What exactly is a formal review hearing?
When you get arrested for a DUI, the odds are that you either refused a breath test or blew over a .08. If you refuse a breath test, the DMV will suspend your license for one year if it is your first refusal or for 18 months if it is your second refusal. If you blow over the legal limit, the DMV will suspend your license for 6 months.
The idea of having your license taken away for that amount of time is frightening. But don’t fret – you have the right to challenge the suspension’s legality by requesting a “formal review hearing.” A formal review hearing is a trial at the DMV. At that trial, we can challenge whether or not the traffic stop was legal in the first place, whether the officer had reasonable suspicion to conduct a DUI investigation, whether there was probable cause to arrest you for DUI, whether they followed Florida law on when and how to request a breath test, whether you actually did refuse, or, in the case of a breath test, whether or not the machine was working correctly and whether it was maintained as required under the law.
So what tools do we have in our tool bag to challenge your suspension? Under Florida law, we have the right to issue subpoenas to the officers involved in the case and subpoenas for all the body camera and in-car videos. The DMV must also provide us with all the reports, witness statements, and other documents related to your DUI case. However, in some cases, we may not issue subpoenas for the videos and the officers if we can find a technical defense in the paperwork itself. For example, if the arrest report states that the officer requested the breath test before they arrested you, we should be able to have your suspension thrown out because the law mandates that the request for a breath test occur after the arrest. If we issued a subpoena for the arresting officer, the odds are that he (and probably the DMV hearing officer) would try to correct that issue and change the story. Every case is unique, so it is important to consult a DUI attorney about how best to approach the formal review hearing.
Another benefit to a formal review hearing is that it gives us quick access to all of the evidence in your case, many times before the prosecutor even gets their hands on it. You must request your formal review hearing within 10 days of the arrest date. Once they receive the application and the hearing fee, the DMV must set the hearing within 30 days. Long story short, in less than 45 days, your DUI lawyer will have reviewed all the video evidence, checked all the reports, and questioned the police officers under oath. This fast access to the evidence in your DUI case can give us a leg-up on the prosecutor trying to convict you for DUI in your criminal case.
Formal review hearings are only appropriate in some cases. Sometimes, especially for first offenders, it may benefit you to waive your right to a formal review hearing to get a hardship license right away. See our other blog about hardship licenses and waiver review hearings.
The DMV suspension process related to a DUI refusal or breath test is complicated. There are many moving parts, and it happens quickly. Be sure that your DUI lawyer is familiar with the process, that they know the hearing officers, and that they don’t just refer that part of your case to some other attorney. Give our office a call to discuss your right to a formal review hearing of your driver’s license suspension for refusing a breath test or blowing over the legal limit.