Getting Back on the Road After a DUI Arrest​

It is important to understand that, in Florida, a DUI arrest triggers exposure to two separate driver license suspensions. Most people are aware that if convicted of DUI, the judge is required to impose a driver license suspension as part of the sentence. Of course, the driver license suspension imposed in court would only begin at the point of conviction. However, there is an additional driver license suspension that often occurs automatically when a person is arrested for DUI. This suspension takes immediate effect starting on the date of the arrest. It is a driver license suspension imposed by the Florida Department of Highway Safety and Motor Vehicles (DHSMV) – not the judge. This suspension is classified as civil in nature and differs from a criminal penalty which only takes effect upon conviction. This civil administrative driver license suspension is imposed when a person who is charged with DUI submits to testing and has a .08 BAC or higher OR when a driver charged with DUI refuses to submit to a lawful request to take a breath, urine, or blood test. 

If you fall into either of these two categories, it is a near certainty that law enforcement submitted paperwork to the DHSMV that will cause an administrative suspension of your privilege to drive. However, there are several possible options available to help you deal with the immediate administrative suspension of your privilege to drive. In the vast majority of cases, the deadline to act is within the first 10 calendar days of your arrest.

Driving After Your DUI Arrest

If you had a valid driver license on the date of your DUI arrest and your driver license is now suspended due having a BAC of .08 or higher or refusing to submit to a test, you can still drive for the first 10 days. The Florida DUI Uniform Traffic Citation that you were issued functions as your temporary driver license. If you closely examine the DUI citation, you will see language at the bottom that states, “Unless ineligible, this citation shall serve as a temporary driver’s license and will expire at midnight on the 10th day following the date of suspension.” For this reason, you should keep the citation on your person while you are driving in the first 10 days following your arrest. You may further note that you can use the citation during those 10 days to drive for any reason – it is not restricted to hardship purposes.

When you meet with an attorney in our office, we can determine if an administrative suspension has occurred and counsel you about your current ability to lawfully drive. If you are unsure about whether your privilege to drive has been suspended, you should seek the advice of an attorney before taking any risk of aggravating your current situation with a new charge of “Driving While License Suspended or Revoked.”

The Administrative Suspension: Driving with an Unlawful Blood or Breath Alcohol Level (DUBAL)

The driver license suspension for submitting to a blood or breath test that returns a result of .08 or higher varies in length depending on whether a person’s license has been suspended in the past for the same reason.

If it is the first time you have ever suffered an administrative suspension for DUBAL, the period of the suspension is six months in length. If it is the second time you have been administratively suspended for DUBAL, the suspension is 12 months long.

The Administrative Suspension: Refusal to Submit to Testing

Just as with the DUBAL suspension, the length of the administrative suspension for Refusal can change depending on whether it is the first or second Refusal suspension to occur.

If it is the first time you have ever suffered an administrative suspension for Refusal, the period of the suspension is 12 months in length. If it is the second time you have been administratively suspended for Refusal, the suspension is 18 months long.

As you can see, the Florida Legislature designed a shorter suspension for those drivers who submit to testing and trigger a DUBAL suspension, rather than those drivers who decline to participate in breath, urine, or blood testing. That is because the Florida Legislature wants to incentivize drivers to cooperate with testing. In some cases, the test results will actually help exonerate the driver, if the BAC is “under the legal limit.” However, in other cases, the State will be armed with a breath alcohol concentration that they can then point to in order to argue that the driver had an unlawful level of alcohol in their bloodstream at the time of driving. In other words, that the accused was “over the legal limit.”

It is important to reiterate that the administrative suspension is totally separate from any driver license suspension that the court may impose upon a plea of guilty or a verdict of guilty after trial. Any time spent without a driver license during the administrative suspension is not credited towards the court suspension. 

The 10-Day Deadline for Taking Action

Florida law requires a driver to take the appropriate action within 10 days of the DUI arrest in order to challenge a driver license suspension or obtain hardship licensure during the administrative suspension period. This deadline is not subject to extension or modification, nor will you receive any reminder from the government. Instead, the burden is solely on you to act timely. As a result, the options available to you resolve down to three choices:

1. Do Nothing
2. File for a Formal Administrative Review Hearing
3. For first-time DUI arrestees, waive a Formal Review Hearing and apply for a hardship license

Doing Nothing

If you do not take any action during the first 10 days, you may nevertheless drive on the DUI citation that you were issued. However, at midnight on the 10th calendar day, you must cease all driving for a certain period. That period again depends on whether the administrative suspension was for DUBAL or Refusal. If the suspension was for DUBAL, you may not drive for 30 days. On the other hand, if the suspension was for Refusal, you may not drive for 90 days. During either this 30 or 90 day period, there is no ability to obtain a hardship license. Following the 30 or 90 days of no driving, you may then apply for a hardship license, provided that you have at least registered for DUI School. You should note that you need only be registered for DUI School to be eligible for a hardship license at this point. You do not have to have DUI School completed, so long as you have waited out the applicable 30 or 90 days, to apply. One should also keep in mind that if this is their second suspension for a Refusal there is no ability to obtain a hardship license despite waiting out the 90 days of no driving.

