DMV HEARING OVERVIEW

LICENSE SUSPENSION
When a person is arrested for drunk driving the arresting officer will normally confiscate the driver license and serve the driver with an order that (1) provides notice of the license suspension, (2) includes a 30-day temporary permit to drive, and (3) provides notice of the right to request an administrative (DMV) hearing within 10 days. If the arresting officer does not take the license and serve the order, the DMV will serve the order by mail.

DMV HEARING ISSUES
The purpose of the DMV hearing is to determine whether the driver license should be suspended.

If a chemical test was taken, the issues are (1) whether the officer had reasonable cause to believe that the accused was driving a motor vehicle in violation of drunk-driving laws, (2) whether the person was lawfully arrested, and (3) whether the person had a blood-alcohol content (BAC) of .08 percent or more while driving.

If a chemical test was not taken, the issues are (1) whether the officer had reasonable cause to believe that the accused was driving a motor vehicle in violation of drunk-driving laws, (2) whether the person was lawfully arrested, (3) whether the person was told that their driving privilege would be suspended for one year, or revoked for two or three years, if they refused to submit to, or failed to complete, a chemical test, and (4) whether the person refused to submit to, or failed to complete, a chemical test after being requested to do so by the officer.

DMV HEARING STRATGY
Defense counsel’s goals at a DMV hearing are to save the license and gather information that may help the driver in the criminal case. The strategy is to explore several important issues at the hearing, including for example

  • Whether the officer had reasonable cause to believe that the person was driving a motor vehicle in violation of drunk-driving laws.
  • Whether the officer had probable cause to arrest the person. This requires careful examination of how the FSTs were administered, performed, and interpreted.
  • Whether the chemical tests were administered and interpreted correctly.
  • Whether there are defects in the officer’s reports.
  • Whether the officer is a credible witness.
  • Whether the officer asked the driver important questions about his condition (e.g., diet, medical conditions, whether he wore hard or soft contact lenses).
  • Environmental conditions where FSTs were performed (e.g., was the area well lit? Was the road surface flat and smooth? Were other cars speeding by?).

 

DMV PENALTIES
If the DMV finds the chemical test proves a BAC of .08 percent or more, or that the driver refused to submit to or complete the test, the following penalties apply:

First offense

  • BAC of .08 percent or more: 6-month suspension
  • Refusal to submit to or complete test: 1-year suspension

Second offense within 10 years

  • BAC of .08 percent or more: 2-year suspension
  • Refusal to submit to or complete test: 2-year revocation

Third offense within 10 years

  • BAC of .08 percent or more: 3-year revocation
  • Refusal to submit to or complete test: 3-year revocation

Fourth offense within 10 years

  • BAC of .08 percent or more: 4-year revocation
  • Refusal to submit to or complete test: 4-year revocation

 
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