If a person is arrested for drunk driving in Florida, the Florida Department of Highway Safety & Motor Vehicles (DHSMV) will automatically suspend the driver's license. The license suspension will be in effect before the driver even has an opportunity to challenge the drunk driving arrest in court. The DHSMV suspension is independent of any criminal action sought by the State of Florida in criminal court. The legal authority for such a suspension is found in Florida Statute §322.2615. Fortunately, new changes to Florida law now gives defendants two ways to avoid the license suspension. However, the defendant only has 10 days from the date of arrest to invoke the law and continue to lawfully drive.
The traditional way to begin driving again after a DUI arrest is to challenge the license suspension by requesting an administrative review hearing. If the driver elects to challenge the license suspension they must do so within 10 days of the arrest. If the driver fails to request an administrative hearing to challenge the suspension within 10 days of the arrest they will lose their opportunity to do so. The DHSMV hearing is an administrative hearing, it will not take place in a court of law or be decided by a criminal law judge.
At the DHSMV hearing, the hearing officer will review the police record of the arrest, blood alcohol test, and any other relevant evidence to determine whether or not the license suspension should be upheld. The driver has a right to have legal counsel attend the hearing and argue on their behalf. Further, the driver has the right to subpoena the arresting officer and cross-examine them at the hearing. The driver must subpoena the officer; otherwise, the officer will not be required to attend the DHSMV hearing. Any statements made at the hearing by the arresting officer can then later be used in criminal court to impeach the arresting officer's testimony.
If an appeal of the license suspension is timely filed, the driver will be issued a temporary driver's license. The license will remain in effect while the challenge to the DHSMV suspension is pending and can last for up to 42 days. The temporary license will not be terminated until the DHSMV hearing takes place. The license issued will be a Business Purposes License (BPO). With a BPO license, the driver can operate a motor vehicle for any purpose necessary to maintain livelihood. This can include driving to and from work, necessary on-the-job driving, driving for educational purposes, driving to church, and for medical purposes. Driving a vehicle for recreational use is not permitted with a BPO. See Florida Statute §322.271.
The right to a DHSMV hearing has been available for a quite some time. However, the Florida Legislature recently enacted a new law that will grant a BPO license without applying for a DHSMV hearing.
Recent changes to Florida DUI law now allows drivers arrested for DUI to obtain a hardship license without requesting a DHSMV hearing. See Florida Statute §322.271(7). The license that will be granted under this program will be a BPO license. Obtaining a BPO license under this new law is commonly referred to as a "waiver license." It is called this because the driver is waiving their right to a DMSHV hearing to contest the suspension. By waiving their right to a hearing, the driver is essentially admitting guilt and will have the suspension on their driving record. The suspension will remain a part of the driver's record even if the driver is later found not guilty of drunk driving in a criminal court of law.
Not everyone with a suspended license due to a DUI arrest will qualify for the waiver license. The waiver license is only available to drivers who have not had any previous convictions for DUI or Breathalyzer test refusals. Additionally, the driver must provide proof they are enrolled in DUI school at the time the waiver request is submitted. The driver must also pay a $25 filing fee to request the waiver license. Most importantly, the request for the waiver license must be done within 10 days from the date of the arrest. Any waiver requests submitted more than 10 days from the date of arrest will be rejected.