The formal review hearing is where you fight the administrative suspension of your license, and it is one of the most valuable steps in the entire case. It runs on its own track, separate from the criminal charge, before a Department of Highway Safety and Motor Vehicles hearing officer, and it moves fast. Done right, it can erase the suspension, and even when it does not, it hands your defense the earliest and best look at the case against you that you will get anywhere.
The clock that controls everything
You have ten days from the arrest to demand the hearing, and missing that deadline forfeits it. The demand goes to the Bureau of Administrative Reviews office for your county, together with a copy of the notice of suspension, which is printed on the DUI citation, and a filing fee of twenty-five dollars. When the demand is complete, the Department issues a temporary permit, usually for business purposes, that lets you keep driving while the challenge is pending, and it schedules the hearing within about thirty days. We also request the packet of evidence that section 322.2615 requires law enforcement to submit, so we know exactly what the Department is relying on before we walk in. The mechanics of that window are on the ten-day decision page, and the hearing runs through the Tampa BAR office for Hillsborough and the Clearwater BAR office for Pinellas and the Sarasota and Manatee area.
What the hearing officer decides
The hearing is narrow, and that narrowness is an opening. The hearing officer is not deciding guilt. The officer decides only the short list of things the statute sets out, by a preponderance of the evidence, and if the Department falls short on any one of them, the suspension is set aside.
| If the suspension is for | The Department has to establish |
|---|---|
| A breath or blood test of 0.08 or higher | Probable cause that you were driving or in actual physical control while under the influence, and a breath or blood alcohol level of 0.08 or higher. |
| Refusing a breath, blood, or urine test | Probable cause that you were driving or in actual physical control while under the influence, that you refused a lawfully requested test, and that you were warned a refusal suspends your license for one year, or eighteen months for a second refusal. |
It runs like a motion to suppress
A formal review works much like a motion to suppress, with some rules that favor the Department and some that favor you. Witnesses testify under oath and your attorney cross-examines them, and the hearing officer can receive documents and video. Hearsay is admissible here, even when nothing else corroborates it, and the accident-report privilege does not apply, so the Department gets in more than it could at trial. The counterweight is the burden. Once we identify a real deficiency in the predicate for the suspension, the burden shifts to the Department to sustain it, a rule the Fifth District set in Department of Highway Safety and Motor Vehicles v. Farley, 633 So. 2d 69 (Fla. 5th DCA 1994), and a deficiency the Department cannot cure is fatal to the suspension.
The stop and the arrest still have to be lawful
This is where these hearings are won. The suspension rests on a lawful stop and a lawful arrest, and both are fair game. On the stop, Florida uses an objective standard from the only implied-consent case to reach the Florida Supreme Court, Dobrin v. Department of Highway Safety and Motor Vehicles, 874 So. 2d 1171 (Fla. 2004), which asks whether the facts in the record would justify the stop rather than what the officer subjectively had in mind. Where the report does not support the stated reason for the stop, the suspension can fall. On a refusal, the rule is sharper still. The Florida Supreme Court held in Department of Highway Safety and Motor Vehicles v. Hernandez, 74 So. 3d 1070 (Fla. 2011), and again in Wiggins v. Department of Highway Safety and Motor Vehicles, 209 So. 3d 1165 (Fla. 2017), that a refusal suspension stands only if the refusal was incident to a lawful arrest, and that a hearing officer can invalidate the suspension after finding the arrest itself unlawful. A circuit court applied that rule in Kervin v. Department of Highway Safety and Motor Vehicles, 32 Fla. L. Weekly Supp. 1 (Fla. 7th Cir. Ct. 2024), where a driver taken to the hospital and under arrest for battery, not DUI, when the breath test was requested had his refusal suspension invalidated, because he was not under arrest for an offense that includes driving at the moment of the request.
Your best early discovery tool
Even when the suspension looks hard to beat, the hearing is worth demanding, because it is the best early discovery in the case. We subpoena the arresting officer and the breath technician and question them under oath, often months before criminal discovery would arrive, and that testimony is recorded. If a witness later shifts the story at trial, the sworn hearing testimony becomes impeachment, and admissions made at the hearing can feed a motion to suppress on the criminal side. One discipline matters here. Discovery subpoenas are not allowed in this process, so the hearing itself is the discovery, and anything you want the hearing officer to weigh, including video, has to be properly admitted, not merely mentioned. A challenge failed for exactly that reason in Furlow v. Department of Highway Safety and Motor Vehicles, 31 Fla. L. Weekly Supp. 569 (Fla. 13th Cir. Ct. 2024), where the driver’s lawyer relied on dash-camera video but never moved it into evidence, so the officer’s reports carried the day.
