Broward Judge Rules Suspending Licenses of DUI Suspects is Unfair

By Paula McMahon Staff Writer

The Sun-Sentinel
Posted November 6, 2003

People accused of drunken driving whose licenses are suspended before trial may not be getting a fair ride from the state Department of Highway Safety and Motor Vehicles, according to a Broward Circuit Court judge.

Judge Miette Burnstein ruled Tuesday that a Broward man accused of drunken driving should get his license back. In a sternly worded and potentially controversial ruling, the judge raised concerns about the qualifications of state hearing officers who decide whether defendants not yet convicted of a crime get to keep their driving privileges.

Under the law, drivers get their license suspended as soon as they're charged with drunken driving, but they can appeal the suspension to a hearing officer who works for the state Department of Highway Safety and Motor Vehicles.

The judge said she thinks the officers should be attorneys, pointing out that modern day drunken-driving cases frequently involve complex issues. Among the matters often raised are questions about the legality of the arrest, whether the blood or breath-testing equipment was functioning properly and whether it was registered in compliance with Florida law.

"The use of hearing officers with no formal legal education, possibly not even a college education, to handle cases requiring a substantial legal background and training, as well as insights and attitudes, can create problems in the adjudication of cases," Burnstein wrote.

None of the state's 72 hearing officers is an attorney, said Bob Sanchez, the department spokesman.

The judge also criticized the actions of the hearing officer who handled the specific case, saying that her actions amounted to unauthorized practice of law and that she had acted in the role of a judge without having the necessary training to do so.

The judge also ruled that the system may be unfair because it takes so long for an appeal of a hearing officer's finding to be reviewed by a judge. A person's license can't be reinstated while appealing the hearing officer's finding, and the suspension often expires before the appeal is heard, the judge noted.

At this point, the judge's ruling affects only the case of Terry Griffin, whose suspension she overturned. But the department will appeal her ruling, Sanchez said. If the appellate courts agree with Burnstein, that could have wider implications for the system.

Last year, 62,757 people had their Florida driver's licenses suspended because of drunken-driving arrests, according to statistics compiled by the motor vehicle department.

Griffin's attorney, Jerome Rosenblum of Hollywood, appealed the license suspension that resulted from a June 19 arrest on a DUI charge.

Arguing for the motor vehicle department, Sanchez said the current system "strikes a fair balance by advancing the state's legitimate interest in ensuring highway safety while also protecting the due process rights of persons arrested for driving under the influence."

Miami attorney Robert Reiff, author of the book Drunk Driving and Related Vehicular Offenses, said the use of non-attorney hearing officers has long been a contentious issue in the Florida legal system.

"It's a real problem," Reiff said. "There are circumstances they just do not have the proper training for."

But Reiff said he doesn't hold out much hope for an overhaul of the system. The cost of having attorneys, who would demand higher pay than civil servants, means the state would likely go to great lengths to avoid making changes, Reiff said.

And there are other problems in the system that should be addressed, Reiff said. For example, low-income defendants are not entitled to free legal representation if they appeal the suspension of their driver's licenses.

"If you don't have the money, you're out of luck," Reiff said.