DUI and Motor Vehicle Hearings

What happens to my license after a DUI?

When you are arrested for a DUI you will be taken to a police station to conduct a breath or draw blood, possibly both if the officer wants both. The officer cannot just tell you to blow into the machine or hold out your arm. Tests of breath and blood draws are searches under the Fourth Amendment you must give consent or the officer must obtain a warrant.

Getting your consent to draw blood or do a breath test is closely linked to your driver’s license. If you do not consent the MVD can suspend your license for 12 months, if you do consent and the results of the test are above .08 you will face a 90 day license suspension. To get your consent the officer will read you Admin Per Se:

“Will you consent to a test or tests of your blood, breath, urine, or other bodily substance for the purpose of determining your alcohol concentration or drug content?”

The officer will ask you to answer that question before asking you anything else. If you answer no to the question the officer must read the following:
“If you do not expressly agree to testing, or do not successfully complete the tests, your Arizona driving privilege will be suspended for 12 months, or for two years if you have had a prior implied consent refusal within the past 84 months.”

“If the test results are not available or indicate an alcohol concentration of .08 or above (.04 in a commercial vehicle) or indicate any drug defined in ARS 13-3401 or its metabolite without a valid prescription, then your Arizona driving privilege will be suspended for not less than 90 consecutive days.”

The officer will then ask for your consent. If you do not consent the officer will request a warrant. If you consent the officer will proceed with the test or blood draw immediately. At the end of the process you are usually provided with a form titled Admin Per Se. The bottom section of the form has two paragraphs, one explaining a 12 month license suspension, the other explaining a 90 day license suspension. Just above those boxes are two boxes that indicate the date and time you were served with the Admin Per Se. One of the suspension boxes will be checked and the officer will serve you with the document. That document initiates the license suspension.

If you do not request a MVD hearing within 15 days of the date you were served with the Admin Per Se document your license suspension will go into effect on day 16. If you request a hearing within that 15 day time frame the suspension will be placed on hold until you have you hearing at the MVD Executive Hearing Office.

How do I request an MVD hearing?

The Executive Hearing Office will accept hearing request online, via fax, or mail. A hearing request must state your name, date of birth, drivers license number, and state that you are requesting a hearing regarding your license suspension.

The officer took my license, how do I drive without a license while I wait for my hearing?

The Admin Per Se document that the officer provided you will act as your license during the time you are waiting for your MVD hearing. A copy should be kept with you at all time. Likewise, once the hearing request is received and processed MVD will send a letter stating that your license suspension was “stayed” and giving you a hearing date. It is a good idea to keep a copy of that letter in your glovebox with the Admin Per Se document. If you are stopped by a police officer while the hearing is pending you can show both documents to the officer and prove that your license is not suspended.

I have a hearing date, but what is the hearing about?

The purpose of the hearing depends on what type of suspension you are facing. If you consented to the test then the hearing will be about whether the officer had reasonable grounds to believe that you were driving a vehicle after drinking alcohol with a blood concentration above a .08. If you are facing a 12-month suspension for refusing to consent to the tests, the hearing will be about whether the officer had reasonable grounds to believe you were operating a vehicle after consuming alcohol and whether you unequivocally consented to the test.

The two hearings are different and they address different issues.

Who determines what happens at the hearing?

The Executive Hearing Office is staffed by Administrative Law Judges. Administrative Law Judges (ALJ) are hearing officers with limited authority to hear specific cases. They can only determine the suspension issue and have no authority to rule on any other issues.

In the hearing you will be present, possibly with your attorney, or just your attorney on your behalf, the officer will be present, and the ALJ. The officer is not an attorney, he or she cannot make objections or argument, they may only testify. You are there representing yourself. You may object to evidence, make argument, and testify.

If there are no attorneys, or just my attorney who asks the questions for testimony?

The ALJ hearing officer directs the hearing. He or she will ask the officer specific questions during testimony, they will guide the officer on the specific issues they are required to decide. Likewise, they may ask you questions during your testimony.

When the officer testifies you will be given the chance to cross examine the officer. Once your cross examination is completed the ALJ most likely ask additional questions of the officer. If you have brought out damaging points to the officer’s case the ALJ will attempt to rehabilitate the officers testimony so that a suspension can be upheld.

Is it fair for the ALJ to rehabilitate the officer?

No, it is not fair. The ALJ’s purpose in this hearing is to act a neutral fact finder. However, the Executive Hearing Office’s definition of neutral is vastly different from ours. When the ALJ begins to try and rehabilitate an officer’s testimony they have moved from a neutral fact finder into an advocate. More importantly, because they are the hearing officer who determines the outcome of the hearing, when they begin to act as an advocate they have a conflict of interest. This behavior and attitude is one of the reasons why it is difficult to win MVD hearings.

What is the burden of proof in an MVD hearing?

An MVD hearing is a civil hearing. The ALJ only has to find that officer has proven the case by a preponderance of the evidence (51%), this is the same burden of proof in civil lawsuits and civil traffic hearings. Similarly, because an MVD Hearing is a civil hearing the rules of evidence that apply to criminal proceeding do not apply at the MVD hearing. An officer may testify to hearsay. The officer that appears at the hearing does not necessarily have to be the officer that conducted every part of the investigation.

What do I do when if my license gets suspended?

If the ALJ rules against you in an MVD hearing they will affirm the suspension. The first question they will ask you is when you want to start your suspension. You can choose to start your suspension on any day within 30 days of the hearing. On a rare occasion a ALJ will permit someone to start their suspension later than 30 days after the hearing, however there needs to be a very good reason for the request. Simply stating that your kids have to get to school is not a sufficient basis according the ALJs. A license suspension goes into effect the at midnight the day you choose the suspension to begin.

If you consented to the test and the suspension is for 90 days you will be required to serve a flat 30 days of no driving. After the initial 30 days you are eligible for a restricted drivers license for the remaining 60 days. The restricted license allows you to drive to and from work. To obtain a restricted license you must complete an alcohol screening. The MVD website has a list of approved alcohol screening agencies. When you complete you screening you have to take the completion paperwork to MVD, wait in that enormously painful line, and apply for a restricted license. After the 60 days is up you can return to the MVD and reinstate to your full driving privileges.

Is there any way I can avoid serving a full 12-month suspension?

Yes! After serving 90 days of the 12-month suspension and after completing a drug or alcohol screening, a person may apply for a special ignition interlock restricted rivers license. For the remaining 12 months the person can only drive a vehicle with an ignition interlock installed. The person is responsible to pay for all the maintenance and upkeep of the device while serving this restriction.