Can I postpone my Washington Department of Licensing Hearing?

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March 28, 2015 Can I postpone my Washington Department of Licensing Hearing?Yes. You can continue or postpone the Washington State Department of Licensing (DOL) Administrative Hearing one (1) time - no questions asked. (more than once usually requires an emergency situation.) You will have to fill out an Administrative Hearing reschedule form available on the DOL website. See Link. Reschedule Hearing. You call DOL first to reschedule hearing and then fax the completed form to DOL. 

Posted at 10:08 AM in DOL administrative hearing, DOL Hearing, DOL Issues | Permalink

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FBI Announces San Diego DMV Hearing Officer Pleads Guilty to Bribery in Federal Court, part 3- How to Win DMV APS Hearings Fair and Square

This is the third blog post on the former DMV Driver Safety Officer that plead guilty to bribery charges on February 3, 2015.  Ms. Benavidez resigned from her position in December of 2014 after the FBI raided her home and office.  Ms. Benavidez, as part of her guilty plea, admitted to inappropriately issuing temporary driver's licenses, granting suspension set asides when not warranted, and disposing of DUI driver files before they could be entered into the DMV computer system.

Please note that I learned a competitor was copying and pasting this original post.  I spent years litigating and studying administrative law (that governs DMV hearings), as well as traveling all over California to hear other attorneys lecture on this topic.  I maintain close relationships with attorneys in California to discuss developments in DMV APS hearings, and also discuss winning strategies.

The first part of the blog series touched the effect of the license suspension on DUI defendants and the FBI press release.  The second on the environment in which the DMV driver license suspensions occur- they are in a small room with just the hearing officer, a recording system, the driver's attorney and their witnesses.  This is a very close environment to cross examine a law enforcement officer- they can not run away.

In this blog post, I will discuss how to win at the DMV APS hearing.  It is not easy for all the reasons listed in the previous post- the standard is low (preponderance of the evidence), the judge is also the prosecutor, there are institutional pressures for DMV driver safety officers to suspend driver's licenses, and the appeal process is lengthy and expensive.

The first key to winning DMV hearings is to know the law.  The DMV hearing officer has the same roles as both a judge and prosecutor.  However, DMV hearing officers are not held to uphold the law- there is no DMV hearing officer equivalent to the State of California Commission on Judicial Performance.

Second, is to cite the appropriate law.  This may be intuitive, but it isn't.  Many times the difference between winning and losing is showing that you can win.  In legal environments, that means proper citations, or showing that the law can be utilized and accessed as a tool.  This is opposed to having a general idea of what the law is. An attorney showing they can win in the later stages (DMV Departmental Review, Civil Writ) the DMV is less likely to press to the later stages.

Third, object, Object, OBJECT.  Since the DMV hearing is recorded, and the only basis for a Departmental Review or civil litigation review is the audio, it is very important to preserve the record by objecting and citing the objection.  Only a skilled an experienced litigator knows when to object, and when to let procedural objections pass.  Ask your attorney about their litigation experience and success.

I must move to another blog entry to cover the remaining strategies.  The DMV hearing process is one of the most complex and difficult aspects of specializing in DUI law.  But it is the difficulty that makes it so enticing, and the victories so rewarding.  Similarly, anyone who cheats or violates the system is an affront to the system as a whole- no matter what their role.  Due to the severity of this violation, it will also be briefly discussed in the next post.?

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Overview of the preliminary hearing in a DUI case

A person in New Jersey who has decided to plead not guilty to a DUI charge will probably attend a preliminary hearing. When a defendant pleads guilty, there is no preliminary hearing because the defendant is essentially admitting to the charges and agreeing to go straight to sentencing.

A preliminary hearing is a hearing that takes place a short time after the arraignment and before the actual trial. During the preliminary hearing, a judge will hear arguments from the prosecution and the defense and decide whether to proceed to a trial. If a judge finds that the prosecution has a strong case against the defendant, the case will go to trial. If the defendant's attorney is able to convince the judge that the prosecution's case is weak, the case will be dismissed, and there will be no need for a trial.

When a judge is making a decision about a case during the preliminary hearing, they are considering whether the prosecution has enough evidence to convince a reasonable jury that the defendant is guilty of DUI. The defense will have an opportunity to cross-examine any witnesses for the prosecution and dispute the validity of any evidence that is being presented by the prosecution.

In a majority of DUI cases, there is no preliminary hearing because the defendant agrees to plead guilty to the charges. Although pleading guilty is sometimes the best option, a defendant might want to consult an attorney before deciding how to plead. If an individual has a strong chance of having their case dismissed, an attorney may advise them to plead not guilty and then help represent their position at the preliminary hearing.

Tags: Drunk Driving Charges

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Illegal Evidence Inadmissible in Court…but OK for License Suspension Hearing?

