DUI License Suspension Hearing | Case Update

Driver's License Suspension Hearings

DUI Attorney, Lawyer W.F. "Casey" Ebsary has been researching Driver's License Suspension Hearings for license suspensions for DUBAL Driving with unlawful breath alcohol level. In one reported case, a witness appeared by telephone over objection. The appeals court ruled that the DHSMV  Department of Highway Safety and Motor Vehicles is not afforded power to dispense with personal appearance required by subpoena.

The court stated' "Petitioner requested the hearing officer to issue a subpoena duces tecum for Mr. XXXXXX to appear at the formal review hearing and the subpoena was issued. Thomason was properly served, but failed to appear in person at the May 20, 2009 formal review hearing. Instead, XXXXXX requested that he be allowed to appear by telephone. Without consulting the Petitioner's attorney, the hearing officer granted the request." Name omitted.

The court found, "Given the First District Court of Appeal's decision in Lee v. DHSMV, 4 So.3d 754 (Fla. 1st DCA 2009), a hearing officer must issue subpoenas for witnesses identified in any documentary evidence submitted prior to the hearing. Lee v. DHSMV, 4 So.3d at 758. Lee cannot be any clearer. If the hearing officer considers inspection reports on the DHSMV's behalf, but denies the driver the right to meaningfully cross-examine the individuals who prepared those documents, the hearing officers actions “violate basic principles of due process.” Id. at 757."

The court ruled, "While hearing officers have a certain amount of discretion to conduct formal review hearings, their discretion does not extend to unilaterally deciding which witness can and cannot appear by telephone at a scheduled formal review hearing over the objection of the party that subpoenaed the witness. The hearing officer must remain neutral and detached in these proceedings and granting the ex-parte request in this case for the agency inspector to appear by telephone comes dangerously close to exceeding the role of a neutral and detached decision-maker." In short, the driver was entitled to a fair hearing with a personal appearance by the witness.

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Source: FLWSUPP 1710EDEN