DUI License Suspensions and Formal Review Hearings in Miami

Dennis Gonzalez Jr. is a former Miami-Dade prosecutor who has been defending people since 2012. Our office answers 24 hours a day. For the criminal side of the case, see our DUI Defense page.

What Is an Administrative Suspension?

Under Florida law, the officer suspends your driving privilege on the spot, on behalf of DHSMV, if:

• you were driving or in actual physical control of a vehicle with a breath-alcohol or blood-alcohol level of 0.08 or higher, or
• you refused a breath, urine, or blood test.

The officer takes your license and gives you a notice of suspension. If you are otherwise eligible to drive, the officer also gives you a 10-day temporary permit. The suspension starts on the date the notice of suspension is issued.

This happens before any conviction, and it is separate from the criminal case. Winning or losing one does not automatically decide the other.

The 10-Day Window: When It Starts

The 10 days start on the date your notice of suspension is issued. In a breath-test or refusal case, that is usually the day of the arrest, because the officer suspends the license right there.

Within 10 days after the date of issuance of the notice of suspension, you can do one of two things:

1. Request a formal or informal review of the suspension, or
2. Request a review of eligibility for a restricted (hardship) license under the first-time-driver rule explained below.

Under DHSMV's rules, the written request must be postmarked or filed with the clerk of the right DHSMV office within 10 days after the notice was issued. If no review is requested in time, the suspension becomes final.

If your license was not suspended at the arrest, for example because you gave a blood sample and the results are not back yet, the 10-day clock did not start at the arrest. If DHSMV later decides to suspend, it issues its own notice of suspension, and the 10 days run from the date that notice is issued. DHSMV's rules treat a mailed notice as issued on the date it was mailed, so the clock can be running before the letter reaches you. Call us the day any notice from DHSMV arrives.

The 10-Day Temporary Permit

The temporary permit given at the arrest expires at midnight of the 10th day following the date the notice of suspension was issued. After that, you may not drive unless you have another valid permit or license.

Requesting a review does not pause the suspension. The law says so directly. That is why the hardship-license options below matter.

Formal Review vs. Informal Review

At a formal review, the hearing officer can give oaths, examine witnesses, take testimony, receive evidence, issue subpoenas, and rule on the suspension. Hearings can be held by communications technology (for example, video). Under DHSMV's hearing rules, the notice of hearing comes with a prehearing order that has its own short deadline, and issues not raised in time may not be heard at the hearing. Bring that notice to your lawyer the day it arrives.

Do not miss the hearing. If the driver who asked for the formal review fails to appear without just cause, the right to the hearing is waived and the suspension is sustained.

What the Hearing Officer Decides

The hearing officer decides by a preponderance of the evidence whether there is sufficient cause to sustain, amend, or invalidate the suspension. The law limits the questions to these:

If the suspension is for a breath or blood level of 0.08 or higher:

1. Did the officer have probable cause to believe you were driving or in actual physical control of a vehicle in Florida while under the influence?
2. Did you have a blood-alcohol or breath-alcohol level of 0.08 or higher?

If the suspension is for a refusal:

1. Did the officer have probable cause to believe you were driving or in actual physical control of a vehicle in Florida while under the influence?
2. Did you refuse the test after an officer asked you to take it?
3. Were you told that refusing would suspend your license for 1 year, or for 18 months for a second or later refusal?

What Evidence the Hearing Officer Looks At

Within 5 days after issuing the notice of suspension, the officer must send DHSMV your license, an affidavit stating the grounds for believing you were under the influence, the breath or blood results or an affidavit of refusal, the officer's description of any field sobriety test, and the notice of suspension. The officer may also send the crash report and video of the field sobriety exercises.

The law treats those police materials as self-authenticating: they go into the record for the hearing officer to consider. A formal review can be decided on those reports. But you can subpoena the officer, or anyone who gave or analyzed a breath or blood test, and you can also submit your own materials. Under DHSMV's rules, testimony is under oath, and you have the right to present evidence, cross-examine witnesses, and rebut the evidence against you. The hearing officer alone decides the weight and credibility of the evidence.

