Florida's DUI laws already allow the court to order the ignition interlock for up to six months. Read more about the amended bill - "Ignition Interlock Devise in all Florida DUI cases? HB 681 and SB 864"
If it becomes law, Florida Senate Bill SB 864 would make some radical changes to the rules governing administrative suspensions after a DUI arrest. SB 864 was introduced on Tuesday, January 10, 2012.
The Florida House has begun the process to introduce an identical bill, HB 681 by Baxley and co-sponsors Harrell.
Click here to read Senate Bill 864, by Senator Thad Altman, in its entirety. The provisions related to administrative review hearings are listed below.
What changes if the bill becomes law?
- After a DUI arrest, the officer will still issue the drive a notice of suspension, however, the notice will also contain a notice to appear which will require the person arrested to appear at the appropriate FHSMV's Bureau of Administrative Review Office.
- When the individual appears at the Bureau of Administrative Review Office and is eligible, the person can elect to obtain restricted driver's license called a "Business Purpose Only" license and pay the appropriate fees, however, by doing so the person must waive their right to contest the suspension in a formal review hearing. The advantage for the driver is that he or she does not suffer with a 30 day or 90 day hard suspension if they are unsuccessful in challenging the suspension during a formal review hearing. (The term "hard suspension" refers to the time during which the driver cannot drive for any reason). The disadvantage for the driver is that any opportunity to contest the suspension during a formal review hearing must be waived.
- If the person fails to appear within 10 days, the person waives any right to review and the suspension remains in effect. The department can extend the 10 day time limit if the driver shows good cause in writing.
- The time periods for the suspension remain the same:
- If the individual submitted to a chemical test but had a breath or blood alcohol concentration of .08, then the suspension is for 6 months from the date of the arrest or notice of suspension (whichever occurred later);
- If the individual refused to submit to a chemical test of his breath, blood or urine then the suspension is for one year from the date of the arrest or notice of suspension (whichever occurred later);
- The bill also provides that if the driver does not apply for a restricted driver license then the Florida Department of Highway Safety and Motor Vehicles shall notify the person in writing of his right to review the suspension which shall include notice of the following rights:
- The driver can elect to have a formal review hearing or an informal review hearing within 10 days of the date of the notice;
- If the driver elects to have a formal review hearing the driver is deemed to have waived his right to a restricted license except that if the suspension is upheld, the driver can request a business purpose only or employment purpose only license after a 90 day hard suspension for a refusal case or a 30 day hard suspension for a breath or blood alcohol concentration over .08 case.
- At the formal review hearing the hearing officer may permit witnesses to testify telephonically. The witnesses that testify telephonically shall be sworn by a "notary public," "certified court reporter" or law enforcement officer.
- It appears that the new bills provides that the driver or his attorney can appear in person or attend the hearing telephonically.
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Florida Senate - 2012 SB 864
By Florida Senator Thad Altman, Republican24-00717-120201864
288 Section 2. Section 322.2615, Florida Statutes, is amended 289 to read: 290 322.2615 Restriction or suspension of license; right to 291 review.— 292 (1)(a) Notwithstanding whether an arrest is made for any 293 criminal offense, a law enforcement officer or correctional 294 officer shall, on behalf of the department, suspend the driving 295 privilege of a person who is driving or is in actual physical 296 control of a motor vehicle and who has an unlawful blood-alcohol 297 level or breath-alcohol level of 0.08 or higher, or of a person 298 who has refused to submit to a urine test or a test ofhis or299herbreath-alcohol or blood-alcohol level. The officer shall 300 issue to the person the notice of suspension and notice to 301 appear. The person shall appear at a designated department 302 office within 10 days after receipt of the notice. The notice of 303 suspension and notice to appear serve astake the person’s304driver’s license and issue the persona 10-day temporary driving 305 permit if the person is otherwise eligible for the driving 306 privilegeand shall issue the person a notice of suspension. If 307 a blood test has been administered, the officer or the agency 308 employing the officer shall transmit thesuchresults to the 309 department within 5 days after receipt of the results. If the 310 department then determines that the person had a blood-alcohol 311 level or breath-alcohol level of 0.08 or higher, the department 312 shall suspend the person’s driverdriver’slicense pursuant to 313 subsection (3). 314 (b) The suspension under paragraph (a) shall be pursuant 315 to, and the notice of suspension and notice to appear shall 316 inform the driver of, the following: 317 1.a. The driver refused to submit to alawfulbreath, 318 blood, or urine test and his or her driving privilege is 319 suspended fora period of1 year for a first refusal, or fora320period of18 months if his or her driving privilege has been 321 previously suspended as a result of a refusal to submit to such 322 a test; or 323 b. The driver was driving or was in actual physical control 324 of a motor vehicle and had aan unlawfulblood-alcohol level or 325 breath-alcohol level of 0.08 or higher and his or her driving 326 privilege is suspended fora period of6 months for a first 327 offense, or fora period of1 year if his or her driving 328 privilege has been previously suspended under this section. 