When you are arrested for DUI, you either take the breath test or you don’t. If you take the breath test and blow over the legal limit you are issued a DUI citation. Same thing if you refuse the breath test. Your license is physically taken from you at the police station. However, the DUI citation is your license to drive for 10 days following your arrest.
What is the 10-day rule?
The 10-day rule is the time period in which you have to request a formal review hearing to challenge your DUI license suspension. If you do not request a hearing within 10 days, your license will automatically be suspended as follows:
- REFUSAL – 1 year suspension for a first refusal, 18 month suspension if you previously refused.
- OVER THE LEGAL LIMIT – 6 months suspension.
If you request the formal review hearing, you are entitled to a temporary driving permit (if your license is otherwise valid). The temporary driving permit typically lasts about 30 days. Your formal review hearing will occur approximately 30 days following your request.
Formal Review Hearing – What happens there?
The formal review hearing takes place at the Division of Motor Vehicles. The hearing is an administrative hearing and criminal justice rules do not apply. The only thing considered at the hearing is whether or not you took the breath test (for a refusal case) or whether your breath test was accurate (for a breath case). The hearing takes place in a cramped room with a hearing officer (not a judge), your attorney, and the police officer.
If the police officer read you Florida’s Implied Consent and warned you that refusing the breath test will cause your license to be suspended, then your chances of winning the hearing are slim. Most of the time, the police officers read these warnings from a pre-printed card.
The breath machine is tested on a monthly basis. Sometimes, the machine breaks down. If the machine does not break down, the monthly tests will be sufficient to allow your breath test result to come into evidence at your formal review hearing.
So, you may ask yourself, how is formal review hearing won. The best answer is this: The police officer failed to show up! That is the easiest way to win. Other ways to win are by challenging the documents filed by the police as being incomplete, attacking the time that the breath test was given relative to the time you were driving, or even by showing that the officer did not have probable cause to even ask you to take a breath test in the first place.
If I lose the formal review hearing, can I get a hardship license?
For first time offenders of DUI, the short answer is yes. However, you will have to register and complete DUI school. This typically costs a few hundred dollars. The course itself is a 12 hour course (for first timers). Following the course, you will be evaluated and you might have to attend a few sessions of counseling.
Once you completed the DUI school, you may apply for a hardship license following the 30 or 90 day period of your suspension. Remember, for a refusal, you have to wait 90 days before you can apply for a hardship. For a breath test over the legal limit, you have to wait 30 days.
Of course, before the DMV will give you a hardship license, you will have to pay a reinstatement fee. Remember, a hardship license is only good for driving to work, school, or for religious purposes only. The hardship license can be renewed until your suspension is up.
We have actually won a DUI case in court and instead of giving our client their license back, the DMV actually made our client get a hardship license!
If you win your case and your formal review hearing, DUI school and applying for a hardship license is NOT necessary! That’s why it is important to hire an experienced DUI attorney.
By DUI Defense Attorneys Alamo & O’Toole, P.A.
Back to Resources