Florida Criminal Defense and DUI Defense Blog

8Feb, 21
Joe MacnciniOne of the main focuses on our work at the Kessler Law Firm is DUI defense. I thought I’d take some time to talk about Formal Review Hearings (some people call Refusal Hearings).

For this conversation, I’ll be talking to my good friend Joe Mancini. Joe was admitted to the Florida Bar in 1983, after spending time practicing law in Kentucky. He helps us out here with litigation support.

In years passed, he did a lot of these drivers license Formal Review Hearings.

A lot of lawyers tell their clients those hearings can’t be won. Clients come to us and say, “I don’t want to do the driver’s license hearing because so-and-so told me they can’t be won.”

We know that they can be won. Joe and I both have won lots of these hearings. As an example, I asked Joe to talk about one of those hearings that he won.

JM: First, by way of context and background, Florida has a law that’s commonly referred to as the Implied Consent Law. The ‘gist of it is that driving in the State of Florida is a privilege, not a right, and if the State of Florida finds it in its heart to grant you the privilege to operate a motor vehicle, by that very act of doing that, you as a driver consent to, among other things, roadside breathalyzer tests to determine whether or not you’re driving under the influence of alcohol or other substances in your system.

MK: The State can get away with that because technically the word “license” means “permission slip”. So if the State grants us a permission slip to drive, they can put conditions on it.

JM: And that’s one of the conditions. The common scenario is someone’s pulled over under suspicion of DUI. There’s some interaction with the law enforcement officer. Oftentimes, they conduct what are called field sobriety exercises. I think a lot of people are familiar with some of those – the old touch-the-nose, walk a straight line, things of that nature.

JM: At some point in the process, if the officer believes that you may have been driving under the influence, he or she will then ask you if you will consent to what is commonly referred to as a breathalyzer test.

JM: Now, under the Implied Consent Law, they put that condition that you impliedly consented to go ahead and do the test. Now, if you refuse that test, the officer can right you up for that and automatically suspend your license for one year, If it’s a second refusal, if you’ve done this in the past (refused to take the breathalyzer), your license can be suspended for up to eighteen months and it’s considered a misdemeanor at that point.

JM: There’s a caveat to that. Based on court decisions, and based on the language of the law itself, which says these breath tests must be “incident to a lawful arrest”. Courts have looked at that and decided what that means is the request and your refusal must come after you’ve been arrested. Otherwise, law enforcement could stop anybody driving down the street and say, “Excuse me, I want you to take this breath test.” You say no and lo and behold they could suspend your license, which is ludicrous. The request and your refusal have to come after the arrest.

JM: The case, one that comes to mind quite readily, the situation was the officer did the usual – pulled the individual over, went through the field sobriety exercises – and then said, “Will you submit to a breath test?” The person refused. Some other activity took place, then the officer placed the individual under arrest and suspended the license for a year, automatically.

JM: If that happens, you have the right to go to the Florida DMV and contest that suspension based on your refusal.

JM: The case I’m thinking of, the officer’s arrest affidavit itself, the sworn document that he or she fills out, basically laying out the details of the encounter, the officer was laying out his narrative and he talks about reading them their implied consent warning that if they refuse their license will be suspended for a year or eighteen months if there was a prior refusal. He goes through all of that, and then there was some additional narrative. Towards the end, the officer finally said, “And then I placed him under arrest.”

JM: Now, it’s vital in that case that the “refusal” came prior to the arrest. Various Florida court decisions and Florida DMV have recognized that that’s illegal, that’s improper for the officer, and therefore the suspension based on refusal is invalidated, and you get your license back and nothing goes on your record.

JM: That’s separate and apart from any criminal proceeding. This is an administrative hearing. That’s the one people will refer to as “you can’t win those”. But if you pay attention to detail and you know the substantive law, there are ways to win those.

MK: So, what we’re looking at here is, first of all, your driver’s license, right above where you sign it, says, “I hereby consent to submit to any sobriety test required by law.” That’s the implied consent. You’re consenting in advance when you get your license.

MK: The “required by law” part is “if you have been arrested for DUI”. We don’t have any pre-arrest breath-testing in Florida. In order for a person’s driver’s license to be at stake, they have to refuse to submit to a breath, blood or urine test after having been arrested.

MK: So, in that case, you looked over all the paperwork and you realized there was no evidence that this person had refused after arrest, and you made the decision, tactically, not to subpoena the police officer to the hearing, because we’re allowed to do that. You didn’t want to give the officer an opportunity to say, “I also asked this person after arrest.”

JM: And the arrest affidavit is prepared by the officer at the time, or shortly thereafter, of the arrest, and it’s his narrative, sworn to, as to what the facts were, what the events were. Once that document is submitted into evidence, it’s a relatively simple matter to point out the discrepancy to the officer and say, “This is not kosher. You can’t do this.” They agreed, and we had a very satisfied client.

MK: So it helps to not only know the law but also look at the evidence, read everything.

JM: The devil is in the details sometimes.

MK: You and I, in addition to what we do for a living, we’re also card players. I know my dad, lots of times, used to tell me, “Trust everybody, but check the cards.” And that’s what you did. And these DMV hearings are not impossible to win.

JM: That’s absolutely correct. Law enforcement, I admire the work they do, lords knows I couldn’t pull over a car at two in the morning by myself, but they make mistakes, for whatever reason. I’m not implying it’s intentional, but mistakes take place. The law is very clear. This is due process. This is the Constitution. This is statute. It lays out how this is supposed to work. If they don’t comply with that, if we don’t enforce that, then we have chaos. It’s supposed to be a nation of laws, and that’s what the law says in this regard.

Here at the Kessler Law Firm, we don’t think any case “can’t’ be won”. It’s just a matter of our figuring out a way to do it.

If somebody’s told you that your case can’t be won and you want another opinion, come see us. You can call us at 772-466-4900. I look forward to talking with you.

Attorney Mike Kessler
Written by: Attorney Mike Kessler

Attorney Kessler has been practicing criminal law in Florida for 30 years. He is recognized as is a leading authority on drunk-driving defense as well as a founding member of the Saint Lucie County Association of Criminal Defense Lawyers and co-author of The DUI Book: Florida Edition, the definitive resource on DUI in Florida.

To speak with Mike, call 772-466-4900 or click here for a free consultation.

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