329 2. The suspension period commencesshall commenceon the 330 date of issuance of the notice of suspension and notice to 331 appear. 3323. The driver may request a formal or informal review of333the suspension by the department within 10 days after the date334of issuance of the notice of suspension.335 3.4.The temporary permit issued at the time of suspension 336 expires at midnight of the 10th day following the date of 337 issuance of the notice of suspension and notice to appear. 3385. The driver may submit to the department any materials339relevant to the suspension.340 (c) A person whose driving privilege has been suspended 341 pursuant to this subsection or subsection (3) shall appear at a 342 designated department office within 10 days after receipt of the 343 notice of suspension and notice to appear. If the person fails 344 to appear as required, his or her license will remain suspended 345 and all rights of review as provided in this section will be 346 waived. 347 (d) If it appears that the person whose driving privilege 348 has been suspended meets the requirements of s. 322.271 and is 349 otherwise eligible for the driving privilege and if the person 350 wishes to obtain a restricted driver license, the department 351 shall, upon payment by the person of the appropriate fees to the 352 department, reinstate the person’s driving privilege restricted 353 to business purposes only, as defined in, and pursuant to s. 354 322.271. The department shall issue a replacement driver license 355 with the applicable restrictions. The department may extend the 356 time for a person who qualifies for a restricted driver license 357 to apply for the restricted license upon good cause shown in 358 writing. 359 1. The restrictions on a person’s driving privilege under 360 this paragraph shall be in place for: 361 a. One year, if the driver refused to submit to a breath, 362 blood, or urine test requested pursuant to this section; or 363 b. Six months, if the driver was driving or was in actual 364 physical control of a motor vehicle and had an unlawful blood 365 alcohol or breath-alcohol level of 0.08 or higher. 366 2. A person who accepts the reinstated driving privilege 367 restricted to business purposes only as provided in this 368 paragraph is deemed to have waived the right to a formal review 369 of the suspension of his or her driving privilege. Such a waiver 370 may not be used as evidence in any other proceeding. 371 (e) The department shall notify the person whose driving 372 privilege has been suspended in writing of his or her right to 373 review the suspension if the person has not applied for a 374 restricted driver license pursuant to s. 322.271. 375 (f) The notice of the right to a formal or informal review 376 of a suspension shall inform the driver of the following: 377 1. The driver may request a formal or informal review by 378 the department within 10 days after the department notifies the 379 person of the right to review. A person electing to seek a 380 formal review of the suspension is deemed to have waived his or 381 her right to a restricted driving privilege except as set forth 382 in subsection (10). Hearings may be conducted telephonically. 383 Witnesses shall be sworn by a notary public, certified court 384 reporter, or law enforcement officer pursuant to s. 117.10. 385 2. The driver may submit to the department any material 386 relevant to the suspension. The driver or his or her counsel 387 must provide a telephone number where he or she can be contacted 388 for the hearing. A person who does not appear at a designated 389 department office as required by paragraph (c) waives his or her 390 right to submit materials to the department. 391 (2) Except as provided in paragraph (1)(a), the law 392 enforcement officer shall forward to the department, within 5 393 days after issuing the notice of suspension and notice to 394 appear, the driverdriver’slicense; an affidavit stating the 395 officer’s grounds for belief that the person was driving or was 396 in actual physical control of a motor vehicle while under the 397 influence of alcoholic beverages or chemical or controlled 398 substances; the results of any breath or blood test or an 399 affidavit stating that a breath, blood, or urine test was 400 requested by thealaw enforcement officer or a correctional 401 officer pursuant to this section and that the person refused to 402 submit; the officer’s description of the person’s field sobriety 403 exercisetest, if any; and a copy of the notice of suspension 404 and notice appear. The failure of the officer to submit 405 materials within the 5-day period specified in this subsection 406 and in subsection (1) does not affect the department’s ability 407 to consider any evidence submitted at or beforeprior tothe 408 hearing. The officer may also submit a copy of the crash report 409 and a copy of a videotape of the field sobriety exercisetestor 410 the attempt to administer the exercisesuch test. Materials 411 submitted to the department by a law enforcement agency or 412 correctional agency shall be considered self-authenticating and 413 shall be in the record for consideration by the hearing officer. 