You have 10 Days to Save Your Florida Driver’s License After a DUI Arrest
PBSO vehicle
If you have just been arrested for your first DUI, you have a lot to consider during this already stressful time. You must decide in the next 10 days how to protect your driver's license. These options can be confusing, so do not hesitate to contact me for a free consultation to go over your options. I will do my best to make them easy to understand in this post.
10 Days to Save Your Florida Driver's License After DUI Arrest
You have 10 days after a Florida DUI arrest to contest the suspension of your Florida driver's license. Upon arrest for DUI in Florida, a person's driver's license is immediately suspended. Fla. Stat. § 322.2615(1)(a). The DUI citation itself acts as a 10-day driver license that expires on midnight of the 10th day. Driving for those 10 days is legal, but you need to have the DUI citation with you, in case you are stopped by an officer. After the 10 days are up, you cannot drive, unless you take some additional action.
Choices After Your DUI Arrest
If this is your first DUI arrest, you have two main choices: either (1) give up your right to contest the suspension of your driver's license and apply for a restricted driver's license or (2) request a review hearing to challenge the suspension of your driver's license (which comes with a temporary driving permit pending the hearing).
What is a Hardship Driver's License in Florida?
You may apply to continue driving on a restricted basis while you fight your DUI case, if it is your first DUI. You must apply for a driver's license for business purposes only. This is commonly referred to as a "hardship license." A hardship license allows "any driving necessary to maintain livelihood, including driving to and from work, necessary on-the-job driving, driving for educational purposes, and driving for church and for medical purposes." (Fla. Stat. 322.271 (1)(c)(1)).
Commercial truck on the road
Important for CDL drivers:
there is no hardship driver's license for the commercial driver's license after a DUI arrest, so if you have a CDL and you apply for a hardship license after your DUI arrest, then you will only get a regular Class E hardship license, not a CDL license pending the resolution of your DUI case.
Waiving the Review Hearing and Applying for a Hardship Driver's License
To apply for a restricted business-purposes-only driver's license, also known as a "hardship driver's license," you need to complete the Request for Eligibility Review form. It is Form 72034 and can be found here. You also need to submit payment for the $25 application fee and provide a certificate of enrollment in DUI school. These items must all be emailed.
Drivers who do not qualify for the hardship driver's license might as well have a formal administrative review hearing. A driver with their second DUI arrest is a good candidate to have a formal review hearing for this reason. I explain more about formal review hearings below.
Pros and Cons of Applying for a Hardship Driver's License (Waiving Formal Review)
Pros:
(Almost) Immediate driving privileges: You can drive while you fight your DUI case if you are granted the hardship license. There is no 42-day driving permit to cover your pending the hardship hearing, like there is for the formal review hearing wait period, but the Bureau says they try to get the hardship applications heard within 30 days.
No risk of "hard time" suspension: You do not have to risk serving the "hard time" suspension required before applying for a hardship driver's license (this is 30 days for a breath reading of over .08 and 90 days for a breath refusal).
Cons:
Wait time to get a hardship hearing: there is no time limit for the Bureau of Administrative Review to schedule your hearing or respond to your application. Their goal is review each case within 30 days, but this is the same as a 30-day "hard time" suspension for a breath reading over .08—except without the benefits of challenging the suspension.
DUI School: You have to enroll in DUI school right away and show proof with your application for a hardship driver's license
Driving record with DUI school: Your DUI school enrollment will always show on your driving record, even if you win your DUI case (your suspension will be cleared from your driver's license only if you win your DUI case, and you will have to put in a request for this to happen).
Formal Review Hearings are winnable: You are giving up the right to challenge the suspension at a formal review hearing, and these hearings are winnable.
Administrative employee reviewing paperwork
Contact Information for Florida Bureau of Administrative Review, Palm Beach County, Florida
In Palm Beach County, you must send the form to the Lauderdale Lakes office by email at LauderdaleBAR@flhsmv.gov. We no longer have an office in Palm Beach County for the Bureau of Administrative Review, so this is the closest one. Their phone number is (954)-677-5800, but they will likely not be able to answer the phone.
Submitting Your Application for Hardship Driver's License
Once the form is received, the office will contact you to make the $25.00 payment for the application. Then you will receive another call for brief hearing will be held over the phone. We submit applications with a credit card authorization form to the Bureau, so they can process the application as soon as possible.
Answer all incoming calls while you await your hearing call.
You will not be told when this call for your hearing will take place. The call may come from area code 954, 850, 407, or another area code. The Bureau of Administrative Affairs can be overwhelmed with these hearings and the calls do not always come from Lauderdale Lakes, Florida. This is because the Bureau will assign hearing officers all over Florida to help cover these hearings. Don't ignore calls from anywhere in Florida while you are waiting for your hardship license hearing.
