The Florida Senate

322.64  Holder of commercial driver's license; driving with unlawful blood-alcohol level; refusal to submit to breath, urine, or blood test.--

(1)(a)  A law enforcement officer or correctional officer shall, on behalf of the department, disqualify from operating any commercial motor vehicle a person who while operating or in actual physical control of a commercial motor vehicle is arrested for a violation of s. 316.193, relating to unlawful blood-alcohol level or breath-alcohol level, or a person who has refused to submit to a breath, urine, or blood test authorized by s. 322.63 arising out of the operation or actual physical control of a commercial motor vehicle. Upon disqualification of the person, the officer shall take the person's driver's license and issue the person a 10-day temporary permit if the person is otherwise eligible for the driving privilege and shall issue the person a notice of disqualification. If the person has been given a blood, breath, or urine test, the results of which are not available to the officer at the time of the arrest, the agency employing the officer shall transmit such results to the department within 5 days after receipt of the results. If the department then determines that the person was arrested for a violation of s. 316.193 and that the person had a blood-alcohol level or breath-alcohol level of 0.08 or higher, the department shall disqualify the person from operating a commercial motor vehicle pursuant to subsection (3).

(b)  The disqualification under paragraph (a) shall be pursuant to, and the notice of disqualification shall inform the driver of, the following:

1.a.  The driver refused to submit to a lawful breath, blood, or urine test and he or she is disqualified from operating a commercial motor vehicle for a period of 1 year, for a first refusal, or permanently, if he or she has previously been disqualified as a result of a refusal to submit to such a test; or

b.  The driver violated s. 316.193 by driving with an unlawful blood-alcohol level and he or she is disqualified from operating a commercial motor vehicle for a period of 6 months for a first offense or for a period of 1 year if he or she has previously been disqualified, or his or her driving privilege has been previously suspended, for a violation of s. 316.193

2.  The disqualification period shall commence on the date of arrest or issuance of notice of disqualification, whichever is later.

3.  The driver may request a formal or informal review of the disqualification by the department within 10 days after the date of arrest or issuance of notice of disqualification, whichever is later.

4.  The temporary permit issued at the time of arrest or disqualification will expire at midnight of the 10th day following the date of disqualification.

5.  The driver may submit to the department any materials relevant to the arrest.

(2)  Except as provided in paragraph (1)(a), the law enforcement officer shall forward to the department, within 5 days after the date of the arrest or the issuance of the notice of disqualification, whichever is later, a copy of the notice of disqualification, the driver's license of the person arrested, and a report of the arrest, including, if applicable, an affidavit stating the officer's grounds for belief that the person arrested was in violation of s. 316.193; the results of any breath or blood test or an affidavit stating that a breath, blood, or urine test was requested by a law enforcement officer or correctional officer and that the person arrested refused to submit; a copy of the citation issued to the person arrested; and the officer's description of the person's field sobriety test, if any. The failure of the officer to submit materials within the 5-day period specified in this subsection or subsection (1) shall not affect the department's ability to consider any evidence submitted at or prior to the hearing. The officer may also submit a copy of a videotape of the field sobriety test or the attempt to administer such test.

(3)  If the department determines that the person arrested should be disqualified from operating a commercial motor vehicle pursuant to this section and if the notice of disqualification has not already been served upon the person by a law enforcement officer or correctional officer as provided in subsection (1), the department shall issue a notice of disqualification and, unless the notice is mailed pursuant to s. 322.251, a temporary permit which expires 10 days after the date of issuance if the driver is otherwise eligible.

(4)  If the person arrested requests an informal review pursuant to subparagraph (1)(b)3., the department shall conduct the informal review by a hearing officer employed by the department. Such informal review hearing shall consist solely of an examination by the department of the materials submitted by a law enforcement officer or correctional officer and by the person arrested, and the presence of an officer or witness is not required.

(5)  After completion of the informal review, notice of the department's decision sustaining, amending, or invalidating the disqualification must be provided to the person. Such notice must be mailed to the person at the last known address shown on the department's records, and to the address provided in the law enforcement officer's report if such address differs from the address of record, within 21 days after the expiration of the temporary permit issued pursuant to subsection (1) or subsection (3).

(6)(a)  If the person arrested requests a formal review, the department must schedule a hearing to be held within 30 days after such request is received by the department and must notify the person of the date, time, and place of the hearing.

(b)  Such formal review hearing shall be held before a hearing officer employed by the department, and the hearing officer shall be authorized to administer oaths, examine witnesses and take testimony, receive relevant evidence, issue subpoenas, regulate the course and conduct of the hearing, and make a ruling on the disqualification. The department and the person arrested may subpoena witnesses, and the party requesting the presence of a witness shall be responsible for the payment of any witness fees. If the person who requests a formal review hearing fails to appear and the hearing officer finds such failure to be without just cause, the right to a formal hearing is waived and the department shall conduct an informal review of the disqualification under subsection (4).