Subpoenas

• The hearing officer can issue subpoenas for the officers and witnesses identified in the arrest paperwork sent to DHSMV.
• The person who asks for a witness pays any witness fees and must notify the State Attorney's Office in writing that the subpoena was issued.
• Under DHSMV's hearing rules, the driver is responsible for serving the subpoena, and subpoenas are not issued for discovery.
• If a subpoenaed witness does not appear, a party can ask the circuit court to enforce the subpoena, or file a motion to enforce it in the related criminal DUI case.

Waiving Review for a Hardship License (First-Time Drivers Only)

Instead of fighting the suspension, some drivers can ask, within the same 10 days, for a review of eligibility for a restricted license right away. This option is for a driver who:

• has never before had a license suspended under Florida's administrative-suspension law (s. 322.2615),
• has never been disqualified as a commercial driver under s. 322.64, and
• has never been convicted of DUI under s. 316.193 (an out-of-state DUI conviction counts as a prior),

and whose license is now suspended under s. 322.2615.

What you should know before choosing it:

• The license is restricted to "business purposes only" for the length of the administrative suspension.
• Accepting it waives your right to a formal and informal review of the suspension. The law also says that waiver cannot be used as evidence in any other proceeding.
• DUI school: for a suspension under s. 322.2615, DHSMV must require proof of enrollment in a licensed DUI program substance abuse education course, including evaluation and treatment if you are referred. If you do not complete the course within 90 days after reinstatement, or later fail to complete treatment, DHSMV must cancel the license until you do.

This is a strategic choice. Giving up the hearing can mean giving up the chance to question the officer under oath before the criminal case. Talk to a lawyer before you pick.

How Long the Suspension Lasts

These are the administrative suspension periods, exactly as Florida law states them:

The suspension period starts on the date the notice of suspension was issued. A conviction in the criminal case brings its own, separate revocation ordered by the court; for a first DUI conviction (except one involving a death), the revocation is at least 180 days but not more than 1 year. See DUI Defense.

Drivers Under 21

Florida has a separate administrative law for drivers under 21. It is unlawful for a person under 21 to drive or be in actual physical control of a vehicle with a breath-alcohol or blood-alcohol level of 0.02 or higher. Under that law:

• 0.02 or higher: suspension of 6 months for a first violation, or 1 year if previously suspended under that law for the same reason.
• Refusing a breath test: 1 year for a first refusal, or 18 months if previously suspended under that law for a refusal.
• 0.05 or higher: the suspension stays in effect until the driver completes a substance abuse course from a licensed DUI program.
• The driver may request a formal or informal review within 10 days after the issuance of the notice of suspension. The temporary permit does not take effect until 12 hours have passed, and it expires at midnight of the 10th day after issuance.
• A business or employment license is not available until 30 days after the last temporary permit expires.
• A violation of this under-21 law is neither a traffic infraction nor a criminal offense, and being detained under it is not an arrest. It does not bar a DUI prosecution.

Refusing the Test Can Also Be a Separate Crime

Separately from the license suspension, Florida makes refusing a lawful breath or urine test a crime in some cases. It applies when the officer had probable cause to believe you were driving under the influence, you were lawfully arrested for DUI, you were told about the license suspension and that refusing is a crime, and you then refused. A first refusal is a second-degree misdemeanor; a second or later refusal is a first-degree misdemeanor.

The outcome of the license case does not affect the refusal charge, and the outcome of the refusal charge does not affect the license case.

Hardship License After the Waiting Period

If you contest the suspension and it is sustained, or you do not qualify for the first-time option, you may still be able to get a license for business or employment purposes only after a waiting period:

• Breath or blood 0.08 or higher: after 30 days have passed after the last temporary permit issued to you expires.
• Refusal: after 90 days have passed after the last temporary permit issued to you expires.

Florida law defines two kinds of restricted license:

• Business purposes only: "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."
• Employment purposes only: "driving to and from work and any necessary on-the-job driving required by an employer or occupation."

