Should Marijuana Distribution Crimes be Considered an Aggravated Felony for Immigration Law Purposes?

In Moncrieffe v. Holder, No. 11-702, the United States Supreme Court held that if a non-citizen has a conviction for a marijuana distribution crime is not automatically an "aggravated felony" for immigration law purposes. Instead, a marijuana distribution crime would only be considered a aggravated felony if it involved either renumeration or more than a small amount of cannabis. 

The SCOTUS decision was decided with a 7-2 split authored by Sotomayor with only Thomas and Alito dissenting.  

In the past, individuals with a conviction for a marijuana distribution crime would have faced deportation (unless in the rare instance that the non-citizen qualified for political asylum). 

The decision has big implications for non-citizens charged with marijuana crimes such as possession with intent to distribute. For non-citizens charged with a crime it is important that your criminal defense attorney work with an immigration attorney to help you make decisions about whether to go to trial or accept a plea deal. Even when the client decides not to go to trial, the plea deal must be structured in a way to minimize the immigration consequences. 

Read the decision in its entirety here - 

http://www.supremecourt.gov/opinions/12pdf/11-702_7kh7.pdf

“The Cathy Jordan Medical Cannabis Act” - Legalizing Medical Marijuana in Florida

Although it is currently stalled in committee, Florida State Senate Bill 1250 was introduced by Florida State Senator Jeff Clemens of Lake Worth. The bill is called the “The Cathy Jordan Medical Cannabis Act.” It would allow individuals with medical conditions to possess marijuana if recommended by a doctor. The individual, or their designated caregiver would be allowed to possess up to four ounces of marijuana or grow up to eight plants.

Obviously not impressed, officers in Manatee County raided Cathy Jordan's home hours after the bill was introduced. Read an article by Norm Kent, the new Chair of NORML's Board of Directors explaining how attorneys on NORML's legal committee stepped up to the plate to come to her defense particularly - Michael C. Minardi of Stuart, Florida. Other attorneys involved include Norm Kent, Russell Cormican, and Matt Kumin.

Florida State Attorney Drops Charges Against Bob and Cathy Jordan, by Norm Kent, Chair, NORML Board of Directors

On April 2nd, 2013, Brian A. Iten, the Division Chief with the State Attorney's Office for Manatee County wrote an interdepartmental memorandum. The memo is addressed to the Manatee County Sheriff's Office.

The memo addresses whether criminal charges should be filed against Robert P. Jordan for the charge of manufacture (cultivation) of marijuana. The memo provides that the State Attorney's Office has decided not to file any criminal charges for the following reasons:

Sixty-four year-old Robert Jordan was referred for prosecution after law enforcement learned that Mr. Jordan was cultivating a small quantity of marijuana at his home. Robert Jordan alleged, and the investigation confirmed, that he was growing the cannabis solely for use of his wife, Cathy Jordan, who was diagnosed with Amyotrophic Lateral Sclerosis (ALS) in 1985. 

A review of Mrs. Jordan's medical records supplied through counsel, and telephone contract with Dr. Denis Petro, a neurologist who last examined Mrs. Jordan in 2011, confirmed the following:

• ALS is an incurable, progressive, neurodegenerative disease.

• The standard drugs used to treat the symptoms of ALS are very dangerous, with serious side effects, including death. 

• For Mrs. Jordan, cannabis provides relief without the side effects associated with her medical options.

In Florida, the doctrine of medical necessity provides an absolute defense to a cultivation of cannabis prosecution when the following are established:

• That the defendant did not intentionally bring about the circumstances which precipitated the unlawful act;  

• That the defendant could not accomplish the same objective using a less offensive alternative available to the defendant; and  

• That the evil sought to be avoided was more heinous than the lawful act perpetrated to avoid it. See Jenks v. State, 582 So. 2d 676, 677 (Fla. 1st DCA 1991). 

Citing the above facts and law, the State lacks a good faith belief it can over a medical necessity defense in this matter.

Watch this video to learn more about Cathy Jordan -


.

2014: Year of Florida's Constitutional Amendment to Legalize Weed? Ask John Morgan.

Say what you want about John Morgan, he is willing to step up to the plate for legalizing medical marijuana in Florida in 2014. That makes him alright in my book.

That's right, he's the personal injury attorney in Florida known for all of the TV commercials. He is also a big fundraiser for Obama and the Democrats. Of course, we also know from his TV commercials that he is the new boss to former Florida Governor Crist.

Now John Morgan is heading the effort to get a constitutional amendment on the ballot in Florida to legalize marijuana for medical purposes. He recently announced that he is taking over as the director of People United for Medical Marijuana (PUFMM). Former Director, Kim Russell, an Orlando resident who started the political action committee was happy with the transition.

Many thought Florida would be one of the last states to legalize marijuana. But with the money and influence that John Morgan brings it suddenly seems very likely that Floridians will get to vote on the issue.

Constitutional Amendment to Legalize Marijuana in in 2014

To get the amendment on the November 2014 ballot, the group will have to collect 683,149 signatures by February 1, 2014, before the amendment could appear on the November ballot.

Getting it on the ballot is only half the battle because constitutional amendments need to be approved in Florida with 60 percent of the vote. [Go to PUFMM's website for more information on making a donation or volunteering your time].

Read more about efforts to legalize marijuana in 2014 in Florida. 

Florida State Senate Bill 1250 was introduced by Florida State Senator Jeff Clemens of Lake Worth. The bill is called the “The Cathy Jordan Medical Cannabis Act.” It would allow individuals with medical conditions to possess marijuana if recommended by a doctor. The individual, or their designated caregiver would be allowed to possess up to four ounces of marijuana or grow up to eight plants.

Obviously not impressed, officers in Manatee County raided Cathy Jordan's home hours later. Given the organized opposition to the legislation on all fronts, many believe the constitutional amendment is the best route. The constitutional amendment would also make it more difficult for the legislature to change the law on a political whim.

Florida House Bill 159 - Safety Valve for Non-Violent Drug Offenders Addicted to Prescription Drugs

As a member of the Florida Association of Criminal Defense Lawyers (FACDL), I often get e-mails about pending legislation that impacts to the criminal justice system. I wanted to pass along some of that information about Florida House Bill 159 that just passed out of the House Criminal Justice Committee by a vote of 8 to 5 on March 12, 2013.

The legislation is now pending in the House and Senate Judiciary Committees. Florida House Bill 159 was sponsored by Katie Edwards, is a freshman representative and recent law school graduate. The related bill in the Senate is Florida Senate Bill 0420 which was introduced by Florida State Senator Maria Lorts Sachs.

What's the Problem with the Minimum Mandatory Sentencing Scheme for Trafficking?

When a person is convicted of a crime punishable by a mandatory minimum sentence, the judge MUST sentence the person to at least the "minimum mandatory" term or to a higher sentence. In order words, any discretion to fashion a more reasonable sentence is taken away from the trial court.

A prescription for Vicodin may contain 10 milligrams of hydrocodone and 500 millgrams of acetaminophen sold under the brand name Tylenol. So if the defendant gets caught with a prescription bottle containing 90 pills, the total amount of the controlled substance is actually only 90 milligrams. But under Florida's statutory scheme, the prosecutor gets to use the aggregate weight of the pills which is approximately 45 grams. So a bottle of Vicodin is treated the same as a bottle of pure heroin which carries with it a twenty-five year minimum mandatory sentence in Florida State Prison.

Let's say a young woman becomes addicted to Vicodin after recovering from a serious car accident. The woman buys a bottle of the pills on the street because she can not longer get a prescription for the medication. Later that day, the woman is caught by the police with the bottle of Vicodin. The woman possesses the bottle of Vicodin to feed her own habit and not because she intends to sell the pills to anyone else. Does this woman deserve to serve 25 years day for day in Florida State Prison for drug trafficking?  Should the judge have the discretion to send the woman to drug court for treatment instead?

Under the current system, the judge has no discretion to impose a lighter sentence. Only the prosecutor can allow an escape from the 25 year minimum mandatory sentence. Maybe you trust the prosecutor with such power, but if that woman can't provide substantial assistance in setting up another addict for a trafficking offense like the one she got caught in, that woman may get the minimum mandatory. 

Criteria for the Safety Valve Provisions

Under Florida House Bill 159, if the defendant meets the following criteria, the safety valve provision would allow the trial judge to depart below the minimum mandatory sentencing requirements of Florida's drug trafficking penalties under Florida Statute Section 893.135.

The safety value provisions would only apply if all of the following are true:

• The drugs possessed were prescription drugs;
• The defendant does not have any prior felony conviction; 
• The defendant does not have any prior conviction for a violent misdemeanor; 
• The defendant did not have or use a firearm at the time of the arrest; 
• The amount of pills possessed evidence that it was for personal use; 
• There was no intent to distribute the drugs; 
• The defendant has a history of alcohol and substance abuse; 
• The person has never been previously granted a "safety value" departure.

What? It Cost Money to Warehouse These Drug Addicts in Florida State Prison?

Did you know that warehousing non-violent drug addicts in Florida State Prison for decades actually cost money? Not only does it cost money to warehouse non-violent addicts in a cage at a Florida State Prison for decades, it also diverts important law enforcement resources away from real crimes and dangerous criminals. Resources are also wasted in the public defenders office as these attorneys fight for some semblance of justice under Florida's minimum mandatory provisions.

An entire industry in the law enforcement community has been created that wants to maintain the status quo of warehousing non-violent drug offenders. After all, law enforcement agencies love being able to find a low level addict with a bottle of prescription pills and call it a "trafficking" arrest. The war on drugs is so futile, that these officers have no real incentive to reach for the higher hanging fruit.

The current system helps their "crime statistics" look better. It helps justify their bloated budgets. It makes the public think the money is not being wasted. The only good thing about a budget crisis is that it forces the state and its citizens to really look at all the waste and injustice built into the current system.