For most people, simply ceasing all driving for 30 or 90 days within 10 days of their DUI arrest, places them in a difficult position. For that reason, “doing nothing” is rarely the best option. Exceptions may exist. For example, where a driver has been involved in an accident and will not have a car available to them for the next few months or where the individual charged with DUI seeks entry into long-term residential treatment immediately. However, these situations are rare and “doing nothing” is usually not the best option.

Filing for an Administrative Review Hearing

Florida Law provides a method for challenging the administrative suspension for DUBAL or Refusal. This challenge must be filed within the first calendar 10 days of arrest. Upon filing the challenge, the Florida DHSMV will issue a temporary driving permit that is valid for 42 days, so long as you had a valid driver license on the date of your DUI arrest. This temporary driving permit functions as a hardship license. It allows the driver to go to and from work, the doctor’s office, church, and school. There have been a few court decisions that also condone the use of the permit to allow driving to the grocery store, the bank, and the drive-thru at fast food restaurants.

During the 42 day period, the Florida DHSMV will set a hearing. This hearing is for the purpose of making arguments as to why the administrative driver license suspension should be invalidated. The hearing is limited to determining whether law enforcement had probable cause to make a DUI arrest and whether lawful testing revealed a BAC of .08 or higher or if the driver refused a lawful test after being given Florida’s Implied Consent warnings. A hearing officer employed by the DHSMV conducts the hearing and makes the decision to invalidate or sustain the administrative suspension. You may note that the “scope” of the hearing is limited – the hearing officer does not take into consideration what effect your inability to drive would have on your livelihood, your ability to pay your bills, or to provide care for your children. Likewise, the hearing is not about the question of whether you are guilty or not guilty of the DUI charge.

Because the hearing is administrative in nature, and does not consider issues of factual guilt, it can be decided solely on the documents submitted to the DHSMV by law enforcement. Thus, the best way to win the hearing is to find and argue deficiencies in the documentation. If a thorough review of the documents does not reveal any defects, then it is appropriate to subpoena law enforcement and question the arresting officer and breath test officer (if any) under oath.

In the event that you win the hearing, the Florida DHSMV will invalidate the suspension and you can obtain a full, valid driver license. On the other hand, if you lose the hearing, the driver license suspension will be sustained. You will be able to continue driving until your temporary driving permit expires. At that time, you will have to “sit out” the 30 or 90 days of no driving before you can apply for a hardship license.

Participating in a Florida DHSMV Formal Administrative Review Hearing requires specialized knowledge of the procedures employed, the necessary documents to file, the legal issues that can be properly asserted, and the correct methods for admitting or objecting to the introduction of evidence. Given the complexity of the hearing process and the possibility of winning back the driver license, the advocacy offered by a lawyer who is experienced in this particular area of the law can be invaluable.

Forgoing the Hearing & Applying for a Hardship License – The “Waiver”

A third option is present for those persons who have never been previously convicted of DUI and have never had their driver license suspended for DUBAL or Refusal. In other words, this option is limited to the “true first time DUI arrestee.” If a driver wishes to take advantage of this option, they are accepting the administrative suspension and waiving their right to a DHSMV Formal Administrative Review Hearing.

First and foremost, this option must be elected within the first 10 days from the date of the arrest. The process to waive the right to a hearing requires the driver to register for DUI school, submit a waiver form to the DHSMV Bureau of Administrative Reviews hardship license office, and submit an application for a hardship license, all within those first 10 days. If this procedure is followed, the DHSMV will then approve the driver for an immediate hardship license. The driver can then visit the regular driver license office (i.e., the Tax Collector’s Office) and receive the physical hardship license at that time. Thereafter, the driver can use the hardship license to drive for the entirety of the administrative suspension. This option is attractive because it eliminates the possibility that the driver will have to “sit out” the 30 or 90 days of no driving. On the other hand, this option also requires the driver to accept the administrative suspension and waives any possibility of overturning the suspension or having a full driver license reinstated due to giving up the right to a hearing. If you are eligible to do so and elect this option, our office will provide you with the necessary information to register for DUI School and file all the necessary documents for you with the DHSMV so you can receive a hardship license.

