Criminal defense bar says alcohol-device bill may skirt due process

Criminal defense bar says alcohol-device bill may skirt due process

FACDL recommends lawmakers instead require the proposed penalty after conviction

A bill requiring Floridians arrested for drunk driving who refuse to take a breathalyzer test to install a similar instrument in their car at their own expense may violate due process, according to Aaron Wayt, the legislative chair for the Florida Association of Criminal Defense Lawyers.

Already, when the person refuses the breathalyzer, their license is immediately suspended through an administrative process at the Florida Department of Highway Safety and Motor Vehicles. If it’s their first refusal, the suspension is for a year. For every refusal after that, the suspension is for 18 months.

Under identical House and Senate bills, HB 39 and SB 260, that suspended driver would also have to install in their car a kind of breathalyzer known as an ignition interlock device, costing between $670 and $1,610 for the first year, per a Senate staff analysis.

“If their intent is to place it on right after the arrest . . .  our organization has a huge problem with the government instituting a penalty prior to any type of due process,” said Wayt. “The bill isn’t clear from when on the administrative side you’re supposed to have the ignition interlock device.”

The bill sponsors were “definitely coming from a good place” trying to achieve fewer DUIs, but mandating the device on the administrative side of a license suspension is problematic, in part, because it is “just so complicated,” Wayt said.

Wayt and his group would rather lawmakers focus their policy proposal on the conviction side of a DUI, which is separate from the administrative suspension, and already includes ignition interlock device penalties. Additionally, the administrative suspension is complicated, in part, because people are likely still driving during it, just under temporary or restricted licenses.

They are driving for 10 days after their arrest using their citation while deciding whether to contest the administrative suspension. If they do contest it, they are driving with a restricted license to go to certain places like work or school while they await their administrative hearing. If they lose that hearing, they must wait 90 days under current law, but then they can have that restricted license reinstated for the duration of their suspension. (If they win the hearing, they simply get their license back.)

“We think the intent is to place that ignition interlock device on for that last hardship license, but we don’t know,” said Wayt.

And even then, Wayt said, “we still have a concern that the person hasn’t had their day in court.”

In the Senate Committee on Transportation last week where the bill passed unanimously, Wayt encouraged lawmakers to talk to DUI criminal defense attorneys in their hometowns for more insight into how the administrative hearings are currently going, since this is the side of the law they are proposing to change.

In his interview with the Bar News Wayt said he was referring to the fact that administrative hearings for contested license suspensions are regularly delayed.

“We’re not getting to have the hearing until two to three to four months after the person’s arrested,” said Wayt. “It’s not the fault of the hearing officer, they just are overloaded right now. So, they need more help.”

Underscoring Wayt’s point, the Senate staff analysis said the department anticipated needing eight additional full-time hearing officers and four additional administrative assistants to implement the legislation at a cost of more than $1.1 million a year.

Wayt said the department may be foreseeing this need because, if passed, the legislation could interrupt an arrangement it created several years ago to decrease the number of hearings.

Under this arrangement, a person who forgoes their hearing and accepts their administrative suspension will be immediately granted a restricted license if they meet the department’s requirements. Rural or low-income people have been incentivized to take this deal because if they lose the hearing, then they’ll have to wait a full three months before applying for a restricted license, Wayt said. (The current bill reduces this wait-time penalty to one month.)

But in the proposed situation where that person forgoes the administrative hearing, accepts their suspension and must pay for an ignition interlock device, then the deal is less appealing.

“You’re forcing them to make that choice of, ‘Hey, you want to drive the whole year, put this $1,000 device on, forgo your due process,’” Wayt said. “’But if you want to fight us, then you risk the time where you can’t drive.’”

For all these reasons — the complicated administration where hearing officers are already struggling to get through cases, the due process concern, and the cost of the device for drivers — Wayt and his organization would rather lawmakers include the proposed ignition interlock device mandate as an additional penalty after the person is convicted.

And there’s a place for it: current law already requires the driver to install the instrument in their car under certain circumstances, such as in their second conviction. Legislators could simply add the device mandate in convictions where the driver refused the initial breath test.

“If you’re ever convicted in court, before you’re able to get your hardship license, you have to show proof that this thing’s on your car,” said Wayt. “Just add another requirement rather than muddying up the administrative side of things.”

Another benefit of adding the proposed ignition interlock device penalty to the conviction side of the law? There’s already a policy in place to help low-income Floridians pay for it.

“Your typical court costs and fines are $990 here in Tallahassee for a first-offense DUI. There’s a statute that says that amount can be applied to your ignition interlock device,” Wayt said. “So, it helps indigent people, the less privileged, be able to still put this device on their car.”

Wayt added: “If you’re doing this before the court conviction, during the administrative process, there is no statutory offset for that.”