The taxpayers of this state should rally behind this legislation. If you feel like I do about it, leave a comment on this post, send a letter to your representative in the Florida Legislature (especially if they serve on the judicial committee), or give their office a call.  

What Does Florida House Bill 159 Do?

Florida House Bill 159 authorizes the trial court judge to depart from the minimum mandatory sentence (in some limited cases where the safety valve applies) and diverts the defendant to drug court and treatment. Although the legislation doesn't go far enough, it does provide a safety value in the most obvious cases where imposing the minimum mandatory sentence would be absurd. 

Make no mistake about it, drug court and treatment is FAR cheaper and more effective than putting an addict in a cage in Florida State Prison for decades. The legislation is necessary because Florida law prevents trial courts from going below stiff minimum mandatory sentences in "trafficking" cases.

Anyone who practices in the criminal justice system in Florida knows that many of these "trafficking cases" involve someone found with a bottle of prescription pills who is addicted to the pain medication.  The term "trafficking" is misleading because it is based solely on the amount of the substance found, not any intent to sell it. The weight of the substance is what elevates the crime to something higher than mere possession of a controlled substance.

The second problem under Florida law, is that the entire pill or bottle of pills is weighted for the purpose of determining whether it is a "trafficking" amount instead of just determining the weight of the controlled substance (which is easy to determine). So having a bottle of pills is often treated the same as having a bottle of pure cocaine or heroin.

Florida Citizens who are Addicted to Prescription Drugs are Currently Being Sentenced under Mandatory Minimums

Individuals who are addicted to prescription drugs are being sentenced under harsh mandatory minimum sentences. The assistant public defenders throughout this state are often given the difficult job of convincing the prosecutor to exercise their discretion. In exchange, prosecutors and law enforcement officers often demand "substantial assistance" in setting up drug dealers or other addicts.

Although drug dealers have no trouble setting up other people, a typical addict often has few connections in the underground drug trade. Drug dealers get big breaks for providing "substantial assistance" while addicts get minimum mandatory sentences in Florida State Prison.  Under the current system, judges can only shake their head in disbelief as they impose the required statutory maximum system. 

Prosecutors and law enforcement officers can not be trusted as the sole source for providing mercy under the harsh minimum mandatory sentencing guidelines

Take Action

The bills are now in the House and Senate Judiciary Committees. The public needs to take action so that this law that would allow judges discretion in sentencing drug offenders is passed. Reach out to your State Senator or House Member if they are on the judiciary committee and ask them to support the legislation.

Leave a comment below if you have an opinion how whether the legislation would be "smart of crime."

Bogus Arrest Warrants in Sumter County, FL

Right now there are dozens of individuals sitting in the Sumter County Jail under a sentencing scheme that is unique to Bushnell, Sumter County, FL. Under this sentencing scheme, the Honorable Thomas D. Skinner avoids putting defendants on probation by giving them hefty suspended jail sentences. One wrong move and the jail sentence is imposed through something called an "order of commitment" which acts much like a bogus arrest warrant.

If you want an explanation of how this sentencing scheme works then read an article we wrote a year ago complaining about the problem - Arraignment to Arrest Warrant: Sumter County Style.

The Florida Attorney General's Office Confessed Error

The Florida Attorney General's Office recently made a "confession of error" in a case involving one person detained under that type of sentencing scheme. Although that one person is now free, many other people are still being detained. Even more problematic, thousands of these "orders of commitment" are still waiting to be served.

RESPONSE TO PETITION FOR WRIT OF HABEAS CORPUS COMES NOW, Respondent, State of Florida, through the undersigned assistant attorney general, pursuant to this Court’s  January 17, 2013, order and states the following:

Petitioner’s arguments appear to be well-taken. See Helton v. State, 106 So. 2d 79, 79 (“[T]he power to suspend the imposition of sentence upon a convicted criminal can be exercised by a trial judge only as an incident to probation”). See also Sears v. State, 889 So. 2d 956, 959 (Fla. 5th DCA 2004) (holding that a probationer is entitled to the due process right of an evidentiary hearing on his violation of probation). 

CONCLUSION 

Based on the arguments and authorities presented, Respondent respectfully requests this Honorable Court rule as the interests of justice require.

The Fifth DCA decided that the interests of justice required transferring the case to the Circuit Court in Sumter County for a quick ruling.

Date: January 28. 2013

BY ORDER OF THE COURT:

The Petition for Writ of Habeas Corpus is hereby transferred to the Circuit in and for Sumter County. The transferee court shall treat the petition as if it had been originally filed there on the date it was filed in this Court. "Given the State's confession of error and the Petitioner's current incarceration status, we encourage the circuit court to proceed expeditiously in this matter." 

See ________ v. State, No. 5D13-0188 (Fla. 4th DCA January 28, 2013). The circuit court granted the petition for writ of habeas corpus and ordered the person to be immediately released from custody. Since ALL of these "orders of commitment" necessarily involve the imposition of a suspended sentence that is not incident to probation, then ALL of the orders of commitment are ILLEGAL.

What Can Be Done After the "Confession of Error"?

The easiest solution would be for the trial court to vacate all of the outstanding orders of commitment sua sponte. In the meantime, individuals or their attorneys will need to file motions to vacate the illegal sentences (before being detained in jail on the order) or a petition for writ of habeas corpus (after being detained in jail on the order).

The writ of habeas can be filed in both the Circuit Court of Sumter County and the Fifth DCA, since both have concurrent jurisdiction. The Fifth DCA may transfer the case back to the Circuit Court for a quick ruling, but at least the Fifth DCA and the Florida Office of the Attorney General can be reminded that the problem is ongoing.

No filing fee is required to file the petition. In the Fifth DCA, the petitions are filed electronically. The petitions are heard on an emergency basis, usually within three business days. Because the illegality involves violations of due process and double jeopardy under the Constitution of the United States, a petition for writ of habeas corpus could also be filed in federal court.   

Others Involved in the Sentencing Scheme

Every time such a sentence is imposed, an Assistant State Attorney is in the room. Although the Florida Attorney General's Office made a "confession of error" on behalf of the local prosecutors, those local prosecutors still have an obligation to acknowledge the problem by objecting.

Under this scheme, the clerk's office in Sumter County, headed by Gloria R. Hayward,  takes the place of the probation officer (without any of the training or accountability) and notifies the judge when a defendant does not comply with the terms of the suspended sentence. The clerk's office then prepares a "Clerk's Certificate" form that alleges the violation and sends it off to the judge. The form prepared by the clerk's office contains an "Order of Commitment" at the bottom which is signed by the judge.

Of course, the Sumter County Sheriff's Office uses its officers to wrongfully arrest individuals on the bogus "orders of commitment." Then the Sheriff's Office illegally detains those individuals in the jail to serve out the number of days listed on the "order of commitment" (at least until an attorney files a petition for writ of habeas corpus.)

Time to Stop

Seems like the county is taking on a lot of liability now that the Florida Office of the Attorney General has confessed error. Florida law was already "clearly established" that such a procedure was not allowed, but it doesn't get any more clearly established then it is right now.

Tampa Police Department Video Shows a Softer Side

The Tampa Police Department has a video that has gone "viral" with 45,000+ views. TPD seems really proud of this if you read the comments on the TPD YouTube channel.

Maybe TPD wanted to show a softer side after its military-like occupation of downtown Tampa during the 2012 RNC convention. A few weeks before the convention a TPD officer told me that he was told to expect 70,000 anarchists with baseball bats.

Although that prediction was thankfully wrong, the police force in place could have probably handled 70,000 anarchists with baseball bats. The entire downtown was shut down. Downtown businesses, schools, and the courthouse were all essentially closed. Downtown Tampa looked like a ghost town except for a massive police presence marching around the empty downtown area in military formation. Law enforcement officers outnumbered the protesters several times over. Ten foot fences were erected to keep the protesters within confined areas. It was massive overkill.

The Republican National Convention was suppose to bring a lot of money to the Tampa Bay area. That benefit is greatly diminished when law enforcement shuts down the city for a week.

But now that the RNC is gone, the Tampa Police Department is in the limelight again. This time the TPD officers are all dancing to Carly Rae Jepsen's "Call Me Maybe."

Update: Apparently no one watches TPD videos unless the officers look ridiculous. So TPD made another video. The first one was kind of funny, but at some point they need to spend their valuable resources doing actual work.

Florida's Court Appointed Criminal Defense Rates Unchanged for 30 Years

As we approach the 50th anniversary of the landmark right to counsel decision in Gideon v. Wainwright we should take a close look at the funding of the criminal justice system.

The rates for court appointed attorneys in criminal conflict cases has remained largely unchanged for 30 years. What are Florida's current mandated conflict counsel fees in criminal cases? Those fees are set out in Florida Statute Section 27.5304, F.S. and the General Appropriations Act which I listed below.



Let me give you one example - the attorney is paid $2,500 for a first degree murder case not involving the death penalty. Yes, you read that correctly - two thousand five hundred dollars for a first degree murder case.

The Office of the State Courts Administrator (OSCA) is required by the 2012 General Appropriations Act to conduct a study of the reasonableness of the current mandated conflict counsel fees in criminal cases. According to an e-mail sent out by Derek Byrd, FACDL President, the study will be submitted to the Florida Legislature by January 15, 2013.

What are the Statutory Maximum Fees for Court Appointed Counsel in Florida?

The statutory maximum fees are outlined in Florida Statute 27.5304.  The maximum allowable fees pursuant to the General Appropriations Act are contained in Ch. 2012-118 Line Item 829. Florida Statute Section 27.5304 (5)(a) provides that the compensation for representation by an attorney in a criminal proceeding shall not exceed the following: 

1. For misdemeanors and juveniles represented at the trial level: $1,000.
2. For noncapital, nonlife felonies represented at the trial level: $2,500.
3. For life felonies represented at the trial level: $3,000.
4. For capital cases represented at the trial level: $15,000. For purposes of this subparagraph, a “capital case” is any offense for which the potential sentence is death and the state has not waived seeking the death penalty.
5. For representation on appeal: $2,000.

