DUI Laws and Administrative Sanctions by Timothy Culhane: Administrative Laws

Administrative Suspension Law - s. 322.2615, F.S., s. 316.193, F.S., s. 316.1932, F.S.

• First Suspension for Driving With an Unlawful Alcohol Level (.08 or above): 6 months.

• Second or Subsequent Suspensions for Driving With an Unlawful Alcohol Level (.08 or above): 1 year.

• First Suspension for Refusal to Submit to Breath, Urine or Blood Test: 1 year.

• Second or Subsequent Suspensions for Refusal: 18 months.

• The suspension is effective immediately The officer will issue the driver a temporary permit, valid for 10 days from the date of arrest, provided the driver is otherwise eligible

www.hsmv.state.fl.us

Administrative Suspension of Persons Under the Age of 21 for Driving With an Alcohol Level .02 or Above

Section 322.2616, Florida Statutes, authorizes law enforcement officers having probable cause to believe that a motor vehicle is being driven by or is in the actual physical control of a person who is under the age of 21 while under the influence of alcoholic beverages or who has any alcohol level may lawfully detain this person and may request them to submit to a test to determine the alcohol level. This violation is neither a traffic infraction nor a criminal offense, nor does being detained under this statute constitute an arrest.

• First Suspension for Persons Under the Age of 21 With An Alcohol Level .02 or above: 6 months.
  
  
• Second or Subsequent Suspensions 1 year.

• First Suspension for Refusal to Submit to Breath Test: 1 year.
  
  
• Second or Subsequent Suspensions for Refusal: 18 months.
  
  
• The suspension is effective immediately. If the breath or blood alcohol level is .05 or higher the suspension shall remain in effect until completion of a substance abuse evaluation and course. The officer will issue the driver a temporary permit effective 12 hours after issuance which is valid for 10 days, provided the driver is otherwise eligible.

Issues for the DUI Formal Review Hearing

At the formal review hearing, the Florida DHSMV hearing officer will determine by a preponderance of the evidence presented whether sufficient cause exists to sustain, amend or invalidate the suspension of the driver's license pursuant to Florida Statutes Section 322.2615. The issues to be determined during the DUI formal review hearing when it is alleged that the driver blew over the limit are as follows:

1. Whether the DUI officer had probable cause to believe the individual was either driving or in actual physical control of the vehicle in the State of Florida while under the influence of alcoholic beverages or chemical or controlled substances.
2. Whether the individual had an unlawful blood-alcohol level or breath alcohol level of .08 or higher as provided in Florida Statute 316.193.

The issues to be determined during the DUI formal review hearing when it is alleged that the driver refused to submit to a breath or urine test are as follows:

1. Whether law enforcement had probable cause to believe the individual was driving or in actual physical control of a motor vehicle in the State of Florida while under the influence of alcohol or a controlled substance;
2. Whether the individual refused to submit to a urine or a test of his breath or blood alcohol level after being request to submit by a law enforcement officer; and
3. Whether the individual was told that if he refused a test that his privilege to operate a motor vehicle would be suspended for a period of one year, or in the case of a second or subsequent refusal, for a period of eighteen months.

Furthermore, a recent decision issued on November 21, 2008 found that the hearing officer must also address whether the refusal to submit to a breath test was incident to a lawful arrest. Hernandez v. Department of Highway Safety and Motor Vehicles, 995 So. 2d 1077(Fla. 1st DCA 2008).

Business or Employment Reinstatement:

1.Suspension for Driving With an Unlawful Alcohol Level of .08 or above or Refusal: Must show proof of enrollment in DUI school and apply for an administrative hearing for possible hardship reinstatement. For unlawful alcohol level must serve 30 days without driver license or permit prior to eligibility for hardship reinstatement. For first refusal must serve 90 days without driver license or permit prior to eligibility for hardship reinstatement. No hardship reinstatement for two or more refusals.

2. Suspension - Persons Under Age of 21 Driving With a Breath Alcohol Level of .02 or above: Must complete a Traffic Law and Substance Abuse Education course before hardship reinstatement.  .05 or higher, must complete DUI program prior to eligibility for hardship reinstatement. Must serve 30 days without driver license or permit prior to eligibility for hardship reinstatement.

Hardship License Prohibited:

1. Florida law prohibits any hardship reinstatement upon 2nd or subsequent suspension for test refusal or if driver has been convicted of (DUI) section 316.193, F.S., two or more times.

2. Persons disqualified from operating a commercial motor vehicle cannot obtain a hardship license to operate a commercial motor vehicle.

www.hsmv.state.fl.us

Administrative Disqualification Law

• First Disqualification for Driving a Commercial Motor Vehicle With an Unlawful Blood Alcohol Level (.04 or above): 1 year disqualification 
  
• driving a motor vehicle while he or she is under the influence of alcohol or a controlled substance: 1 year disqualification
• First Disqualification for Refusal to Submit to Breath, Urine or Blood Test Arising from the Operation of a Commercial Motor Vehicle: 1-year disqualification

• Second or Subsequent Disqualification for Refusal to Submit to Breath, Urine, or Blood Test Arising from the Operation of a Commercial Motor Vehicle: permanently disqualified.

• Second or Subsequent Disqualification of driving a motor vehicle while he or she is under the influence of alcohol or a controlled substance: Permanently disqualification

• The disqualification is effective immediately upon refusal of the breath, urine or blood test or determination that the driver has a blood alcohol level of .08 or above, while operating or in actual physical control of a commercial motor vehicle. The officer will issue the driver a temporary permit which is valid for 10 days from the date of arrest or disqualification, provided the driver is otherwise eligible. However, the permit does not authorize the operation of a commercial motor vehicle for the first 24 hours of disqualification.