At the hardship hearing you may show that the suspension causes a serious hardship, keeps you from carrying out your normal work, and that driving is necessary to support yourself or your family. Driving for any other purpose is not allowed. The statute does not allow a business or employment license, except in limited cases, for a person suspended under s. 322.2615 or revoked under s. 322.28 who has two or more DUI convictions, or whose license has been suspended two or more times for refusal.

How the License Case and the Criminal Case Affect Each Other

• The DHSMV decision, and any circuit court review of it, may not be considered in the criminal DUI trial. A written statement you submit when you request review may not be used against you at that trial.
• The result of the criminal case does not affect a refusal suspension.
• If you are found not guilty at trial of DUI, DHSMV must invalidate a suspension for an unlawful breath or blood level imposed under this law.
• The formal review is often the first time the arresting officer answers questions under oath. What the officer says there can matter in the criminal case, including a motion to suppress.

Review by the Circuit Court

If DHSMV sustains the suspension, you may seek review by a petition for writ of certiorari in the circuit court for the county where you live or where the review was held. Filing the petition does not stay (pause) the suspension, and the court does not hold a new hearing from scratch. A police agency may also seek certiorari review if DHSMV invalidates a suspension. Deadlines for that petition are short; call us as soon as you get the hearing officer's decision.

What to Do in the First 10 Days

1. Find your notice of suspension and the date on it. That date starts the 10-day clock. (It is often printed on the DUI citation.)
2. Count the days now. Your temporary permit expires at midnight of the 10th day after that date.
3. Call a lawyer right away. The choice between a formal review, an informal review, or the first-time hardship option has to be made inside the 10 days, and it cannot be undone easily.
4. Do not drive after the temporary permit expires unless you have another valid permit or license.
5. Gather your paperwork: the citation, the notice of suspension, any breath-test printout, and any property or bond receipts.
6. Write down everything while it is fresh: where you were, when you were stopped, what you ate and drank, what the officer said, and whether you were read anything about a breath, urine, or blood test.
7. List possible witnesses and video: passengers, people who saw the stop, nearby cameras.
8. Hold on to your work information. If you need a hardship license, you will need to show how you drive for work.
9. If you hold a CDL, say so right away. Commercial drivers face separate disqualification rules.
10. Do not post or talk about the arrest with anyone but your lawyer.

Why Choose Dennis Gonzalez Law, P.A.

• Former Miami-Dade prosecutor.
• Defending people since 2012.
• Super Lawyers recognition and an Avvo Rating of 10.0.
• Bilingual office — se habla español.
• We answer 24 hours a day. Call (305) 209-0384.

Frequently Asked Questions

Is the license hearing part of my criminal case?

No. It is a separate DHSMV proceeding about your driver license. The criminal DUI case is in court. See DUI Defense.

When do my 10 days start?

On the date your notice of suspension was issued, which is usually the day of the arrest if the officer took your license. If your license was not suspended at the arrest, the clock did not start then.

Does asking for a hearing let me keep driving?

Not by itself. A request for review does not stay the suspension. Your 10-day temporary permit still expires on schedule, so plan for a hardship license.

What happens if I win the formal review?

If the hearing officer invalidates the suspension, the administrative suspension is set aside. The criminal case continues separately.

Should I take the first-time hardship option or fight the suspension?

It depends on your record, your job, and the evidence. Taking the hardship license waives the formal and informal review. Talk to a lawyer before day 10.

I refused the breath test. Can I still get a hardship license?

Possibly. If the refusal suspension is sustained, the waiting period is 90 days after the last temporary permit expires. A first-time driver may qualify for the immediate option instead. If your license has been suspended two or more times for refusal, the law generally bars a business or employment license.

It has been more than 10 days. Is it too late?

The window to request a review may have closed, but there may still be options for a hardship license, and the criminal case is a separate fight. Call us.

How fast can you help?

Our office answers 24 hours a day. Call (305) 209-0384.