CH. 2012-118, LINE 829 of SECTION 4 - CRIMINAL JUSTICE AND CORRECTIONS provdies that 
the maximum flat fee to be paid by the Justice Administrative Commission
 (JAC) for attorney fees for criminal conflict cases is set as follows:

          POSTCONVICTION - Rules 3.850 and 3.800, Fla.R.Crim. Proc. - $1,000

    
          CAPITAL - 1ST DEGREE MURDER (LEAD COUNSEL)- $15,000

          CAPITAL - 1ST DEGREE MURDER (CO-COUNSEL)- $15,000

          CAPITAL - 1ST DEGREE MURDER (NON-DEATH)- $2,500

          CAPITAL SEXUAL BATTERY- $2,000

          CAPITAL APPEALS- $2,000

    
          CONTEMPT PROCEEDINGS- $400

    
          CRIMINAL TRAFFIC- $400

    
          EXTRADITION- $500

    
          FELONY - LIFE- $2,500

          FELONY - PUNISHABLE BY LIFE- $2,000

          FELONY 1ST DEGREE- $1,500

          FELONY 2ND DEGREE- $1,000

          FELONY 3RD DEGREE- $750

          FELONY OR MISDEMEANOR - NO INFORMATION FILED- $400

          FELONY APPEALS- $1,500

    
          JUVENILE DELINQUENCY - 1ST DEGREE FELONY- $600

          JUVENILE DELINQUENCY - 2ND DEGREE- $400

          JUVENILE DELINQUENCY - 3RD DEGREE- $300

          JUVENILE DELINQUENCY - FELONY LIFE- $700

          JUVENILE DELINQUENCY - MISDEMEANOR- $300

          JUVENILE DELINQUENCY - DIRECT FILE OR NO PETITION FILED- $300

          JUVENILE DELINQUENCY APPEALS- $1,000

    
          MISDEMEANOR- $400

          MISDEMEANOR APPEALS- $750

    
          VIOLATION OF PROBATION - FELONY (INCLUDES VOCC)- $500

          VIOLATION OF PROBATION - MISDEMEANOR (INCLUDES VOCC)- $300

          VIOLATION OF PROBATION (VOCC) JUVENILE DELINQUENCY- $300

What can you say about a system that pays $2,500 for a first-degree murder case?

Read more here: http://www.miamiherald.com/2012/06/23/2863493_p2/new-fee-rules-rile-south-florida.html#storylink=cpy

Too Pretty for Sex Offender Probation?

Remember when the Honorable Wayne S. Timmerman, Circuit Court Judge in Hillsborough County, granted a motion for early termination of Debra LaFave's probation? That order was recently reversed by a higher court meaning that Debra LaFave will go back to court where her original sentence will be reinstated and she will be back on probation.

Debra LaFave was given a huge break at every stage of her prosecution from the original negotiated sentence to the early termination of probation. Her attorney suggested that she was too pretty to go to prison. Did the fact that she was an attractive female and new mother of twins also lead to the highly unusual ruling when it came to terminating her probation early?

Early Termination of Probation was Deemed a "Gross Miscarriage of Justice"

Florida law provides that a order terminating probation cannot be appealed by the State. Not to be deterred by this well-settled principle, the State took the matter of to a higher court through a petition called a "Writ of Certiorari." Ultimately, the Second District Court of Appealed sided with the State and remanded the case back to the trial court with instructions that Debra LaFave's probation be reinstated under the original terms and conditions.

The Second District Court of Appeals granted the State's petition for writ of certiorari in order to "correct a departure from the essential requirements of the law resulting in a gross miscarriage of justice." The court goes on to made the following findings:

• Judge Timmerman's order terminating probation early constituted a violation of the negotiated plea agreement. 
• The order was "extremely prejudicial" to the State.
• Reviewing the case in a writ of certiorari was crucial "to the fair administration of criminal justice” and necessary “to correct an erroneous and highly prejudicial ruling.”

The Negotiated Sentence - "No Early Termination of Probation"

Debra LaFave was charged with two counts of lewd or lascivious battery pursuant to Florida Statute § 800.04(4)(a). Under Florida's Criminal Punishment Code (often called "the score sheet") her lowest permissible sentence was 15.1875 years in Florida State Prison.

In order to avoid a prison sentence, Debra LaFave entered into a negotiated plea agreement with the State that provided for a "downward departure." Under the terms of the negotiated plea agreement, Debra LaFave would avoid prison and would instead be sentenced to three years of community control to be followed by seven years of sex offender probation. As part of the negotiated plea, the Defense and the Prosecution agreed that Debra Lafave would serve her entire community control and probation sentence and would not seek early termination of probation.

Avoiding a prison sentence or any jail time for such charges is relatively rare. Many people were critical of the prosecutor's lenience in the case and believed it was because the perpetrator was a women, an attractive women. Men charged with having sex with a fourteen year old female (particularly in a case involving a student/teacher relationship) typically receive harsh prison sentences.

Read more about what lead up to the negotiated plea in an article called "Anyone She Wanted: The Sexual Offense of Debra Lafave." 

Motion for Early Termination of Probation in Debra LaFave's Case

After six years of her ten year probation term, LaFave filed a motion for early termination her probation. The request to terminate probation went against her plea agreement to not seek early termination of probation. Although the prosecutor objected, the court nevertheless agreed to terminate the probation.

Consequences for Other Motions for Early Termination of Probation

Although the courts are extremely reluctant to terminate probation early in sex offender cases, such motions are routinely granted in other types of cases from misdemeanor DUI cases to other types of felony cases such as grand theft. Occasionally when negotiating the plea agreement the prosecutor will demand a stipulation that there will be "no early termination of probation."

Prior to this decision, it was assumed that such stipulations were not enforceable because the Court had a duty to consider what was in the "interest of justice" at the time of the hearing on the motion for early termination.

This case makes it less likely that the judge would terminate the probation early when the terms of the negotiated plea stipulated that no early termination would occur. The opinion itself seems to limit its holding to cases in which the plea agreement involved a downward departure and the "no early termination of probation" provision was part of the negotiated plea. Nevertheless, this case may have some impact on early termination of probation cases in a wider set of circumstances when trial courts become reluctant to risk a ruling that could be deemed a gross miscarriage of justice.

Accidentally Bringing a Gun to the Airport, the Arrest and TSA Civil Penalty

What happens if you accidentally bring a knife or a gun in your carry-on bag? If you don't realize the mistake until you go through the screening process then under Florida law you can face criminal charges for:

• carrying a concealed weapon (other than a firearm) without a permit (a first degree misdemeanor); or
• carrying a concealed weapon with a permit in a restricted area (a second degree misdemeanor); or
• carrying a concealed firearm (a third degree felony).

All three of these offenses have a knowledge or "mens rea" element that requires the prosecutor for the State of Florida prove that you knew that you were in actual or constructive possession of the weapon. In many of these cases, the person immediately explains to the TSA official or airport security that he or she did not know the weapon was in the carry-on luggage.

For an arrest at the Tampa International Airport in Hillsborough County, bringing a weapon or firearm to the airport will usually result in an arrest even if it is clear the person did it on accident. In other words, in many of these cases, the evidence is overwhelming that the individual did NOT realize that the weapon was in the luggage. Although such arrests are common, that individual may have a valid defense to any criminal charge if he or she did not "KNOW" that the firearm was in the luggage.

TSA Notice of Violation and Civil Penalty Assessment Order

The Transportation Security Administration (TSA) has also started issuing notices of violation and civil penalty assessment orders in such cases. Because the regulations are civil and not criminal in nature, no knowledge requirement generally exists as an element of the violation.

The TSA provides that not all alleged violations result in a civil penalty assessment order. Instead, some violations will trigger only a "warning notice" or "letter of correction" or "no action." 

In many cases, the first correspondence from the TSA is Notice of Violation that advises the individual that the TSA proposes assessing a civil penalty in an amount which does not exceed $10,000.00 for a violation of the Transportation Security Regulations (hereinafter "TSR").  If the TSA is unable to resolve the Notice of Violation by reaching an agreement with the individual who allegedly violated the regulations then the TSA will propose a civil penalty amount after reviewing all of the relevant facts and evidence contained in the investigative file.

For cases involving bringing a gun through the security screening area, the regulation violation is 49 C.F.R. Section 1540.111(a) of the TSR which provides that an individual may not have a weapon, explosive or incendiary on or about the individual's person or accessible property when performance has begun of the inspection of the individual's person or accessible property before entering a sterile area, or before boarding an aircraft.

Click here to read the Transportation Security Regulations and select Title 49, Section 1503. 

Paying the Civil Penalty or Requesting a Formal Review Hearing

After the individual receives the Final Notice of Violation and Civil Penalty Assessment Order for a TSR violation such as 49 C.F.R. Section 1540.111(a) for bringing a gun, firearm or other weapon to the airport, the individual must take action within 15 calendar days of the date of that order. 

The individual must either:

1. Pay the full civil penalty amount proposed in the Final Notice of Violation and Assessment Order that states the amount of the civil penalty; 
2. Submit a civil penalty amount that is otherwise agreed upon by the U.S. Department of Homeland Security NOV Program Office (TSA-801) as documented in a separate Order Assessing Civil Penalty; or
3. Request, in writing, a Formal Hearing to seek review of the basis for, or amount of the civil penalty.
• The individual must file a typewritten or legible handwritten "Request for Hearing" with the Enforcement Docket Clerk which is dated and signed by the individual in accordance with 49 C.F.R. Section 1503.16 of the TSR;
• The individual must mail the request for a hearing to the ALJ Docketing Center, Attn: Enforcement Docket Clerk, U.S. Coast Guard, 40 S. Gay Street - Room 412, Baltimore, MD 21202-4022;
• The individual must also mail a copy of the "Request for Hearing" to the United States Department of Homeland Security, Transportation Security Administration (TSA), NOV Program Office (TSA-801), 601 S. 12th Street, Arlington, VA 20598-6801.

