License SuspensionWhen a driver is arrested he is supposed to be given a choice of a breath or blood test before license suspension. If (1) a breath test indicates higher than your state's specified percentage of blood-alcohol or more, or (2) a blood (or, if neither breath nor blood are available, urine) is taken for later analysis, or (3) the individual refuses to submit to chemical testing, his driver's license is immediately confiscated by the police (unless it is an out-of-state license) and he is issued a pink sheet of paper. This paper serves as (1) a formal notice of immediate license suspension, (2) a temporary license valid for 30 days and (3) a technical explanation of the laws and procedures involved. If this is a first offense, the license suspension will be for 4 months. This can be reduced to 1 month followed by 5 months of work restriction if the individual files proof of enrollment in a alcohol and drug safety DUI action school and proof of insurance (the "SR-22" form). If the case involves a refusal to submit to chemical testing, the suspension is for 1 year; no work restriction is possible. A 2nd offense within 10 years carries a 1-year license suspension, 2 years if a refusal. The individual or his attorney has ten days within which to call to check the Drivers Safety Office of the Department of Motor Vehicles to contest the suspension at an administrative hearing. This is called the Administrative License Suspension ("ALS"). It is strongly recommended that a DMV hearing be requested. There is a good chance of having the suspension thrown out; the worst thing that can happen is that the same suspension will simply take effect, but later than 30 days. NOTE: It is CRITICAL that the DMV be contacted by the individual's attorney within 10 calendar days of the arrest. On the 11th day, the DMV will refuse to provide a hearing and the suspension will automatically take effect in 30 days. If an attorney has not been retained within the 10-day window, the individual should contact the local Drivers Safety Office himself. In most cases, due to work overload, the DMV will be unable to provide a hearing before the 30-day temporary license expires. In that event, the lawyer should demand — and will receive — an extension of the temporary license (called a "stay") until the hearing is provided and a subsequent decision rendered. This "ALS" suspension is based upon the so-called "implied consent" laws: any person driving is "presumed" to impliedly consent to chemical testing if he is suspected of drunk driving. It would certainly seem, however, that the procedure violates the U.S. Constitution. First, there appears to be a presumption of guilt and lack of due process: the officer is judge, jury and executioner. Second, it would seem to constitute "double jeopardy": the individual is being charged with a criminal offense and punished (including a license restriction) in court — and then is accused in a separate proceeding and punished again with a license suspension. The courts, however, have used strained logic in concluding that one is criminal and the other administrative — a license suspension is simply an "administrative sanction", not a "punishment"! The hearing is conducted by a hearing officer who is an employee of the DMV. This person, although not legally trained, will act as the "judge" — and also as the prosecutor! He can, for example, rule on his own objections. The hearing is conducted like a miniature trial, but without jury and with somewhat different rules of evidence. The defenses tend to be more technical than in court, with procedural and bureaucratic errors often the grounds for a "set-aside" of the suspension. Because of the technical nature of these hearings and the lack of an independent judge, it is inadvisable to attempt to represent yourself. And because they are not criminal in nature, public defenders are unavailable. Testimony can be produced by both sides, although the hearing officer usually only produces documents, such as police reports, laboratory reports and the officer's sworn affidavit. Because there is no Fifth Amendment right at the hearing, the attorney may or may not choose to have the client at the hearing since he can be called by the hearing officer as a witness. A decision is usually not rendered until some days or even weeks after the hearing. If adverse, the decision can be appealed to the DMV and/or to the courts by filing a "writ". CLICK HERE For A Qualified Expungement Lawyer
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