Should I Have a Hearing or Should I File for a Waiver?

The major consideration when making this important decision is the question of whether you can “absorb” the 30 or 90 day period of no driving associated with the administrative suspension. Some clients are in a position where they do not have friends or family to help them with getting to work, the grocery store, driving children to school, and other essential driving activities. Thus, if you are in that predicament, it may be advantageous to you to accept the suspension and receive a hardship license right away.

Conversely, you may be able to “survive” the 30 or 90 day period of no driving if you can depend on other people to help you get around, are able to use Uber or public transportation consistently, or can simply walk or bike to those places you need to go. If you fall into this category, it may make better sense to have your attorney file for a Formal Administrative Review Hearing and to challenge the suspension.

There are, of course, advantages and disadvantages to both options. Obviously, accepting the administrative suspension and waiving the right to a hearing places you in a position where you have a restricted driving privilege for the next 6 to 12 months. You are giving up the ability to challenge the suspension and win a full driver license back. Likewise, the fact of the administrative suspension and the fact that it arises out of a DUI arrest will be entered on your Florida Driver License Record. Your insurance company may treat this information as an indication that you are a high-risk driver and raise your auto insurance premiums, regardless of the outcome in court. In addition, you will be deprived of the opportunity to have your attorney potentially question law enforcement under oath or review documentation well in advance of any court proceedings that might yield information useful to your case. It is important to note that depositions are rarely available in misdemeanor DUI cases. For that reason, a Formal Review Hearing may be the only opportunity to obtain law enforcement testimony under oath aside from a motion hearing or jury trial. Despite these considerations, one must always remember that a waiver of the Formal Review Hearing puts a hardship license in your hand right away and avoids the applicable period of no driving. Thus, these advantages and disadvantages must be weighed carefully when making this important decision.

When you consult with our office, we will discuss these considerations as well as other factors that may apply. We will help counsel you on the most desirable course of action and which option will best serve your individual needs.

I Was Arrested for a DUI and Have a CDL – Can I Take Advantage of the Waiver Process?

The short answer is No. If you were arrested for DUI and you have a CDL, your options are limited to either “doing nothing” or filing for a DHSMV Formal Administrative Review Hearing. This is true whether the DUI arrest occurred while driving a commercial motor vehicle or while operating a vehicle during your non-working hours that only requires a Class E license.

Given that your driver license is directly tied to your ability to earn a living, it is clear that the only advisable course of action is to immediately file for a DHSMV Formal Administrative Review Hearing. The temporary permit that will be issued to you will only permit the operation of non-commercial motor vehicles. There is no such thing as Hardship CDL. However, if we prevail at the DHSMV Formal Administrative Review Hearing, it will result in your ability to reinstate your CDL.

Moreover, the period of CDL disqualification is different if you were in fact operating a commercial motor vehicle at the time of your DUI arrest. In the event that the DHSMV determines that you had a BAC of .04 or higher or you refused a lawful test of your breath, blood, or urine, you will be disqualified from holding a CDL for one year. Accordingly, if you have a CDL and have been arrested for DUI, you need to consult with an experienced attorney as soon as possible in order to take the appropriate action to challenge the administrative driver license suspension.

The Administrative Suspension Loophole

Not all DUI arrests involve alcohol. Florida law also prohibits driving or being in Actual Physical Control of a Motor vehicle while impaired by a chemical or controlled substance. DUI cases of this nature may involve a scenario where the driver consents to a breath test but blows under a .08 and then submits to a urine test for the presence of controlled substances. Florida law does not provide for any administrative suspension in these circumstances. This is because no DUBAL suspension is triggered where the breath or blood test came back with a BAC under a .08 and no Refusal suspension occurs because the driver cooperated with all tests. Therefore, individuals who fall into this narrow category of DUI arrests need not worry about the 10 day deadline. They may continue to drive uninterrupted on a full driver license and have suffered no administrative suspension whatsoever. If convicted, they will still face the driver license suspension that is court ordered by the judge, but need not concern themselves with any administrative suspension. If your case involves an allegation that you were “drugged driving,” you are encouraged to read the chapter found later in this book on “Drug DUI’s” for an in-depth discussion of how we defend against this particular variant of a DUI charge.