For many individuals, the proposed penalty is excessive given their economic circumstances. Negotiating with the NOV Program Office may result in a substantially lower penalty. Other direct and indirect consequences attach, including enhanced penalties for a subsequent violation.

TSA's Enforcement Sanction Guidance for Bring Weapon to Airport

In determining the amount of the civil penalty, the TSA will consider certain aggravating factors including:

1. Artful concealment; 
2. Number of weapons, or volume of explosives and incendiaries; 
3. Type of weapon, explosive or incendiary;
4. Display or use of weapon, explosive or incendiary; 
5. Past violation history of violator;
6. Experience level of violator (e.g., airport/air carrier employees are trained and experienced).; 
7. Evidence of intent to interfere with operations (e.g., testing the system with a prohibited item, attempting to enter sterile area with prohibited item after previously being allowed to leave in order to divest); and
8. Attitude of violator.

The TSA will also consider certain mitigating factors such as:

1. Disclosure by violator;
2. Inexperienced flyer; 
3. Violator is a juvenile; and
4. Other penalties assessed by federal, state, or local law enforcement.

A. Security Violations by Individuals for Prohibited Items Discovered at Checkpoint/Sterile Area/Onboard Aircraft - Applicable TSA Regulation: 49 C.F.R. § 1540.111(a)

Weapons

• Firearms

i. Loaded (or accessible ammunition) - $3,000 - $7,500 Plus Criminal Referral

ii. Unloaded - $1,500 - $3,000 Plus Criminal Referral

• Other weapons (this category includes sharp objects, club-like items, and other prohibited items, other than firearms, that may be used as a weapon. - $250 - $1,500

• Disabling chemicals - General penalty range - $250 - $1,500

• Incendiaries - General penalty range - $250 - $1,500

• Explosives 

1. Blasting Caps, Dynamite, Hand grenades, Plastic explosives & All other “high explosives” - $6,000 - $10,000 Plus Criminal Referral
2. Ammunition (note: See exception for ammunition in Checked Baggage, 49 C.F.R. § 1540.111(d)), Fireworks, Flares in any form, Gunpowder (note: volume over 10 ounces standard package justifies use of Penalty Range A.)- $250 - $1,500

B. Security Violations by Individuals for Prohibited Items Discovered in Checked Baggage - Applicable TSA Regulation: 49 C.F.R. § 1540.111(c)

Weapons

• Firearms

1. Loaded (or accessible ammunition) - $1,000 - $2,000 Plus Criminal Referral
2. Unloaded - and undeclared/not properly packaged - $500 - $1,000

• Incendiaries - General penalty range- $250 - $1,500

• Explosives

• Blasting Caps, Dynamite, Hand grenades, Plastic explosives and all other “high explosives- $6,000 - $10,000 Plus Criminal Referral
• "Ammunition (note: See exception for ammunition in Checked Baggage, 49 C.F.R. § 1540.111(d)), Fireworks, Flares in any form, Gunpowder (note: volume over 10 ounces standard package justifies use of Penalty Range A.)- $250 - $1,500

C. Other Security Violations by Individuals or Persons

1. Interference With Screening (49 C.F.R. § 1540.109 )

a. Physical contact - $1,500 - $5,000
b. Non-physical contact - $500 - $1,500
c. False Threats- $1,000 - $2,000

2. Entering Sterile Area Without Submitting To Screening (49 C.F.R. § 1540.107) - $1,000 - $3,000

3. Tampering or interfering with, compromising, modifying, attempting to circumvent, or causing a person to tamper or interfere with, compromise, modify or attempt to circumvent any security system, measure, or procedure. (49 C.F.R. § 1540.105(a)) - $1,000-$3,000

4. Entering or being present within a secured area, AOA, SIDA, or sterile area without complying with the systems measures or procedures being applied to control access to, or presence or movement in, such areas. (49 C.F.R. § 1540.105(a)(2)) - $2,500-$6,000

5. Improper use of airport access medium. (49 CF.R. § 1540.105(a)(3)) - $1,000-$3,000

6. Fraud and Intentional Falsification (49 C.F.R. § 1540.103) - $2,500-$6,000 Plus Criminal Referral

7. Failure to allow inspection of airman certificate, Authorization, or FAA license. (49 C.F.R. § 1540.113) - $1,000-$3,000

If you have been arrested or given a notice to appear after being accused of a weapon or firearm charge at Tampa International Airport, then contact an experienced criminal defense attorney at the Sammis Law Firm. Call us to discuss fighting the criminal charge and resolving the TSA's notice of violation and civil penalty assessment order that will follow.

Fifth DCA Rejects Shelton Case: Finds Florida Drug Laws Constitutional

In Carreras v. State issued on March 2, 2012, Florida's Fifth District Court of Appeals rejected a challenge to the facial constitutionality of Florida's drug statutes under the reasoning used by a federal judge in Shelton v. Secretary, Department of Corrections, 23 Fla. L. Weekly Fed. D11 (M.D. Fla. July 27, 2011).  In the Shelton decision, a federal judge found Florida's drug laws to be unconstitutional because they did not contain a mens rea element. Florida's First District Court of Appeals reached a similar conclusion in Flagg v. State, 74 So. 3d 138 (Fla. 1st DCA 2011).

The same issue raised in this case is currently pending before the Florida Supreme Court in State v. Adkins, 71 So. 3d 117 (Fla. 2011). Now we wait for the decision from the Florida Supreme Court. A the federal level, the Shelton case is currently on appeal to the Eleventh District Court of Appeals.

IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FIFTH DISTRICT JANUARY TERM 2012

ARTHUR CARRERAS,
      Appellant,
v.                                                            Case No. 5D11-1777

STATE OF FLORIDA,
Appellee.
________________________________/
Opinion filed March 2, 2012

Appeal from the Circuit Court
for Osceola County,
Scott Polodna, Judge.

James S. Purdy, Public Defender, and
Nancy Ryan, Assistant Public Defender,
Daytona Beach, for Appellant.

Pamela Jo Bondi, Attorney General,
Tallahassee, and Megan Saillant,
Assistant Attorney General, Daytona
Beach, for Appellee.

PER CURIAM.

Arthur Carreras ["Carreras"] appeals his judgment and sentence for tampering with physical evidence, possession of twenty grams or less of cannabis, and possession of drug paraphernalia.  He argues that his conviction for possession of twenty grams or less of cannabis, and for possession of drug paraphernalia, should be vacated because section 893.101, Florida Statutes (2009) has been held to be facially unconstitutional in Shelton v. Secretary, Dep’t of Corrections, 802 F. Supp. 2d 1289 (M.D. Fla. 2011).

Testimony was presented during the trial that on November 5, 2010, a pick-up
truck took a turn too close, causing the driver's side exterior mirror of the pick-up truck to hit the driver's side exterior mirror of a patrol vehicle.  The law enforcement officer driving the patrol vehicle observed a white male with a beanie cap in the driver's seat of the pick-up truck, and a black male in the passenger's seat of the pick-up truck. The officer followed the pick-up truck and observed the pick-up straddling two lanes. When the officer put on the patrol vehicle's emergency lights to effect a traffic stop, the pick-up truck began to erratically brake and swerve. The officer observed objects simultaneously being thrown out of the driver's side and passenger's side window. The object thrown out of the driver's side window appeared to be larger than that thrown out of the passenger's side window, and was released by a white hand. A second law enforcement officer, who was following the first officer, observed an object being thrown out of the driver's side and passenger's side window of the pick-up truck. While the first officer was effecting a traffic stop, the second officer immediately stopped and retrieved the thrown objects, which were two bags. The second officer took the bags to the site of the traffic stop and gave them to the first officer who, upon visual inspection of the bags, recognized the substance in each to be cannabis. The contents of each bag field tested positive for cannabis. The first officer identified Carreras as the driver of the pickup truck.

At trial, Carreras raised lack of knowledge of the illicit nature of the controlled substance as an affirmative defense to the charge of possession of twenty grams or less of cannabis and the charge of possession of drug paraphernalia. The trial court instructed the jury on the affirmative defense with respect to each of the said charges. The jury returned a verdict of guilty on each of the counts.  We do not credit Carreras' claim that the statute under which he was convicted is facially unconstitutional. To the contrary, this case is an illustration of the logic and propriety of section 893.101, Florida Statutes. We have already rejected the reasoning of the Shelton case.  See Flagg v. 
State, 74 So. 3d 138 (Fla. 1st DCA 2011).
1
We find no merit on the other issues raised by Carreras and decline to address them.

AFFIRMED.

GRIFFIN, TORPY and LAWSON, JJ., concur.

Florida Senate Bill SB 864 - Gutting the Right to Contest the DUI Administrative Suspension

UPDATE on March 19, 2012: SB 864 has since been watered down and amended to delete the provisions pertaining to the administrative suspensions. Now the bill focuses on requiring either a 10 day vehicle immobilization OR a three month ignition interlock requirement as a minimum mandatory condition. 

Florida's DUI laws already allow the court to order the ignition interlock for up to six months. Read more about the amended bill - "Ignition Interlock Devise in all Florida DUI cases? HB 681 and SB 864"


If it becomes law, Florida Senate Bill SB 864 would make some radical changes to the rules governing administrative suspensions after a DUI arrest.  SB 864 was introduced on Tuesday, January 10, 2012. 

The Florida House has begun the process to introduce an identical bill, HB 681 by Baxley and co-sponsors Harrell. 

Click here to read Senate Bill 864, by Senator Thad Altman, in its entirety. The provisions related to administrative review hearings are listed below.  


