FL Stat § 322.64 (2021)
2021 Florida Statutes|Title XXIII - Motor Vehicles|Chapter 322 - Driver Licenses|322.64 - Holder of Commercial Driver License; Persons Operating a Commercial Motor Vehicle; Driving With Unlawful Blood-Alcohol Level; Refusal to Submit to Breath, Urine, or Blood Test.

322.64 Holder of commercial driver license; persons operating a commercial motor vehicle; 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 or s. 316.1932 arising out of the operation or actual physical control of a commercial motor vehicle. A law enforcement officer or correctional officer shall, on behalf of the department, disqualify the holder of a commercial driver license from operating any commercial motor vehicle if the licenseholder, while operating or in actual physical control of a motor vehicle, is arrested for a violation of s. 316.193, relating to unlawful blood-alcohol level or breath-alcohol level, or refused to submit to a breath, urine, or blood test authorized by s. 322.63 or s. 316.1932. Upon disqualification of the person, the officer shall take the person’s driver license and issue the person a 10-day temporary permit for the operation of noncommercial vehicles only 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 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) For purposes of determining the period of disqualification described in 49 C.F.R. s. 383.51, a disqualification under paragraph (a) shall be considered a conviction.(c) 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 the time period specified in 49 C.F.R. s. 383.51; orb. The driver had an unlawful blood-alcohol level of 0.08 or higher while driving or in actual physical control of a commercial motor vehicle, or any motor vehicle if the driver holds a commercial driver license, and his or her driving privilege is disqualified for the time period specified in 49 C.F.R. s. 383.51.2. The disqualification period for operating commercial vehicles shall commence on the date of issuance of the notice of disqualification.3. The driver may request a formal or informal review of the disqualification by the department within 10 days after the date of issuance of the notice of disqualification.4. The temporary permit issued at the time of disqualification expires at midnight of the 10th day following the date of disqualification.5. The driver may submit to the department any materials relevant to the disqualification.(2)(a) Except as provided in paragraph (1)(a), the law enforcement officer shall forward to the department, within 5 days after the date of the issuance of the notice of disqualification, a copy of the notice of disqualification, the driver license of the person disqualified, and an affidavit stating the officer’s grounds for belief that the person disqualified was operating or in actual physical control of a commercial motor vehicle, or holds a commercial driver license, and had an unlawful blood-alcohol or breath-alcohol level; the results of any breath or blood or urine 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 notice of disqualification issued to the person; 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) does not affect the department’s ability to consider any evidence submitted at or prior to the hearing.(b) The officer may also submit a copy of a video recording of the field sobriety test or the attempt to administer such test and a copy of the crash report. Notwithstanding s. 316.066, the crash report shall be considered by the hearing officer.(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 disqualified requests an informal review pursuant to subparagraph (1)(c)3., the department shall conduct the informal review by a hearing officer designated 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 disqualified, 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 disqualified 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 designated by the department, and the hearing officer shall be authorized to administer oaths, examine witnesses and take testimony, receive relevant evidence, issue subpoenas for the officers and witnesses identified in documents provided under paragraph (2)(a), regulate the course and conduct of the hearing, and make a ruling on the disqualification. The hearing officer may conduct hearings using communications technology. The department and the person disqualified 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.(c) The failure of a subpoenaed witness to appear at the formal review hearing shall not be grounds to invalidate the disqualification. If a witness fails to appear, 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 or by filing a motion for enforcement in any criminal court case resulting from the driving or actual physical control of a motor vehicle or commercial motor vehicle that gave rise to the disqualification under this section. 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 working 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: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, or any motor vehicle if the driver holds a commercial driver license, in this state while he or she had any alcohol, chemical substances, or controlled substances in his or her body.2. Whether the person had an unlawful blood-alcohol level or breath-alcohol level of 0.08 or higher.(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, or any motor vehicle if the driver holds a commercial driver license, 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, if previously disqualified under this section, 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 sustain the disqualification for the time period described in 49 C.F.R. s. 383.51. The disqualification period commences on the date of the issuance of the notice of disqualification.(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 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 or the driver enforces the subpoena as provided in subsection (6), the department shall issue a temporary driving permit limited to noncommercial vehicles which is 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 purposes 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. If the arresting officer or the breath technician fails to appear pursuant to a subpoena as provided in subsection (6), the department shall invalidate the disqualification.(12) The formal review hearing and the informal review hearing are exempt from the provisions of chapter 120. The department may 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 review.(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; s. 93, ch. 2005-164; s. 41, ch. 2008-176; s. 14, ch. 2009-183; s. 64, ch. 2013-160.