 32401-0000 (850) 872-7747
Pensacola 7282 Plantation Road, Suite #406 32504-6331 (850) 494-5728
Tallahassee 504-A Capital Cr. S. E. 32301-3817 (850) 487-2788
Tampa 2814 E. Hillsborough Ave. 33610-4479 (813) 276-5795
West Palm Beach 1299 West Lantana Road 33462 (561) 540-1191
Winter Springs 290 East SR 434 32708-0000 (407) 327-6678
  Florida Hearing Office in Hillsborough County, Florida.

Map thumbnail for this location State of Florida: Driver Licenses Office 2814 East Hillsborough Avenue, Tampa, FL, United States

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Florida DUI Hearings | Bureau of Administrative Reviews | Locations

The State Of Florida Department Of Highway Safety And Motor Vehicles

Bureau Of Administrative Reviews

Bureau of Administrative Reviews, DHSMV, fl dui administrative hearing, Florida DUI Hearings
Tampa DUI Bureau of Administrative Reviews Office 2814 E. Hillsborough Ave. 33610-4479

CAUTION: Special Option for First Time DUI Cases

The State Of Florida Department Of Highway Safety And Motor Vehicles Bureau Of Administrative Reviews now allows a Request For Eligibility Review. The program waives the driver’s right to challenge the validity of a suspension and will result in a permanent entry of the driving record.. The driving privilege will be limited and there are a few other drawbacks.

With this option selected a driver may stay on the road for business purposes only. Selecting this strategy results in a DUI Suspension that cannot be avoided. Waiver of the suspension hearing results in the automatic entry on your permanent driving record. The entry will indicate an alcohol-related traffic suspension for either refusing to take a breath test or a breath test result over .08.

BREAKING NEWS October 2016

DHSMV Bureau of Administrative Reviews Office in Tampa 4902 E 10th Ave Tampa, FL 33605
DHSMV Bureau of Administrative Reviews Hearing Office Is Now Closed DHSMV Bureau of Administrative Reviews will reopen Wednesday, October 19 at their original location of 2814 East Hillsborough Avenue. 
 From a Well-Informed Local Source: “If you haven’t noticed, the Tampa Field Hearing Office for the Bureau of Administrative Reviews is now closed. They won’t reopen until Wednesday, October 19 at their original location at 2814 East Hillsborough Avenue.” “It would seem that the short-sightedness of the DHSMV is biting our clients in the rear again. We contacted the Pinellas Field Hearing Office, and it would seem that they had no backup plan to schedule hearings or issue temporary permits to Tampa DUI defendants. After being put on terminal hold for a half hour, my office was advised that the Pinellas Office would see our clients to issue temporary permits. They are not going to schedule appointments for Tampa, but at least we can get something for our clients to drive on.”

Detailed Information Request For Eligibility Review – Business Purposes Only

Tampa DUI Defense Attorney W.F. “Casey” Ebsary, Jr. provides the Bureau of Administrative Reviews office locations as a public service to those who need to fight a DUI over .08 or Refusal to Submit to a Chemical Test Suspension. The Locations for DUI Hearings in Florida, held at the Bureau of Administrative Reviews, Department of Highway Safety and Motor Vehicles (DHSMV) are listed below. The hearing is usually requested on a special form, with required documentation,  and a filing fee. Failure to make a proper request, within 10 days of a DUI arrest, results in a license suspension.
Before deciding to waive your right to challenge a suspension, carefully consider what a waiver of your rights means. We request and handle these hearings for our Driving Under the Influence clients. The Form, HSMV 72034 (0512013)  is available by email upon request from our office.

Bureau of Administrative Reviews Office Locations

   
City Address Zip Code Phone Number
Clearwater 4585 – 140th Avenue, North, 1002 33762-0000 (727) 507-4405
Daytona Beach 995 Orange Avenue 32114-4663 (386) 254-3912
Ft. Myers 4048 Evans Avenue, #305 33901-0000 (239) 278-7421
Ft. Pierce 3223 S. Federal Highway, Suite #8 34982-8105 (772) 460-3660
Ft. Walton Beach 115-A Northwest Racetrack Road 32547-1644 (850) 833-9716
Gainesville 2815 NW 13th Street, Suite 302 32609-2861 (352) 955-2030
Jacksonville 7439 Wilson Blvd. 32210-3597 (904) 777-2132
Lauderdale Lakes 3708 W. Oakland Park Blvd. 33311-0000 (954) 714-3552
Miami 2515 West Flagler Street 33135-1422 (305) 643-7569
Orlando 4101 Clacona Ocoee Road, Suite #152 32810-4221 (407) 445-5581
Palm Bay 2325 S. Babcock St., Suite B 32901-7121 (321) 984-4810
Panama City 237 West 15th Street – Lincoln Center 32401-0000 (850) 872-7747
Pensacola 7282 Plantation Road, Suite #406 32504-6331 (850) 494-5728
Tallahassee 504-A Capital Cr. S. E. 32301-3817 (850) 487-2788
Tampa 2814 E. Hillsborough Ave. 33610-4479 (813) 276-5795
West Palm Beach 1299 West Lantana Road 33462 (561) 540-1191
Winter Springs 290 East SR 434 32708-0000 (407) 327-6678
Administrative Hearing Location in Tampa | Florida | DUI Administrative Hearing W.F. Casey Ebsary, Jr. DUI Tampa Department of Highway Safety and Motor Vehicles Bureau of Administrative Reviews Florida Hearing Office in Hillsborough County, Florida.

Map thumbnail for this location State of Florida: Driver Licenses Office 2814 East Hillsborough Avenue, Tampa, FL, United States

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Florida DUI Business Purposes License News

Temporary Business Purposes License

Florida DUI Business Purposes License News
Business Permits
DUI Florida Attorney from Tampa and friend of the site, Lawyer Michael P. Maddux, www.madduxattorneys.com, just updated us on recent developments at the Department of Highway Safety and Motor Vehicles, Bureau of Administrative Reviews, DHSMV / BAR. Michael tells me that the policy of issuing Business Purposes License is changing. Now, a BPO will be valid through seven (7) working days after the hearing.
Also the DHSMV / BAR is implementing a new policy. This new policy regards the responsibility of the BAR supervisor and hearing officers concerning paperwork issues. The DHSMV / BAR has also asked their legal staff for a legal review of their policy. This review will concentrate on how to handle subpoenaed officers who do not show up for hearings.
So the legal staff has until the middle of September to respond regarding the failure to appear by law enforcement witnesses. Florida Association of Criminal Defense Lawyers is seeking to return the administrative formal review process to some semblance of fairness. We remain concerned about drivers’ rights to a fair hearing at the Department of Highway Safety and Motor Vehicles, Bureau of Administrative Reviews.