What changes if the bill becomes law?

1. After a DUI arrest, the officer will still issue the drive a notice of suspension, however, the notice will also contain a notice to appear which will require the person arrested to appear at the appropriate FHSMV's Bureau of Administrative Review Office. 
2. When the individual appears at the Bureau of Administrative Review Office and is eligible, the person can elect to obtain restricted driver's license called a "Business Purpose Only" license and pay the appropriate fees, however, by doing so the person must waive their right to contest the suspension in a formal review hearing. The advantage for the driver is that he or she does not suffer with a 30 day or 90 day hard suspension if they are unsuccessful in challenging the suspension during a formal review hearing. (The term "hard suspension" refers to the time during which the driver cannot drive for any reason). The disadvantage for the driver is that any opportunity to contest the suspension during a formal review hearing must be waived.  
3. If the person fails to appear within 10 days, the person waives any right to review and the suspension remains in effect.  The department can extend the 10 day time limit if the driver shows good cause in writing.
4. The time periods for the suspension remain the same: 
• If the individual submitted to a chemical test but had a breath or blood alcohol concentration of .08, then the suspension is for 6 months from the date of the arrest or notice of suspension (whichever occurred later); 
• If the individual refused to submit to a chemical test of his breath, blood or urine then the suspension is for one year from the date of the arrest or notice of suspension (whichever occurred later);
5. The bill also provides that if the driver does not apply for a restricted driver license then the Florida Department of Highway Safety and Motor Vehicles shall notify the person in writing of his right to review the suspension which shall include notice of the following rights: 
• The driver can elect to have a formal review hearing or an informal review hearing within 10 days of the date of the notice; 
• If the driver elects to have a formal review hearing the driver is deemed to have waived his right to a restricted license except that if the suspension is upheld, the driver can request a business purpose only or employment purpose only license after a 90 day hard suspension for a refusal case or a 30 day hard suspension for a breath or blood alcohol concentration over .08 case.
6. At the formal review hearing the hearing officer may permit witnesses to testify telephonically. The witnesses that testify telephonically shall be sworn by a "notary public," "certified court reporter" or law enforcement officer. 
7. It appears that the new bills provides that the driver or his attorney can appear in person or attend the hearing telephonically.

So what impact do you think these changes might have if they become law? Do you see any problems or unintended consequences with the way the statute is written?
_________________________________________________________________________________

Florida Senate - 2012                                     SB 864  
       
       By Florida Senator Thad Altman, Republican

 24-00717-120201864

288         Section 2. Section 322.2615, Florida Statutes, is amended
  289  to read:
  290         322.2615 Restriction or suspension of license; right to
  291  review.—
  292         (1)(a) Notwithstanding whether an arrest is made for any

  293  criminal offense, a law enforcement officer or correctional
  294  officer shall, on behalf of the department, suspend the driving
  295  privilege of a person who is driving or is in actual physical
  296  control of a motor vehicle and who has an unlawful blood-alcohol
  297  level or breath-alcohol level of 0.08 or higher, or of a person
  298  who has refused to submit to a urine test or a test of his or
  299  her breath-alcohol or blood-alcohol level. The officer shall
  300  issue to the person the notice of suspension and notice to

  301  appear. The person shall appear at a designated department
  302  office within 10 days after receipt of the notice. The notice of
  303  suspension and notice to appear serve as take the person’s
  304  driver’s license and issue the person a 10-day temporary driving

  305  permit if the person is otherwise eligible for the driving
  306  privilege and shall issue the person a notice of suspension. If
  307  a blood test has been administered, the officer or the agency
  308  employing the officer shall transmit the such results to the
  309  department within 5 days after receipt of the results. If the
  310  department then determines that the person had a blood-alcohol
  311  level or breath-alcohol level of 0.08 or higher, the department
  312  shall suspend the person’s driver driver’s license pursuant to
  313  subsection (3).
  314         (b) The suspension under paragraph (a) shall be pursuant
  315  to, and the notice of suspension and notice to appear shall
  316  inform the driver of, the following:
  317         1.a. The driver refused to submit to a lawful breath,
  318  blood, or urine test and his or her driving privilege is
  319  suspended for a period of 1 year for a first refusal, or for a

  320  period of 18 months if his or her driving privilege has been
  321  previously suspended as a result of a refusal to submit to such
  322  a test; or
  323         b. The driver was driving or was in actual physical control
  324  of a motor vehicle and had a an unlawful blood-alcohol level or
  325  breath-alcohol level of 0.08 or higher and his or her driving
  326  privilege is suspended for a period of 6 months for a first
  327  offense, or for a period of 1 year if his or her driving
  328  privilege has been previously suspended under this section.
  329         2. The suspension period commences shall commence on the
  330  date of issuance of the notice of suspension and notice to

  331  appear.
  332         3. The driver may request a formal or informal review of
  333  the suspension by the department within 10 days after the date
  334  of issuance of the notice of suspension.
  335         3.4. The temporary permit issued at the time of suspension
  336  expires at midnight of the 10th day following the date of
  337  issuance of the notice of suspension and notice to appear.
  338         5. The driver may submit to the department any materials

  339  relevant to the suspension.
  340         (c) A person whose driving privilege has been suspended
  341  pursuant to this subsection or subsection (3) shall appear at a
  342  designated department office within 10 days after receipt of the
  343  notice of suspension and notice to appear. If the person fails

  344  to appear as required, his or her license will remain suspended
  345  and all rights of review as provided in this section will be
  346  waived.
  347         (d) If it appears that the person whose driving privilege

  348  has been suspended meets the requirements of s. 322.271 and is
  349  otherwise eligible for the driving privilege and if the person
  350  wishes to obtain a restricted driver license, the department
  351  shall, upon payment by the person of the appropriate fees to the

  352  department, reinstate the person’s driving privilege restricted
  353  to business purposes only, as defined in, and pursuant to s.
  354  322.271. The department shall issue a replacement driver license
  355  with the applicable restrictions. The department may extend the

  356  time for a person who qualifies for a restricted driver license
  357  to apply for the restricted license upon good cause shown in
  358  writing.
  359         1. The restrictions on a person’s driving privilege under

  360  this paragraph shall be in place for:
  361         a. One year, if the driver refused to submit to a breath,
  362  blood, or urine test requested pursuant to this section; or
  363         b. Six months, if the driver was driving or was in actual
  364  physical control of a motor vehicle and had an unlawful blood

  365  alcohol or breath-alcohol level of 0.08 or higher.
  366         2. A person who accepts the reinstated driving privilege
  367  restricted to business purposes only as provided in this
  368  paragraph is deemed to have waived the right to a formal review

  369  of the suspension of his or her driving privilege. Such a waiver
  370  may not be used as evidence in any other proceeding.
  371         (e) The department shall notify the person whose driving
  372  privilege has been suspended in writing of his or her right to

  373  review the suspension if the person has not applied for a
  374  restricted driver license pursuant to s. 322.271.
  375         (f) The notice of the right to a formal or informal review
  376  of a suspension shall inform the driver of the following:

  377         1. The driver may request a formal or informal review by
  378  the department within 10 days after the department notifies the
  379  person of the right to review. A person electing to seek a
  380  formal review of the suspension is deemed to have waived his or
  381  her right to a restricted driving privilege except as set forth

  382  in subsection (10). Hearings may be conducted telephonically.
  383  Witnesses shall be sworn by a notary public, certified court
  384  reporter, or law enforcement officer pursuant to s. 117.10.
  385         2. The driver may submit to the department any material

  386  relevant to the suspension. The driver or his or her counsel
  387  must provide a telephone number where he or she can be contacted
  388  for the hearing. A person who does not appear at a designated

  389  department office as required by paragraph (c) waives his or her
  390  right to submit materials to the department.
  391         (2) Except as provided in paragraph (1)(a), the law
  392  enforcement officer shall forward to the department, within 5
  393  days after issuing the notice of suspension and notice to

  394  appear, the driver driver’s license; an affidavit stating the
  395  officer’s grounds for belief that the person was driving or was
  396  in actual physical control of a motor vehicle while under the
  397  influence of alcoholic beverages or chemical or controlled
  398  substances; the results of any breath or blood test or an
  399  affidavit stating that a breath, blood, or urine test was
  400  requested by the a law enforcement officer or a correctional
  401  officer pursuant to this section and that the person refused to
  402  submit; the officer’s description of the person’s field sobriety
  403  exercise test, if any; and a copy of the notice of suspension
  404  and notice appear. The failure of the officer to submit
  405  materials within the 5-day period specified in this subsection
  406  and in subsection (1) does not affect the department’s ability
  407  to consider any evidence submitted at or before prior to the
  408  hearing. The officer may also submit a copy of the crash report
  409  and a copy of a videotape of the field sobriety exercise test or
  410  the attempt to administer the exercise such test. Materials
  411  submitted to the department by a law enforcement agency or
  412  correctional agency shall be considered self-authenticating and
  413  shall be in the record for consideration by the hearing officer.
  414  All materials may be submitted in electronic form.

