YOU WERE DRINKING, you drove, and you got arrested. Now what?
You need to talk to a qualified attorney right away. Remember that pink slip you got from the arresting officer when you were arrested? The one you got back in return for your license? It gives you the right to drive for 30 days, right?
Read the back of that slip and read all the small print carefully. You will find that you need to request a stay of suspension from the DMV and that you have ten days from the date of your arrest to do this. If you fail to notify the DMV that you want to have a hearing to review your case within ten days, you forfeit your right to the Stay and Review process, no matter how promising the specific facts of your case.
You may or may not need to attend the DMV hearing. That is up to your lawyer.
A DUI comes with two charges:
1. Driving Under the Influence. Aside from blood or breath tests the cops must have observed you doing something inconsistent with sobriety while driving.
2. Driving with a blood alcohol content (BAC) over 0.08—usually a very technical issue
Prior to the DMV hearing you can continue to drive.
After filing the request for the DMV hearing, you may continue to drive with your pink slip until the DMV or your lawyer advises you otherwise. The hearing is usually set in 5 to 6 weeks, and it takes the DMV at least two weeks to render its opinion. If the DMV finds in your favor, you will get your license back with a written apology from the DMV.
If the DMV finds against you, or if you fail to even ask for the hearing, your license will be suspended for one month, during which you cannot drive for any reason. After that, you wait another three months, while you do not drive at all, and then you get your license back.
If, however, like most of us, you need to drive to get on with your life, you can apply for a restricted license allowing you to drive to and from work and to your DUI classes.
After five months you can ask the DMV to lift all the restrictions.
The DMV Hearing
The DMV hearing is very informal and is administered by a hearing officer who is neither a lawyer nor a judge. Most clients do not understand that it is NOT their responsibility to prove that the suspension is not justified. The DMV must prove that a suspension IS justified! In addition, what occurs in the DMV hearing can impact what will occur in the DUI in the Superior Court?
At the DMV hearing only three issues are considered:
I. Did the arresting officer have probable cause to believe you were driving under the influence?
- Regardless of how intoxicated you were, if the cops did not have a legally supportable reason to stop you… all evidence obtained is inadmissible.
- Valid reasons to stop you include a broken tail light, speeding, or similar issue.
II. Was your arrest lawful?
Any blood or breath test must occur within 3 hours from when you were observed driving.
III. Were you driving with a blood alcohol level greater than 0.08?
- This is the big one. DUIs are technical crimes and the DMV hearing officer will review the facts with methodical legal precision. Stringent standards of evidentiary requirements for DUI measurements are set forth in Title 17 of the Administrative Code.
A good lawyer may be able to make use of technicalities to ensure that your results cannot be considered reliable and are therefore inadmissible at the DMV hearing.
With a blood test, the intoxilyzer may not be calibrated properly.
Other possibilities include:
- The machine may be broken or not set right;
- The solution used may be stale;
- The machine may not have been recalibrated every 10 users or 100 hours, as required;
- The officer who administered the test was not trained within the last five years;
- The results may not be admissible if the officer did not properly observe you for 15 minutes before the test, when you may have eaten or drank or chewed gum, for instance;
- The results may not be admissible if the blood test was not administered pursuant to Title 17 mandated procedures, such as requiring a different preservative than is used in hospitals, for instance.
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