What to Do If You’re Arrested for Driving Under the Influence

Advice from a Gainesville DUI Lawyer

When you are arrested for Driving Under the Influence (DUI), often times you’re initially worried about the criminal charge and all that can come with it. A possible conviction, jail time, probation, fines, license suspension, etc. The good news is you will have plenty of time to learn about all of your options, and a resolution to the criminal charge is likely months away. You will have time to meet with an experienced Gainesville DUI lawyer, have all of your questions answered, review all of the reports, and if available, review the video of the alleged incident.

Unfortunately, there is one part of the DUI arrest that you do not have much time to react to: The immediate suspension of your driver’s license by Florida Highway Safety and Motor Vehicles (FLHSMV), more commonly known as DMV, the people who issued you your driver’s license. This immediate suspension is referred to as an administrative suspension.

How did I lose my driver’s license?  

In Florida (like most states), you are obligated to provide a breath sample or “breath test” AFTER you are arrested for DUI. You DO NOT have to provide a sample, but there are consequences for “refusing” to provide a sample or just not being able to provide a “valid” sample of your breath, even if you have a health issue like asthma. There are also consequences for providing a breath sample if it is over what is called the “legal limit” — which is set in Florida as .08 grams of alcohol per 210 liters of breath or higher.

If you “refuse” to provide a sample or provide a “valid” sample over .08, your license is immediately suspended and you have only 10 days to file a challenge or waive your right to challenge the suspension at the local DMV office. Additionally, if the officer has reason to believe you may be under the influence of a controlled substance other than alcohol, he or she may request a urine sample. If you refuse or are unable to provide a sample, it is also considered a “refusal.”

If you have a valid license at the time of your arrest, the arresting officer will take your license and issue you a “ticket” called a Florida Uniform DUI Citation. At the bottom of this citation it should have two check marks: 1) that you surrendered your license, and 2) you are eligible for a permit. If you have that citation with the check marks, that citation will allow you to drive for 10 days from the date of arrest while you decide whether to challenge the administrative DMV license suspension or not.

If you do nothing within the 10-day window, your administrative DMV suspension is automatically affirmed. If it is for a “valid” sample over .08, your license is suspended for 6 months and you have to wait at least 30 days to get any kind of “hardship license.” If it is for a “refusal” of either the breath test or the urine sample, your license is suspended for 1 year and you cannot get a “hardship license” for at least 90 days. A “hardship license” is a restricted license that will allow you to drive to work, school, church, any on the job driving or anything necessary to maintain your livelihood.

Your Options After Receiving a Florida Uniform DUI Citation

There are two options, but you have to elect one of them within in the 10-day window, NO EXCEPTIONS.

Option 1: Waiver of Formal Review Hearing

The first option is a “waiver of formal review hearing.” If you do this properly, you will waive your right to contest the administrative DMV suspension but you will be able to drive during the entire period of suspension (6 months or 1 year) with a “hardship license.” The suspension will go on your DMV driving record. (Note: this is not a DUI conviction.)

This option requires you to take multiple steps prior to the expiration of the 10-day window. If you want to waive your right to a formal review hearing, you have to enroll in DUI School, which you usually have to do in person; they require you to bring a copy of your citation and arrest report. DUI School currently costs $270. You also have to go down to the DMV prior to the end of the 10- day window, sign a form, pay $25 to sit in a hearing to request the waiver to show proof of enrollment in DUI School and then if accepted, pay the DMV a $200.00 reinstatement fee to get your “hardship license.” All of this must occur within the 10-day window that starts on the date of your arrest – NO EXCEPTIONS.

The advantage to this option is that you will be able to drive with a restricted “hardship license” and will not suffer any “hard time,” where you cannot drive for any reason. Once again, the “hard time” is 30 days on a .08 or higher sample and 90 days on a “refusal.”

The disadvantage is that you don’t get to challenge the suspension and see if you can get it removed from your driving record and avoid the administrative suspension entirely (get your regular license back). That is where the second option comes in.

Option 2: Formal Review Hearing

The second option is a “formal review hearing.” Once again, you must request the formal review within the 10-day window.

To do so, all you have to do is take a form down to the DMV with $25. The DMV will give you a 40-day temporary permit that has the same restrictions as a “hardship license.” This permit allows you to drive while the DMV holds the formal review hearing.

It is highly recommended that you have an experienced Gainesville DUI lawyer assist you in a formal review hearing. Your DUI attorney will review the documents submitted to the DMV and likely subpoena the officer(s) who stopped you, arrested you and whomever did the breath test. The formal review hearing is like a mini-trial, except the hearing officer has no authority to extend your suspension beyond the 6 months for over .08 or 1 year for a “refusal.” He or she can only sustain the suspension or set it aside.

Gainesville DUI lawyers prefer these formal review hearings as they allow the attorney to question the officer(s) involved, under oath, about their actions and their observations. These statements can be used to argue for the suspension being set aside and can be used to challenge the criminal DUI case. The results of the hearing, the order of the hearing officer, either upholding the suspension or setting aside, cannot be used in the criminal DUI case but the evidence submitted and statements made by the officer(s) can.

The advantage of the formal review hearing is the information obtained in the hearing can lead to motion(s) to dismiss or suppress evidence in the criminal DUI case.

One of the downsides to the formal review hearing is it is not in front of a lawyer, judge or jury, it is in front of a DMV hearing officer and the amount of proof they need to uphold the suspension is much lower than what is needed for a criminal conviction. Additionally, if you lose the formal review hearing, you have to serve the designated “hard time” license suspension after your 40-day “hardship license” permit expires (30 days for sample over .08 and 90 days on a “refusal”).

Contact a Gainesville DUI Lawyer

As attorneys, we want to challenge everything and try to keep everything off our client’s record. The reality is that some individuals cannot go without having the ability to drive for any reason for 30 or 90 days. The deciding factor for most people in choosing between the waiver and the formal review hearing is whether or not they can make arrangements for transportation if they lose the formal review hearing and have to complete the “hard time.”

This information is only to highlight one of the many issues that arise when an individual is arrested for DUI. It should not be considered legal advice. The best advice if you are arrested for DUI is to immediately schedule a free consultation with an experienced Gainesville DUI attorney to go over all your rights and options.

John Whitaker is a criminal defense attorney in Gainesville, Florida with over 17 years of experience in DUI cases and is a former DUI prosecutor.