Officer Not Required to Be Present at Florida Driver’s License Suspension Hearing – Dept. of Highway Safety and Motor Vehicles v. Canalejo

Most drivers are aware that their licenses are subject to suspension as the result of a DUI, but they may not be aware of the process that occurs and the procedural requirements. Under Florida law, a police officer can immediately suspend the driver’s license of a person with a blood-alcohol level or breath-alcohol level of 0.08 or higher, or of a person who refuses to take a urine, blood-alcohol, or breath-alcohol test. The officer confiscates the driver’s license and issues a 10-day temporary permit if the person is otherwise eligible to drive. A suspension for the refusal of a test is one year for the first refusal and 18 months if the driver’s privileges had previously been suspended for a refusal. A suspension for an alcohol level of 0.08 or greater is six months for the first offense and one year if the license has previously been suspended. The driver may request a formal or informal review by the Department of Highway Safety and Motor Vehicles within 10 days of the issue of notice of suspension.

What are the requirements for the administrative hearing? The Third District recently considered whether the police officer has to appear in person and whether the Department must authenticate a video of the driver in a recent case. In Dept. of Highway Safety and Motor Vehicles v. Canalejo, the driver requested a formal administrative review after his license was suspended for a DUI. The driver’s attorney tried to issue subpoenas for the officers who arrested him, but the Department issued modified subpoenas for telephone appearances instead. At the hearing, the driver tried to submit a video of the 20-minute waiting period after his arrest, but he claimed he could not authenticate the video without an officer present. He rejected an offer to continue the hearing. The hearing officer upheld the decision.

The driver then filed a petition for a writ of certiorari to quash the hearing officer’s decision. The circuit court found that the Department had not complied with due process because it refused to issue a subpoena for personal attendance when the officer’s presence was required to authenticate the video. The circuit court remanded.

Neither party issued subpoenas for the new hearing. The officer appeared, but technical difficulties prevented her from viewing the video. The hearing officer upheld the suspension again. The driver filed for certiorari, arguing the Department had failed to correct its violation of due process by not issuing a subpoena for the officer to appear at the hearing. The circuit court ultimately granted the petition and reversed the suspension. The Department then petitioned for a writ of certiorari to quash the circuit court’s order.

The district court found that the Department was not required to authenticate the video. Furthermore, the driver could have authenticated the video without the officer, pursuant to the administrative rules and statutes.

Additionally, the Third and other Districts have previously held that a driver does not have the right to require an in-person appearance by the officer in a hearing regarding a driver’s license suspension. The Third District found that the circuit court had applied the wrong law in rendering its decision and quashed the circuit court’s decision.

Driving privileges are extremely important and can affect a person’s ability to maintain gainful employment. While due process does apply, courts have limited a driver’s rights in the administrative hearing, as this case shows. If you are facing charges of a DUI or other driving offense, an experienced South Florida DUI defense attorney can help you fight for your driving privileges. Call Anidjar & Levine at (800) 747-3733, or submit an online contact form.

Related Blog Posts:

Court Says Florida Can Revoke State Driving Privileges of Non-Resident – Silha v. Department of Highway Safety and Motor Vehicles

Court Clarifies Law on Refusal to Take an Breath Test in Florida DUI Case – Arenas v. Department of Highway Safety and Motor Vehicles