New Options in DUI Formal Administrative Hearing
There has been a change to the Formal Administrative Hearing process for DUI License Suspensions. When you are charged with DUI, the DMV automatically suspends your license for 6-12 months. That suspension is automatic, and wholly separate from any license suspension that the judge may order if you lose your Criminal DUI case.
You have the right to challenge the Administrative, DMV Suspension of your license by requesting a Formal Administrative Hearing within 10 days.
If you fail to request the hearing in time, the suspension goes into effect, and you have no further way of challenging or over-turning the suspension.
At the Formal Administrative Hearing, in order to uphold the suspension, the Department only has to establish Probable Cause to believe that you were either in control of a motor vehicle while under the influence of an intoxicant, or that you refused to take a breathalyzer test after being properly requested to do so. Probable Cause is a very low threshold, nowhere near “beyond a reasonable doubt”. The Hearing Officer’s job is to determine whether or not law enforcement had a good reason to believe you were under the influence…not a rock solid reason, just a good one. It is a very low threshold of proof.
If you do win the Formal Administrative Hearing, your driving privileges will be reinstated. If, however, the suspension is upheld (or if you don’t request the hearing at all), you will have to sign up for DUI School and go a period of time before another Hardship License will be issued (30 days if you took the breathalyzer, and 90 days if you refused).
These facts about the Formal Administrative Hearing process have not changed. What has changed, is that there is now an opportunity to obtain a Hardship or Business Purpose License without risking the 30-90 day waiting period. The only catch is, you have to waive the Administrative Hearing. If you are charged with your First DUI, and if you request the Formal Administrative Hearing and enroll in DUI School within the required 10 day period, you can then waive the Formal Administrative Hearing and qualify for an immediate Driving Permit that will allow you to drive for Business Purposes.
This new option allows you to partially avoid the Formal Administrative Suspension, and keep driving while your Criminal DUI case goes forward, but it forces you to waive your right to the Formal Administrative Hearing. The decision to keep your driving privileges seems easy, but that decision should not be entered into lightly. Although the cards are often stacked against you in the Formal Administrative Hearing, having the hearing often provides an opportunity to discover facts and potential defenses to the Criminal Case that are not readily apparent in the police reports. You should discuss the risks and benefits to waiving your right to a Formal Administrative Hearing with an experienced Criminal Defense Attorney before making the decision.
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