Published: Feb 10, 2011 12:37 AM EST
Updated: Feb 09, 2011 8:14 PM EST

LEE COUNTY, Fla. - If a police officer cites you for a DUI you lose your license immediately. But some drivers are getting around that! A Call for Action investigation found some drivers caught with two to three times the legal limit of alcohol in their system, got their license back on a mere technicality!

It's called an administrative hearing and it happens before your criminal DUI trial. There, you have a chance to fight for your license. We spent nearly three months analyzing DUI reports to find out more about the hundreds of people here in Southwest Florida who are getting their keys back.

Anyone cited with a DUI has ten days to request a hearing with the Florida Department of Highway Safety and Motor Vehicles. There, hearing officers will look at the evidence and decide whether or not to uphold or invalidate the driving suspension. The hearing officer's decision is separate from the criminal court proceedings and has no bearing on the court's decision.

In 2009 we found that the DHSMV lifted suspensions for a little more than 5,200 drivers across the state.  Three-hundred-thirty-one of those drivers were right here in Southwest Florida.

DHSMV Communications Director, David Westberry told us, "there are 48,000 roadside suspensions a year and less than half of those folks come to us."

So, out of those 48,000 DUI suspensions, about 24,000 people request hearings every year; but Westberry says only 20% get their license back.

"The way Florida's law is set up, it's a due process for the motorists. To give them an ability to come in to petition us to say, 'Hey, I was stopped improperly. I was not given the right test. I was not given the test properly," Westberry explained.

We requested a list from the DHSMV of all the people who got their suspensions thrown out. One of the reasons people got their license back? "No .08 or above." You must blow a .08 or higher on a breath test to be considered legally impaired.

But when we pulled the arrest records for those drivers from the Lee Sheriff's Office and Cape Coral Police Department, we found nearly all had blood alcohol levels well above .08. We even discovered one driver blowing more than four times the legal limit and he got his license back! So how could they get their suspension thrown out? We asked David Westberry to explain.

"Remember there are very strict guidelines that law enforcement officers have to follow when they're using these devices... they have all kinds of testing and standards that they have to adhere to as far as whether they give valid tests," he said.

Even more troublesome, we found some drivers getting their license back because the arresting officer didn't show up to the administrative hearing.

"It used to be standard fare for our hearing officers to automatically invalidate a suspension if the law enforcement officer did not appear at these hearings," said Westberry.

We wanted to know who in our area wasn't showing up to the hearing.

We found Cape Coral police with the highest number of suspensions thrown out for failure to appear.

In 2009, officers failed to appear 91 times. And one officer in particular failed to show up eleven times.

"As human beings, we make mistakes," said Captain Mike Torregrossa, Special Operations Commander for the Cape Coral Police Department.

Captain Torregrossa explained that, "from time to time, an officer either forgets or maybe inadvertently puts down the wrong date; scheduling conflict, whatever, and they don't show up. We will get notified of it and then it gets handled."

Torregrossa told us officers do face consequences for not showing up, from a written reprimand to termination.

"It's something that we take very serious," he said.

And the DHSMV is taking it seriously too.

A new procedure went into effect in July of 2010. If an officer fails to appear, the driver doesn't automatically get his license back. But the change isn't letting officers who don't show up, off the hook.

We asked Captain Torregrossa if his department will become more lax toward officers who don't show up to their administrative hearings. He told us, "we absolutely will not get more lax. It is still their due diligence to show up. That's the expectations and that's what we demand."

After we started asking questions, Cape Coral looked into all the failure to appear cases we brought to their attention from 2009. If an officer was at fault, they're taking corrective action. We were also told that the police department started working closely with the DHSMV to make sure there are no communication errors if an officer is subpoenaed to appear for an administrative hearing.

As far as the 2010 numbers are concerned, they do look better. We found of the 59 Cape Coral cases where the suspension was overturned, only 23 were because the arresting officer didn't show. That's dramatically down from the 91 we found in 2009.