A DMV hearing is not part of criminal court, but is a separate matter handled by the DMV if you request one after a license suspension.
DWI Restoration Hearing Attorney If you’ve been arrested for a DWI, you may or may not be aware of the fact that you have two separate legal proceedings that are possible for some cases. One is the traditional criminal case where the defendant faces the usual fines or penalties. The second is a restoration hearing administered by the DMV if the police say you refused to blow. At the Law Offices of Wiley Nickel, we have experienced Wake County DWI attorneys who are going to help guide you through the specifics of your case, as well as thoroughly and professionally defend you. Consequences to Multiple DWI’s First DWI: After your first conviction of DWI your driver’s license is automatically revoked for one year. Typically your attorney will be able to get you a limited driving privilege in court after your plead guilty or are found guilty for your first offense. Second DWI: Being convicted of a second DWI in the state of NC will result in a four year loss of your license. However, with the help of an attorney, there is hope to have a restoration hearing after two years. You must have completed a substance abuse program and shown significant steps of improvement. Third DWI: If all the charges are within 10 years, then your license is permanently revoked. There is an opportunity for a restoration hearing in some cases after time has passed. Call us if you are in this scenario. Habitual Offender: After your fourth accident, you are considered a habitual offender. This will generally result in maximum fines, punishment, and incarceration time for any offense. You need Legal Assistance for a DMV Hearing A DMV hearing should not be something taken lightly. If you are on your second or third DWI, then an attorney should be consulted. A DMV hearing is not far off from a standard court hearing. It is going to include witnesses (sworn under oath) who will testify in regards to your drinking. The witnesses will be interviewed individually, with the hearing officer and your attorney present. It is strongly advised that you have a reputable, experienced attorney by your side to help guide you through this process. Losing your license can have serious, life altering repercussions. Make sure to take the proper steps in order to mitigate your consequences. Law Firm Located in Raleigh, NC Our main office is located at 2401 Weston Parkway in Cary, NC off exit 289. However, we also have another location at 6220 Angus Drive, Suite 105, Raleigh, NC. The Law Offices of Wiley Nickel, PLLC At The Law Offices of Wiley Nickel we handle Raleigh DWI cases as well as misdemeanor criminal charges and low level felony charges in Wake County. We strongly advise talking with an attorney to discuss your possible options and to ensure your charges are handled in an appropriate manner. If you are looking for a criminal defense lawyer or a Raleigh DWI Restoration Hearing Lawyer contact Attorney Wiley Nickel or Attorney Kristi Haddock at 919-585-1486 for a free consultation.
NC DMV Hearing Attorney In the state of North Carolina, the DMV has the authority to suspend your license without a preliminary hearing. However, you may be fortunate enough to be able to attend a hearing to have your driving privileges reinstated. It is strongly advised that an experienced DMV Attorney handles your case, as that will significantly improve your chances at getting your license back. At the Law Offices of Wiley Nickel no matter what type of hearing you have, our experienced DMV attorneys know how help prepare you and fight to reinstate you driving privileges. We will work tirelessly in order to defend your driving record and make sure you walk away with a driving privilege or your license back. Types of DMV Hearings There are a few different types of DMV hearings one could obtain. DMV Medical Hearing: Your license can be revoked as a result of a medical condition, such as diabetes or epilepsy. If you can obtain a DMV medical hearing and prove that you will be a safe and responsible driver, then your license may be reinstated. Driving While License Revoked Hearing: After three or more moving violations, the DMV will revoke your license permanently. In actuality, it will result in revocation for three to four years and the opportunity to have limited driving privileges after two years. DWI Restoration Hearing: In the state of North Carolina, your DMV charge could be over a number of things. Anything from a speeding ticket to a serious DWI, in most situations you should be able to obtain a restoration hearing after a certain amount of time has passed. When you do, make sure an experienced attorney is by your side. DWI Refusal Hearing: When you receive your license, you agree to take a chemical test if faced with a DWI charge. There are serious penalties for refusing to take the test. DMV refusal hearings are tricky, but can be won if there can be sufficient evidence showing that you did not refuse the test. Consequences to Multiple DWI’s First DWI: After your first conviction of DWI your driver’s license is automatically revoked for one year. Typically your attorney will be able to get you a limited driving privilege in court after your plead guilty or are found guilty for your first offense. Second DWI: Being convicted of a second DWI in the state of NC will result in a four year loss of your license. However, with the help of an attorney, there is hope to have a restoration hearing after two years. You must have completed a substance abuse program and shown significant steps of improvement. Third DWI: If all the charges are within 10 years, then your license is permanently revoked. There is an opportunity for a restoration hearing after some time has passed. Habitual Offender: After your fourth accident, you are considered a habitual offender. This will generally result in maximum fines, punishment, and incarceration time for any offense. Law Firm Located in Raleigh, NC Our main office is located at 2401 Weston Parkway in Cary, NC off exit 289. However, we also have another location at 6220 Angus Drive, Suite 105, Raleigh, NC. The Law Offices of Wiley Nickel, PLLC At The Law Offices of Wiley Nickel we handle Raleigh DMV cases as well as misdemeanor criminal charges and low level felony charges in Wake County. We strongly advise talking an attorney to discuss your possible options and to ensure your charges are handled in an appropriate manner. If you are looking for a criminal defense lawyer or a Raleigh DMV Lawyer contact Attorney Wiley Nickel, Kristi Haddock, or Melissa Botiglione at 919-585-1486 for a free consultation.