How a suspension gets invalidated
Several defects end a suspension outright. The most common is the simplest: if the arresting officer or the breath technician fails to appear, the suspension is invalidated. Document defects, missing or unsigned affidavits, and conclusory probable cause that never states real facts can each be enough on their own. The grounds to invalidate page walks through the specific defects that win these hearings, and why we review the packet and serve our subpoenas carefully before the hearing date.
If you win, and if you lose
If you win, the suspension is invalidated and comes off your record as if it never happened, and the temporary permit gives way to your full license. If you lose, you serve the hard-time period, thirty days on a breath case or ninety on a refusal, and then become eligible for a hardship license for business or employment purposes, and you still keep everything the hearing gave you, the sworn testimony and the early map of the case against you. In a breath case there is a back-end bonus too: if you are later found not guilty at trial, the Department invalidates the administrative suspension, but only if you demanded this hearing in the first place. That alone is reason enough never to let the ten days run out.
I started out as an Assistant Public Defender in Florida’s Thirteenth Judicial Circuit, in Tampa, and today I am one of six ACS-CHAL Forensic Lawyer-Scientists in Florida. I demand the formal review hearing in DUI cases and appear at the Tampa and Clearwater Bureau of Administrative Reviews offices, because that hearing protects your license and locks in the officers early. Learn more about my background.
Formal review hearing questions
What is a formal review hearing?
It is the administrative proceeding where you challenge the suspension of your license before a DHSMV hearing officer, separate from your criminal case. It runs much like a motion to suppress: witnesses testify under oath, your attorney cross-examines them, and the hearing officer decides by a preponderance of the evidence whether to sustain, amend, or invalidate the suspension.
How do I demand one, and what does it cost?
You have ten days from the arrest to demand it. The request goes to the Bureau of Administrative Reviews office for your county, with a copy of the notice of suspension printed on the DUI citation and a twenty-five dollar filing fee. When the demand is complete, the Department issues a temporary permit so you can keep driving, and it schedules the hearing within about thirty days.
What does the hearing officer decide?
Only a short list of things, by a preponderance of the evidence. In a breath or blood case, whether the officer had probable cause to believe you were driving or in actual physical control while impaired, and whether your reading was 0.08 or higher. In a refusal case, whether there was probable cause, whether you refused a lawfully requested test, and whether you were warned of the consequences. If the Department falls short on any one element, the suspension is set aside.
What happens if the officer does not appear?
If the arresting officer or the breath technician fails to appear, the suspension is invalidated. Because the agencies often treat this as a civil matter, it happens more than people expect, and it is one of the most common ways these hearings are won. A merely subpoenaed civilian witness who fails to appear is not automatic grounds, but those two key officers are.
Why does the hearing help my criminal case?
Because it forces the officers to testify under oath months before criminal discovery would arrive, and that testimony is recorded. Your attorney can lock the arresting officer and breath technician into their account, and if they change the story later, the prior testimony becomes impeachment. Discovery subpoenas are not allowed in this process, so the hearing itself is the discovery.
Can I still get a hardship license if I lose?
Yes. If the suspension is sustained, you serve the hard-time period, thirty days on a breath case or ninety on a refusal, and then become eligible to apply for a hardship license for business or employment purposes.
Related: the 10-day decision, how a suspension gets invalidated, the hardship license, the Tampa BAR office, and challenging the breath test.
This page is general information about Florida law, not legal advice, and it does not create an attorney-client relationship. The Florida administrative suspension and review process is governed by sections 322.2615, 322.2616, and 322.64, Florida Statutes, and Chapter 15A-6 of the Florida Administrative Code, and license revocation, hardship, and reinstatement are governed by sections 322.271 and 322.28. Deadlines are short and the rules change, so confirm current requirements with the DHSMV or an attorney. Every case turns on its own facts, and past results do not guarantee a similar outcome.
