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04 Oct 2012

St. Lucie County DWLS Dropped Because Client Won His Formal Review in a Separate Orange County DUI Case

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SM was charged by Uniform Traffic Citation (UTC) with DWLS in St. Lucie County on July 25, 2007.  The ticket and accompanying report showed that SM was driving on the Turnpike to a family event in Fort Lauderdale.  He was residing in Orlando at the time. The trooper alleged that SM was driving on a suspended license, because his license were suspended on June 16, 2007, in connection with a DUI in Orange County.  SM had retained an Orange County attorney to handle the DUI case.  That attorney promptly requested formal review of the suspension.  The drivers license office had issued a temporary driving permit on July 6, 2007, which expired on August 7, 2007.  This permit was restricted to business purposes only.

The defense conceded that attending a family event is not an activity which would be authorized under a business purposes only license.  Attorney Garland initially argued in favor of dismissal because the Defendant was driving in violation of a license restriction instead of on a suspended license.  In this case, a DWLS conviction would constitute a second offense which would have drastic immigration consequences.  It was important to avoid any criminal conviction arising out of the incident, in light of the possibility SM might be convicted of DUI in Orange County.

The big break in the case happened on September 14, 2007.  At that time, SM won his formal review hearing in connection with the Orange County DUI case.  To understand what happens next, it is necessary to understand how formal review works.  Upon arrest for a DUI with either an unlawful breath alcohol or a refusal to submit to a test, the arrested persons drivers license is immediately suspended.  Within ten days, the arrested person may request formal review.  For constitutional purposes, formal review is considered a post-suspension due process hearing.  The Constitution requires this hearing to be promptly conducted – even though the suspension is effective immediately.  If the driver wins the formal review hearing, the suspension is set aside ab initio – as if the suspension never happened.

Upon learning that SM won his formal review hearing, Attorney Garland secured a machine-stamped copy of his most current driving history.  As expected, the driving history no longer referred to the suspension.  Attorney Garland notified the St. Lucie County prosecutor of this circumstance and listed the most current driving history as evidence.

When the State did not immediately terminate the prosecution, Attorney Garland filed a motion to dismiss.  On November 8, 2007, the State dropped the charge by announcing an oral  nolle prosequi on November 26, 2007, just before the hearing on the motion to dismiss.

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