The person has the option for an administrative hearing because they have a constitutional right to hearing whenever the government offers something. In this case it will be a right to drive. That right cannot be taken away unless there is a due process. Even though the test results may indicate more than a .08% or a presence of drugs, the person still has the due process right to a hearing and that’s why the hearing system exists.
Effect Of Administrative Proceedings On Criminal Portion of DUI
The results of administrative proceeding has no effect on the criminal portion of DUI nor vice versa, directly or otherwise. There are a couple of reasons for that:
One is by law but secondly the issues are different. For example in a case involving alcohol in the administrative proceeding, it would be, did the officer have reasonable basis to believe the person was under the influence of alcohol and placed them under arrest, or did the person submit through test results that indicate an alcohol level more than a .08%? Those would be the basic issues in the motor vehicle proceeding admin per se proceeding. The standard of proof is by preponderance of the evidence.
In a criminal case, it would be different because the issues will be: Did the person placed under arrest have an alcohol level more than .08% as determined by testing? That is decided in the criminal case by the standard beyond reasonable doubt which is a much higher burden.
In addition to that, in a motor vehicle proceeding, arguments about whether or not the officer had a lawful reason to stop the vehicle or was the breath or blood sample accurately tested, are not a defense in the administrative proceeding whereas in the criminal case they are.
Similarly, speaking of the person that has an argument about whether the testing procedure like a breath test was accurately done. That doesn’t matter in a motor vehicle proceeding. The only way the inaccuracy of the test result would matter in a motor vehicle proceeding is if the breath test, one of which was less than a .08% and one was more, that can be used to avoid any suspension.
In the criminal case, whether the officer has a lawful reason to stop the vehicle or not is a relevant issue and accuracy of the test results or possible problems with the testing procedures is also relevant in the criminal case.
The issues are different in a motor vehicle proceeding versus the criminal case. The burden of proof is different between the two. That is why the two proceedings, although they arose out of the same incidents, have no direct bearing on each other.
At The Admin Hearing One Is Not Entitled To A Public Defender
Any lawyer can represent somebody in the admin per se or the administrative proceeding.
The driver is not entitled to have a court appointed attorney represent them in that proceeding. The person can represent themselves. They are not entitled to an appointed lawyer because there is no liberty issue, meaning they are not going to jail if their license got suspended, they are not entitled to a public defender to represent them in the administrative proceedings.
DMV Administrative Hearing Can Only Be Requested Within 15 Days
The person has 15 days from the service of the order of suspension to request a hearing. Most commonly, the breath testing is done when the person is placed under arrest. The arresting officer will serve them with an order of suspension they then have 15 days to request the hearing.
However, that’s not always the case because with blood testing, they are not always served with the order at the time of the arrest. In that case, the order is then mailed to the last known address of the person they have on record with the MVD. In that case it will be 15 days but there would be additional 5 days because the service was by mailing.
In terms of the date to request the hearing, 15 days of personally served or 20 days if by mail, they are strictly construed unlike any other civil proceeding. In any other civil proceeding, if the 15th day for requesting the hearing falls on a Saturday, Sunday, or holiday, you get to the next day to file it.
For example, if the last date was on a Sunday, then on Monday you can file a request for hearing. For these proceedings that rule doesn’t apply to requests for MVD hearing and the time limits are strictly construed. So if it’s a Saturday or a Sunday, you must file it on or before that Saturday or Sunday and you cannot wait until the following Monday.
Suspension Orders Go Into Effect Unless A Hearing Is Requested
If somebody is served with a suspension order be it an admin per se suspension or an implied consent suspension and they do not timely file a request for hearing, the order goes into a fact without any further delay.
Unless there is a request for hearing made, the suspension goes into effect as ordered. That can be particularly troublesome if it’s an admin per se suspension that is served at the time of arrest for blood testing and there are no blood test results.
So a person can literally be suspended in an admin per se suspension even though the ultimate blood test results are less than a .08%. If the person has not requested a hearing within the appropriate time period, they are stuck with that suspension.
People Can Realistically Win At These Admin Hearings
It does happen. There are two things here, the admin per se suspension and the other is implied consent suspension.
For the admin per se suspension, if there are 2 breath tests one of which is below .08% and one is above, then that would be a basis of avoiding he suspension because it could be either then the MVD will say we can’t clearly say that the person was over drunk and they won’t suspend. That’s one possibility.
There has to be some mistake that’s made in order to get avoided. For example, in order to be a basis for an admin per se suspension, the person has to be placed under arrest for DUI and is advised that they are being placed under arrest for DUI. The reason for that is they have to be on notice that the implied consent law has kicked into place. If they are not placed under arrest for DUI, then it doesn’t apply. That’s very rare but it can happen.
If the officer fails to bring the proper test results then that will be a basis for admin to avoid an admin per se suspension. In short, one that goes to the hearing with the officer testifies. It’s very difficult anymore to win on the merit. It has to be a mistake.
In the event that the officers don’t timely appear for the hearing, which happens quiet often, then the suspension is avoided.
For the implied consent suspension, there is no reason to ever agree to that and in that proceeding if there is some problem. For example, the officer not properly advising the person of consequences of admin per se or implied consent suspension that is a basis to avoid it.
If there is an argument that the person did consent, then the person could testify to that and try to make a determination whether or not the person did expressly agree or not.
In terms of possibility through the evidence, there is more that could be done in the implied consent suspension than the admin per se suspension. A hearing is always requested, particularly the admin per se to do what has to be done.
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