(c)  A party may seek enforcement of a subpoena under paragraph (b) by filing a petition for enforcement in the circuit court of the judicial circuit in which the person failing to comply with the subpoena resides. A failure to comply with an order of the court shall result in a finding of contempt of court. However, a person shall not be in contempt while a subpoena is being challenged.

(d)  The department must, within 7 days after a formal review hearing, send notice to the person of the hearing officer's decision as to whether sufficient cause exists to sustain, amend, or invalidate the disqualification.

(7)  In a formal review hearing under subsection (6) or an informal review hearing under subsection (4), the hearing officer shall determine by a preponderance of the evidence whether sufficient cause exists to sustain, amend, or invalidate the disqualification. The scope of the review shall be limited to the following issues:

(a)  If the person was disqualified from operating a commercial motor vehicle for driving with an unlawful blood-alcohol level in violation of s. 316.193:

1.  Whether the arresting law enforcement officer had probable cause to believe that the person was driving or in actual physical control of a commercial motor vehicle in this state while he or she had any alcohol, chemical substances, or controlled substances in his or her body.

2.  Whether the person was placed under lawful arrest for a violation of s. 316.193

3.  Whether the person had an unlawful blood-alcohol level as provided in s. 316.193

(b)  If the person was disqualified from operating a commercial motor vehicle for refusal to submit to a breath, blood, or urine test:

1.  Whether the law enforcement officer had probable cause to believe that the person was driving or in actual physical control of a commercial motor vehicle in this state while he or she had any alcohol, chemical substances, or controlled substances in his or her body.

2.  Whether the person refused to submit to the test after being requested to do so by a law enforcement officer or correctional officer.

3.  Whether the person was told that if he or she refused to submit to such test he or she would be disqualified from operating a commercial motor vehicle for a period of 1 year or, in the case of a second refusal, permanently.

(8)  Based on the determination of the hearing officer pursuant to subsection (7) for both informal hearings under subsection (4) and formal hearings under subsection (6), the department shall:

(a)  Sustain the disqualification for a period of 1 year for a first refusal, or permanently if such person has been previously disqualified from operating a commercial motor vehicle as a result of a refusal to submit to such tests. The disqualification period commences on the date of the arrest or issuance of the notice of disqualification, whichever is later.

(b)  Sustain the disqualification for a period of 6 months for a violation of s. 316.193 or for a period of 1 year if the person has been previously disqualified from operating a commercial motor vehicle or his or her driving privilege has been previously suspended as a result of a violation of s. 316.193 The disqualification period commences on the date of the arrest or issuance of the notice of disqualification, whichever is later.

(9)  A request for a formal review hearing or an informal review hearing shall not stay the disqualification. If the department fails to schedule the formal review hearing to be held within 30 days after receipt of the request therefor, the department shall invalidate the disqualification. If the scheduled hearing is continued at the department's initiative, the department shall issue a temporary driving permit which shall be valid until the hearing is conducted if the person is otherwise eligible for the driving privilege. Such permit shall not be issued to a person who sought and obtained a continuance of the hearing. The permit issued under this subsection shall authorize driving for business or employment use only.

(10)  A person who is disqualified from operating a commercial motor vehicle under subsection (1) or subsection (3) is eligible for issuance of a license for business or employment purposes only under s. 322.271 if the person is otherwise eligible for the driving privilege. However, such business or employment purposes license shall not authorize the driver to operate a commercial motor vehicle.

(11)  The formal review hearing may be conducted upon a review of the reports of a law enforcement officer or a correctional officer, including documents relating to the administration of a breath test or blood test or the refusal to take either test. However, as provided in subsection (6), the driver may subpoena the officer or any person who administered or analyzed a breath or blood test.

(12)  The formal review hearing and the informal review hearing are exempt from the provisions of chapter 120. The department is authorized to adopt rules for the conduct of reviews under this section.

(13)  A person may appeal any decision of the department sustaining the disqualification from operating a commercial motor vehicle by a petition for writ of certiorari to the circuit court in the county wherein such person resides or wherein a formal or informal review was conducted pursuant to s. 322.31 However, an appeal shall not stay the disqualification. This subsection shall not be construed to provide for a de novo appeal.

(14)  The decision of the department under this section shall not be considered in any trial for a violation of s. 316.193, s. 322.61, or s. 322.62, nor shall any written statement submitted by a person in his or her request for departmental review under this section be admissible into evidence against him or her in any such trial. The disposition of any related criminal proceedings shall not affect a disqualification imposed pursuant to this section.

(15)  This section does not preclude the suspension of the driving privilege pursuant to s. 322.2615 The driving privilege of a person who has been disqualified from operating a commercial motor vehicle also may be suspended for a violation of s. 316.193

History.--s. 29, ch. 89-282; s. 3, ch. 90-329; s. 25, ch. 91-255; s. 7, ch. 93-124; s. 33, ch. 95-143; s. 432, ch. 95-148; s. 3, ch. 95-186; s. 13, ch. 96-330; s. 17, ch. 2001-196.