414 All materials may be submitted in electronic form. 415 Notwithstanding s. 316.066(5), the crash report shall be 416 considered by the hearing officer. 417 (3) If the department determines that the license should be 418 suspended pursuant to this section and if the notice of 419 suspension and notice to appear has not already been served upon 420 the person by thealaw enforcement officer or correctional 421 officer as provided in subsection (1), the department shall 422 issue a notice of suspension and, unless the notice is mailed 423 pursuant to s. 322.251, a temporary permit that expires 10 days 424 after the date of issuance if the driver is otherwise eligible 425 for the driving privilege. 426 (4) If the person whose license was suspended requests an 427 informal reviewpursuant to subparagraph (1)(b)3., the 428 department shall conduct the informal review by a hearing 429 officer employed by the department. TheSuchinformal review 430 hearing shall consist solely of an examination by the hearing 431 officerdepartmentof the materials submitted by thealaw 432 enforcement officer or correctional officerand by the person433whose license was suspended, and the testimonial presence of the 434anofficer or any other witness is not required. 435 (5) After completion of the informal review, notice of the 436 department’s decision sustaining, amending, or invalidating the 437 suspension of the driverdriver’slicense of the person whose 438 license was suspended must be provided to such person. TheSuch439 notice must be mailed to the person at the last known address 440 shown on the department’s records,or to the address provided in 441 the law enforcement officer’s report if thesuchaddress differs 442 from the address of record,within 21 days after the expiration 443 of the temporary permit issued pursuant to subsection (1) or 444 subsection (3). 445 (6)(a) If the person whose license was suspended requests a 446 formal review, the department must schedule a hearing to be held 447 within 30 days after thesuchrequest is received by the 448 department and must notify the person of the date, time, and 449 place of the hearing. 450 (b) TheSuchformal review hearing shall be held before a 451 hearing officer employed by the department, and the hearing 452 officer mayshall beauthorized toadminister oaths, examine 453 witnesses and take testimony, receive relevant evidence, issue 454 subpoenas for the officers and witnesses identified in documents 455 in subsection (2), regulate the course and conduct of the 456 hearing, question witnesses, and make a ruling on the 457 suspension. 458 (c) The party requesting the presence of a witness isshall459beresponsible for the payment of any witness fees and for 460 notifying in writing the state attorney’s office in the 461 appropriate circuit of the issuance of the subpoena. If the 462 person who requests theaformal review hearing fails to appear 463 and the hearing officer finds such failure to be without just 464 cause, the right to a formal hearing is waived, and the 465 suspension shall be sustained. The hearing officer may authorize 466 witnesses to the formal review hearing to appear telephonically. 467 (d)(c)A party may seek enforcement of a subpoena under 468 paragraph (b) by filing a petition for enforcement in the 469 circuit court of the judicial circuit in which the person 470 failing to comply with the subpoena resides or by filing a 471 motion for enforcement in any criminal court case resulting from 472 the driving or actual physical control of the motor vehicle 473 which gave rise to the suspension under this section. A failure 474 to comply with an order of the court shall result in a finding 475 of contempt of court. However, a person is not in contempt while 476 a subpoena is being challenged. The department may not be a 477 party to any subpoena enforcement action. 478 (e)(d)The department must, within 7 working days after the 479aformal review hearing, providesendnotice to the person of 480 the hearing officer’s decision as to whether sufficient cause 481 exists to sustain, amend, or invalidate the suspension. 482 (7) In a formal review hearing under subsection (6) or an 483 informal review hearing under subsection (4), the hearing 484 officer shall determine by a preponderance of the evidence 485 whether sufficient cause exists to sustain, amend, or invalidate 486 the suspension. Notwithstanding s. 316.1932, the hearing officer 487 may not consider the lawfulness of the arrest and shall limit 488 the scope of the reviewshall belimitedto the following 489 issues: 490 (a) If the license was suspended for driving with aan491unlawfulblood-alcohol level or breath-alcohol level of 0.08 or 492 higher: 493 1. Whether the law enforcement officer had probable cause 494 to believe that the person whose license was suspended was 495 driving or was in actual physical control of a motor vehicle in 496 this state while under the influence of alcoholic beverages or 497 chemical or controlled substances. 498 2. Whether the person whose license was suspended had aan499unlawfulblood-alcohol level or breath-alcohol level of 0.08 or 500 higheras provided in s.316.193. 501 (b) If the license was suspended for refusal to submit to a 502 breath, blood, or urine test: 503 1. Whether the law enforcement officer had probable cause 504 to believe that the person whose license was suspended was 505 driving or was in actual physical control of a motor vehicle in 506 this state while under the influence of alcoholic beverages or 507 chemical or controlled substances. 508 2. Whether the person whose license was suspended refused 509 to submit to any such test after being requested to do so by a 510 law enforcement officer or correctional officer. 