  415  Notwithstanding s. 316.066(5), the crash report shall be
  416  considered by the hearing officer.
  417         (3) If the department determines that the license should be
  418  suspended pursuant to this section and if the notice of
  419  suspension and notice to appear has not already been served upon
  420  the person by the a law enforcement officer or correctional
  421  officer as provided in subsection (1), the department shall
  422  issue a notice of suspension and, unless the notice is mailed
  423  pursuant to s. 322.251, a temporary permit that expires 10 days
  424  after the date of issuance if the driver is otherwise eligible
  425  for the driving privilege.
  426         (4) If the person whose license was suspended requests an
  427  informal review pursuant to subparagraph (1)(b)3., the
  428  department shall conduct the informal review by a hearing
  429  officer employed by the department. The Such informal review
  430  hearing shall consist solely of an examination by the hearing

  431  officer department of the materials submitted by the a law
  432  enforcement officer or correctional officer and by the person
  433  whose license was suspended, and the testimonial presence of the

  434  an officer or any other witness is not required.
  435         (5) After completion of the informal review, notice of the
  436  department’s decision sustaining, amending, or invalidating the
  437  suspension of the driver driver’s license of the person whose
  438  license was suspended must be provided to such person. The Such

  439  notice must be mailed to the person at the last known address
  440  shown on the department’s records, or to the address provided in
  441  the law enforcement officer’s report if the such address differs
  442  from the address of record, within 21 days after the expiration
  443  of the temporary permit issued pursuant to subsection (1) or
  444  subsection (3).
  445         (6)(a) If the person whose license was suspended requests a
  446  formal review, the department must schedule a hearing to be held
  447  within 30 days after the such request is received by the
  448  department and must notify the person of the date, time, and
  449  place of the hearing.
  450         (b) The Such formal review hearing shall be held before a
  451  hearing officer employed by the department, and the hearing
  452  officer may shall be authorized to administer oaths, examine
  453  witnesses and take testimony, receive relevant evidence, issue
  454  subpoenas for the officers and witnesses identified in documents
  455  in subsection (2), regulate the course and conduct of the
  456  hearing, question witnesses, and make a ruling on the
  457  suspension.
  458         (c) The party requesting the presence of a witness is shall

  459  be responsible for the payment of any witness fees and for
  460  notifying in writing the state attorney’s office in the
  461  appropriate circuit of the issuance of the subpoena. If the
  462  person who requests the a formal review hearing fails to appear
  463  and the hearing officer finds such failure to be without just
  464  cause, the right to a formal hearing is waived, and the
  465  suspension shall be sustained. The hearing officer may authorize
  466  witnesses to the formal review hearing to appear telephonically.

  467         (d)(c) A party may seek enforcement of a subpoena under
  468  paragraph (b) by filing a petition for enforcement in the
  469  circuit court of the judicial circuit in which the person
  470  failing to comply with the subpoena resides or by filing a
  471  motion for enforcement in any criminal court case resulting from
  472  the driving or actual physical control of the motor vehicle
  473  which gave rise to the suspension under this section. A failure
  474  to comply with an order of the court shall result in a finding
  475  of contempt of court. However, a person is not in contempt while
  476  a subpoena is being challenged. The department may not be a

  477  party to any subpoena enforcement action.
  478         (e)(d) The department must, within 7 working days after the
  479  a formal review hearing, provide send notice to the person of
  480  the hearing officer’s decision as to whether sufficient cause
  481  exists to sustain, amend, or invalidate the suspension.
  482         (7) In a formal review hearing under subsection (6) or an
  483  informal review hearing under subsection (4), the hearing
  484  officer shall determine by a preponderance of the evidence
  485  whether sufficient cause exists to sustain, amend, or invalidate
  486  the suspension. Notwithstanding s. 316.1932, the hearing officer

  487  may not consider the lawfulness of the arrest and shall limit
  488  the scope of the review shall be limited to the following
  489  issues:
  490         (a) If the license was suspended for driving with a an
  491  unlawful blood-alcohol level or breath-alcohol level of 0.08 or
  492  higher:
  493         1. Whether the law enforcement officer had probable cause
  494  to believe that the person whose license was suspended was
  495  driving or was in actual physical control of a motor vehicle in
  496  this state while under the influence of alcoholic beverages or
  497  chemical or controlled substances.
  498         2. Whether the person whose license was suspended had a an

  499  unlawful blood-alcohol level or breath-alcohol level of 0.08 or
  500  higher as provided in s. 316.193.
  501         (b) If the license was suspended for refusal to submit to a
  502  breath, blood, or urine test:
  503         1. Whether the law enforcement officer had probable cause
  504  to believe that the person whose license was suspended was
  505  driving or was in actual physical control of a motor vehicle in
  506  this state while under the influence of alcoholic beverages or
  507  chemical or controlled substances.
  508         2. Whether the person whose license was suspended refused
  509  to submit to any such test after being requested to do so by a
  510  law enforcement officer or correctional officer.
  511         3. Whether the person whose license was suspended was told
  512  that if he or she refused to submit to such test, his or her
  513  privilege to operate a motor vehicle would be suspended for a
  514  period of 1 year or, in the case of a second or subsequent
  515  refusal, for a period of 18 months.
  516         (8) Based on the determination of the hearing officer
  517  pursuant to subsection (7) for both informal hearings under
  518  subsection (4) and formal hearings under subsection (6), the
  519  department shall:
  520         (a) Sustain the suspension of the person’s driving
  521  privilege for a period of 1 year for a first refusal, or for a

  522  period of 18 months if the driving privilege of the such person
  523  has been previously suspended as a result of a refusal to submit
  524  to such test tests, if the person refused to submit to a lawful
  525  breath, blood, or urine test requested pursuant to this section.
  526  The suspension period begins commences on the date of issuance
  527  of the notice of suspension.
  528         (b) Sustain the suspension of the person’s driving
  529  privilege for a period of 6 months for a blood-alcohol level or
  530  breath-alcohol level of 0.08 or higher, or for a period of 1
  531  year if the driving privilege of the such person has been
  532  previously suspended under this section as a result of driving
  533  with a blood-alcohol level or breath-alcohol level of 0.08 or

  534  higher an unlawful alcohol level. The suspension period begins
  535  commences on the date of issuance of the notice of suspension.
  536         (9) A request for a formal review hearing or an informal
  537  review hearing does shall not stay the suspension of the
  538  person’s driver driver’s license. If the department fails to
  539  schedule a requested the formal review hearing to be held within
  540  30 days after receipt of the request therefor, the department
  541  shall invalidate the suspension. If the scheduled hearing is
  542  continued at the department’s initiative, the department shall
  543  issue a temporary driving permit that is shall be valid until
  544  the hearing is conducted if the person is otherwise eligible for
  545  the driving privilege. The Such permit may not be issued to a
  546  person who sought and obtained a continuance of the hearing. The
  547  temporary permit issued under this subsection grants a driving

  548  privilege restricted to employment purposes shall authorize
  549  driving for business or employment use only, as defined in s.
  550  322.271.
  551         (10) A person whose driver driver’s license is suspended
  552  under subsection (1) or subsection (3) may apply for issuance of
  553  a license for business or employment purposes only if the person
  554  is otherwise eligible for the driving privilege pursuant to s.
  555  322.271.
  556         (a) If the suspension of the driver driver’s license of the
  557  person for refusal or failure to submit to a breath, urine, or
  558  blood test is sustained, the person is not eligible to receive a
  559  license for business or employment purposes only, pursuant to s.
  560  322.271, until 90 days have elapsed after the expiration of the
  561  last temporary permit issued. If the driver is not issued a 10
  562  day permit pursuant to this section or s. 322.64 because he or
  563  she is ineligible for the permit and the suspension for failure
  564  to submit to a breath, urine, or blood test is sustained not

  565  invalidated by the department, the driver is not eligible to
  566  receive a business or employment license pursuant to s. 322.271
  567  until 90 days have elapsed from the date of the suspension.
  568         (b) If the suspension of the driver driver’s license of the
  569  person relating to unlawful blood-alcohol level or breath
  570  alcohol level of 0.08 or higher is sustained, the person is not
  571  eligible to receive a license for business or employment
  572  purposes only pursuant to s. 322.271 until 30 days have elapsed
  573  after the expiration of the last temporary permit issued. If the
  574  driver is not issued a 10-day permit pursuant to this section or
  575  s. 322.64 because he or she is ineligible for the permit and the
  576  suspension relating to unlawful blood-alcohol level or breath
  577  alcohol level of 0.08 or higher is sustained not invalidated by
  578  the department, the driver is not eligible to receive a business
  579  or employment license pursuant to s. 322.271 until 30 days have
  580  elapsed from the date of the suspension.
  581         (11) A The formal review hearing may be conducted upon a
  582  review of the reports of a law enforcement officer or a
  583  correctional officer, including documents relating to the
  584  administration of a breath test or blood test or the refusal to
  585  take either test or the refusal to take a urine test. However,
  586  as provided in subsection (6), the driver may subpoena the
  587  officer or any person who administered or analyzed the a breath
  588  or blood test. The hearing officer may permit witnesses at the

  589  formal review hearing to appear telephonically.
  590         (12) The Formal and informal review hearings hearing and

  591  the informal review hearing are exempt from the provisions of
  592  chapter 120. The department may adopt rules for the conduct of
  593  reviews under this section.
  594         (13) Pursuant to s. 322.21, a person may appeal any
  595  decision of the department sustaining a suspension of his or her
  596  driver driver’s license by a petition for writ of certiorari to
  597  the circuit court in the county in which the wherein such person
  598  resides or wherein a formal or informal review was conducted

  599  pursuant to s. 322.31. However, an appeal does shall not stay
  600  the suspension. A law enforcement agency may appeal any decision
  601  of the department invalidating a suspension by a petition for
  602  writ of certiorari to the circuit court in the county in which
  603  wherein a formal or informal review was conducted. For

  604  telephonic hearings, the law enforcement agency shall file the
  605  petition for writ of certiorari to the circuit court in the
  606  county in which the law enforcement agency is located. This
  607  subsection does shall not be construed to provide for a de novo
  608  appeal.
  609         (14)(a) The decision of the department under this section
  610  or any circuit court review thereof may not be considered in any
  611  trial for a violation of s. 316.193, and a written statement
  612  submitted by a person in his or her request for departmental
  613  review under this section may not be admitted into evidence
  614  against him or her in any such trial.
  615         (b) The disposition of any related criminal proceeding

