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“I must have a speedy trial.”
The myth of the speedy trial is that some clients think that if they ask for a speedy trial or do not waive their right to a speedy trial, then their case will automatically be dismissed.111 These clients don’t necessarily understand that very rarely has time ever hurt a defendant’s case. They do not understand that distance and time does tend to heal all wounds, make people forgive, forget, leave the county, state, or country without a forwarding address, and sometimes even die.
Speedy trial makes sense in any case where the alleged victim wants the case dropped, and has no intention of appearing in court, even if subpoenaed. But when the police are the only witnesses or the witnesses are gung ho to go forward, the client eventually starts to believe that speedy trial is not always such a good idea.
The reality is sometimes demanding a speedy trial works,112 either because certain state witnesses are unavailable or the state has no case, or the client is in jail, and the case is never going to get any better no matter what, or for whatever reason the state just isn’t ready to try the case.
“She’s going to change her story at trial.”
Assuming a client can ever believe that one person’s word is in fact evidence, try convincing that same client that in very limited circumstances he can be found guilty even if the one person’s word is recanted at trial.57
Another daunting task is trying to convince a client that if a key witness recants her testimony after a trial, plea or sentencing, that there is no guarantee that the client will get a new trial, or be allowed to withdraw his plea. In fact, he may not even receive a hearing to determine if he is entitled to a new trial.
The truth is that most of the time if the only witness against a person recants her accusations at trial then the case is usually dismissed.58 There is even an argument that if the state knows the witness is going to recant her testimony it cannot call the witness to the stand for impeachment purposes only.59
Recantations after a plea or trial is another story altogether. Usually, the recantation of a victim or key state witness after a trial will at least result in a hearing to argue for a new trial based on the new recantation evidence.60 But very rarely does the hearing result in the granting of a new trial,61 but it does happen.62 Even after a plea, the recantation of the victim or key state witness may result in a hearing to argue for a new trial.63 But it is even rarer in this circumstance for a new trial to be granted.64 Though again it can happen. 65
The real myth here is the client’s belief that the alleged victim is in fact going to recant her testimony. Though, it does happen, it is not the norm.
“But no money was exchanged!”
There is the myth that if a person gives another person drugs, and no money is exchanged then a person cannot be charged with doing anything wrong if the person who exchanged the drugs has a prescription for those drugs. And even if he does not have a prescription he cannot be charged with sale of drugs. It is true that a sale contemplates an exchange of money or some form of consideration.70 However, the statute for sale of drugs also includes delivery of drugs, and an exchange of money or some form of consideration is not necessary to prove delivery.71
The basis in truth for this myth may stem from the fact that in a prostitution case, and as previously mentioned in a drug sale case, money or some form of financial consideration must be exchanged or at least promised.72
“An off-duty police officer cannot arrest a person.”
Some people subscribe to the myth that an off-duty police officer cannot make an arrest. Not only can an off-duty officer make an arrest,73 but a person can actually be charged with resisting an officer with violence even when the officer is off-duty and out of his jurisdiction.74
The basis for truth to this myth stems from the fact that in certain instances a police officer who is off-duty and out of his jurisdiction cannot always detain or arrest a person, 75 even if that same person can be charged with resisting an arrest with violence if he hits the officer. The reason being that a person can never use force to resist an unlawful arrest, detention or investigation unless the officer is using excessive force76 or is acting in bad faith77 or does not reasonably appear to be a police officer.78
An off-duty police officer who is out of his jurisdiction is in no better position than an every-day citizen when it comes to making arrests. A citizen-arrest79 can be made by an off-duty officer out of his jurisdiction or by any citizen when a felony or a crime considered a breach of peace80 is committed in the citizen’s or off-duty officer’s presence. So it is true that in certain instances a person like Gomer Pyle can make a “Citizen’s arrest! Citizen’s arrest!”81
“It’s just her word against mine.”