511 3. Whether the person whose license was suspended was told 512 that if he or she refused to submit to such test, his or her 513 privilege to operate a motor vehicle would be suspended fora514period of1 year or, in the case of a second or subsequent 515 refusal, fora period of18 months. 516 (8) Based on the determination of the hearing officer 517 pursuant to subsection (7) for both informal hearings under 518 subsection (4) and formal hearings under subsection (6), the 519 department shall: 520 (a) Sustain the suspension of the person’s driving 521 privilege fora period of1 year for a first refusal, or fora522period of18 months if the driving privilege of thesuchperson 523 has been previously suspended as a result of a refusal to submit 524 to such testtests, if the person refused to submit to alawful525 breath, blood, or urine test requested pursuant to this section. 526 The suspension period beginscommenceson the date of issuance 527 of the notice of suspension. 528 (b) Sustain the suspension of the person’s driving 529 privilege fora period of6 months for a blood-alcohol level or 530 breath-alcohol level of 0.08 or higher, or fora period of1 531 year if the driving privilege of thesuchperson has been 532 previously suspended under this section as a result of driving 533 with a blood-alcohol level or breath-alcohol level of 0.08 or 534 higheran unlawful alcohol level. The suspension period begins 535commenceson the date of issuance of the notice of suspension. 536 (9) A request for a formal review hearing or an informal 537 review hearing doesshallnot stay the suspension of the 538 person’s driverdriver’slicense. If the department fails to 539 schedule a requestedtheformal review hearing to be held within 540 30 days after receipt of the requesttherefor, the department 541 shall invalidate the suspension. If the scheduled hearing is 542 continued at the department’s initiative, the department shall 543 issue a temporary driving permit that isshall bevalid until 544 the hearing is conducted if the person is otherwise eligible for 545 the driving privilege. TheSuchpermit may not be issued to a 546 person who sought and obtained a continuance of the hearing. The 547 temporary permit issued under this subsection grants a driving 548 privilege restricted to employment purposesshallauthorize549driving for business or employment useonly, as defined in s. 550 322.271. 551 (10) A person whose driverdriver’slicense is suspended 552 under subsection (1) or subsection (3) may apply for issuance of 553 a license for business or employment purposesonlyif the person 554 is otherwise eligible for the driving privilege pursuant to s. 555 322.271. 556 (a) If the suspension of the driverdriver’slicense of the 557 person for refusal or failure to submit to a breath, urine, or 558 blood test is sustained, the person is not eligible to receive a 559 license for business or employment purposesonly,pursuant to s. 560 322.271,until 90 days have elapsed after the expiration of the 561 last temporary permit issued. If the driver is not issued a 10 562 day permit pursuant to this section or s. 322.64 because he or 563 she is ineligible for the permit and the suspension for failure 564 to submit to a breath, urine, or blood test is sustainednot565invalidatedby the department, the driver is not eligible to 566 receive a business or employment license pursuant to s. 322.271 567 until 90 days have elapsed from the date of the suspension. 568 (b) If the suspension of the driverdriver’slicense of the 569 person relating to unlawful blood-alcohol level or breath 570 alcohol level of 0.08 or higher is sustained, the person is not 571 eligible to receive a license for business or employment 572 purposesonlypursuant to s. 322.271 until 30 days have elapsed 573 after the expiration of the last temporary permit issued. If the 574 driver is not issued a 10-day permit pursuant to this section or 575 s. 322.64 because he or she is ineligible for the permit and the 576 suspension relating to unlawful blood-alcohol level or breath 577 alcohol level of 0.08 or higher is sustainednot invalidatedby 578 the department, the driver is not eligible to receive a business 579 or employment license pursuant to s. 322.271 until 30 days have 580 elapsed from the date of the suspension. 581 (11) ATheformal review hearing may be conducted upon a 582 review of the reports of a law enforcement officer or a 583 correctional officer, including documents relating to the 584 administration of a breath test or blood test or the refusal to 585 take either test or the refusal to take a urine test. However, 586 as provided in subsection (6), the driver may subpoena the 587 officer or any person who administered or analyzed theabreath 588 or blood test. The hearing officer may permit witnesses at the 589 formal review hearing to appear telephonically. 590 (12)TheFormal and informal review hearingshearingand591the informal review hearingare exempt fromthe provisions of592 chapter 120. The department may adopt rules for the conduct of 593 reviews under this section. 594 (13) Pursuant to s. 322.21, a person may appeal any 595 decision of the department sustaining a suspension of his or her 596 driverdriver’slicense by a petition for writ of certiorari to 597 the circuit court in the county in which thewherein suchperson 598 residesor wherein a formal or informal review was conducted599pursuant to s.322.31. However, an appeal doesshallnot stay 600 the suspension. A law enforcement agency may appeal any decision 601 of the department invalidating a suspension by a petition for 602 writ of certiorari to the circuit court in the county in which 603whereina formal or informal review was conducted. For 604 telephonic hearings, the law enforcement agency shall file the 605 petition for writ of certiorari to the circuit court in the 606 county in which the law enforcement agency is located. This 607 subsection doesshallnotbe construed toprovide for a de novo 608 appeal. 