  616  proceedings does not affect a suspension for refusal to submit
  617  to a blood, breath, or urine test imposed under this section.
  618         (15) If the department suspends a person’s license under s.
  619  322.2616, it may not also suspend the person’s license under
  620  this section for the same episode that was the basis for the
  621  suspension under s. 322.2616.
  622         (16) The department shall invalidate a suspension for
  623  driving with an unlawful blood-alcohol level or breath-alcohol
  624  level imposed under this section if the suspended person is
  625  found not guilty at trial of an underlying violation of s.
  626  316.193. If the person obtained a license restricted to business
  627  purposes only pursuant to paragraph (1)(c), the department shall
  628  remove the restriction from the person’s driver license.
  629         Section 3. Subsections (5), (7), (12), and (14) of section
  630  322.2616, Florida Statutes, are amended to read:
  631         322.2616 Suspension of license; persons under 21 years of
  632  age; right to review.—
  633         (5) If the person whose license is suspended requests an
  634  informal review under subparagraph (2)(b)3., the department
  635  shall conduct the informal review by a hearing officer employed
  636  by the department within 30 days after the request is received
  637  by the department and shall issue such person a temporary
  638  driving permit for business purposes only to expire on the date
  639  that the such review is scheduled to be conducted if the person
  640  is otherwise eligible. The informal review hearing must consist
  641  solely of an examination by the department of the materials
  642  submitted by the a law enforcement officer or correctional
  643  officer and by the person whose license is suspended, and the
  644  testimony presence of the an officer or witness is not required.
  645         (7)(a) If the person whose license is suspended requests a
  646  formal review, the department must schedule a hearing to be held
  647  within 30 days after the request is received by the department
  648  and must notify the person of the date, time, and place of the
  649  hearing and shall issue the such person a temporary driving
  650  permit for business purposes only to expire on the date that the

  651  such review is scheduled to be conducted if the person is
  652  otherwise eligible.
  653         (b) The formal review hearing must be held before a hearing
  654  officer employed by the department, and the hearing officer may
  655  administer oaths, examine witnesses and take testimony, receive
  656  relevant evidence, issue subpoenas, regulate the course and
  657  conduct of the hearing, and make a ruling on the suspension. The
  658  department and the person whose license was suspended may
  659  subpoena witnesses, and the party requesting the presence of a
  660  witness is responsible for paying any witness fees and for
  661  notifying in writing the state attorney’s office in the
  662  appropriate circuit of the issuance of the subpoena. If the
  663  person who requests a formal review hearing fails to appear and
  664  the hearing officer finds the failure to be without just cause,
  665  the right to a formal hearing is waived, and the suspension is
  666  sustained. The hearing officer may permit witnesses at the
  667  formal review hearing to appear telephonically.
  668         (c) A party may seek enforcement of a subpoena under
  669  paragraph (b) by filing a petition for enforcement in the
  670  circuit court of the judicial circuit in which the person
  671  failing to comply with the subpoena resides. A failure to comply
  672  with an order of the court constitutes contempt of court.
  673  However, a person may not be held in contempt while a subpoena
  674  is being challenged. The department is not a party to any

  675  subpoena enforcement action.
  676         (d) The department must, within 7 days after the a formal
  677  review hearing, provide send notice to the person of the hearing
  678  officer’s decision as to whether sufficient cause exists to
  679  sustain, amend, or invalidate the suspension.
  680         (12) The formal review hearing may be conducted upon a
  681  review of the reports of the a law enforcement officer or
  682  correctional officer, including documents relating to the
  683  administration of a breath test or the refusal to take a test.
  684  However, as provided in subsection (7), the driver may subpoena
  685  the officer or any person who administered the a breath or blood
  686  test. The hearing officer may permit witnesses at the formal

  687  review hearing to appear telephonically.
  688         (14) Pursuant to s. 322.31, a person may appeal any
  689  decision of the department sustaining a suspension of his or her
  690  driver driver’s license by a petition for writ of certiorari to
  691  the circuit court in the county in which the wherein such person
  692  resides or in which the wherein a formal or informal review was
  693  conducted under s. 322.31. However, an appeal does not stay the
  694  suspension. This subsection does not provide for a de novo
  695  appeal. 

696         Section 4. Subsections (6) and (7) are added to section
  697  322.2715, Florida Statutes, to read: 

698         322.2715 Ignition interlock device.—
  699         (6) Notwithstanding the provisions of s. 322.271 and

  700  322.28(2), upon a second conviction for a violation of the
  701  provisions of s. 316.193, the convicted person may elect to
  702  install an ignition interlock device on all vehicles that are
  703  individually or jointly leased or owned and routinely operated

  704  by the convicted person, in lieu of the 5-year license
  705  revocation required by s. 322.28(2). The ignition interlock
  706  device must be installed for a period of 2 consecutive years,
  707  and must be followed by a third consecutive year, during which

  708  the convicted person is entitled to a driving privilege
  709  restricted to business purposes only, as defined in s.
  710  322.271(1).
  711         (7) Notwithstanding the provisions of s. 322.271 and

  712  322.28(2), upon a third conviction for a violation of the
  713  provisions of s. 316.193, the convicted person may elect to
  714  install an ignition interlock device on all vehicles that are
  715  individually or jointly leased or owned and routinely operated

  716  by the convicted person, in lieu of the 10-year license
  717  revocation required by s. 322.28(2). The installation of an
  718  ignition interlock device under this subsection may not occur
  719  until the convicted person has served a 1-year license

  720  revocation period. The ignition interlock device must be
  721  installed for a period of 3 consecutive years, and must be
  722  followed by a period of 2 additional consecutive years, during
  723  which the convicted person is entitled to a driving privilege
  724  restricted to business purposes only, as defined in s.

  725  322.271(1).
  726         Section 5. Section 322.64, Florida Statutes, is amended to
  727  read:
  728         322.64 Holder of commercial driver driver’s license;
  729  persons operating a commercial motor vehicle; driving with
  730  unlawful blood-alcohol level or breath-alcohol level; refusal to
  731  submit to breath, urine, or blood test.—
  732         (1)(a) A law enforcement officer or correctional officer
  733  shall, on behalf of the department, disqualify from operating a
  734  any commercial motor vehicle a person who, while operating or in
  735  actual physical control of a commercial motor vehicle, is
  736  arrested for a violation of s. 316.193, relating to unlawful
  737  blood-alcohol level or breath-alcohol level, or a person who has
  738  refused to submit to a breath, urine, or blood test authorized

  739  by s. 322.63 or s. 316.1932 arising out of the operation or
  740  actual physical control of a commercial motor vehicle. A law
  741  enforcement officer or correctional officer shall, on behalf of
  742  the department, disqualify the holder of a commercial driver
  743  driver’s license from operating a any commercial motor vehicle
  744  if the licenseholder, while operating or in actual physical
  745  control of a motor vehicle, is arrested for a violation of s.
  746  316.193, relating to unlawful blood-alcohol level or breath

  747  alcohol level, or refused to submit to a breath, urine, or blood
  748  test authorized by s. 322.63 or s. 316.1932. Upon
  749  disqualification of the person, the officer shall take the
  750  person’s driver driver’s license and issue the person a 10-day
  751  temporary permit for the operation of noncommercial vehicles
  752  only if the person is otherwise eligible for the driving
  753  privilege and shall issue the person a notice of
  754  disqualification. If the person has been given a blood, breath,
  755  or urine test and, the results of the test which are not
  756  available to the officer at the time of the arrest, the agency
  757  employing the officer shall transmit such results to the
  758  department within 5 days after receipt of the results. If the
  759  department then determines that the person had a blood-alcohol
  760  level or breath-alcohol level of 0.08 or higher, the department
  761  shall disqualify the person from operating a commercial motor
  762  vehicle pursuant to subsection (3).
  763         (b) For purposes of determining the period of

  764  disqualification described in 49 C.F.R. s. 383.51, the
  765  disqualification under paragraph (a) shall be treated as
  766  conviction.
  767         (c)(b) The disqualification under paragraph (a) shall be
  768  pursuant to, and the notice of disqualification shall inform the
  769  driver of, the following:
  770         1.a. The driver refused to submit to a lawful breath,
  771  blood, or urine test and he or she is disqualified from
  772  operating a commercial motor vehicle for a period of 1 year, for
  773  a first refusal, or permanently, if he or she has previously
  774  been disqualified under this section; or
  775         b. The driver was driving or was in actual physical control
  776  of a commercial motor vehicle, or any motor vehicle if the
  777  driver holds a commercial driver driver’s license, had an
  778  unlawful blood-alcohol level or breath-alcohol level of 0.08 or
  779  higher, and his or her driving privilege shall be disqualified
  780  for a period of 1 year for a first offense, or permanently
  781  disqualified if his or her driving privilege has been previously
  782  disqualified under this section.
  783         2. The disqualification period for operating a commercial
  784  vehicle begins vehicles shall commence on the date of issuance
  785  of the notice of disqualification.
  786         3. The driver may request a formal or informal review of
  787  the disqualification by the department within 10 days after the
  788  date of issuance of the notice of disqualification.
  789         4. The temporary permit issued at the time of
  790  disqualification expires at midnight of the 10th day following
  791  the date of disqualification.
  792         5. The driver may submit to the department any material

  793  materials relevant to the disqualification.
  794         (2) Except as provided in paragraph (1)(a), the law
  795  enforcement officer shall forward to the department, within 5
  796  days after the date of the issuance of the notice of
  797  disqualification, a copy of the notice of disqualification
  798  issued to the person;, the driver driver’s license of the person
  799  disqualified;, and an affidavit stating the officer’s grounds
  800  for belief that the person disqualified was operating or was in
  801  actual physical control of a commercial motor vehicle, or holds
  802  a commercial driver driver’s license, and had an unlawful blood
  803  alcohol or breath-alcohol level; the results of any breath, or

