Florida Keys News - Key West Citizen
Monday, April 8, 2013
Appellate court sides with DMV

An appellate court has sided with the Department of Motor Vehicles in a legal row over whether hearing officials should be allowed to appear telephonically in driver license proceedings in Monroe County.

Central to the issue is the legal right of a person who has been charged with drunken driving 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 attorney Hal Schuhmacher.

Circuit Judge David Audlin agreed and ruled in February 2011 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's ruling could have 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 where drivers, police officers, lawyers and witnesses must currently travel.

The 3rd District Court of Appeals quashed Audlin's order and said it creates an unfair burden on the DMV, according to a ruling issued Wednesday.

"It is clear that while the legislature intended a hearing officer to preside over formal review hearings, it left the manner in which the hearing would proceed to the hearing officer's discretion," the appellate court wrote in its ruling. "Construing the statute to prohibit the hearing officer from appearing telephonically, when appropriate, fails to give meaning to the statute at issue."

A person's constitutional rights are not impeded in allowing hearing officers to appear on the phone for the hearing, the court ruled.

"This procedure imposes a heavy and unjustified burden on the department (DMV) without providing any significant benefit to the driver insofar as due process rights are concerned," wrote the 3rd DCA.

Monroe County State Attorney Catherine Vogel declined to comment at length on the issue, and said only that the 3rd DCA ruling "doesn't really help (the State Attorney's Office) or hurt us."

Schuhmacher said Thursday he is planning to file for a rehearing before the 3rd DCA on the matter and that the issue could reach the Florida Supreme Court.

"This opinion is really detrimental to any sense of fairness or meaningful review," Schuhmacher said. "Otherwise these hearings just become rubber stamp festivals."


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