609 (14)(a) The decision of the department under this section 610 or any circuit court review thereof may not be considered in any 611 trial for a violation of s. 316.193, and a written statement 612 submitted by a person in his or her request for departmental 613 review under this section may not be admitted into evidence 614 against him or her in any such trial. 615 (b) The disposition of any related criminal proceeding 616proceedingsdoes not affect a suspension for refusal to submit 617 to a blood, breath, or urine test imposed under this section. 618 (15) If the department suspends a person’s license under s. 619 322.2616, it may not also suspend the person’s license under 620 this section for the same episode that was the basis for the 621 suspension under s. 322.2616. 622 (16) The department shall invalidate a suspension for 623 driving with an unlawful blood-alcohol level or breath-alcohol 624 level imposed under this section if the suspended person is 625 found not guilty at trial of an underlying violation of s. 626 316.193. If the person obtained a license restricted to business 627 purposes only pursuant to paragraph (1)(c), the department shall 628 remove the restriction from the person’s driver license. 629 Section 3. Subsections (5), (7), (12), and (14) of section 630 322.2616, Florida Statutes, are amended to read: 631 322.2616 Suspension of license; persons under 21 years of 632 age; right to review.— 633 (5) If the person whose license is suspended requests an 634 informal review under subparagraph (2)(b)3., the department 635 shall conduct the informal review by a hearing officer employed 636 by the department within 30 days after the request is received 637 by the department and shall issue such person a temporary 638 driving permit for business purposes only to expire on the date 639 that thesuchreview is scheduled to be conducted if the person 640 is otherwise eligible. The informal review hearing must consist 641 solely of an examination by the department of the materials 642 submitted by thealaw enforcement officer or correctional 643 officerand by the person whose license is suspended, and the 644 testimonypresenceof theanofficer or witness is not required. 645 (7)(a) If the person whose license is suspended requests a 646 formal review, the department must schedule a hearing to be held 647 within 30 days after the request is received by the department 648 and must notify the person of the date, time, and place of the 649 hearing and shall issue thesuchperson a temporary driving 650 permit for business purposes only to expire on the date that the 651suchreview is scheduled to be conducted if the person is 652 otherwise eligible. 653 (b) The formal review hearing must be held before a hearing 654 officer employed by the department, and the hearing officer may 655 administer oaths, examine witnesses and take testimony, receive 656 relevant evidence, issue subpoenas, regulate the course and 657 conduct of the hearing, and make a ruling on the suspension. The 658 department and the person whose license was suspended may 659 subpoena witnesses, and the party requesting the presence of a 660 witness is responsible for paying any witness fees and for 661 notifying in writing the state attorney’s office in the 662 appropriate circuit of the issuance of the subpoena. If the 663 person who requests a formal review hearing fails to appear and 664 the hearing officer finds the failure to be without just cause, 665 the right to a formal hearing is waived, and the suspension is 666 sustained. The hearing officer may permit witnesses at the 667 formal review hearing to appear telephonically. 668 (c) A party may seek enforcement of a subpoena under 669 paragraph (b) by filing a petition for enforcement in the 670 circuit court of the judicial circuit in which the person 671 failing to comply with the subpoena resides. A failure to comply 672 with an order of the court constitutes contempt of court. 673 However, a person may not be held in contempt while a subpoena 674 is being challenged. The department is not a party to any 675 subpoena enforcement action. 676 (d) The department must, within 7 days after theaformal 677 review hearing, providesendnotice to the person of the hearing 678 officer’s decision as to whether sufficient cause exists to 679 sustain, amend, or invalidate the suspension. 680 (12) The formal review hearing may be conducted upon a 681 review of the reports of thealaw enforcement officer or 682 correctional officer, including documents relating to the 683 administration of a breath test or the refusal to take a test. 684 However, as provided in subsection (7), the driver may subpoena 685 the officer or any person who administered theabreath or blood 686 test. The hearing officer may permit witnesses at the formal 687 review hearing to appear telephonically. 688 (14) Pursuant to s. 322.31, a person may appeal any 689 decision of the department sustaining a suspension of his or her 690 driverdriver’slicense by a petition for writ of certiorari to 691 the circuit court in the county in which thewherein suchperson 692 resides or in which thewherein aformal or informal review was 693 conducted under s. 322.31. However, an appeal does not stay the 694 suspension. This subsection does not provide for a de novo 695 appeal.
