Florida Keys News - Key West Citizen
Monday, November 26, 2012
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Local lawyers fight the state over DUI rules
License hearings via telephone should not be allowed, Keys lawyers say

For the last two years, a battle has been waged by two Keys drunk driving defense attorneys and the state over whether Department of Motor Vehicles hearing officials should be allowed to appear telephonically in driver license proceedings in Monroe County -- a legal row that could send ripples across the state.

Central to the issue is the legal right of a person who has been charged with DUI to an administrative hearing in which they can review their license suspension by examining and questioning witnesses, review evidence and take testimony "in the judicial circuit where the notice of [license] suspension was issued," according to the law.

Florida's implied consent law allows the state to automatically suspend a driver's license for one year for a first breath test refusal and 18 months for each subsequent refusal.

A driver can challenge the suspension within 10 days and a Department of Highway Safety and Motor Vehicles (DMV) administrative hearing officer determines if the arrest was legal.

Since July 1, 2010, if a law enforcement officer does not show up for a defendant's license hearing, the DMV tells him or her to take their case to court, instead of automatically granting a temporary permit, as was the previous policy for decades.

Not having a hearing officer present in which law enforcement must present evidence in the case violates defendants' constitutional rights to due process, said defense attorneys Hal Schumacher and LaSonya O'Connell.

"Defendants are entitled to a full and meaningful hearing in the venue where the allegation was made," O'Connell said, who has been working with Schuhmacher for the last two years on the issue.

Circuit Judge David Audlin agreed. Audlin ruled in February that the DMV suggests that the law allows "witnesses to appear telephonically before the court and county courts, and by implication would allow a hearing officer to appear telephonically in the legally required venue, without agreement or consent of the litigants, and despite objection to the procedure. This suggestion is not accepted by the court."

Audlin explained: "The unilateral decision by the [DMV] to have the hearing officer 'appear telephonically' in the required venue deprives the litigants of the right to physically appear before the finder of the fact [the hearing officer], to conduct cross-examinations in the physical presence of the finder of fact, to examine documents during those cross-examinations in the presence of the finder of fact, and to allow the finder of fact the full and fair opportunity to observe witness demeanor, hesitations, inconsistencies, and all the myriad responses which make cross-examination 'the greatest engine for the discovery of truth.'"

Audlin's ruling effectively forced the DMV to send a hearing officer to Monroe County -- Marathon and Key West in addition to the Murray Nelson Government Center in Key Largo.

As it stands now, drivers, police officers, lawyers and witnesses must travel to Key Largo to attend the hearing.

"At least hold them in Marathon perhaps once or twice a month at a central location so everyone is not taking a full day traveling two hours away," LaSonya said, adding that its a waste of time and taxpayer resources to only hold the hearings in Key Largo.

Schuhmacher said the battle is not over.

"It's been a huge loss for my firm, but it's a fight worth fighting," Schuhmacher said. "No one else is doing it."

alinhardt@keysnews.com

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