The Department of Licensing (DoL) or Department of Motor Vehicles (DMV) will seek to suspend your driver’s license because you were arrested for DUI. There does not need to be a conviction. This is a separate procedure from court proceedings and there does not even need to be criminal charges. You must request a DoL/DMV hearing or have your automatic license suspension remain even if your criminal case is dropped.
Usually the DoL/DMV serves notice in writing of its intention to suspend, revoke, or deny your license. The service of notice is normally done by a separate letter issued to you after your arrest but do not wait for this letter! If you are arrested for DUI, Physical Control, Or Minor DUI you must take immediate action and seek experienced DUI counsel as time is precious at this stage.
Right to request a hearing
The DoL/DMV will also serve you notice in writing your right to a hearing, specifying the steps you must take to obtain a hearing. This is normally achieved by the arresting officer giving you a hearing request form which is time sensitive. Depending on which state you’re in, you typically only have 10-20 days to request a hearing in a timely manner. Seeking experienced DUI counsel is important because the manner in which the hearing is requested can make the difference between no loss of your license and a suspension or revocation.
Your license usually remains valid for 30-60 days after arrest. If a hearing is properly requested your license will remain valid until the hearing is actually held and you are notified of the hearing result by mail.
DoL/DMV hearing procedure
Once the hearing is requested a date, time, and hearing officer will be assigned. On the assigned date the hearing officer will conduct the hearing, may issue subpoenas for the attendance of witnesses and the production of documents, and shall administer oaths to witnesses.
The report of the law enforcement officer and any other evidence accompanying the report shall be admissible without any other showing required. You have the right to have counsel, question witnesses, present evidence, and testify. At the end of the hearing, the hearing examiner will likely take the case under advisement and then issue a ruling by mail.
This ruling may come as soon as 2 weeks, or it can take over a year from the date to the hearing. The ruling will either uphold the suspension or revocation (you lose), or it will rescind the proposed suspension or revocation (you win).
These hearings are predicated upon the fact that if you operate a motor in your state, you are deemed to have given consent, to a test or tests of your breath or blood for the purpose of determining the alcohol concentration or the presence of any drug in your breath or blood. This is contingent upon the fact that at the time of your arrest, the officer has reasonable grounds (probable cause) to believe you had been driving (or were in actual physical control) of a motor vehicle while under the influence of intoxicating liquor or any drug.
If you refuse the breath or blood test request, which you have a right to do, the police can obtain a search warrant for your breath or blood. This usually means drawing blood from you by force and against your will.
Were You Arrested Lawfully?
Are there enough facts in the officer’s report to convince the DoL/DMV that the officer had reasonable grounds to arrest you for driving or being in actual physical control of a motor vehicle while under the influence of with a BAC concentration of .08 or above? In other words, did the officer have enough information to think that you were over a .08 or affected by the alcohol you drank?
In the case of a minor, the question is whether the officer had reasonable grounds to arrest you for driving or being in actual physical control of a motor vehicle while having an alcohol concentration of .02 or above. This basically means that if the officer could smell the fact that you had drank alcohol you were likely over a .02 because it does not take much alcohol at all to get you over the threshold of .02.
This does not mean that the DoL/DMV needs any proof like in court; instead, it is a determination of whether the officer had enough information to think you were above a threshold limit.
DoL/DMV and a Blood Draw
For the DoL/DMV to suspend or revoke your license there does not need to be a breath sample, the sample can be blood also. If there was no breath sample because you were incapable of providing a breath sample due to physical injury, physical incapacity, or other physical limitation, or because you were being treated in a hospital, clinic, doctor's office, emergency medical vehicle, ambulance, or other similar facility and a breath test machine is not readily available, and the officer has reasonable grounds to believe that the person is under the influence of a drug, a blood test shall be administered. Under these circumstances a blood test will be “offered.”
Regardless of whether it is breath or blood the officer still must read you something called Implied Consent Warnings. These warnings are required by statute and usually printed on a form the officer uses. These are the warnings that tell you the consequences of giving a breath / blood sample versus the consequences of not providing such a sample because you invoked your right to refuse such a test.
DoL/DMV penalties
If you refuse to take the test, your driver's license, permit, or privilege to drive will be revoked or denied for an average of one year. Your refusal to take the test may also be used in a criminal trial.
If you submit to the test and the test is administered, your driver's license, permit, or privilege to drive will be suspended, revoked, or denied for a period of time (such as 90 days) if you are age twenty-one or over and the test indicates the alcohol concentration of the driver's breath or blood is 0.08 or more, or if the driver is under age twenty-one and the test indicates the alcohol concentration of your breath or blood is 0.02 or more.
Therefore a first offense DUI arrest can garner a period of license suspension (like 90 days) if over 21 and provided a sample of .08 or more, and if you are under age 21 and provide a sample over a .02.
If this is a second DUI arrest and you are within a certain timeframe (for example, 7-10 years) of your first DUI arrest then the DoL/DMV will revoke your license for even longer (such as 2 years). If you’re under 21 at the time of your second DUI arrest, then your license can remain suspended until you’re 21, which can be even longer than 2 years.
If you are later convicted of DUI, Minor DUI, or Physical Control the court judge can order another suspension or revocation as punishment, but the DoL/DMV usually grants credit on a day-for-day basis for any portion of a suspension or revocation already served if the conviction is from the same incident.
The mandatory penalties are usually set out by your state’s law, and therefore there is no lesser suspension/revocation time.
