How To Stay On The Road
Losing a driver’s license is often one of the most crippling punishments in a DUI case; in many cases, this loss may be worse than the probation or its conditions, like community service. Fortunately, and contrary to popular myth, license suspension is not necessarily a part of every criminal prosecution.
It is always a good idea to partner with an attorney and fight the suspension, because there is no such thing as an adverse result in this arena.
When DUI suspects refuse to take a chemical test, which is nearly always a Breathalyzer test, or submit to the test and have a BAC of .08 or above, the state automatically initiates license suspension proceedings. The maximum suspension periods are:
- Six months for a failed test,
- Twelve months for a first refusal, and
- Eighteen months for a subsequent refusal.
The arresting officer normally issues a temporary driver’s license that is good for ten days.
Suspects may be eligible for a temporary driver’s permit that is valid for commercial purposes, such as going to work, school, or the grocery store, that is valid for up to 45 days. This option is normally only available for a first DUI offense.
Challenging the Suspension
DMV license suspension hearings are not easy to win. The hearing officer, who is a paid DMV employee, is not a judge and probably not even a lawyer. In most jurisdictions, the hearing officer serves as prosecutor, judge, jury, and executioner. Furthermore, since the DMV hearing is not technically a criminal proceeding, some Constitutional rights are unavailable. For example, many suspects are forced to testify against themselves.
The burden of proof is also lighter, because the state must only prove the elements of the case by a preponderance of the evidence, which means more likely than not. The state does not need to prove that the suspect was intoxicated; rather, the only issues are generally the validity of the stop (reasonable suspicion) and the legality of the officer’s request for a chemical specimen (probable cause).
As a practical matter, the suspect’s best chance to have the matter thrown out is for the arresting officer not to appear and give evidence, because the suspect’s testimony alone may be insufficient. There may also be a solid defense. For example, the officer’s only reason for the stop may have been a “gut feeling” that “something didn’t look right.” Or, an officer might demand that the suspect submit to a chemical test even though there was absolutely no evidence of intoxication.
If the evidence is somewhat inconclusive, the hearing officer may throw the matter out entirely, reduce the suspension period, or probate some or all of the suspension. Unfortunately, due to the nature of these hearings, such outcomes are uncommon.
However, even a “loss” is a “win.” In Florida, formal discovery is very limited in misdemeanor cases. This obstacle is especially difficult to overcome in closed-file jurisdictions, which do not allow defense attorneys to see the police report. But a DMV hearing is a free deposition: the defense attorney not only gets to question the police officer under oath, a record is made, and it costs the suspect nothing.
Partner with Attorneys Who Are On Your Side
At Eighmie Law Firm, P.A., we get to work quickly and offer a comprehensive defense to DUIs. Contact us today for a confidential consultation. We routinely handle cases in Lucie County and nearby jurisdictions.