REFUSAL OR TEST OVER
During the driver’s time at the police station, an officer will review a form with the driver regarding the driver’s right to refuse a breath or blood test and the consequences of refusal. The form essentially informs the driver that s/he can refuse to take the requested test and receive a 6 month license suspension. In the alternative, the driver can agree to take the blood or breath test. However, if the result is 0.08 bac (0.02 in some circumstances) or higher, the driver also receives a 6 month license suspension. It’s a very difficult decision and it must be made right away without the benefit of any consultation or other information.
SERVICE OF THE ALS FORM
Once the driver has either refused to submit to a breath or blood test or tested over the legal limit, the driver will be given a pink carbon copy of a form to be used as a temporary driver’s license. From that moment, time begins running on a series of deadlines for challenging the “automatic” license suspension. DUI law is replete with deadlines and other mechanisms built in to DUI law that discourage drivers from exercising their rights to challenge the accusations both at the administrative agency and at the courthouse. The whole process will seem unfair.
Knowing that the process is unfair and that the rules are stacked against the driver and heavily in favor of the police, one must take every opportunity to uncover a thread that will demonstrate that the accusations are inaccurate. The fight begins with the request for a hearing on the police Petition for Administrative License Suspension (ALS). If that request is not filed quickly, the driver’s license may go under suspension for some period of time even if s/he is successful at challenging the petition. The suspension begins in 30 days whether the hearing on the petition has been held or not. The ALS request should be submitted immediately in most cases. A for hearing request received by the Bureau more than 30 days from the date that the ALS notice is issued will be denied.
SCRUTINY OF THE REQUEST
The Bureau of Hearings will review the request, determine whether it meets every criteria that Bureau has for such requests, and either reject it or schedule a hearing. Assuming that the hearing request is eventually accepted by the Bureau and a hearing is scheduled, a defense must be prepared. The defenses that a driver can present are restricted and the restrictions are strictly enforced.
LIMITS ON THE DEFENSE
The scope of the hearing will be limited to the issues of jurisdiction and:
- Whether the officer had reason to believe the driver was in actual physical control of a vehicle on a way or attempting to operate a boat on the waters or in physical control of an OHRV while under the influence of intoxicating liquor or drugs. The officer must establish the facts that formed the basis for such belief.
- Whether the person had been arrested. Not everyone who is charged with DUI was arrested.
- Whether the person has refused to submit to the test upon the request of the law enforcement officer. Refusal in this context could be an extraordinarily long pause when asked the question, but it is the police officer’s role to prove that the driver refused if that is what s/he is being accused of.
- Whether a properly administered test showed a bac of 0.08 or more (0.02 for driver’s under 21).
- Whether the officer informed the driver of the right to have a test conducted elsewhere to compare to the test taken by the police officer. The legislature is hard at work making this opportunity to have a test conducted elsewhere meaningless. By the end of August 2019 this right will be drowned in confusion.
- Finally, whether the officer informed the driver that refusal or testing above the legal limit would result in license suspension.
Those are the issues that the driver is allowed to raise during a hearing. There are many stumbling blocks before the driver even gets a hearing and more when the driver arrives to attend his/her first ALS hearing. The rest of the people at the hearing are experienced and trained in DUI law and hearings. The ALS hearing is not something that the driver should attend without counsel.
For a free initial consultation, call Shawn Sweeney (603) 589-8015. Bring experience on board early.