The most common phrase used by my clients who were arrested for driving
under the influence is how overwhelmed they are. Not simply overwhelmed
at the prospect of being charged with a crime and having no idea how to
handle it. But more specifically, overwhelmed at the prospect of losing
their driver’s license and not being able to get to work. The following
should provide a solid understanding of what to expect as it relates to
the suspension process resulting from a DUI arrest.
The officer told me I have ten days. What does that mean? First, presuming
a person held a valid license prior to the arrest for
DUI, they can drive for 10 days with the DUI citation. In addition, those
ten days are for unlimited purposes. Meaning, there are no driving restrictions
during the ten day period. However, at the conclusion of the 10 day period
after an arrest for
DUI in miami, most people will face an administrative suspension of their driving privileges.
It is important to understand the difference between the administrative
process as opposed to the criminal process which takes place in court.
The administrative suspension occurs well before a person appears in court.
It happens simply by virtue of the fact that they either had a breath
or blood alcohol level in excess of a .08, or they refused to submit to
a breath, blood or urine test. If the person blew in excess of a .08,
the suspension is for a period of six (6) months for a first suspension
or twelve (12) months if the person had a prior administrative
DUI suspension. On the other hand, if an individual refuses to submit to a breath, blood
or urine test the suspension is for a period of 1 year for a first refusal
or 18 months if the person has refused to submit to testing in the past.
If an individual took a breath or blood test and the level was under a
.08 there is no administrative suspension. There is never an administrative
suspension if an individual takes a urine test regardless of the results.
From the date of the arrest, a person has 10 days to challenge the administrative
suspension. This is accomplished by filing an application for a formal
review hearing with the DMV. The formal review hearing is a person’s
due process right to fight the suspension. The hearing takes place at the
DMV rather than court. In addition, there is no Judge. Rather, a
Department Highway Safety Motor Vehicles hearing officer presides over the formal review hearing. Once the application
is filed with the Department of Motor Vehicles, a hearing will be set
within a period of 30 days. In addition, the defendant will receive a
permit to drive for a period of 42 days. It is important to note that
the permit is restricted to nonrecreational driving. During this
period of time, the attorney representing the defendant will request a
copy of all the documents that were provided by the police which allegedly
support the suspension. Subsequently, the DUI attorney must determine
whether to subpoena witnesses. If the DUI lawyer believes that the documents
do not legally support a suspension, than he/she will not request any
subpoenas. This means that rather than questioning the witnesses, the
miami DUI lawyer is going to make legal argument explaining why the license
should not be suspended. On the other hand, if the lawyer believes that
the documents do in fact support a suspension, witnesses will be called
in to testify. At the conclusion of the hearing, the DMV will render a
verdict within 7 business days. If successful, the driving privileges
are reinstated. Otherwise, the suspension remains. Additionally, the defendant
is not eligible for a hardship for (1) 30 days if they provided a breath/blood
test in excess of a .08, (2) 90 days if they refused testing, (3) 18 months
if they refused and had a prior suspension for refusing to submit to testing.
If the individual does not have a prior suspension for DUI and has never
been previously convicted of a DUI there is an alternative to the above
procedure. As of 2013, Florida law provides that a person may apply for
a hardship within the first 10 days of arrest and waive the formal review
hearing. As a result, the defendant must be prepared to swear under oath
that the above facts are true and correct. In addition, the individual
must sign up for DUI school with the promise to complete it within 90
days. It should be noted that the completion of DUI school cannot be used
against the defendant in the criminal charge. Ultimately, the defendant
will receive a hardship permit and guarantee that they will be able to
drive uninterrupted for the entirety of the suspension. Many of my clients
hold a commercial driver’s license. Since the hardship does not
provide a person with the opportunity to drive for CDL purposes, the individual
must apply for the formal review hearing if they want to keep driving
with the commercial driver’s license. In deciding whether to apply
for the formal review hearing or apply for the hardship, the answer is
consult with a
Miami DUI lawyer. In many case, the
Miami DUI attorney can give you a better perspective relating to your chances at a formal
review hearing. If you have any questions, feel free to call
Parks & Braxton, P.A. at (305) 655-2900.