696 Section 4. Subsections (6) and (7) are added to section 697 322.2715, Florida Statutes, to read:
698 322.2715 Ignition interlock device.— 699 (6) Notwithstanding the provisions of s. 322.271 and 700 322.28(2), upon a second conviction for a violation of the 701 provisions of s. 316.193, the convicted person may elect to 702 install an ignition interlock device on all vehicles that are 703 individually or jointly leased or owned and routinely operated 704 by the convicted person, in lieu of the 5-year license 705 revocation required by s. 322.28(2). The ignition interlock 706 device must be installed for a period of 2 consecutive years, 707 and must be followed by a third consecutive year, during which 708 the convicted person is entitled to a driving privilege 709 restricted to business purposes only, as defined in s. 710 322.271(1). 711 (7) Notwithstanding the provisions of s. 322.271 and 712 322.28(2), upon a third conviction for a violation of the 713 provisions of s. 316.193, the convicted person may elect to 714 install an ignition interlock device on all vehicles that are 715 individually or jointly leased or owned and routinely operated 716 by the convicted person, in lieu of the 10-year license 717 revocation required by s. 322.28(2). The installation of an 718 ignition interlock device under this subsection may not occur 719 until the convicted person has served a 1-year license 720 revocation period. The ignition interlock device must be 721 installed for a period of 3 consecutive years, and must be 722 followed by a period of 2 additional consecutive years, during 723 which the convicted person is entitled to a driving privilege 724 restricted to business purposes only, as defined in s. 725 322.271(1). 726 Section 5. Section 322.64, Florida Statutes, is amended to 727 read: 728 322.64 Holder of commercial driverdriver’slicense; 729 persons operating a commercial motor vehicle; driving with 730 unlawful blood-alcohol level or breath-alcohol level; refusal to 731 submit to breath, urine, or blood test.— 732 (1)(a) A law enforcement officer or correctional officer 733 shall, on behalf of the department, disqualify from operating a 734anycommercial motor vehicle a person who, while operating or in 735 actual physical control of a commercial motor vehicle, is 736 arrested for a violation of s. 316.193, relating to unlawful 737 blood-alcohol level or breath-alcohol level, or a person who has 738 refused to submit to a breath, urine, or blood testauthorized739by s.322.63or s.316.1932arising out of the operation or 740 actual physical control of a commercial motor vehicle. A law 741 enforcement officer or correctional officer shall, on behalf of 742 the department, disqualify the holder of a commercial driver 743driver’slicense from operating aanycommercial motor vehicle 744 if the licenseholder, while operating or in actual physical 745 control of a motor vehicle, is arrested for a violation of s. 746 316.193, relating to unlawful blood-alcohol level or breath747alcohol level,or refused to submit to a breath, urine, or blood 748 testauthorized by s.322.63or s.316.1932. Upon 749 disqualification of the person, the officer shall take the 750 person’s driverdriver’slicense and issue the person a 10-day 751 temporary permit for the operation of noncommercial vehicles 752 only if the person is otherwise eligible for the driving 753 privilege and shall issue the person a notice of 754 disqualification. If the person has been given a blood, breath, 755 or urine test and,the results of the testwhichare not 756 available to the officer at the time of the arrest, the agency 757 employing the officer shall transmit such results to the 758 department within 5 days after receipt of the results. If the 759 department then determines that the person had a blood-alcohol 760 level or breath-alcohol level of 0.08 or higher, the department 761 shall disqualify the person from operating a commercial motor 762 vehicle pursuant to subsection (3). 763 (b) For purposes of determining the period of 764 disqualification described in 49 C.F.R. s. 383.51, the 765 disqualification under paragraph (a) shall be treated as 766 conviction. 767 (c)(b)The disqualification under paragraph (a) shall be 768 pursuant to, and the notice of disqualification shall inform the 769 driver of, the following: 770 1.a. The driver refused to submit to a lawful breath, 771 blood, or urine test and he or she is disqualified from 772 operating a commercial motor vehicle fora period of1 year,for 773 a first refusal, or permanently,if he or she has previously 774 been disqualified under this section; or 775 b. The driver was driving or was in actual physical control 776 of a commercial motor vehicle, or any motor vehicle if the 777 driver holds a commercial driverdriver’slicense, had an 778 unlawful blood-alcohol level or breath-alcohol level of 0.08 or 779 higher, and his or her driving privilege shall be disqualified 780 fora period of1 year for a first offense, or permanently 781disqualifiedif his or her driving privilege has been previously 782 disqualified under this section. 783 2. The disqualification period for operating a commercial 784 vehicle beginsvehicles shall commenceon the date of issuance 785 of the notice of disqualification. 786 3. The driver may request a formal or informal review of 787 the disqualification by the department within 10 days after the 788 date of issuance of the notice of disqualification. 789 4. The temporary permit issued at the time of 790 disqualification expires at midnight of the 10th day following 791 the date of disqualification. 792 5. The driver may submit to the department any material 793materialsrelevant to the disqualification. 