DUI Per Se Hearing victory: implied consent and the administrative suspension process

Last week I defended a client before the Department of Motor Vehicles who was facing suspension for an alleged refusal to take a breathalyzer test. A few days later I received notice that we won the hearing and that her license would be restored. I am now 2-0 in such hearings. The hearing officer found that there was no refusal and that there was not a valid witness to the alleged refusal.

This was not a criminal proceeding. In Connecticut and most other states, drunk driving cases usually occur in two parallel phases: the criminal case and the administrative case. The criminal case is obvious–the arrest and court appearances for a violation of 14-227a, which is a crime punishable by imprisonment. At the same time, at least when someone is stopped for suspected drunk driving, the DMV’s case starts right at the arrest. Drivers licenses are granted by the Department of Motor Vehicles, which is an administrative agency. Sec. 14-227b is the Implied Consent statute, which gives DMV the authority to suspend a driver’s license (or driving privileges for someone not licensed in CT or at all) if he or she fails or refuses a chemical alcohol test following a drunk driving arrest. In short, through the act of operating a motor vehicle in the state, a person gives the state his or her consent to be tested for alcohol by a blood, breath or urine test. This obviates Fourth Amendment issues of the test itself. The stop is another story.

To stop a car, police need reasonable suspicion that an offense has taken place, is taking place or is about to take place. Following the stop, the police need probable cause to arrest and take into custody a person suspected of driving drunk. Once the person is in custody, the testing rules apply.

A person who takes and passes the test is good to go. Someone who fails or refuses the test will have his or her license held for 24 hours and then face further suspension. For a first offense, a person 21 or over faces a six-month suspension for refusing the test, 90 days for a 0.08 up to 0.08 BAC and 120 for 0.16 and up. The penalties are harsher for subsequent offenses and for people under 21.

Refusal does not have to be express. A person can also refuse by his or her conduct–such as by not seriously attempting the test. Often when the machine does not register a reading, the officer will mark refusal.

Due process requires DMV to provide a hearing (this is the Per Se hearing) to determine whether a suspension should be upheld. DMV must prove four things to uphold a suspension: (1) That there was probable cause to arrest the driver; (2) That the person was placed under arrest; (3) That the person failed or refused the test; and (4) That the driver was operating the vehicle. If any is not proven, the suspension fails and the license is restored. Note that the hearing must be requested and scheduled.

In the last case I had, my client attempted to take the test but was unable to blow hard enough to register a valid sample. We demonstrated at the hearing that she suffers from asthma and, despite her sincere attempts, just didn’t have the air in her to blow. Additionally, there was no other evidence of noncompliance. DMV could not prove that she the test. Her license was restored.

For many people the license suspension is the worst part of a DUI charge because it takes effect early in the process and exists even if they take the diversionary program to avoid a criminal conviction.

Note that alcohol is not the only intoxicating suspense that triggers the DUI/OWI statute. Any intoxicating substance qualifies.

ntoxication and motor vehicle operation do not go together. The lyrics to this classic punk song by Murphy’s Law should not be followed but the eponymous axiom usually is: whatever can go wrong, will go wrong.


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