If you're arrested for a DUII you were likely asked to take a breath test. If you refused the test, or took it and blew a .08 or higher, you were given a notice of license suspension by the officer. That suspension starts thirty days after your arrest. The suspension is from 90 days to three years, depending on your prior record, and whether you failed the test or refused to take it. The only way to avoid a suspension is to request, and win, a DMV hearing.
You have to request the hearing within 10 days of your arrest. If you fail to ask for the hearing, or make a mistake in how you ask for the hearing, then you lose your right to object to the suspension and you'll lose your license.
If you're going to contest the suspension, you should consider hiring a knowledgeable lawyer to request the hearing on your behalf.
The DMV Hearing Gets Set
The Hearing will be set within 30 days of your arrest. The hearing occurs in a conference room, not a Court, since DMV hearings are not court proceedings. There are various hearings offices around the State, and the Hearing will occur closest to the site of the arrest. Again, because the hearing gets set quickly, its important to get an attorney on board as soon as possible, if you intend to be represented.
The Hearing is conducted by an Administrative Law Judge. At the hearing the arresting officer must appear.
At the Hearing the officer must prove that: The stop was valid; That there was probable cause to believe you were under the influence of intoxicants; That you were properly advised you of your obligations to take the breath test. If you refused, the officer must also prove you knowingly refused to take the test. If you took the test, the officer must prove that the test was administered properly and that the breath test machine recorded a blood alcohol content of .08 or higher.
An experience lawyer can point out flaws in the officers case to the Administrative Law Judge, and argue that the officer failed to meet one or more of the requirements. Its important that the officer completed all necessary paperwork, and did so accurately.
After all evidence is taken, the Administrative Law Judge will issue a written ruling within 14 days
The Hearing Results
You will receive a written ruling by the Administrative Law Judge. If the ruling is in your favor, then the license suspension doesn't go into effect. If the ruling is against you, then your license will be suspended. You can appeal an adverse ruling to the Oregon Circuit Court. Again, certain deadlines apply and you must make sure that your notice of appeal is timely filed.
The DMV Hearing Result and your Criminal DUII case
The DMV proceeding has no legal effect on the DUII charge that you face in Court. You can win a DMV hearing, thus avoiding the DMV suspension, and a Court would still suspended your license if you're convicted of the DUII.
In addition, even if the Administrative Law Judge voids the suspension because they believe the officer made a fatal error, the Circuit Court Judge may disagree and allow the BAC result as evidence against you in Court.
The real benefit to your criminal DUII case in having a DMV hearing is that you have a chance to cross examine the officer and pin down his or her recollection. That's another reason why it's important to have a good experienced DUII lawyer represent you at the DMV Hearing.
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