DHSMV and Criminal DUI Driver’s License Suspension
If you have a third DUI offence and need guidance, contact Palm Beach County Law Firm Bottari & Doyle for legal counsel at 561-588-2781. It is important to know how both entities work to ensure that the person arrested for DUI makes the correct decisions regarding his or her driver’s license.
Administrative Suspension – DHSMV
After a person is arrested for DUI, the administrative (DHSMV) driver’s license suspension takes effect in two situations:
- The person refused to submit to lawful breath, blood or urine test, or;
- The person gave a breath or blood sample and the breath or blood alcohol level was 0.08 or higher.
If the person in the first situation refused to submit to lawful breath, blood, or urine test, then the administrative license suspension lasts for a period of 1 year for a first refusal, and 18 months for a second or subsequent refusal. Absent a hardship license or license reinstatement, the person cannot drive at all for these periods of time.
If the person in the second situation gave a breath or blood sample that was 0.08 or higher, then the administrative suspension lasts for a period of a 6 months for a first offense, and 1 year for a second offense. Absent a hardship license or license reinstatement, the person cannot drive at all for these periods of time.
In both situations, the arresting officer takes the person’s license at the time of the arrest and issues the person a 10 day temporary driving permit with no restrictions on driving. The officer also issues a notice of license suspension.
10 Day Rule
In order to contest the DHSMV administrative suspension, the person or attorney only have 10 days from the arrest to request a formal review hearing. If a formal review hearing is not requested within 10 days of the arrest, then the person’s driver’s license will be suspended for 6 to 18 months (see above for license suspension times). The person may still be eligible for a hardship license to drive for business purposes only, but must serve a 30 or 90 day hard time suspension (no driving for any reason). The exact number of days depends on whether the person’s blood or breath alcohol level was 0.08 or higher or if the person refused to give a lawful breath, blood or urine sample. However, in 2013, Florida law changed allowing for First Time Offenders to waive their rights to an administrative review hearing within 10 days of the driver’s license suspension. The effect of the waiver allows a person to drive for business purposes only during the administrative suspension period, without serving a “hard time” suspension with no driving.
Request for Eligibility Review
A first time offender may request a review to determine if he or she is eligible for immediate license reinstatement for business purposes only. The effect of the reinstatement is to allow first time offenders to drive for business purposes only during the period of the administrative suspension (either 6 or 12 months). The person must also acknowledge that he or she is waiving their rights to an informal or formal review hearing.
You are eligible for immediate reinstatement to drive for business purposes only if:
- This is your first administrative driver’s license suspension for driving with a breath/blood alcohol level of 0.08 or higher, or if it’s your first refusal.
- You have no prior DUI criminal convictions.
To get reinstated the person must:
- Go to the Administrative Review Hearing Office within 10 calendar days of the arrest. If the 10th day falls on a weekend or holiday, then the request for eligibility review must be submitted before the 10th day. Bring the Request for Eligibility Form with you, and fill it out and sign it in front of a hearing officer.
- Pay a $25 filing fee to get the form reviewed.
- If found eligible for reinstatement of BPO privileges, show proof of enrollment and payment to DUI school, and pay another $25.
- Comply with the Florida Real ID Act. If you have a yellow star on the top right corner of your license then you are in compliance. If you don’t, then bring your birth certificate, social security card, passport and two documents showing proof of your main residence.
Formal Review Hearing
If the person does not elect to, or does not qualify for requesting an eligibility review, then the person has the option of requesting a Formal Review Hearing to contest the administrative driver’s license suspension. Once a Formal Review Hearing is requested, the DHSMV must schedule the Formal Review Hearing to be held within 30 days from the date the request is received by the DHSMV. While waiting for the Formal Review Hearing, you or your attorney can request a 42 day driving permit to drive for business purposes only. At the Formal Review Hearing, a hearing officer, who works for the DHSMV, reads and listens to relevant evidence pertaining to the arrest and license suspension. If the hearing officer upholds the driver’s license suspension, then a period of “hard time suspension” comes into effect. Hard time means that the person cannot drive for any reason. If the hearing officer concludes there is insufficient evidence to uphold the suspension, then the hearing officer will invalidate the suspension and the driver’s full driving privileges will be restored.
Obtaining a Hardship License during the Administrative Suspension
A hardship license allows a person to drive for business purposes only. “Business purpose” is defined as, “a driving privilege limited to 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.” Unless a person is a first time offender and qualifies for immediate reinstatement of business purpose only driving, the following hard time suspensions will apply before a person can obtain a hardship license. An additional prerequisite for obtaining a hardship license is either enrollment with proof of payment to DUI school (1st offender), or completion of DUI school (2nd offender).
A person is not eligible for a hardship license if he or she has two or more criminal convictions for DUI, or two or more license suspensions for refusing to submit to a lawful breath, blood or alcohol test.
- Suspension upheld due to an unlawful breath or blood alcohol level: 30 day hard time suspension. No driving at all for 30 days. This 30 day suspension applies when a person loses the formal review hearing, or when he or she chooses not to contest the suspension.
- Suspension upheld due to lawful breath, blood or urine refusal: 90 day hard time suspension. No driving at all for 90 days. The 90 period applies when a person loses the formal review hearing, or when he or she chooses not to contest the administrative suspension.
Criminal Driver’s License Suspension
The Criminal Court also has the authority to suspend your driving privileges for a DUI. A criminal conviction for DUI carries a mandatory driver’s license suspension. The length of the suspension depends on whether the DUI was enhanced (0.15 or higher breath/blood alcohol level, or minor in the vehicle) or on prior DUI convictions. The criminal suspension is disheartening, because the suspension starts on the day you are convicted, not the date of the arrest. Also, if you spent the time and money to get a hardship license during the administrative suspension, the judge will take the hardship license from you upon conviction. This means that you will have to obtain a new hardship license if you are eligible.
The Court must impose the following driver’s license suspensions upon the applicable DUI conviction:
- First DUI Conviction: Minimum 180 days to a Maximum of 1 Year.
- Second DUI Conviction Outside of 5 Years of the First DUI Arrest:Minimum 180 days to a Maximum of 1 Year.
- Second DUI Conviction within 5 Years of the First DUI Arrest: Minimum 5 Years.
- Third DUI Conviction Outside of 10 Years from the Second DUI Arrest:Minimum 180 days to a Maximum of 1 Year.
- Third DUI Conviction within 10 Years from the Second DUI Arrest:Minimum 10 Years.
- DUI 4th or More: Lifetime revocation.
If you have been charged with a DUI, please do not hesitate to call one of the skilled Palm Beach criminal defense lawyers at Bottari & Doyle for a free consultation.