794 (2) Except as provided in paragraph (1)(a), the law 795 enforcement officer shall forward to the department, within 5 796 days after the date of the issuance of the notice of 797 disqualification, a copy of the notice of disqualification 798 issued to the person;,the driverdriver’slicense of the person 799 disqualified;, andan affidavit stating the officer’s grounds 800 for belief that the person disqualified was operating or was in 801 actual physical control of a commercial motor vehicle, or holds 802 a commercial driverdriver’slicense, and had an unlawful blood 803 alcohol or breath-alcohol level; the results of any breath,or804 blood, or urine test or an affidavit stating that a breath, 805 blood, or urine test was requested by thealaw enforcement 806 officer or correctional officer and that the person arrested 807 refused to submit;a copy of the notice of disqualification808issued to the person;and the officer’s description of the 809 person’s field sobriety test, if any. The failure of the officer 810 to submit materials within the 5-day period specified in this 811 subsection or subsection (1) does not affect the department’s 812 ability to consider any evidence submitted at or beforeprior to813 the hearing. The officer may also submit a copy of a videotape 814 of the field sobriety test or the attempt to administer such 815 test and a copy of the crash report, if any. Notwithstanding s. 816 316.066, the crash report shall be considered by the hearing 817 officer. All materials may be submitted in electronic form. 818 (3) If the department determines that the person arrested 819 should be disqualified from operating a commercial motor vehicle 820 pursuant to this section and if the notice of disqualification 821 has not already been served upon the person by thealaw 822 enforcement officer or correctional officer as provided in 823 subsection (1), the department shall issue a notice of 824 disqualification and, unless the notice is mailed pursuant to s. 825 322.251, a temporary permit thatwhichexpires 10 days after the 826 date of issuance if the driver is otherwise eligible. 827 (4) If the person disqualified requests an informal review 828 pursuant to subparagraph (1)(c)3.(1)(b)3., the department shall 829 conduct the informal review by a hearing officer employed by the 830 department. TheSuchinformal review hearing shall consist 831 solely of an examination by the department of the materials 832 submitted by thealaw enforcement officer or correctional 833 officerand by the person disqualified, and the presence of the 834anofficer or a witness is not required. 835 (5) After completion of the informal review, notice of the 836 department’s decision sustaining, amending, or invalidating the 837 disqualification must be provided to the person. Thesuchnotice 838 must be mailed to the person at the last known address shown on 839 the department’s records, and to the address provided in the law 840 enforcement officer’s report if thesuchaddress differs from 841 the address of record, within 21 days after the expiration of 842 the temporary permit issued pursuant to subsection (1) or 843 subsection (3). 844 (6)(a) If the person disqualified requests a formal review, 845 the department must schedule a hearing to be held within 30 days 846 after thesuchrequest is received by the department and must 847 notify the person of the date, time, and place of the hearing. 848 (b) Thesuchformal review hearing shall be held before a 849 hearing officer employed by the department, and the hearing 850 officer mayshall be authorized toadminister oaths, examine 851 witnesses and take testimony, receive relevant evidence, issue 852 subpoenas for the officers and witnesses identified in documents 853 as provided in subsection (2), regulate the course and conduct 854 of the hearing, and make a ruling on the disqualification. The 855 department and the person disqualified may subpoena witnesses, 856 and the party requesting the presence of a witness isshall be857 responsible for the payment of any witness fees. If the person 858 who requests a formal review hearing fails to appear and the 859 hearing officer finds such failure to be without just cause, the 860 right to a formal hearing is waived. The hearing officer may 861 permit witnesses at the formal review hearing to appear 862 telephonically. 863 (c) A party may seek enforcement of a subpoena under 864 paragraph (b) by filing a petition for enforcement in the 865 circuit court of the judicial circuit in which the person 866 failing to comply with the subpoena resides or by filing a 867 motion for enforcement in any criminal court case resulting from 868 the driving or actual physical control of the motor vehicle that 869 gave rise to the disqualification under this section. A failure 870 to comply with an order of the court shall result in a finding 871 of contempt of court. However, a person isshallnotbein 872 contempt while a subpoena is being challenged. The department is 873 not a party to any subpoena enforcement action. 874 (d) The department must, within 7 working days after thea875 formal review hearing, send notice to the person of the hearing 876 officer’s decision as to whether sufficient cause exists to 877 sustain, amend, or invalidate the disqualification. 878 (7) In a formal review hearing under subsection (6) or an 879 informal review hearing under subsection (4), the hearing 880 officer shall determine by a preponderance of the evidence 881 whether sufficient cause exists to sustain, amend, or invalidate 882 the disqualification. Notwithstanding s. 316.1932, the hearing 883 officer may not consider the lawfulness of the arrest and shall 884 limit the scope of the reviewshall be limitedto the following 885 issues: 886 (a) If the person was disqualified from operating a 887 commercial motor vehicle for driving with aan unlawfulblood 888 alcohol level or breath-alcohol level of 0.08 or higher: 889 1. Whether the arresting law enforcement officer had 890 probable cause to believe that the person was driving or was in 891 actual physical control of a commercial motor vehicle, or any 892 motor vehicle if the driver holds a commercial driverdriver’s893 license, in this state while he or she had any alcohol, chemical 894 substancesubstances, or controlled substancesubstancesin his 895 or her body. 896 2. Whether the person had aan unlawfulblood-alcohol level 897 or breath-alcohol level of 0.08 or higher. 