What happens if a driver under 21 is stopped after drinking in Florida?

Parents often get the call late at night: a son or daughter under 21 was stopped, blew into a device, and came home without a license. Florida handles that situation through two separate systems. The first is an administrative "zero tolerance" suspension under section 322.2616, Florida Statutes, which starts at a breath or blood alcohol level of just 0.02. The second is the ordinary DUI law, section 316.193, which applies to drivers of any age. This page explains both and how they fit together. Mr. Mead's approach to DUI charges is on the main DUI defense page. His work with younger clients more broadly is on our juvenile offenses page.

How does a 0.02 stop work, step by step?

1. Detention and a request for a test. An officer with probable cause to believe a driver under 21 is under the influence of alcohol, or has any blood or breath alcohol level, "may lawfully detain such a person" and ask for a breath test (s. 322.2616(1)(b)). The statute says this detention is not an arrest (s. 322.2616(19)).
2. The test. The breath test may be given on an approved evidentiary instrument or on a device listed on the U.S. Department of Transportation's conforming-products list, and the reading "is presumed accurate" in the administrative hearing (s. 322.2616(17)). How the evidentiary instruments are regulated is explained in how a Florida breath test is done.
3. The suspension on the spot. At 0.02 or higher, or on a refusal, the officer suspends the driving privilege on behalf of FLHSMV, takes the license and issues a notice of suspension and a 10-day temporary permit if the driver is otherwise eligible (s. 322.2616(2)(a)).
4. A 12-hour wait. The temporary permit does not take effect until 12 hours after it is issued, and it expires at midnight on the 10th day (s. 322.2616(2)(b)4.).
5. A minor may be taken to a facility. A driver under 18 with 0.02 or more may be taken to the county's addictions receiving facility, if the county makes one available for this purpose (s. 322.2616(2)(d)).
6. Paperwork to FLHSMV. Within 5 days, the officer sends FLHSMV the notice, the license, an affidavit and the test result or refusal affidavit (s. 322.2616(3)).
7. The 10-day window. The driver may request a formal or informal review within 10 days after the notice is issued (s. 322.2616(2)(b)3.).

How long is the license suspended?

Each suspension starts on the date the notice is issued (s. 322.2616(2)(b)2.). FLHSMV's summary of the law matches these periods and adds that for drivers under 21 at 0.05 or higher, "the suspension remains in effect until completion of a substance abuse evaluation and course."

Is a 0.02 violation a crime?

No. The statute says a violation of section 322.2616 "is neither a traffic infraction nor a criminal offense, nor does being detained pursuant to this section constitute an arrest." It is handled through FLHSMV's administrative process and recorded on the driving record. The same subsection adds that it "does not bar prosecution under s. 316.193," the DUI statute. If FLHSMV suspends the license under the adult statute, section 322.2615, for a DUI, it may not also suspend under section 322.2616 for the same episode. The adult penalties are summarized in our Florida DUI penalties table.

Other charges can still arise from the same stop. Possessing alcohol under 21 is a second-degree misdemeanor for a first conviction and a first-degree misdemeanor after that (s. 562.111(1)).

What happens at the review hearing?

A request for review does not pause the suspension (s. 322.2616(10)). FLHSMV must hold either review within 30 days of the request, and it issues a business-purposes-only permit until the review date if the driver is otherwise eligible (s. 322.2616(5), (7)(a)). The hearing officer decides, by a preponderance of the evidence, only three questions for a 0.02 suspension: whether the officer had probable cause to believe the driver was under 21 and driving with any alcohol level, whether the driver was under 21, and whether the level was 0.02 or higher. For a refusal, the questions are probable cause, age, the refusal, and whether the driver was told the suspension periods (s. 322.2616(8)). If the officer who suspended the license is subpoenaed and fails to appear at a formal review, FLHSMV must invalidate the suspension (s. 322.2616(12)). The adult version of this hearing is explained in what happens at a Florida DUI formal review hearing.

What changes the answer?

