The Department of Highway Safety and Motor Vehicles (“DHSMV”) has jursidcition to suspend licenses for refusal to submit a breath sample, however their jurisdiction must be properly obtained. A person who is arrested for suspicion of Driving Under the Influence of drugs or alcohol (“DUI”) in Florida will be asked to provide a sample of their breath by blowing into an Intoxilyzer 8000. If you refuse to blow, then your license will be suspended but you can challenge the suspension at an administrative hearing at the Department of Highway Safety and Motor Vehicles (“DHSMV”). There are several challenges that can be raised at a DMV hearing.
In a recent case, the driver had the suspension overturned and their license reinstated because the DHSMV and the arresting officer failed to provide Due Process to the individual. The challenge raised by the lawyer was to the sufficiency of the documentation submitted and the jurisdiction to suspend.
The court held that “Due process requires adherence to the legislature’s mandate that before the Department may initiate proceedings to suspend a person’s privilege to operate a motor vehicle, it must first receive the arresting officer’s properly sworn statement.” The arresting officer had signed the arrest report; however, the officer who was supposed to attest to or administer the oath only attested to the signature being the signature of the arresting officer. Basically, the court found that saying ‘that is his signature’ is very different than ‘that officer swore an oath and signed’.
The Court further found that such a defect “cannot be overlooked as a mere technicality or cured by good faith”. Furthermore, the failure to submit properly sworn documents failed “to vest the Department with initial jurisdiction upon which it could proceed with any administrative action”. In other words, they should not have ever suspended the license without at least having sworn document, and therefore there was no Due Process at the DHSMV.
The lack of organization of these two officers is rare. DUI and DUI refusals are taken very seriously by the State both at the prosecutor’s office and at the DHSMV and you should not battle the State alone. Please click or call for to hire a DUI lawyer today.