Who are the people involved in a Refusal Hearing? There are at least three people involved. The first is the driver who has been dispossessed of his or her license after being accused of DWI but failed to provide a sample. The second is the Administrative Law Judge. The Judge is the decider of whether a refusal actually occurred under the law. The third is the officer who accused the driver of refusing to provide a sample. It is always recommended that the driver appear with an attorney as well. What is the refusal hearing? The refusal hearing is the opportunity of a motorist, who did not provide a chemical sample at the police station or hospital but has been accused of DWI, to be heard by the DMV concerning the revocation of his or her license as a consequence of such alleged refusal. When is a refusal hearing? Generally, refusal hearings must be scheduled and held within 15-days of the date the driver is dispossessed of his or her license. If the hearing is not held within 15-days, the driver is eligible for his or her license back from the DMV until the hearing is held. The paperwork the driver receives by the arraigning Judge states the time and date of the hearing. Where is a refusal hearing? The locations of the hearings are usually in public buildings, however, not necessarily the DMV. The form described above that states the time and date also states the location of the hearing. In some cases, the hearings are held in a neighboring county. Why are refusal hearings held? Refusal hearings are held because a person has been dispossessed of his or her privilege and license to drive a motor vehicle. Such dispossession has been found by the Courts of New York to require that Due Process be satisfied before such privilege and license is officially taken away due to state action. How do refusal hearings proceed? The hearing is opened by the Judge when both the driver and the officer appear for the hearing at the scheduled times. The officer testifies first because he or she has the burden of proof. It is his or her responsibility to show, by a preponderance of the evidence, that the driver intentionally refused to provide a sample. Once the officer has finished his or her direct testimony, the driver has the opportunity to cross-examine him or her. This cross-examination is important because it flushes out the facts that modify the understanding of the testimony he or she previously stated. Once that is completed, the driver then has the opportunity to testify as well. It is not necessary for the driver to testify or present any evidence. Next, the Judge hears the driver’s arguments that what has been described by the officer does not show that he or she actually or constructively refused to provide a sample. Last, the Judge determines whether a refusal actually occurred and either revokes the license or returns it. What does the officer have to establish? The officer is required to establish four things. First, he or she must establish that there was a lawful arrest of the accused driver. Second, he or she must establish that there were reasonable grounds to believe that the driver had been driving in violation of any offense listed in section 1192 of the Vehicle and Traffic law. Third, he or she must establish that the driver was given sufficient warning, in clear or unequivocal language, prior to such refusal that such refusal to submit to such chemical test or any portion thereof, would result in the immediate suspension and subsequent revocation of such person's license or operating privilege whether or not such person is found guilty of the charge for which the arrest was made. Last, he or she must establish that the driver refused to submit to such chemical test or any portion thereof. Why is appearing at refusal hearings important? Actually appearing at refusal hearings is important for a few reasons. The primary reason is because the driver is liable to lose his or her license to drive for a year from the date of the hearing. This also means that during the pending criminal charge in the court, he or she will not able to drive anywhere for any reason. There is no hardship or conditional license eligibility for people in that position. Second, the hearing is a great opportunity to get statements from the officer testifying under oath. Even if a refusal is found, the driver still has a finding of fact that can be used in the pending criminal charges. Third, if the driver appears at the hearing, but the officer does not, the driver gets his or her license back at least for the time between the first and rescheduled hearing. This takes a lot of pressure off the driver who needs to rely on others for rides everywhere while the criminal court charge is pending. Fourth, if the driver appears at the rescheduled hearing and the officer does not, there is a high chance that the DMV will find that no refusal occurred. What are some of the consequences of a refusal? The first consequence is the revocation of the driver’s license for one calendar year from the date of the hearing, not the date of the alleged refusal. The second consequence is the $500 DMV fee. The third is the ineligibility for a pre-conviction conditional license, which means that there is no driving until a conviction is entered. Fourth, there is no 20-day stay eligibility once the sentence is adjudicated. Fifth, completing the Impaired Driver Program through the DMV doesn’t terminate the remainder of the subsequent suspension or revocation from the court.
