Did you know the Florida DMV must subpoena the Breath Test Maintenance Officer and Operator to the DUI Formal Review regarding a DUI related Administrative suspension or the suspension will be overturned? It’s perhaps the most important single procedure that can get messed up. There are numerous cases where events improperly handled have actually set aside a seeming conviction, all because it wasn’t handled by the DMV properly.

As with anything to do with the law, there are many subtleties to the law. This is especially true in regards to a DUI arrest even in Florida. Evidence requests need to be timely for a driver to defend himself. If a driver facing DUI charges does not have adequate time or experienced counsel.

If the subpoena is not handled properly and the officers and others involved do not do not produce the supporting documents an entire case can be invalidated according to Florida in certain cases. For one if the support documents of the officer’s case are not there for a DUI petitioner than a constitutional issue arises in the petitioner’s behalf. That issue is due process as the fact that the actual documents supporting the arresting officer’s contention are not present to be examined. Florida DMV expects to persevere someone needs to make after a DUI arrest needs to be made quickly. Given the tight time period it must be provided in less than a week, which is why an experienced DUI attorney needs to be in your corner as soon as possible after the arrest.

In the case noted above before the District Court of Appeal’s First District here in Florida this exact issue was addressed successfully in the favor of the Petitioner, Gerald R. Lee in court documents. According to this appeals CASE NO. 1D08-2887, the Opinion was filed on March 10, 2009, with this set of circumstances. There are many complexities to be addressed in a circumstance involving a DUI, which a citizen needs to consider. First and most important is to secure legal counsel to overcome at least one provision in the DMV code. It is in Section 322.2615(6)(b) that states in part that “…a hearing officer may issue subpoenas for the officers and witnesses identified not only in the documents actually named in subsection (2), but also in “any [documentary] evidence submitted at or prior to the hearing.” ”.  As clear as this may seem, one can easily see that an experienced attorney with law, procedure and experience is a must. Dealing with this fine points are not to be taken lightly as enforcement is being stepped up all over Florida with such changes to the law as the new seatbelt law.

In this court document it listed among other things that Mr. Lee’s due process rights, a constitutional right, had been disrupted and prevented. Specifically, the court document commented that “A ruling constitutes a departure from ‘the essential requirements of law’ when it amounts to ‘a violation of a clearly established principle of law resulting in a miscarriage of justice.’”. Pretty clear it seems to the court when issues and events are overlooked like this. Of course, there is more to this case what can be said in only a few words and each case holds different facts as to what actually took place and as to adjudicating the case. This ruling by the Court of Appeal seems quite clear though. The hearing officer did not have the authority to issue the subpoenas. This sounds simple, but in fact it is truly how important procedures are in any legal dealings, especially with a DUI arrest.

The essence of the case is that the DMV allowed the evidence of the breathalyzer and its results, but did not allow the inspection reports of the device. Originally the lower court held that they were self authenticating and would be considered by the hearing officer. This was the twist in the case. The DMV would hear and consider this self authenticating evidence, but not allow the petitioner to cross examine the actual physical evidence or the persons responsible for the operation, maintenance or upkeep of the equipment. Something was missing for the petitioner, their rights to fully face their evidence and accuser. The Court of Appeal later found and held that the lower court had clearly prevented the petitioner’s right to due process. This was not an isolated case.

It was found that the case in the circuit court was flawed when facts were found that “the procedural due process rights afforded a driver when seeking review of a license suspension pursuant to section 322.2615 include “the right to present evidence relevant to the issues, to cross-examine opposing witnesses, to impeach any witness, and to rebut the evidence presented against the driver.” hadn’t been made available to the petitioner.

If it isn’t, it’s usually overturned. An experienced and qualified DUI attorney can assist you in getting your case and the issues handled correctly.