What to Expect During Your Hardship Driver's License Hearing
During the hearing by phone to determine your eligibility for a hardship license, the hearing officer will:
(1) Ask whether you signed the Request for Eligibility Review Form.(2) Confirm that you understand you are waiving a formal administrative review hearing regarding your license suspension if you accept the business purposes license.(3) Inform you that the license is for business purposes only and that it expires on a certain date (6 months from the date of suspension for blowing over .08 and 12 months from the date of suspension for refusing to blow).(4) Inform you that if you are convicted of DUI in your criminal case, the hardship license is no longer valid.(5) Ask you whether you have any alcohol-related offenses in a state other than Florida. (The hearing officer will look at your FL driving record as well; if you have any prior offense, you will not be eligible for the hardship license.)(6) Request proof that you have enrolled in DUI school (not just paid for it).
If you are granted the hardship license, you can drive for business purposes only for that 6 or 12 months (depending on whether you gave a breath sample or not). After that period, you have a full, unrestricted driver license. That is, unless and until you are convicted of DUI. In that case, you have another driver license suspension that will be part of the sentence. You can read more about the driver's license suspensions for DUIs here.
Administrative Review Hearings
Formal vs. Informal
By submitting a hearing request, you are asking for an administrative review hearing at the Department of Highway Safety and Motor Vehicles. You can request either a formal or informal review hearing. The informal review hearing does not allow the driver to present anything or question any witnesses. The hearing officer would just review the information provided by the police department that led to the arrest. Informal review hearings are described in Florida Statutes Section 322.2615(4).
On the other hand, a formal review hearing is a full hearing with witnesses and evidence that allows the driver to challenge the suspension in a more meaningful way. Requesting either type of hearing waives the right to an immediate hardship license.
Very few people choose an informal review hearing, but it could be beneficial if the suspension was obviously invalid based on a review of the police report. This is rare.
Applying for the Hearing
To apply for the hearing, you must complete Form 78065 and it can be found here.
You will get a temporary 42-day permit to drive for business purposes only that is intended to cover you until the time of your administrative review hearing.
If you ask for more time to prepare for your hearing, your 42-day temporary license will not be extended until your hearing date. But if the Bureau is the only who reschedules the hearing, then the permit will be extended until the hearing date.
If the Bureau does not schedule the formal review hearing within 30 days of your request for a hearing, then the suspension will be invalidated and you will have your full driver's license back. Florida Statutes § 322.2615(9).
Preparing for the Formal Administrative Review Hearing
These hearings take place either remotely in an office with a hearing officer listening to the testimony of the police officers involved in the case.
You should bring a lawyer to this hearing for several reasons. Someone will need to pose questions to the witnesses and you would not want that to be you. Anything you say in your administrative review hearing can be used against you in your criminal case. Ideally, you say nothing in the administrative review hearing. You would not even be needed in the room for it at all because you should send your attorney to the hearing. Also, a non-lawyer would have trouble raising the necessary legal issues and properly questioning the witnesses.
Subpoenaing Witnesses for the Formal Review Hearing
Issuing subpoenas are important in an administrative review hearing. While it is somewhat unlikely that a witness will fail to appear while under subpoena, this does happen and it can benefit you. If the arresting officer or breath technician fail to appear at the hearing, your driver license suspension will be invalidated. (Fla. Stat. 322.2615(11)). This means you will have your full driving privileges back, at least while your DUI case is pending in the trial court. You have to subpoena the police officers involved in your case if you want them to appear. Otherwise, the hearing officer can rely only on the probable cause affidavit written by the arresting officer and any other materials submitted by the police or the defense.
Challenging Your Suspension at the Hearing
There are a few issues that can be challenged at an administrative review hearing to convince the hearing officer that your driver license was improperly suspended.
For example, if the arresting police officer lacked probable cause for DUI when making the arrest, this would invalidate the license suspension.
Another example is, in the case of a breath or urine refusal, where the officer improperly explained to the driver the law of implied consent and therefore the driver did not understand the consequences of refusing.
A third example would be where the driver made a genuine effort to give a breath or urine sample but was unable to because of a medical issue. This would not be considered a refusal and cannot be a valid basis to suspend a driver's license.
A fourth example would be if there were not two breath samples above .08.
Winning the Formal Review Hearing for your DUI
If the driver wins the administrative review hearing, the hearing officer will issue an order invalidating the suspension, like this one from one of my cases:
Order Invalidating Driver’s License Suspension, Florida
Deciding Whether to Have a Formal Review Hearing: Consult with a Palm Beach DUI Lawyer
Challenging the driver license suspension in some cases is a good idea. If the driver wins the hearing, they get their full driver license back. If the driver loses the hearing, they have to wait either 30 days (for breath over .08) or 90 days (for a breath refusal) to apply for a hardship license to drive for business purposes only.
Be sure to consult with an experienced Florida DUI lawyer when making these decisions and to guide you through this confusing and stressful process.