Questions on DUI Suspensions

Ruling Raises Questions on DUI Suspensions
Judge says common practice in hearing cases creates a conflict
of interest.
By CURT ANDERSON, The Associated Press
Published Monday, February 27, 2006

FORT LAUDERDALE – Marcie Wyrobeck graduated from the Philadelphia
College of Art and worked in sales and for an arts and crafts store. She
had no formal legal training.

Yet, for nearly a decade, she was a state hearing officer who decided
the appeals of people whose driver licenses were suspended in
drunken-driving cases.

When a difficult legal question came up in one of those hearings,
Wyrobeck said she and other Department of Highway Safety and Motor
Vehicles hearing officers — some with only high school educations —
routinely asked the agency’s lawyers for advice about how to rule.

“It was pretty common practice that if you had any kind of legal
question you would call the attorneys,” said Wyrobeck, who left the
agency and her $27,000 salary in 2003.

Now a judge in Broward County has ruled that allowing hearing officers
like Wyrobeck to consult on legal issues with the department’s own
lawyers violates the fundamental constitutional rights of defendants in
drunken-driving cases.

“How can the specter of actual conflict, much less the appearance of
conflict, not raise its ugly head?” said Broward County Circuit Judge J.
Leonard Fleet in his ruling late last year.

Wyrobeck, who now consults for DUI defense lawyers, said the conflict
is obvious: “It’s like being the judge and the prosecutor at the same

Although Fleet’s decision is not binding statewide, the department has
voluntarily ceased any communication between its 71 hearing officers and
its legal staff pending the outcome of an appeal.

Department spokesman Frank Penela said its position is that Fleet’s
order “is procedurally and substantively defective.”

The Broward County case could eventually have a broader impact across
Florida and the nation, where similar systems are used by about 40
states, said Ed Fiandach, a Rochester, N.Y., lawyer and dean of the
National College of DUI Defense.

“It’s an extremely common practice. You’ll find due process is being
stretched to the minimum when DUI is involved,” Fiandach said.

Florida’s system of DUI license suspension appeals was challenged by
Sam Fields, who frequently represents those accused in such cases. There
are about 7,000 DUIs each year in Broward County and some 65,000 around
the state.

Florida law allows immediate suspension of driver licenses when breath
tests show an alcohol level of 0.08 or more or when the suspect refuses a
breath, blood or urine test. The suspension must be appealed within 10
days, during which the driver is given a temporary permit. More than
22,000 appeal hearings were conducted in 2005.

A former department lawyer, Rhonda Goodman, testified in court that
hearing officers would often contact her “and beg me to give them a
ruling. They would say, `come on, can’t you help me out here?’ ” Goodman
said she was fired in November 2003 because she wouldn’t go along with a
system geared to sustain the suspension.

Florida officials say the hearing officers are given frequent training
on DUI law and recent decisions by appellate courts. Danny Watford, chief
of the Bureau of Administrative Reviews at the department, said about
21,000 appeals are heard each year and about 30 percent of license
suspensions are invalidated by hearing officers.

Watford said there are no rules stating that a hearing officers must
get approval from one of the agency’s lawyers to lift a suspension. “No,
that is their decision,” he said in court testimony.

Goodman, the former agency lawyer, said the decisions to lift a
suspension did have to get such approval and that it was commonly known
that agency higher-ups looked with disfavor on anyone who didn’t sustain
most of the suspensions.


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