DUI PER SE HEARING WIN: TWO TESTS REQUIRED
May 26, 2019
A couple of months ago I picked up a new DUI case. My client, a UNH student, was arrested for driving drunk in West Haven after he sideswiped a telephone pole. He was also charged with Evading and Reckless Driving. When we went to court in Milford, I picked up my copy of the police report. After a quick look, I told my client that he should request a per se hearing on his suspension. (Remember: DUI's proceed on both criminal and administrative tracks.) I noticed that one of his breathalyzer tests showed a 0.2 BAC. That would normally not be helpful in a DUI defense. The second test was aborted. The machine failed.
My client however received his suspension notice late and missed the time to request a hearing. It had gone to his home address in another state, not his campus address. I filed a petition for reconsideration because, under DMV regulations, notice must be sent to both addresses if the driver gives a mailing address different than what is on his or her license.
DMV gave us a hearing but didn't stay the suspension. I went to the hearing in Bridgeport and argued that the suspension was not valid because only one test was completed. Two breath tests are required to get a valid BAC to suspend a license. When the machine failed, the police could have tried to clear it and attempt another test. They also could have asked for a blood or urine test (they have the choice, not the driver). But they didn't.
We won the hearing and my client's license was reinstated. We later resolved his criminal DUI by getting him into the Alcohol Education Program. If he completes his obligations, all charges will be dismissed.