Criminal Case Criminal Case: Criminal Allegations start in either a small city court, or the larger county court sepending on where the incident took place. The actual City of Las Vegas is much smaller in reality than most people would guess. Upon release from jail, a police officer generally provides you a citation to appear in court at a later date to enter a plea, find out who your attorney will be, and deliver to you the official charges. These charges may or may not be the same as what the police booked you under. If you have a private DUI attorney, for a misdemeanor DUI, your lawyer can appear for you at the first hearing. Always confirm with you attorney if you will need to be present. Your attorney will obtain a copy of the charges, and any evidence to be used against you. This would include the results of your blood or breath tests, police report, videos or any other evidence the State intends to use against you. Only after review of this evidence can the attorney finally fully evaluate your case and begin discussions with the City Attorney or the Clark County District Attorney in an effort to get the charges reduced or dismissed. If an agreement with the prosecutor is reached you will not need to go to trial. The vast majority of cases are resolved without trial but if an agreement cannot be reached, you are entitled to a trial where it may be possible to be found not guilty. If convicted, first offence DUI penalties include: $400 to $1,000 in fines, plus court administration fees; A one day or online DUI School; Attendance at a live Victim Impact Panel; 2 days to 6 months in jail; and A 90-day drivers license revocation (learn more about a restricted license). (Note that the law is changing for arrests after October 1, 2018, raising the revocation to 185-days.) Your drivers license and the DMV case DMV case An optional DMV hearing before a civil administrative judge. The only issue at this hearing is the drivers license suspension. If you or your attorney don*t set the hearing the suspension is automatic. It may be possible to win the hearing and avoid the license suspension. These hearings are more difficult to win because the standard of proof is substantially lower than in the criminal court
Driving While Impaired "DWI" Elements N.C. Gen. Stat * 20-138.1 states that a person commits the offense of impaired driving when the person: (1) Drives a vehicle (2) Upon any highway, street, or public vehicular area; and (3) Is under the influence of an impairing substance; or has at any relevant time after the driving; or an alcohol concentration of 0.08 or more; or with any amount of a Schedule I controlled substances in the person*s blood. Sentencing Factors An attorney must first analyze for grossly aggravating factors, or simply but really bad things that proved by the State will dramatically raise the sentencing level. (1) Prior DWI conviction within 7 years of date of offense of current DWI (2) DWLR for an Impaired driving revocation at time of DWI (3) Serious injury to another person caused by defendant*s impaired driving (4) Passenger in vehicle under age 18, with a mental development of child under 18, or with a physical disability that prevents unaided exit from vehicle. If no grossly aggravating factors are present, then a judge will do a balancing test between aggravating factors (bad things) and mitigating factors (good things) and determine sentencing level based off which one outweighs the other. Aggravating Factors: (1) BAC of .15+ a relevant time after driving (2) Especially reckless or dangerous driving (3) Driving while license revoked not Impaired revocation (4) 2+ conviction within last 5 years which give 3 or more license points (5) Speeding to elude arrest (6) Speeding 30+ over the speed limit (7) Passing stopped school bus (8) Catch all any other factor that aggravates seriousness of offense Mitigating Factors: (1) BAC .08 or .09 or if no test available then slight impairment of defendant*s faculties resulting only from alcohol (2) Safe and lawful driving (3) Safe driving record with no convictions of 4+ points within the last 5 years (4) Impairment caused primarily by lawfully prescribed drug for existing medical condition within prescribed dosage (5) Voluntary substance abuse assessment (6) Completion of substance abuse assessment (7) Catch all any other factor that mitigates seriousness of offense DWI Sentencing Level 5 Punishment. The mitigating factors outweigh the aggravating factors. Minimum sentence of 1 day in jail or 24 hours of community service. Maximum sentence of 60 days in jail. Maximum judge's additional fine of $200. Level 4 Punishment. The mitigating factors and aggravating factors are balanced equally and cancel each other out. Minimum sentence of 2 days in jail or 48 hours of community service. Maximum sentence of 120 days in jail. Maximum judge's additional fine of $500. Level 3 Punishment. The aggravating factors outweigh the mitigating factors. Minimum sentence of 3 days in jail or 72 hours of community service. Maximum sentence of 6 months in jail. Maximum judge's additional fine of $1000. Level 2 Punishment. 