Another popular myth is the one based upon a person’s belief that if any case comes down to one person’s word against another’s then it’s impossible for a person to be found guilty. Despite the fact that the police do not have to videotape and or audiotape a person or when they do they can do so without a person’s consent, there is no requirement that more than a person’s word is necessary to convict a person of a crime.
This myth usually presents itself in cases of domestic battery and sexual battery where there is no hard evidence that a crime took place. Or as mentioned previously, in cases where no weapon is found, but the alleged victim claims to have seen a weapon. In other words, if there is no DNA evidence, weapon recovered, and or evidence of any injury then how can a crime be proven? The ultimate myth that comes out of this is the accused’s belief that a person’s testimony is not evidence. A sub-part to this myth is the false belief that if the only evidence against the accused is the testimony of his co-defendant(s) then this is not enough evidence to convict the accused.53
The only basis in truth that can be found for the myth that the testimony alone of just one person is not enough to convict a person of a crime is the “Physical Facts Rule,”54 also known as the “Rule of Impossibility.”55 This rule stands for the proposition that in certain cases where the testimony is so unbelievable, so ambiguous, so incredible, so impossible, so inherently unreliable, or so irreconcilable with the physical evidence or lack thereof, the Judge can ignore the testimony and enter a judgment of acquittal. 56
“They didn’t tell me they were videotaping me!”
Of course, when the police do videotape and or audiotape a person’s confession or anything else for that matter, there is the myth that they cannot do this without the person’s permission. But a police officer can always without permission tape a conversation he has with a person if the purpose of the recording is to obtain evidence of a criminal act.44 A person’s private telephone conversation with the alleged-victim of a crime can also be taped by the police if the police have the alleged-victim’s consent, and the purpose of the taping is to obtain evidence of a criminal act.45
The police can tape an interrogation in the police station or jail cell without the person’s consent.46 They can tape the conversation that takes place in the back of the police car between two or more unsuspecting arrestees,47 detainees, or even people voluntarily sitting there for safety and comfort reasons.48
The basis in truth for this myth probably stems from the belief that judicial approval of a wiretap49 is needed before certain communications can be intercepted and recorded. But in the aforementioned cases, no wiretap is necessary, because in none of the instances did the person have an expectation of privacy in their conversations.50
Apparently, there isn’t even an expectation of privacy during a conversation over the phone between an inmate and his attorney,51 and no one can blame any client or for that matter any attorney for believing that it would be a myth to think the attorney-client privilege would not protect this type of conservation. But apparently, the old saying, “the Fourth Amendment protects people, not places”52 may also be a myth.
“But there’s no videotape!”
There is the belief that in a drug transaction with an undercover police officer or a confidential informant if there is no audiotape or videotape the defendant cannot be found guilty. The same thinking applies when no audiotape or videotape is used in a prostitution sting. There is also the belief that in a DUI case if there is no videotape of the field sobriety exercises then the case has to be dismissed. There is a basis in truth to the no videotape myth in DUI cases if it can be shown that the police are selectively videotaping DUI suspects.39
But the police are under no duty to videotape anything.40 If the police do videotape the field sobriety exercises and the videotape machine malfunctions, or the videotape is somehow destroyed or lost then unless bad faith can be shown the client has to once again be convinced that the no videotape myth is in fact a myth. 41
However, if it can be shown that a videotape of the field sobriety exercises was made and it was exculpatory in nature, but for whatever reason has been destroyed, lost or somehow become unwatchable, then a motion to dismiss may prevail, lack of bad faith notwithstanding.42 Unfortunately, most of the time the only way to prove the videotape is exculpatory is through the testimony of the defendant, and there is no myth to the fact that most Judges won’t believe a word the defendant says.
The police do not even have to videotape or record a person’s confession.43
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“I’ll win on appeal.”
