Practice Areas

• Car and Motorcycle Accidents
• DUI and Criminal Defense
• Big Truck Accidents
• Medical Malpractice
• Serious Injuries:
  Slip and Fall | Dog Bites

Click here to subscribe or unsubscribe to our free newsletter.

News

1st DCA Rules The DMV Must Consider Lawfulness of Arrest To Sustain Driver's License Suspension

When a person is arrested for Driving Under The Influence, their driver's license is immediately suspended by the Florida Department of Highway Safety and Motor Vehicles as a result of the arrest (i.e. before conviction). The person has a right to request a Formal Review Hearing to contest the suspension but the request must be made within ten (10) days of the issuance of the Notice of Suspension (normally contained in the DUI citation). Florida Statute 322.2615 sets forth the scope of the issues in the Formal Review Hearing.

The statute used to require that the hearing officer consider whether the person was lawfully arrested for DUI. The state didn't like the fact that police departments all to often could not prove the arrest was lawful and driver's license suspensions were being overturned. So, in usual government/law enforcement fashion, they got the statute changed to delete the requirement that the police prove the lawfulness of the arrest. However, the Legislature did not change Florida Statute 316.1932 which requires that a breath test be administered "incidental to a lawful arrest".

Prior to today, the Fifth District Court held that because of the language of FS 316.1932, the State must still prove the lawfulness of the arrest to sustain the administrative suspension. Contrary, the Second District Court of Appeal recently ruled that there is no conflict in the lanaguage and that FS 316.2615 controls the scope of review (i.e. the issues) and therefore the State need not prove, and the hearing officer need not decide, whether a driver was lawfully arrested.

Today, the First District Court of Appeal in Tallahassee, Florida joined the Fifth District Court of Appeal and ruled that at Formal Administrative Hearings, the DHSMV Hearing Officer must consider whether the police lawfully arrested the driver in order to uphold the administrative suspension of the citizen's driver's license. All three Courts have certified the conflicting opinions to the Florida Supreme Court. This is normally done as a method of asking the Supreme Court to decide the issue and publish an opinion that would be binding on all lower Courts throughout the State. We will continue to watch the issue and keep you abreast of developments.

To read the First District Courts opinion, click on "read more about this article" below.

Read More About 1st DCA Rules The DMV Must Consider Lawfulness of Arrest To Sustain Driver's License Suspension...

back to top

Consumer Guides

Seven Mistakes That Can Wreck Your Florida Accident Case

Free Evaluation