A Key West attorney is challenging a new state policy that makes it more difficult and expensive for DUI suspects awaiting trial to get a temporary license to drive to work, school or other necessary tasks.
Since July 1, if a law enforcement officer does not show for a defendant's license hearing, the Department of Highway Safety and Motor Vehicles (DMV) tells him or her to take their case to court, instead of automatically granting a temporary permit, as was the previous policy for decades.
Not having a hearing in which law enforcement must present evidence in the case violates their constitutional rights to due process, attorney Sam Kaufman said Tuesday.
"Historically, the hearing process has always been that we subpoena the officer and the hearing usually takes place at the Miami DMV office," Kaufman explained. "If the officer failed to show, then the hearing officer denied the license suspension, because no evidence was presented by police, just like in traffic court."
Kaufman on Monday filed an emergency motion in Monroe County circuit court challenging the policy on behalf of two clients, a Key West man and a Casselberry woman who were arrested in Key West.
"It makes no sense to have a hearing without affording the accused the minimum due process," Kaufman said. "I was flabbergasted that after 14 years of attending perhaps a thousand or more of these hearings that the [DMV] decided to do this without any new law or legislative action, which appears to be a gross constitutional violation of rights."
Miami attorney Richard Hersch, a member of the Florida Bar Executive Council on Criminal Law, is urging attorneys across the state to challenge the rule.
"They're saying, even if the police officer doesn't show, take your complaint and a $400 filing fee to circuit court -- no license permit for work, school, whatever; as far they're concerned, you're a pedestrian," Hersch said. "I asked Sam to stay on top of this, because keeping the heat on around the state by filing these actions will shed light on the issue."
The DMV, whose officials did not return The Citizen's calls seeking comment, is reviewing the policy, given other court actions filed statewide, Hersch said.
A court date on Kaufman's motion had not been scheduled as of Tuesday.
alinhardt@keysnews.com