Then there is the myth of the appeal. Now I’m all for defendant’s being informed of their rights, but perhaps the most deceiving information a defendant is given is the one that comes right after the Defendant has pled and been sentenced. That’s when he’s told, “you have thirty days to appeal your sentence.” He doesn’t know what “for collateral purposes only” means. He doesn’t understand that for the most part these are mere obligatory words. That the chances of winning an appeal after a plea and sentence are highly unlikely to say the least. No, he like just about every other client is under the long-standing myth that he can appeal and he will win his appeal, whether he lost at trial or pled.
The basis in truth here of course is that a small number of people do win their appeals, and sometimes appeals are even won when the appellate attorney has given up on winning by filing an Anders brief.132 For those unfamiliar with the term, an Anders brief is an appellate brief filed in cases where appellate counsel believes that there is no basis for an appeal. That an appeal in fact would be frivolous. An Anders brief is basically code for, “nothing here.”
The Appellate court Judges or rather their Law clerks then review the record on appeal to confirm that there is in fact, “nothing there.” But what if there is something there. What if appellate counsel missed something or was too lazy to even look for it because he didn’t feel like writing an appeal. Now, a lot can be said for getting other people, especially Appellate Judges and or their Law clerks to do your work. But if they find something worth overturning on appeal, then shouldn’t the attorney who submitted the Anders brief be billed costs and reasonable attorney’s fees?
Driver License Revocation or Suspension Hearings
Under Florida law, a law enforcement officer who arrests a person for DUI is expected to suspend that person’s license. Another condition under which a person’s license is subject to suspension is if the driver refuses to submit to a breath, urine, or blood test
Florida Statute 322.2615. Suspension of license; right to review
(1)(a) A law enforcement officer or correctional officer shall, on behalf of the department, suspend the driving privilege of a person who has been arrested by a law enforcement officer for a violation of s. 316.193, relating to unlawful blood-alcohol level or breath-alcohol level, or of a person who has refused to submit to a breath, urine, or blood test authorized by s. 316.1932. The officer shall take the person’s driver’s license and issue the person a 10-day temporary permit if the person is otherwise eligible for the driving privilege and shall issue the person a notice of suspension. If a blood test has been administered, the results of which are not available to the officer at the time of the arrest, the agency employing the officer shall transmit such results to the department within 5 days after receipt of the results. If the department then determines that the person was arrested for a violation of s. 316.193 and that the person had a blood-alcohol level or breath-alcohol level of 0.08 or higher, the department shall suspend the person’s driver’s license pursuant to subsection (3).
(b) The suspension under paragraph (a) shall be pursuant to, and the notice of suspension shall inform the driver of, the following:
1. a. The driver refused to submit to a lawful breath, blood, or urine test and his or her driving privilege is suspended for a period of 1 year for a first refusal or for a period of 18 months if his or her driving privilege has been previously suspended as a result of a refusal to submit to such a test; or
b. The driver violated s. 316.193 by driving with an unlawful blood-alcohol level as provided in that section and his or her driving privilege is suspended for a period of 6 months for a first offense or for a period of 1 year if his or her driving privilege has been previously suspended for a violation of s. 316.193.
2. The suspension period shall commence on the date of arrest or issuance of the notice of suspension, whichever is later.
3. The driver may request a formal or informal review of the suspension by the department within 10 days after the date of arrest or issuance of the notice of suspension, whichever is later.
4. The temporary permit issued at the time of arrest will expire at midnight of the 10th day following the date of arrest or issuance of the notice of suspension, whichever is later.
5. The driver may submit to the department any materials relevant to the arrest.
(2) Except as provided in paragraph (1)(a), the law enforcement officer shall forward to the department, within 5 days after the date of the arrest, a copy of the notice of suspension, the driver’s license of the person arrested, and a report of the arrest, including an affidavit stating the officer’s grounds for belief that the person arrested was in violation of s. 316.193; the results of any breath or blood test or an affidavit stating that a breath, blood, or urine test was requested by a law enforcement officer or correctional officer and that the person arrested refused to submit; a copy of the citation issued to the person arrested; and the officer’s description of the person’s field sobriety test, if any. The failure of the officer to submit materials within the 5-day period specified in this subsection and in subsection (1) shall not affect the department’s ability to consider any evidence submitted at or prior to the hearing. The officer may also submit a copy of a videotape of the field sobriety test or the attempt to administer such test.