1 grossly aggravating factor present. Minimum sentence of 7 days. Maximum sentence of 1 year in jail. Maximum judge's additional fine of $2000. Level 1 Punishment. 2 grossly aggravating factor present OR the grossly aggravating factor of minor or mentally or physically disabled passenger in the car. Minimum sentence of 30 days. Maximum sentence of 2 year in jail. Maximum judge's additional fine of $4000. Aggravated Level 1 Punishment. 3 or more grossly aggravating factor present. Minimum sentence of 1 year. Maximum sentence of 3 year in jail. Maximum judge's additional fine of $10,000. Keep in mind, that by doing continual alcohol monitoring or impatient treatment, credit can be given to be applied towards minimum and maximum sentences. Afraid of supervised probation? Do this to avoid it I represent a lot of undocumented clients, and they are very concerned about being placed on supervised probation. Fortunately N.C.G.S. * 20-179(r) provides a way to minimize the risks. All DWIs also require a substance abuse assessment and completion of all recommended treatment. Around 60% of DWIs are sentenced at the lowest level of punishment, Level 5. 60% of DWIs are sentenced to unsupervised probation. 33% are sentenced to supervised probation. 7% are given a straight active sentence. N.C.G.S. * 20-179(r): DWI Sentencing Judge shall give unsupervised probation if (1) No prior DWI within 7 years (2) Level 3, 4, or 5 (3) SAA and treatment completed UNLESS Judge determines supervised probation is necessary and states in judgment supervised probation is necessary *If Judge does order supervised probation, Judge shall authorize probation officer to modify defendant*s probation to unsupervised once defendant has (1) completed community service and (2) payment of all court costs, fines, and fees
#1 ILLEGAL *RECONVENE* GRANTED BY HEARING OFFICER This happens all the time when a hearing officer finds they do not have the witnesses or documents they need to conduct the hearing. While the Government Code allows a continuance for *good cause,* DMV does not show good cause if they could have prevented the continuance with reasonable preparation. Nor is a police officer's *vacation* good cause. If your hearing officer proposes to *reconvene* (DMV's word for *continuance*) at a later time, object to it and be ready to file a writ when your objection is overruled. #2 CONTINUANCE ILLEGALLY DENIED BY HEARING OFFICER This defense is the converse of #1 and presents itself when a motorist shows good cause for a continuance but the hearing officer denies the request. Examples of good cause are lack of proper notice by DMV, needing time to hire counsel, timing conflict with court or doctor's appointment or something important that could not reasonably be avoided, and the death or illness of an important witness. If your hearing officer proposes to deny your request for a continuance, point out that you have shown good cause under Arnett v. Office of Administrative Hearings (1996) 49 Cal.App.4th 332 and that denying the continuance is an abuse of discretion. Then be ready to file a writ and ask for attorney's fees. #3 ILLEGAL TELEPHONE TESTIMONY This defense only works if you've demanded an in-person hearing, objecting to all telephonic testimony. Hearing officers will frequently ignore this objection and call witnesses over the telephone. If the hearing officer threatens to call a witness by telephone when you have objected prior to the hearing, point out that Government Code section 800 allows for attorney's fees in such a case. Then be prepared to file a writ and seek your attorney's fees. #4 USE OF HEARSAY AS SOLE EVIDENCE While hearsay evidence is admissible at DMV hearings, it may not be used as the sole evidence of a fact unless a hearsay exception applies. Hearing officers love to use hearsay documents because they don't require subpoenas and witnesses. This defense arises when a hearing officer tries to use hearsay without showing that a hearsay exception applies. Examples of such hearsay are found in police reports all the time. For example, any breath or blood test report without proper foundation to create a hearsay exception. Similarly, any statement by a civilian witness written down in a police report is hearsay and cannot be used in any circumstance. (There is never an exception that would apply to a civilian's statement.)
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