B.J.W. (not his real initials) was arrested for DUI in Okeechobee City on November 13, 2010. His driver’s license was taken from him when he allegedly refused to submit to breath testing.
The Formal Review Hearing took place on December 28, 2010. At this hearing the Defense offered no evidence and called no witnesses because Attorney Garland had identified defects in the documentation.
The principle defects had to do with improper notarizations and/or police attestations. The “arrest summary report”, for example, contained an illegible signature. It was impossible to determine whether the scrawl belonged to a law enforcement officer. Although a law enforcement officer may attest to a document, the signature must show the name of the officer and his status as an officer. In this case the illegible scrawl did not establish either the name or status. The scrawl also purported to be a notary signature, because it was signed on the notary line. To the extent that it might have been a notary signature, there was no indication of the notary’s commission number, when the commission expired or what identification was presented during the notarial process. A proper notarization requires this information.
The alcohol influence report was not sworn to at all. The breath alcohol test affidavit showed that the breath test operator (who also happened to be the arresting officer) notarized her own signature – an obviously improper notary.
The refusal to submit to breath, urine, or blood test affidavit was defective for two of the same reasons already described. The arresting officer purported to notarize her own signature and there was an illegible scrawl which also purported to be a notary public. As before, the illegible scrawl did not show his notary commission number, notary expiration date or the means of identification.
HSMV Field Hearing Officer, Rich Frederick invalidated the suspension based upon a lack of sufficient evidence by Order dated January 3, 2011.
B.J.W.’s victory at the Formal Review Hearing was especially important in light of subsequent developments in the DUI case. On January 13, 2011, B.J.W. pled no contest to a reduced “wet reckless” charge with a withhold of adjudication. Prevailing in the Formal Review Hearing meant that there was no driver’s license suspension.
Moral: Formal Review Hearings should be requested in all DUI cases. There would be no way to determine whether the evidence is sufficient to support a suspension until the evidence is obtained and examined. A request for a Formal Review Hearing must be filed within ten (10) days of the arrest. The evidence is not usually obtained until later. Therefore, it is only sensible to request Formal Review Hearings in every DUI case involving either a refusal or an unlawful breath or blood alcohol.
The attorney should obtain all documentation relating to the Formal Review Hearing. The documents must be carefully examined to determine, among other things, whether they are properly notarized or attested. The documents may be notarized individually or collectively. A single defective notary or affirmation will not invalidate the suspension if the remaining documents supply sufficient information upon which the suspension may be based. The attorney should be prepared to show why the questioned document is misleading or critical to a fair evaluation of the evidence. In B.J.W.’s case, it was unclear whether the implied consent was given after the refusal was obtained. To be valid the refusal must follow the implied consent warning. In some situations the implied consent might follow the refusal as long as there was an opportunity to “blow” after the warning. The ambiguities on these issues established that the improperly notarized or attested documents were prejudicial.