(3) If the department determines that the license of the person arrested should be suspended pursuant to this section and if the notice of suspension has not already been served upon the person by a law enforcement officer or correctional officer as provided in subsection (1), the department shall issue a notice of suspension and, unless the notice is mailed pursuant to s. 322.251, a temporary permit which expires 10 days after the date of issuance if the driver is otherwise eligible.
(4) If the person arrested requests an informal review pursuant to subparagraph (1)(b)3., the department shall conduct the informal review by a hearing officer employed by the department. Such informal review hearing shall consist solely of an examination by the department of the materials submitted by a law enforcement officer or correctional officer and by the person arrested, and the presence of an officer or witness is not required.
(5) After completion of the informal review, notice of the department’s decision sustaining, amending, or invalidating the suspension of the driver’s license of the person arrested must be provided to such person. Such notice must be mailed to the person at the last known address shown on the department’s records, or to the address provided in the law enforcement officer’s report if such address differs from the address of record, within 21 days after the expiration of the temporary permit issued pursuant to subsection (1) or subsection (3).
(6)(a) If the person arrested requests a formal review, the department must schedule a hearing to be held within 30 days after such request is received by the department and must notify the person of the date, time, and place of the hearing.
(b) Such formal review hearing shall be held before a hearing officer employed by the department, and the hearing officer shall be authorized to administer oaths, examine witnesses and take testimony, receive relevant evidence, issue subpoenas, regulate the course and conduct of the hearing, and make a ruling on the suspension. The department and the person arrested may subpoena witnesses, and the party requesting the presence of a witness shall be responsible for the payment of any witness fees and for notifying in writing the state attorney’s office in the appropriate circuit of the issuance of the subpoena. If the person who requests a formal review hearing fails to appear and the hearing officer finds such failure to be without just cause, the right to a formal hearing is waived and the suspension shall be sustained.
(c) A party may seek enforcement of a subpoena under paragraph (b) by filing a petition for enforcement in the circuit court of the judicial circuit in which the person failing to comply with the subpoena resides. A failure to comply with an order of the court shall result in a finding of contempt of court. However, a person shall not be in contempt while a subpoena is being challenged.
(d) The department must, within 7 working days after a formal review hearing, send notice to the person of the hearing officer’s decision as to whether sufficient cause exists to sustain, amend, or invalidate the suspension.
(7) In a formal review hearing under subsection (6) or an informal review hearing under subsection (4), the hearing officer shall determine by a preponderance of the evidence whether sufficient cause exists to sustain, amend, or invalidate the suspension. The scope of the review shall be limited to the following issues:
(a) If the license was suspended for driving with an unlawful blood-alcohol level in violation of s. 316.193:
1. Whether the arresting law enforcement officer had probable cause to believe that the person was driving or in actual physical control of a motor vehicle in this state while under the influence of alcoholic beverages or controlled substances.
2. Whether the person was placed under lawful arrest for a violation of s. 316.193.
3. Whether the person had an unlawful blood-alcohol level as provided in s. 316.193.
(b) If the license was suspended for refusal to submit to a breath, blood, or urine test:
1. Whether the arresting law enforcement officer had probable cause to believe that the person was driving or in actual physical control of a motor vehicle in this state while under the influence of alcoholic beverages or controlled substances.
2. Whether the person was placed under lawful arrest for a violation of s. 316.193.
3. Whether the person refused to submit to any such test after being requested to do so by a law enforcement officer or correctional officer.
4. Whether the person was told that if he or she refused to submit to such test his or her privilege to operate a motor vehicle would be suspended for a period of 1 year or, in the case of a second or subsequent refusal, for a period of 18 months.
