Once you have been arrested for DUI, your driver’s license is usually at risk of suspension. You are entitled to a Motor Vehicle Division (MVD) administrative hearing within 15 days after you have been served with an Admin Per Se or implied Consent form to request a hearing with the MVD. Whether you have experienced this hearing before or not, we at Phoenix Criminal Attorney are here to help you.
Arizona Admin Per Se Suspension for DUI
In Arizona, drivers arrested for DUI are at risk of losing their driving privileges for 15 days after their arrest. This falls under ARS 28-1385. The driver’s license suspension goes for 90 days and depends on a BAC level of 0.08% or a controlled drug. During an arrest, the police officer will confiscate your license and give you an Admin Per Se form.
Please note, your license cannot be confiscated if it is from a different state. However, the Admin Per Se can still consider a suspension of your driving privileges in Arizona. Once they inform your state about the arrest, your state of origin may revoke or suspend your license in return.
The Admin Per Se copy works as your temporary license for the next 15 days. Failing to file a hearing request within the fifteen days prompts the suspension on the sixteenth day. If you and your attorney request an MVD hearing, your suspension will be delayed until the hearing results are considered.
In some cases, the police officer does not provide the Admin Per Se form. This is common where police are waiting for the blood results. In such a case, they will be waiting for your BAC to decide whether or not to arrest you.
However, the police officer can still file the Admin Per Se suspension at a later time. You should provide the right address to the MVD to ensure that the Admin Per Se is filed to your residence once they receive the receipt of your blood results. If you give a wrong address, your suspension letter might be mailed later, which puts you at risk of driver’s license suspension if it does not reach you within the fifteen days.
Requesting for an Admin Per Se Hearing
If you request a hearing within the 15 allotted days, you can continue driving until your hearing takes place. The purpose of the hearing is to determine whether to uphold or void the suspension. The hearing is not formal since it can happen in a conference room at a large table.
Before you make any formal request, you need to determine where the date of the Admin Per Se was served. The Admin Per Se document has a section served at the bottom of the document. Once you have established the date served for your hearing, you or your attorney can proceed to request the hearing. The following are ways that one can use to request the hearing:
- Using an email through a secure link with your personal information
- By mail through the following address
Arizona Department of Transportation
P.O Box 2100
Phoenix, AZ 85001
- By fax through the address 602.241.1624
- Personal delivery by visiting the Executive Hearing office located at 3738N.Seventh Street., Suite 160, Phoenix, or any MVD offices situated in the state.
Please note, you or your attorney must appear to the hearing. Failing to appear will suspend your license by default. Also, the results of the hearing are separate from your DUI trial. Also, the request for the hearing will reach between sixty days to one-hundred and twenty days, which will then take about a month or two later on.
What Happens in an MVD Hearing?
Arizona MVD hearing is less formal compared with a criminal trial. Therefore, the rule of evidence does not apply here. During this kind of hearing, the Administrative Law Judge (ALJ) decides whether to suspend the license or uphold it. The hearing begins with the arresting officer providing a testimony related to your arrest and the testing procedure.
Once the testimony has been given, you or your attorney will be allowed to question the arresting officer. In most cases, the officer usually provides conflicting information during the testimony that can be useful in your plea bargain or trial.
The Importance of Officer Testimony at the MVD Hearing
Since everyone involved in an MVD hearing is under oath, this would be the best opportunity to ask an officer questions related to the involvement in your case. The administrative law judge will limit the questioning to relevant information needed in this kind of hearing, but it would be a suitable opportunity to interview the officer.
One advantage of this kind of testimony is that a completely unrelated officer can show up and testify, but with the observation of the rules and regulations that have been set forth for the administrative hearings. In such a case, there are chances of testifying something utterly unrelated to the real experience of your arrest and the testing procedure.
Since you have the opportunity to question the officer, you should raise Several issues to increase the possibility of winning the case. Some of the issues that you can raise are:
- If the officer had rational grounds to believe that you were DUI
- If you were arrested for a DUI offense
- If your test results showed a BAC of 0.08% or more or 0.04% or more if you are a commercial driver
- Whether the test was done reasonably and in a reliable way
- If the results from the tests were evaluated accurately
Implied Consent Hearing in Arizona
An implied Consent proceeding is different from the Admin Per Se hearing. This kind of trial is initiated if the driver fails to take a chemical test. A driver who does not submit to a chemical test risks suspension of the driver’s license for a year under this kind of suspension.
An officer initiates the implied consent hearing during your arrest. The officer begins the suspension by taking your driver’s license and serving the driver with an affidavit that alleges that the driver did not submit to a complete chemical test. Similar to the admin Per Se suspension, the officer does not have any authorization to take an out-of-state license. However, the officer can still serve the affidavit later on if the driver has no license at the time. Once the suspension has gone into effect, the copy of an affidavit works as a temporary license.
Please note, it is recommended to carry the copy of the affidavit or admin Per Se documents in your glove compartment to issue it to the driver once you are stopped later on.
During the Implied Consent Hearing, the following factors are contested:
- Whether your arrest is based on reasonable grounds that genuinely understood that you were under the influence during your arrest or you were under twenty-one years and were DUI
- If you were legally arrested
- If you refused to subject to the test
- If you were told on the outcomes of the refusal
Comparison between MVD Hearing and Criminal Court Proceeding
Both MVD hearing and criminal court proceedings have their similarity and differences. When it comes to their differences, the process of an MVD hearing starts after receiving either the Admin Per Se or the Implied Consent affidavit.
On the other hand, a criminal case does not start until a prosecutor files charges related to your DUI in court. This might take some time to occur. The process begins with the forwarding of your arrest report to the prosecution. The prosecutor will then review the report. If the prosecutor believes that there is sufficient evidence to prove your case, DUI charges are filed, and your first court date is established.
