Getting pulled over by police for suspected DUI is never fun. For many people, a DUI stop is the first serious interaction they have ever had with law enforcement. Between the flashing lights, field sobriety tests, breathalyzer tests, blood tests, handcuffs, mug shots, and time in a cell—no matter how short—this can be a highly traumatic experience. And after all this trauma, you suddenly realize that the officer who arrested you confiscated your license. Now you are looking at a nine-month revocation of your driving privileges for a first-time DUI.
However, you do have the option of requesting a DMV hearing regarding the suspension of your license. Many clients come to us wondering if they should request such a hearing. There are several factors to consider, but overall, requesting a hearing has many benefits.
Difference Between Criminal Case and DMV Case
It’s important that you don’t confuse your criminal case with your DMV case. They are not the same.
After an arrest for DUI, a county court judge presides over your criminal case. A criminal court judge can impose sanctions such as fines, community service, and other penalties up to and including jail time.
In a criminal trial, the burden of proof is the highest in our justice system: beyond a reasonable doubt. In other words, if you went to trial in criminal court, the prosecutor would have to prove that you were driving under the influence beyond a reasonable doubt. The standard is high because your liberty is at stake. And because your very freedom is in jeopardy, you have many constitutional rights, such as the right to an attorney, the right to confront witnesses against you, the right to a speedy trial, and more.
Your DMV case is not a criminal case. It is an administrative hearing where there is no judge. Instead, there is a hearing officer.
These officers are not judges; in fact, they may not even be attorneys. They are often employees of the DMV whose responsibility is to ensure that driving privileges get revoked if you drive under the influence. They cannot put you in jail; in fact, the only thing the hearing officer can do is suspend your driver’s license.
The hearing officer listens to the evidence and decides whether to suspend your license based on a much lower burden of proof than in a criminal case. Instead of “beyond a reasonable doubt,” the burden of proof in a DMV hearing is “preponderance of the evidence.” This means that the police officer only has to show the hearing officer that it is “more likely than not” that you were driving under the influence to justify suspending your license. This is a pretty low bar, and the hearing officer will likely suspend your license after the hearing.
So why go through it at all? Well, as it turns out, there are some very good reasons to request and go through a DMV hearing.
Why Should I Request a DMV Hearing?
Since the chances are pretty good that the hearing officer will suspend your license anyway, why go through all the trouble? Here is our list of reasons to request the hearing.
No-Risk: You Don’t Win Fights You Don’t Enter
Once an officer charges you with DUI, you will lose your license for a period of time. First-time DUIs carry a suspension of nine months. The only way to stop that suspension from happening is the DMV hearing. Think about it. There is no risk involved here. The DMV will automatically suspend your license if you do nothing. So why not give it a shot? Even though chances are relatively slim that you will win at this hearing, there is a chance! Why not take it? There is no downside, and the potential upside is valuable.
Currently, DMV hearings take place via zoom, so you don’t even have to show up at the DMV. You will have to show up to the DMV to request the hearing within seven days of your arrest if you refused the breathalyzer or took it and had a BAC of .08% or more. If you took a blood test and had a BAC of over .08%, the DMV will notify you via mail. You have 10 days after the notification postmark to request your DMV hearing. But the actual hearing is virtual.
Opportunity to Cross-Examine the Officer
The DMV hearing is an excellent opportunity for your lawyer to question the officer through cross-examination before trial. Typically, your lawyer would conduct a deposition of the arresting officer during the discovery phase of your criminal case. But the DMV hearing gives your attorney the opportunity to question the officer on the stand through cross-examination techniques designed to elicit information beneficial to your case.
Sometimes, at the hearing, the officer will admit to mistakes made during the arrest process—like giving bad instructions for the field sobriety tests or not waiting long enough to administer the breath test. Sometimes these mistakes are enough for the hearing officer to find in your favor and keep your license active until you resolve your criminal case.
So do not underestimate the value of this pre-trial cross-examination. It tells your lawyer how the arresting officer will hold up at trial and may provide the information needed to get your case dismissed or charges lowered.
If You Win, It May Help Your Criminal Case
The prosecutor in your criminal case might be persuaded to lower your charges or even drop your case if the DMV hearing resolves in your favor. For instance, suppose the hearing officer declares that there is not enough evidence to suspend your license under the low burden of proof necessary for DMV hearings. How could the prosecutor then think they could satisfy the much higher “beyond a reasonable doubt” standard used in criminal cases?
Don’t Delay! Call Today
As detailed above, you have only a short window of opportunity to request a DMV hearing. So do not delay. Contact Mark S. Rubinstein, P.C., right away. We know Colorado DUI laws and can protect your rights from your DMV hearing through to your criminal trial if that becomes necessary. So call or contact us online to set up your free initial consultation today.