Under Florida DUI laws there are two types of hearings available to an individual whose license has been suspended pursuant to Florida's implied consent law. Each has its own timetable and procedure. There can be an informal hearing or a formal hearing.
The Informal Hearing
An informal hearing is conducted within 10 days of the request. The hearing officer is an employee of the Department of Highway Safety and Motor Vehicles. At an informal hearing the officer reviews all paperwork and documents provided by the arresting officer and the driver. There is no live testimony.
Such informal review hearing consists only of an examination by the department of the materials submitted by the law enforcement officer and by the person whose license was suspended, and the presence of an officer or witness is not required. After document review the hearing officer rules on the suspension.
The Formal Hearing
After a formal hearing is requested, it must be held within 30 days. A formal hearing is conducted before a hearing officer employed DHSMV. The hearing officer administers oaths, examines witnesses and takes testimony. The hearing officer also reviews evidence, issues subpoenas, and conducts the hearing. The driver typically has an attorney for this type of hearing. The hearing officer then rules on the suspension and within 7 working days the driver is informed of the decision.
Issues for Either a Formal or Informal Hearing
In the case of either a positive test greater than .08 or a refusal, the hearing officer, to sustain the suspension must determine that the law enforcement officer had probable cause to believe that the person whose license was suspended was driving or in actual physical control of a motor vehicle in Florida while under the influence of alcoholic beverages or chemical or controlled substances.
If that is so, then, when a person has submitted to testing, the hearing officer must determine if the person whose license was suspended had an unlawful blood-alcohol level or breath-alcohol level of 0.08.
If there was probable cause and an alleged refusal to be tested the hearing officer must determine if the person whose license was suspended refused to submit to testing after being requested to do so by a law enforcement officer, and if the person whose license was suspended was told that if he or she refused to submit to such test his or her privilege to operate a motor vehicle would be suspended for a period of 1 year or, in the case of a second or subsequent refusal, for a period of 18 months.
If the hearing officer finds all the above to be true in either a formal or informal hearing, then the suspension is sustained and remains in effect. If the officer finds any issue in favor of the driver, then the suspension is invalidated.
Appeal to the Circuit Court
Either type of hearing can be appealed to a circuit court judge. These suspensions are civil penalties that are separate and apart from the potential criminal penalties for DUI