(8) Based on the determination of the hearing officer pursuant to subsection (7) for both informal hearings under subsection (4) and formal hearings under subsection (6), the department shall:
(a) Sustain the suspension of the person’s driving privilege for a period of 1 year for a first refusal, or for a period of 18 months if the driving privilege of such person has been previously suspended as a result of a refusal to submit to such tests, if the arrested person refused to submit to a lawful breath, blood, or urine test. The suspension period commences on the date of the arrest or issuance of the notice of suspension, whichever is later.
(b) Sustain the suspension of the person’s driving privilege for a period of 6 months for a violation of s. 316.193, or for a period of 1 year if the driving privilege of such person has been previously suspended as a result of a violation of s. 316.193. The suspension period commences on the date of the arrest or issuance of the notice of suspension, whichever is later.
(9) A request for a formal review hearing or an informal review hearing shall not stay the suspension of the person’s driver’s license. If the department fails to schedule the formal review hearing to be held within 30 days after receipt of the request therefor, the department shall invalidate the suspension. If the scheduled hearing is continued at the department’s initiative, the department shall issue a temporary driving permit which shall be valid until the hearing is conducted if the person is otherwise eligible for the driving privilege. Such permit shall not be issued to a person who sought and obtained a continuance of the hearing. The permit issued under this subsection shall authorize driving for business or employment use only.
(10) A person whose driver’s license is suspended under subsection (1) or subsection (3) may apply for issuance of a license for business or employment purposes only if the person is otherwise eligible for the driving privilege pursuant to s. 322.271.
(a) If the suspension of the driver’s license of the person for failure to submit to a breath, urine, or blood test is sustained, the person is not eligible to receive a license for business or employment purposes only, pursuant to s. 322.271, until 90 days have elapsed after the expiration of the last temporary permit issued. If the driver is not issued a 10-day permit pursuant to this section or s. 322.64 because he or she is ineligible for the permit and the suspension for failure to submit to a breath, urine, or blood test is not invalidated by the department, the driver is not eligible to receive a business or employment license pursuant to s. 322.271 until 90 days have elapsed from the date of the suspension.
(b) If the suspension of the driver’s license of the person arrested for a violation of s. 316.193, relating to unlawful blood-alcohol level, is sustained, the person is not eligible to receive a license for business or employment purposes only pursuant to s. 322.271 until 30 days have elapsed after the expiration of the last temporary permit issued. If the driver is not issued a 10-day permit pursuant to this section or s. 322.64 because he or she is ineligible for the permit and the suspension for a violation of s. 316.193, relating to unlawful blood-alcohol level, is not invalidated by the department, the driver is not eligible to receive a business or employment license pursuant to s. 322.271 until 30 days have elapsed from the date of the arrest.
(11) The formal review hearing may be conducted upon a review of the reports of a law enforcement officer or a correctional officer, including documents relating to the administration of a breath test or blood test or the refusal to take either test. However, as provided in subsection (6), the driver may subpoena the officer or any person who administered or analyzed a breath or blood test.
(12) The formal review hearing and the informal review hearing are exempt from the provisions of chapter 120. The department is authorized to adopt rules for the conduct of reviews under this section.
(13) A person may appeal any decision of the department sustaining a suspension of his or her driver’s license by a petition for writ of certiorari to the circuit court in the county wherein such person resides or wherein a formal or informal review was conducted pursuant to s. 322.31. However, an appeal shall not stay the suspension. This subsection shall not be construed to provide for a de novo appeal.
(14) The decision of the department under this section shall not be considered in any trial for a violation of s. 316.193, nor shall any written statement submitted by a person in his or her request for departmental review under this section be admissible into evidence against him or her in any such trial. The disposition of any related criminal proceedings shall not affect a suspension imposed pursuant to this section.