898 (b) If the person was disqualified from operating a 899 commercial motor vehicle for refusal to submit to a breath, 900 blood, or urine test: 901 1. Whether the law enforcement officer had probable cause 902 to believe that the person was driving or was in actual physical 903 control of a commercial motor vehicle, or any motor vehicle if 904 the driver holds a commercial driverdriver’slicense, in this 905 state while he or she had any alcohol, chemical substance 906substances, or controlled substancesubstancesin his or her 907 body. 908 2. Whether the person refused to submit to the test after 909 being requested to do so by thealaw enforcement officer or 910 correctional officer. 911 3. Whether the person was told that if he or she refused to 912 submit to such test, he or she would be disqualified from 913 operating a commercial motor vehicle fora period of1 year or, 914 if previously disqualified under this section, permanently. 915 (8) Based on the determination of the hearing officer 916 pursuant to subsection (7) for both informal hearings under 917 subsection (4) and formal hearings under subsection (6), the 918 department shall: 919 (a) Sustain the disqualification fora period of1 year for 920 a first refusal, or permanently if thesuchperson has been 921 previously disqualified from operating a commercial motor 922 vehicle under this section. The disqualification period begins 923commenceson the date of the issuance of the notice of 924 disqualification. 925 (b) Sustain the disqualification: 926 1. Fora period of1 year if the person was driving or was 927 in actual physical control of a commercial motor vehicle, or any 928 motor vehicle if the driver holds a commercial driverdriver’s929 license, and had an unlawful blood-alcohol level or breath 930 alcohol level of 0.08 or higher; or 931 2. Permanently if the person has been previously 932 disqualified from operating a commercial motor vehicle under 933 this section or his or her driving privilege has been previously 934 suspended for driving or being in actual physical control of a 935 commercial motor vehicle, or any motor vehicle if the driver 936 holds a commercial driverdriver’slicense, and had an unlawful 937 blood-alcohol level or breath-alcohol level of 0.08 or higher. 938 939 The disqualification period beginscommenceson the date of the 940 issuance of the notice of disqualification. 941 (9) A request for a formal review hearing or an informal 942 review hearing doesshallnot stay the disqualification. If the 943 department fails to schedule the formal review hearing to be 944 held within 30 days after receipt of the request therefor, the 945 department shall invalidate the disqualification. If the 946 scheduled hearing is continued at the department’s initiative, 947 the department shall issue a temporary driving permit limited to 948 noncommercial vehicles which is valid until the hearing is 949 conducted if the person is otherwise eligible for the driving 950 privilege. TheSuchpermit mayshallnot be issued to a person 951 who sought and obtained a continuance of the hearing. The 952 temporary permit issued under this subsection grants a driving 953 privilege restricted to employment purposes only, as defined in 954 s. 322.271shall authorize driving for business purposes only. 955 (10) A person who is disqualified from operating a 956 commercial motor vehicle under subsection (1) or subsection (3) 957 is eligible for issuance of a license for business or employment 958 purposes only under s. 322.271 if the person is otherwise 959 eligible for the driving privilege. However, such business or 960 employment purposes license doesshallnot authorize the driver 961 to operate a commercial motor vehicle. 962 (11) The formal review hearing may be conducted upon a 963 review of the reports of thealaw enforcement officer ora964 correctional officer, including documents relating to the 965 administration of a breath test or blood test or the refusal to 966 take a breath, blood, or urineeithertest. However, as provided 967 in subsection (6), the driver may subpoena the officer or any 968 person who administered or analyzed theabreath or blood test. 969 The hearing officer may permit witnesses at the formal review 970 hearing to appear telephonically. 971 (12) The formal review hearing and the informal review 972 hearing are exempt from the provisions of chapter 120. The 973 department mayis authorized toadopt rules for the conduct of 974 reviews under this section. 975 (13) Pursuant to s. 322.31, a person may appeal any 976 decision of the department sustaining the disqualification from 977 operating a commercial motor vehicle by a petition for writ of 978 certiorari to the circuit court in the county in which the 979wherein suchperson residesor wherein a formal or informal980review was conducted pursuant to s.322.31. However, an appeal 981 doesshallnot stay the disqualification. This subsection does 982shallnotbe construed toprovide for a de novo appeal. 983 (14) The decision of the department under this section may 984shallnot be considered in any trial for a violation of s. 985 316.193, s. 322.61, or s. 322.62, and anor shall anywritten 986 statement submitted by a person in his or her request for 987 departmental review under this section may not be admittedbe988admissibleinto evidence against him or her in any such trial. 989 The disposition of any related criminal proceeding may 990proceedings shallnot affect a disqualification imposed pursuant 991 to this section. 992 (15) This section does not preclude the suspension of the 993 driving privilege pursuant to s. 322.2615. The driving privilege 994 of a person who has been disqualified from operating a 995 commercial motor vehiclealsomay also be suspended for a 996 violation of s. 316.193. 997 Section 6. This act shall take effect July 1, 2012.
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