Implied Consent Law
Implied Consent Law – Losing Your License
When you are facing a DUI prosecution, you need to be concerned about your driver’s license. There are two basic and very different concepts that you need to understand.
First, driving is a privilege. It is not a right. Whether or not you physically lose or have your license confiscated by police, the issue is your privilege to drive, not the possession of your physical license.
Second, the criminal prosecution for the DUI is separate from the administrative hearing designed to deal with your issues at the Department of Motor Vehicles (DMV).
YOU MUST TIMELY REQUEST A HEARING
If you are stopped for a DUI, officers have the discretion to initiate the proceeding to begin your license suspension. If the officers physically take your license, then they should provide you two documents: one is a temporary driver’s license, and the other is your notice of suspension pursuant to the “admin per se” hearing as set forth in ARS 28-1321.
If officers physically took your license and provided you the requisite paperwork, you will lose your privilege to drive beginning the 16th day following your traffic stop.
The instructions to request a hearing are on the back of the “admin per se” form that you received from the officers. You must follow the instructions if you wish to continue driving until the hearing. However, if you file a request for a hearing with the DMV that is received by the end of the 15th day following your traffic stop, you will be permitted to drive until either losing privileges after the hearing, or losing privileges as a result of a DUI conviction.
If the officers did NOT take your license, then hopefully your suspension is not an issue unless or until you are convicted of the DUI. In many cases involving a blood draw or if you possess an out of state license, officers frequently do not take your license.
If that is your situation, then you are likely not facing an immediate “admin per se” suspension. In that event, the only suspension or revocation would be the result of a conviction for DUI.
WHAT IS THE HEARING?
Major Differences between the DMV Hearing and a Criminal Prosecution:
1. You are NOT entitled to an attorney. DMV hearings are civil cases and are different in several ways from a criminal DUI. You may hire counsel, but otherwise, you will be left to fight the suspension or revocation on your own.
2. You are not entitled to a jury. An Administrative Law Judge, not a jury, will decide whether to take any action on your driving privileges.
3. The State’s burden of proof is by a “preponderance of the evidence” (more likely than not), whereas in a criminal case it is to the much higher standard of “beyond a reasonable doubt.”
At the hearing, the State must prove the following:
(1) That the officer had reasonable grounds to believe you were driving;
(2) While driving, the officer had reasonable grounds to believe you were under the influence of drugs, alcohol, or a combination;
(2) That you were the person police arrested for DUI;
(3) That you refused to take a test or tests (blood, breath, or urine) of the officer’s choice; or, if you took a test:
(A.) That the test results were.08 or greater, and,
(B.) That the testing method used was valid and reliable.
SANCTIONS IF YOU LOSE THE HEARING
If you have no prior DUI related suspensions within the past 84 months, if no one suffered a serious physical injury in this case, and if the Law Judge orders that your license be suspended, then it will be suspended for a period of 90 days. During the first 30 days of the suspension you will not be able to drive at all, but for the next 60 days, you will be eligible to drive on a restricted basis to and from work and other limited places if you satisfy the DMV requirements.
If you have either a prior DUI related suspension within the last 84 months or the Law Judge finds that you caused serious physical injury to someone in this incident, your license will be suspended for 90 days and you will not be eligible for a restricted license.
If you refused to submit to the alcohol testing, your license will be suspended for at least one year. You may be eligible for a SIIRDL. That is a very limited, restricted driver’s license and eligibility is very restrictive.
For any restricted license, you may need to obtain an alcohol screening and assessment and also be required to attend driving school and/or be subject to an ignition interlock device being placed in your vehicle.
COUPLE OF CAVEATS
Because the burden of proof is so low, if the correct officer or officers appear at the hearing, it is likely that the Judge will uphold the suspension. If any of the above elements are not satisfied, or one of the required police officers fails to appear, you have the option to request that the suspension be voided. However, it may be to your advantage to stipulate to the suspension. This may allow you to avoid the SR-22 insurance requirement, which is expensive AND must be maintained for three years. These are genuine legal issues for which consulting with counsel can be of major help.
At the end of the entire period of suspension, you must pay a reinstatement fee. If you fail to do so, even the time for the sanction has ended, DMV will still consider you to be suspended.
DMV has many regulations. Your driving history and the nature of any criminal charge can substantially affect your ability to drive in Arizona and other states. Please do not hesitate to contact me if you have any questions. I am a Board Certified Criminal Law Specialist. If you or anyone you know has been accused of any felony or misdemeanor, please call for a free strategy session at 602.899-1596, email me at [email protected] or visit https://www.SnaderLawGroup.com.