(15) If the department suspends a person’s license under s. 322.2616, it may not also suspend the person’s license under this section for the same episode that was the basis for the suspension under s. 322.2616.CREDIT(S) Amended by Laws 1995, c. 95-148, 414, eff. July 10, 1995; Laws 1995, c. 95-186, 2, eff. July 1, 1995; Laws 1996, c. 96-272, 2, eff. Jan. 1, 1997; Laws 1996, c. 96-330, 11, eff. July 1, 1996; Laws 1997, c. 97- 96, 38, eff. July 1, 1997; Laws 1999, c. 99-248, 43, eff. June 8, 1999; Laws 2001, c. 2001-196, 14, eff. June 8, 2001.<General Materials (GM) – References, Annotations, or Tables>
322.271. AUTHORITY TO MODIFY REVOCATION, CANCELLATION, OR SUSPENSION ORDER
(1)(a) Upon the suspension, cancellation, or revocation of the driver’s license of any person as authorized or required in this chapter, except a person whose license is revoked as a habitual traffic offender under s. 322.27(5) or a person who is ineligible to be granted the privilege of driving on a limited or restricted basis under subsection (2), the department shall immediately notify the licensee and, upon his or her request, shall afford him or her an opportunity for a hearing pursuant to chapter 120, as early as practicable within not more than 30 days after receipt of such request, in the county wherein the licensee resides, unless the department and the licensee agree that such hearing may be held in some other county.
(b) A person whose driving privilege has been revoked under s. 322.27(5) may, upon expiration of 12 months from the date of such revocation, petition the department for restoration of his or her driving privilege. Upon such petition and after investigation of the person’s qualification, fitness, and need to drive, the department shall hold a hearing pursuant to chapter 120 to determine whether the driving privilege shall be restored on a restricted basis solely for business or employment purposes.
(c) For the purposes of this section, the term:
1. “A driving privilege restricted to business purposes only” means a driving privilege that is limited to any driving necessary to maintain livelihood, including driving to and from work, necessary on-the-job driving, driving for educational purposes, and driving for church and for medical purposes.
2. “A driving privilege restricted to employment purposes only” means a driving privilege that is limited to driving to and from work and any necessary on-the-job driving required by an employer or occupation.
Driving for any purpose other than as provided by this paragraph is not permitted by a person whose driving privilege has been restricted to employment or business purposes. In addition, a person whose driving privilege is restricted to employment or business purposes remains subject to any restriction that applied to the type of license which the person held at the time of the order of suspension, cancellation, or revocation.
(2)(a) Upon such hearing, the person whose license has been suspended, canceled, or revoked may show that such suspension, cancellation, or revocation of his or her license causes a serious hardship and precludes the person’s carrying out his or her normal business occupation, trade, or employment and that the use of the person’s license in the normal course of his or her business is necessary to the proper support of the person or his or her family. Except as otherwise provided in this subsection, the department shall require proof of the successful completion of an approved driver training or substance abuse education course and may require letters of recommendation from respected businesspersons in the community, law enforcement officers, or judicial officers in determining whether such person should be permitted to operate a motor vehicle on a restricted basis for business or employment use only and in determining whether such person can be trusted to so operate a motor vehicle. If a driver’s license has been suspended under the point system or pursuant to s. 322.2615, the department shall require proof of enrollment in an approved driver training course or substance abuse education course, and may require the letters of recommendation described in this subsection to determine if the driver should be reinstated on a restricted basis; if such person fails to complete the approved course within 90 days after reinstatement, the department shall cancel his or her driver’s license until the course is successfully completed. The privilege of driving on a limited or restricted basis for business or employment use shall not be granted to a person who has been convicted of a violation of s. 316.193 until completion of such education or training course. Except as provided in paragraph (b), the privilege of driving on a limited or restricted basis for business or employment use shall not be granted to a person whose license is revoked pursuant to s. 322.28( or suspended pursuant to s. 322.2615 and who has been convicted of a violation of s. 316.193 two or more times or whose license has been suspended two or more times for refusal to submit to a test pursuant to s. 322.2615 or former s. 322.261.
