| Starting more than 20 years ago, the
federal government “encouraged” the states
to pass new laws to punish drivers suspected of DUI/DWI
for merely taking the state’s test and having
a test result that exceeded the state’s “legal
limit”. All states had already passed statutes
calling for loss of license if the person REFUSED to
submit to the state’s blood, breath or urine testing,
where an officer SUSPECTED that the driver was drunk
or drugged (and therefore a less capable driver from
impairment from these substances).
Some states call their form of immediate
license snatching a “suspension”. Others
call it a “revocation”. Lawyers who practice
in this area of law often use the appropriate acronym
[either “ALR” or “ALS”], rather
than say “administrative license revocation”
or “administrative license suspension”.
In Georgia, it is called a suspension. In Texas, it
is a revocation. For all practical purposes, the legal
effect is about the same all over the USA, due to
federal highway funding being tied to every state’s
compliance with this type of law.
This “administrative”
punishment for taking the test and rendering a test
score over the state’s limit was designed to
be in addition to all the punishments that traditionally
follow a DUI/DWI criminal conviction, such as license
suspension, jail time, probation, community service
hours, possible ignition interlock, alcohol and drug
rehabilitation, etc. These ADMINISTRATIVE penalties
are basically an IMMEDIATE taking of the driver’s
license, subject to some sort of due process rights
in the form of a hearing to try to get the immediate
suspension/revocation set aside (rescinded, dismissed,
etc.). This means that a DUI/DWI arrest triggers not
only a CRIMINAL case, but also triggers and ADMINISTRATIVE
case against the driver.
In the late 1980’s and early
1990’s legal challenges were mounted by defense
attorneys across America arguing that this was DOUBLE
punishment for a single offense. Courts around the
USA brushed aside these challenges, holding that driving
is not a RIGHT, but a PRIVILEGE. Therefore, the state
that issues a license can determine the rules whereby
the license can be snatched away from drivers in that
state. The courts found an important and logical reason
for wanting to remove a drunk driver’s license
and shrugged off a multitude of challenges, such as
violation of due process, double jeopardy, equal protection
and other similar challenges.
When an attorney undertakes to represent
a person accused of drunk driving, the administrative
hearing can be a very important step in the overall
effort to “win” your case. The statutes
that set up these “license snatch” laws
also have VERY SHORT time periods in which to file
an APPEAL or a MOTION TO RESCIND the existing administrative
license suspension/revocation. The time periods run
from as short as 5 days to as long as 30 days after
the arrest. Typically, once this “appeal period”
has expired, you cannot get a hearing at all. Your
license suspension/revocation must run its course,
and you may be burdened with many time-consuming and
costly steps to re-establish driving privileges. Your
best advice: contact a lawyer who practices in this
field immediately, if arrested for DUI/DWI. For a
map of all 50 states linked to attorneys fully versed
on your state’s laws, click
here.
Be aware that the burden of proof
for these administrative license hearings is a CIVIL
burden of proof. This is a far easier standard for
the state than “proof beyond a reasonable doubt”
in a criminal trial. Hence, the officer is at a distinct
advantage in trying to keep your license revoked/suspended.
Don’t fault your attorney if the required proof
is extremely easy to establish, since many states
have passed laws to make it this way. However, these
hearings can often expose weaknesses in the officer’s
criminal case, which will be heard later. Your lawyer
may use transcripts from these sworn ALR/ALS hearings
to impeach or contradict the officer’s testimony
at a later hearing or trial. Certainly, keeping a
DUI/DWI conviction off your driving history may be
the ultimate goal for you.
Each state also determines if and
when ANY type of limited (work) permit can be obtained
for a driver suspended or revoked for an ALS or ALR
license snatching. Some states are more favorable
to drivers who take the state blood, breath or urine
tests and score over the legal limit, than for those
who refuse all testing. Others have shorter license
suspension/revocation periods for refusal than if
you are convicted at the criminal DUI/DWI trial. The
rules may also change for REPEAT offenders, who are
routinely denied all driving privileges if a second
or subsequent arrest and illegal BAC test are obtained.
You should consult with a knowledgeable attorney who
specializes in this type of practice, to be able to
determine what you should do if ever confronted by
an officer who suspects that you are a drunk or drugged
driver. Several states have now approved FORCIBLE
taking of blood or urine, so refusals no longer exist
in a handful of states. In these states, only ALS
or ALR penalties are at issue, not “refusal”,
suspensions or revocations.
Because your right to drive may hang
in the balance, getting to a top-notch trial attorney
may be the difference between driving and not driving.
Undoubtedly, a mere arrest for DUI/DWI carries immediate
punishment in the form of curtailment or termination
of your normal driving privileges. For CDL (commercial)
drivers and people who must travel and rent cars at
their destination, this is a catastrophic disaster.
Trying to win back the driver’s license is a
major step in the “life” of a DUI/DWI
case. Give your attorney as much advance notice as
possible to try to win this important hearing.
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