  804  blood, or urine test or an affidavit stating that a breath,
  805  blood, or urine test was requested by the a law enforcement
  806  officer or correctional officer and that the person arrested
  807  refused to submit; a copy of the notice of disqualification
  808  issued to the person; and the officer’s description of the
  809  person’s field sobriety test, if any. The failure of the officer
  810  to submit materials within the 5-day period specified in this
  811  subsection or subsection (1) does not affect the department’s
  812  ability to consider any evidence submitted at or before prior to

  813  the hearing. The officer may also submit a copy of a videotape
  814  of the field sobriety test or the attempt to administer such
  815  test and a copy of the crash report, if any. Notwithstanding s.
  816  316.066, the crash report shall be considered by the hearing
  817  officer. All materials may be submitted in electronic form.
  818         (3) If the department determines that the person arrested
  819  should be disqualified from operating a commercial motor vehicle
  820  pursuant to this section and if the notice of disqualification
  821  has not already been served upon the person by the a law
  822  enforcement officer or correctional officer as provided in
  823  subsection (1), the department shall issue a notice of
  824  disqualification and, unless the notice is mailed pursuant to s.
  825  322.251, a temporary permit that which expires 10 days after the
  826  date of issuance if the driver is otherwise eligible.
  827         (4) If the person disqualified requests an informal review
  828  pursuant to subparagraph (1)(c)3. (1)(b)3., the department shall
  829  conduct the informal review by a hearing officer employed by the
  830  department. The Such informal review hearing shall consist
  831  solely of an examination by the department of the materials
  832  submitted by the a law enforcement officer or correctional
  833  officer and by the person disqualified, and the presence of the

  834  an officer or a witness is not required.
  835         (5) After completion of the informal review, notice of the
  836  department’s decision sustaining, amending, or invalidating the
  837  disqualification must be provided to the person. The such notice
  838  must be mailed to the person at the last known address shown on
  839  the department’s records, and to the address provided in the law
  840  enforcement officer’s report if the such address differs from
  841  the address of record, within 21 days after the expiration of
  842  the temporary permit issued pursuant to subsection (1) or
  843  subsection (3).
  844         (6)(a) If the person disqualified requests a formal review,
  845  the department must schedule a hearing to be held within 30 days
  846  after the such request is received by the department and must
  847  notify the person of the date, time, and place of the hearing.
  848         (b) The such formal review hearing shall be held before a
  849  hearing officer employed by the department, and the hearing
  850  officer may shall be authorized to administer oaths, examine
  851  witnesses and take testimony, receive relevant evidence, issue
  852  subpoenas for the officers and witnesses identified in documents
  853  as provided in subsection (2), regulate the course and conduct
  854  of the hearing, and make a ruling on the disqualification. The
  855  department and the person disqualified may subpoena witnesses,
  856  and the party requesting the presence of a witness is shall be

  857  responsible for the payment of any witness fees. If the person
  858  who requests a formal review hearing fails to appear and the
  859  hearing officer finds such failure to be without just cause, the
  860  right to a formal hearing is waived. The hearing officer may
  861  permit witnesses at the formal review hearing to appear
  862  telephonically.
  863         (c) A party may seek enforcement of a subpoena under
  864  paragraph (b) by filing a petition for enforcement in the
  865  circuit court of the judicial circuit in which the person
  866  failing to comply with the subpoena resides or by filing a
  867  motion for enforcement in any criminal court case resulting from

  868  the driving or actual physical control of the motor vehicle that
  869  gave rise to the disqualification under this section. A failure
  870  to comply with an order of the court shall result in a finding
  871  of contempt of court. However, a person is shall not be in
  872  contempt while a subpoena is being challenged. The department is

  873  not a party to any subpoena enforcement action.
  874         (d) The department must, within 7 working days after the a
  875  formal review hearing, send notice to the person of the hearing
  876  officer’s decision as to whether sufficient cause exists to
  877  sustain, amend, or invalidate the disqualification.
  878         (7) In a formal review hearing under subsection (6) or an
  879  informal review hearing under subsection (4), the hearing
  880  officer shall determine by a preponderance of the evidence
  881  whether sufficient cause exists to sustain, amend, or invalidate
  882  the disqualification. Notwithstanding s. 316.1932, the hearing

  883  officer may not consider the lawfulness of the arrest and shall
  884  limit the scope of the review shall be limited to the following
  885  issues:
  886         (a) If the person was disqualified from operating a
  887  commercial motor vehicle for driving with a an unlawful blood
  888  alcohol level or breath-alcohol level of 0.08 or higher:
  889         1. Whether the arresting law enforcement officer had
  890  probable cause to believe that the person was driving or was in
  891  actual physical control of a commercial motor vehicle, or any
  892  motor vehicle if the driver holds a commercial driver driver’s

  893  license, in this state while he or she had any alcohol, chemical
  894  substance substances, or controlled substance substances in his
  895  or her body.
  896         2. Whether the person had a an unlawful blood-alcohol level
  897  or breath-alcohol level of 0.08 or higher.
  898         (b) If the person was disqualified from operating a
  899  commercial motor vehicle for refusal to submit to a breath,
  900  blood, or urine test:
  901         1. Whether the law enforcement officer had probable cause
  902  to believe that the person was driving or was in actual physical
  903  control of a commercial motor vehicle, or any motor vehicle if
  904  the driver holds a commercial driver driver’s license, in this
  905  state while he or she had any alcohol, chemical substance

  906  substances, or controlled substance substances in his or her
  907  body.
  908         2. Whether the person refused to submit to the test after
  909  being requested to do so by the a law enforcement officer or
  910  correctional officer.
  911         3. Whether the person was told that if he or she refused to
  912  submit to such test, he or she would be disqualified from
  913  operating a commercial motor vehicle for a period of 1 year or,
  914  if previously disqualified under this section, permanently.
  915         (8) Based on the determination of the hearing officer
  916  pursuant to subsection (7) for both informal hearings under
  917  subsection (4) and formal hearings under subsection (6), the
  918  department shall:
  919         (a) Sustain the disqualification for a period of 1 year for
  920  a first refusal, or permanently if the such person has been
  921  previously disqualified from operating a commercial motor
  922  vehicle under this section. The disqualification period begins

  923  commences on the date of the issuance of the notice of
  924  disqualification.
  925         (b) Sustain the disqualification:
  926         1. For a period of 1 year if the person was driving or was
  927  in actual physical control of a commercial motor vehicle, or any
  928  motor vehicle if the driver holds a commercial driver driver’s
  929  license, and had an unlawful blood-alcohol level or breath
  930  alcohol level of 0.08 or higher; or
  931         2. Permanently if the person has been previously
  932  disqualified from operating a commercial motor vehicle under
  933  this section or his or her driving privilege has been previously
  934  suspended for driving or being in actual physical control of a
  935  commercial motor vehicle, or any motor vehicle if the driver
  936  holds a commercial driver driver’s license, and had an unlawful
  937  blood-alcohol level or breath-alcohol level of 0.08 or higher.
  938  
  939  The disqualification period begins commences on the date of the
  940  issuance of the notice of disqualification.
  941         (9) A request for a formal review hearing or an informal
  942  review hearing does shall not stay the disqualification. If the
  943  department fails to schedule the formal review hearing to be
  944  held within 30 days after receipt of the request therefor, the
  945  department shall invalidate the disqualification. If the
  946  scheduled hearing is continued at the department’s initiative,
  947  the department shall issue a temporary driving permit limited to
  948  noncommercial vehicles which is valid until the hearing is
  949  conducted if the person is otherwise eligible for the driving
  950  privilege. The Such permit may shall not be issued to a person
  951  who sought and obtained a continuance of the hearing. The
  952  temporary permit issued under this subsection grants a driving

  953  privilege restricted to employment purposes only, as defined in
  954  s. 322.271 shall authorize driving for business purposes only.
  955         (10) A person who is disqualified from operating a
  956  commercial motor vehicle under subsection (1) or subsection (3)
  957  is eligible for issuance of a license for business or employment
  958  purposes only under s. 322.271 if the person is otherwise
  959  eligible for the driving privilege. However, such business or
  960  employment purposes license does shall not authorize the driver
  961  to operate a commercial motor vehicle.
  962         (11) The formal review hearing may be conducted upon a
  963  review of the reports of the a law enforcement officer or a

  964  correctional officer, including documents relating to the
  965  administration of a breath test or blood test or the refusal to
  966  take a breath, blood, or urine either test. However, as provided
  967  in subsection (6), the driver may subpoena the officer or any
  968  person who administered or analyzed the a breath or blood test.
  969  The hearing officer may permit witnesses at the formal review
  970  hearing to appear telephonically.

  971         (12) The formal review hearing and the informal review
  972  hearing are exempt from the provisions of chapter 120. The
  973  department may is authorized to adopt rules for the conduct of
  974  reviews under this section.
  975         (13) Pursuant to s. 322.31, a person may appeal any
  976  decision of the department sustaining the disqualification from
  977  operating a commercial motor vehicle by a petition for writ of
  978  certiorari to the circuit court in the county in which the
  979  wherein such person resides or wherein a formal or informal

  980  review was conducted pursuant to s. 322.31. However, an appeal
  981  does shall not stay the disqualification. This subsection does
  982  shall not be construed to provide for a de novo appeal.
  983         (14) The decision of the department under this section may

  984  shall not be considered in any trial for a violation of s.
  985  316.193, s. 322.61, or s. 322.62, and a nor shall any written
  986  statement submitted by a person in his or her request for
  987  departmental review under this section may not be admitted be
  988  admissible into evidence against him or her in any such trial.
  989  The disposition of any related criminal proceeding may

  990  proceedings shall not affect a disqualification imposed pursuant
  991  to this section.
  992         (15) This section does not preclude the suspension of the
  993  driving privilege pursuant to s. 322.2615. The driving privilege
  994  of a person who has been disqualified from operating a
  995  commercial motor vehicle also may also be suspended for a
  996  violation of s. 316.193.
  997         Section 6. This act shall take effect July 1, 2012.