Let’s talk a bit about the administrative hearing and implied consent. What happens with the administrative hearing? Does it have any effect on your criminal DUI trial?
One thing that’s important for people to understand is that typically the police officers just give you a piece of paper that says that you’ve violated the implied consent law. The fine print on there will tell you that you have 14 days to appeal that decision and to demand a hearing or else you’re going to be screwed. It’s not glaringly obvious to people who have not been in trouble before that they have to take this immediate action. The first thing to remember, therefore, is that if you’ve just been arrested and you refused that breathalyzer, you need to give us a call as soon as possible to make sure that you don’t have an implied consent hearing, because if you do, we’ve got to get that paperwork in on time or else you’ll lose.
The second thing is that, once you send in that paperwork, you’re going to be able to have a hearing in front of the driver’s license appeal division of the Secretary of State. That hearing is to determine whether or not there was a lawful arrest in your case, whether or not you were read your chemical test rights, whether or not you refused that test, and if you did, was your refusal of that test reasonable or not? At that hearing, you have to be able to challenge the police officer and put forth a defense to the refusal of the breath test. The hearing officer will then make a decision right then and there that you either win or lose. If you lose, your driver’s license gets suspended for a year. Your only option then is, if it is a first refusal of the implied consent law, then you can go to the circuit court and file a petition for a hardship license which would, if granted, give you a restricted license for that year.
In order to do that, you have to argue the case in front of a different circuit court judge and convince them that you really do need a driver’s license and that you’re safe to be on the road. It’s quite a serious and convoluted process all stemming simply from refusing the breath test.
Now, generally, that whole process is a separate and distinct case that is not going to affect your actual OWI case. Theoretically, you could still win your OWI case and your driver’s license would still be suspended for a year because of the refusal of the breathalyzer. They are two separate deals that generally proceed in different courts, at different places, and in front of different judges. It’s rare, but once in a while, we’re able to work out a deal on one that affects or resolves the other. That’s pretty rare but it does happen occasionally.
Would it be safe to say that this is not something you would want to attempt to handle on your own, even though it might not sound that tough?
I think most people would have a very difficult time even just getting the procedural stuff correct in those kinds of hearings. Even most attorneys would have a hard time understanding what possible defenses you could raise and what things don’t matter at all in those hearings. It’s not really an issue of trying to convince them that you’re a good person or that you didn’t know what you were doing. It’s not that kind of a situation. It’s really based on a limited number of certain technical defenses that can be raised. So yes, I would agree that it’s not something that you’d want to do on your own.
Do most people get granted the hardship license if they apply for it? Is there any reason why you would not?
It all depends. Most judges will understand the need for a person to have a driver’s license. However, some require, for example, that you get alcohol assessments done ahead of time because they don’t want to put somebody on the road who is in the midst of an alcohol crisis and has just lost their license. They don’t want to just willy-nilly give them a driver’s license. So each case is a little bit different. Some judges are easier about it than others. It’s a situation where you need to know your judge and you need to know what that judge is going to require and you need to know how to best present your case to make sure you get it.
Like I said, most of the judges are not against you being able to get to and from work and stuff. However, they are worried about just giving a license to somebody who might be in the midst of a serious drinking problem. It’s all very sensitive.
For more information on administrative hearings, implied consent, and DUI in Michigan, a free initial consultation is your next best step. Get the information and legal answers you’re seeking by calling (248) 451-2200 today.