(b) A person whose license has been revoked for a period of 5 years or less pursuant to s. 322.28(2)(a) may, upon the expiration of 12 months after the date said revocation was imposed, petition the department for reinstatement of his or her driving privilege on a restricted basis. A person whose license has been revoked for a period of more than 5 years under s. 322.28(2)(a) may, upon the expiration of 24 months after the date the revocation was imposed, petition the department for reinstatement of his or her driving privilege on a restricted basis. Reinstatement of the driving privilege pursuant to this subsection shall be restricted to business or employment purposes only. In addition, the department shall require such persons upon reinstatement to have not driven and to have been drug free for at least 12 months immediately prior to such reinstatement, to be supervised by a DUI program licensed by the department, and to report to the program at least three times a year as required by the program for the duration of the revocation period for supervision. Such supervision shall include evaluation, education, referral into treatment, and other activities required by the department. Such persons shall assume reasonable costs of supervision. If such person fails to comply with the required supervision, the program shall report the failure to the department, and the department shall cancel such person’s driving privilege. This paragraph does not apply to any person whose driving privilege has been permanently revoked.
(c) For the purpose of this section, a previous conviction of driving under the influence, driving while intoxicated, driving with an unlawful blood-alcohol level, or any other similar alcohol-related or drug-related offense outside this state or a previous conviction of former s. 316.1931, former s. 316.028, or former s. 860.01 shall be considered a previous conviction for violation of s. 316.193.
(d) The department, based upon review of the licensee’s application for reinstatement, may require use of an ignition interlock device pursuant to s. 316.1937.
(3) Upon such hearing, the department shall either suspend, affirm, or modify its order and may restore to the licensee the privilege of driving on a limited or restricted basis for business or employment use only.
(4) Notwithstanding the provisions of s. 322.28(2)(e), a person whose driving privilege has been permanently revoked because he or she has been convicted four times of violating s. 316.193 or former s. 316.1931 or because he or she has been convicted of DUI manslaughter in violation of s. 316.193 may, upon the expiration of 5 years after the date of such revocation or the expiration of 5 years after the termination of any term of incarceration under s. 316.193 or former s. 316.1931, whichever date is later, petition the department for reinstatement of his or her driving privilege.
(a) Within 30 days after the receipt of such a petition, the department shall afford the petitioner an opportunity for a hearing. At the hearing, the petitioner must demonstrate to the department that he or she:
1. Has not been arrested for a drug-related offense during the 5 years preceding the filing of the petition;
2. Has not driven a motor vehicle without a license for at least 5 years prior to the hearing;
3. Has been drug-free for at least 5 years prior to the hearing; and
4. Has completed a DUI program licensed by the department.
(b) At such hearing, the department shall determine the petitioner’s qualification, fitness, and need to drive. Upon such determination, the department may, in its discretion, reinstate the driver’s license of the petitioner. Such reinstatement must be made subject to the following qualifications:
1. The license must be restricted for employment purposes for not less than 1 year; and
2. Such person must be supervised by a DUI program licensed by the department and report to the program for such supervision and education at least four times a year or additionally as required by the program for the remainder of the revocation period. Such supervision shall include evaluation, education, referral into treatment, and other activities required by the department.
(c) Such person must assume the reasonable costs of supervision. If such person fails to comply with the required supervision, the program shall report the failure to the department, and the department shall cancel such person’s driving privilege.
(d) If, after reinstatement, such person is convicted of an offense for which mandatory revocation of his or her license is required, the department shall revoke his or her driving privilege.
(e) The department shall adopt rules regulating the providing of services by DUI programs pursuant to this section.
(5) A person may not be issued a commercial driver’s license during a period in which such person is disqualified from operating commercial motor vehicles or in which the driving privilege of such person is suspended, revoked, or canceled.