• The alcohol level. 0.02 starts the suspension; 0.05 adds the course requirement; 0.08 or impaired faculties bring the DUI statute into play.
• A refusal. Refusing doubles the first suspension to a year. A driver who is actually arrested for DUI faces the adult refusal rules, explained in what happens if you refused the breath test in Florida.
• A prior suspension under this section. It raises the 0.02 suspension to 1 year and the refusal suspension to 18 months.
• Age under 18 or under 19. A minor under 18 may be taken to an addictions receiving facility, and when the driver is under 19 the DUI program must tell the parents or guardians the results of the substance abuse evaluation (s. 322.2616(2)(c), (d)).
• Need to drive. A business or employment license is possible only after 30 days have passed from the end of the last temporary permit (s. 322.2616(11)).

A worked example

For example, a hypothetical 19-year-old college student is stopped in Palm Beach County on a Saturday night and blows 0.04 on a listed portable device. The officer suspends her license for 6 months and gives her a temporary permit that cannot be used for the first 12 hours. She is not under arrest and is not charged with a crime. Her 10 days to request a review run from that night. Because her level was under 0.05, the statute's mandatory course rule does not apply, though FLHSMV says a driver under 21 must complete a Traffic Law and Substance Abuse Education course before a hardship license. If she does nothing, the suspension stands for 6 months and appears on her driving record. Had she blown 0.09, the same stop could have become an adult DUI arrest. The scenario is invented to show how the statute works.

Can an under-21 driver get a hardship license?

Yes, after a waiting period. Section 322.2616(11) allows a business or employment purposes license under section 322.271, but not until 30 days after the last temporary permit expired. FLHSMV adds that a driver suspended at 0.02 must complete a Traffic Law and Substance Abuse Education course first, and a driver at 0.05 or higher must complete the DUI program. The adult hardship process is described in a hardship license after a Florida DUI. The DUI program choices are listed in DUI school in Palm Beach and Broward County.

Common mistakes people make

• Driving during the first 12 hours, before the temporary permit takes effect.
• Assuming that because there was no arrest, there is nothing to respond to within 10 days.
• Missing the 0.05 course requirement, which keeps the suspension in place until it is done.
• Treating the stop as minor when a separate possession charge or a DUI charge may follow.
• Letting the student handle FLHSMV alone when a parent's help with dates and paperwork would keep the deadlines.

What to do this week

1. Find the notice of suspension and note the date it was issued; the 10 days count from then.
2. Write down where the test was given and on what kind of device.
3. Decide whether to request a formal or informal review; our page on the 10-day license deadline explains the adult options, which work similarly.
4. If the level was 0.05 or higher, find a licensed DUI program in the county where the driver lives, works or studies.
5. Check whether any criminal citation, such as alcohol possession, was also issued.

Frequently asked questions

Will a 0.02 suspension show up on my child's record?

On the driving record, yes: the statute says these administrative actions "shall be recorded in the motor vehicle records" kept by FLHSMV. It is not a criminal offense, so it does not create a criminal conviction.

Can parents see a minor's driving record online?

Yes. Section 322.20(13) requires FLHSMV to give a parent or guardian who signed a minor's license application free, secure online access to the minor's driving record until the minor turns 18.

Is the portable device reading enough to suspend the license?

For this administrative suspension, a reading from a device on the federal conforming-products list "is presumed accurate and is admissible" at the hearing (s. 322.2616(17)). The presumption can be challenged with other evidence.

Does the outcome of a related criminal case change the suspension?

No. Section 322.2616(15) says the disposition of any related criminal proceedings does not affect a suspension imposed under this section, and FLHSMV's decision is not considered in a DUI trial.

Can my child be charged with DUI at 0.05?

A level between 0.05 and 0.08 gives rise to no presumption either way under section 316.1934(2), but a DUI charge can still rest on proof that normal faculties were impaired (s. 316.193(1)(a)). The 0.02 suspension applies regardless.

Can the decision be appealed?

Yes, by a petition for writ of certiorari to the circuit court where the driver lives or where the review was held, but the appeal does not stop the suspension (s. 322.2616(14)).

How can Mr. Mead help?

For a young driver, the first 10 days decide a lot: whether to challenge the suspension, how to keep a job or school schedule, and how to avoid a criminal charge growing out of the same night. Mr. Mead talks through the options with parents and young clients. Spanish and Portuguese are spoken at the office. Every case is different, and no outcome can be promised. For a confidential conversation, call (561) 362-6677, 24 hours a day.

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