Also, DUI hearing is conducted in small private rooms or at the Arizona Department of Transport (ADOT) while the criminal trial takes place in a court. A judge usually presides over the case, and a jury decides whether you are guilty or not. Based on the circumstances, the DUI trial might take a full day or more to be completed.
With the criminal court trial, the prosecutor must prove all the elements of the charges beyond a reasonable doubt. This means that the prosecution must present convincing evidence that establishes that you were driving or operating a vehicle, and you were impaired by alcohol or drugs to the point of having a BAC of 0.08% or more. If you are not guilty, the jury should acquit you.
In an MVD hearing, however, the arresting officer will only have to prove that the arrest was legal, that the driver was refusing an arrest, and the BAC is above the legal requirement. These things do not need to be proven beyond reasonable doubts, as in the case of a court trial.
With the similarities between the two, the state has the burden of proof, meaning that it is the mandate of the state to provide evidence whether the driver violated the law or not. Also, both the proceeding involves an opportunity for both the government and the driver to present their evidence.
How to Avoid License Suspension during an MVD Hearing
Since you can involve a professional DUI attorney in your MVD hearing, this provides the opportunity to employ relevant defenses to uphold your driver’s license. Your attorney should consider the legal arguments according to the factors that the MVD hearing board members have to consider in both Admin Per Se and Implemented Consent Hearing. Here are several factors that the DUI attorney should be considered.
You were not Driving
The police officer should personally observe your driving, but the MVD has no witness who can prove this fact, or no evidence can reasonably establish your driving, then this shows that you were not driving. Some of the instances that prove that one was not driving include sleeping at your car when you realize that you are not required to drive.
There Was No Probable Cause for your Detainment
One of the outstanding factors in MVD hearing pertains to the probable cause for your detaining. If the officer does not have probable cause for your detention, the MVD should reconsider suspending your driver’s license. Your DUI attorney can argue out a few reasons for the likely cause of your illegal arrest. This includes being a victim of racial profiling and involving in an accident, although you did not start drinking once you got home.
You were not Advised on the Consequences of Chemical Test Refusal
Refusing to submit to a DUI chemical blood or breath test puts you at risk of going through an Implied Consent Hearing. The officer will read a warning that when you fail to submit to the test, there would be severe consequences in your driver’s license suspension.
However, due to several drunk driving arrests, the officer might fail to advise you on the consequences due to forgetfulness, deliberately deciding not to give the information, and reciting his or her interpretation of the warning to the point of confusing you. Also, if the police officer tells you that your refusal could mandatorily suspend instead of saying that it will result in suspension, this might be a suitable action against the DMV hearing.
There is a Physiological Explanation to your False BAC Results
There are different reasons behind your BAC level of 0.08% or 0.04% for commercial drivers. Some of the ways that physiological issues might affect your BAC level include high protein or low carbohydrates diet and medical conditions such as heartburn, GERD, and acid reflux. Also, residual mouth alcohol can be a significant cause of falsely positive readings.
If you were suffering from any of the above-stated conditions when providing your breath sample, the results that were achieved do not reflect your actual BAC reading.
You did not Refuse to Submit to the Chemical Test
Several factors can disapprove claims that you did not subject to the chemical test. Maybe you were too tired, and you could not sufficiently blow the breathalyzer, or you were not given an option to undertake a blood test as an alternative to your breath tests. Also, when asking about the test, but the officer misinterpreted as hostility, this can be assumed as a refusal.
If you can manage to prove these facts, there are high chances of having your license reinstated by the MVD hearing.
Consequences of Losing your MVD Hearing
Losing your MVD hearing will prompt the 90-day license suspension. If you refused to undertake a chemical test, you would be facing a one-year license suspension. For a second DUI, you will be facing a 90-day license suspension and revocation for one year.
90- Day License Suspension for a Regular DUI
If you have your first DUI in the last 84 months, have a misdemeanor-level DUI, and voluntarily agreed to a chemical test, then the ninety days suspension goes into effect. However, you can receive a restricted license for sixty days of your suspension if you complete the alcohol screening before the thirtieth day of your suspension and upload it to the MVD. Also, if you have an out-of-state license and have no other pending suspension, you might be eligible for the restricted driving permit.
One Year License Suspension
You might be at risk of a year suspension of your driver’s license if you are convicted with a second DUI within 84 months, have a second reckless driving within 24 months, and a combination of DUI and reckless driving within 24 months. Also, you are at risk of the one-year suspension if you fail to submit to the blood draw or breath test and fail to win your MVD hearing.
For the case of a second DUI within 84 months, you can apply for a Restricted License with Special Ignition Device after 45 days. For the case of failing to submit to a chemical test, you can apply for a Special Ignition Interlock Device after ninety days.
Apart from the types of suspension stated above, other types of consequences that might result from the MVD hearing include:
- 90 days suspension for drug DUI
- One to three years revocation due to aggravated DUI
- One year revocation for having a child in the car and having aggravated DUI
- One year revocation for having a suspended license for aggravated DUI
- Three years revocation for having three or more aggravated DUIs
- A maximum of a year of discretionary suspension, which does not permit any kind of restricted permit or Special Ignition Interlock Device.
Please note, you have the opportunity to contest or delay the suspension within thirty days after the hearing date since the suspension goes into effect within the same timeline.
Find a Phoenix DUI Attorney Near Me
Under Arizona laws, DUI is a severe offense and can attract severe consequences after an MVD hearing. Therefore, it is reasonable to hire a DUI attorney to help you with DUI charges to avoid a possible suspension of your license. Phoenix Criminal Attorney offers excellent services if you have been arrested for a DUI, and you are facing the risk of license suspension. Get in touch with us today at 602-551-8092 for more information about how we can help you.