I’ve posted often in the past about "The DUI Exception to the Constitution" and how constitutional rights in drunk driving cases have been steadily eroded over recent years.  See, for example, The DUI Exception to the Constitution and Who Cares About DUI Suspects?.  

One of the most extreme examples of this is the near absence of due process and constitutional rights in administrative license suspension hearings.  See DUI DMV Hearing: Where’s the Due Process?.     

To take one example, let’s take a  look at California’s system of "due process" in a DUI license suspension proceeding.  To begin with, the hearing is not presided over by a judge or even an "administrative law judge" — or even a lawyer.  Rather, it is presided over by a "hearing officer" who has no legal training, and possibly not even a college degree — and yet he will be making decisions on such things as admissibility of evidence without  any training in evidence or other legal matters.  Worse, this supposedly "impartial" hearing officer is an employee of the DMV — the very agency who is suspending the license (and wants to see the suspension upheld)!  

So who is the prosecutor in the DMV license suspension hearings?  Same Guy.  Yes, this uneducated employee of the DMV serves as both prosecutor and judge!  If the hearing officer offers evidence against the accused driver, and the driver makes a legal objection, this same hearing officer rules on that objection and decides whether his own offered evidence is admissible.  He will, of course, decide at the end of the proceeding whether his employer’s suspension against the driver is upheld or reversed.  You can imagine the inevitable outcome.

To take a recent example of this extreme denial of constitutional rights in a DUI case, reported in The Newspaper.com:

North Carolina Court Admits Illegally Obtained Evidence in License Case

Police may not violate constitutional rights to obtain a drunk driving conviction, but the Department of Motor Vehicles (DMV) can. The North Carolina Court of Appeals came to that conclusion last week in reinstating the driver’s license suspension of Myra Lynne Combs.

On January 6, 2013, Mount Airy Police Officer David Grubbs wrongly stopped Combs, who was behind the wheel of a blue SUV. An anonymous caller reported seeing a blue Ford Explorer weaving on Highway 52. Officer Grubs saw Combs, but her driving was just fine. She neither weaved nor committed any traffic violations. Officer Grubbs decided to stop her anyway once she had reached her destination….

Combs smelled of alcohol, and she was unable to pass the standard battery of field sobriety tests. Combs refused to undergo a breath test. Although she was arrested for driving under the influence of alcohol (DUI), the Surry County District Court tossed the criminal case because the officer violated the Constitution in stopping her illegally. The North Carolina Department of Motor Vehicles (DMV), however, was unwilling to let Combs off the hook. It revoked her driver’s license based solely on the illicitly obtained evidence. The DMV argued that the exclusionary rule does not apply to a civil proceeding. Combs argued that this was unfair. The trial judge told the DMV it could not base its action on illegal evidence, but the appellate court disagreed.

"Combs’s argument poses a fair question: how can law enforcement use evidence that was suppressed because of a Fourth Amendment violation to later revoke her driver’s license?" Court of Appeals Judge Richard Dietz asked. "The answer, according to several published decisions of this court, is that the exclusionary rule — a bedrock principle of criminal law — does not apply to license revocation proceedings."…

And so goes the slow death of the Constitution…

Thanks to Joe.

This entry was posted on Thursday, February 12th, 2015 at 2:31 pm and is filed under Duiblog. You can follow any responses to this entry through the RSS 2.0 feed. You can skip to the end and leave a response. Pinging is currently not allowed.

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FBI Announces DMV Hearing Officer Pleads Guilty to Bribery in Federal Court

California Department of Motor Vehicles- Driving Change

On February 3, 2015, the FBI issued a press release that a former DMV Driver Safety Officer pled guilty to bribery charges in federal court.  The hearing officer, Ms. Benavidez, admitted that from 2005 to 2014 she accepted over $5,000 in bribes, including $250- $750 in checks, Ray Ban sunglasses, Juicy Couture handbag, and Cheesecake Factory gift certificate.

This is disturbing for a number of reasons, but it is not completely unfathomable.  Practicing criminal defense with a specialty in DUIs, I pride myself on my diligent DMV representation.  My DMV hearings are always in person.  The DMV hearing is also an excellent opportunity to learn more about the case.

The DMV hearing is not like any other administrative hearing.  First, the hearing officer is the prosecutor and the judge.  Many hearing officers are excellent in this capacity, with knowledge in the Evidence Code and applicable case law allowing the defense attorney to present their case and make a record.  Bad hearing officers do not know the Evidence Code and believe that confrontation with an attorney is as good as being an attorney.  Good DMV hearing officers are also familiar with the applicable legal standards- the elements need only be a preponderance of the evidence, as opposed to beyond a reasonable doubt in a court of law.

The DMV hearings are also reviewed by their supervisors- no “set aside” (when the suspension is ended, and the driving privilege is resumed) is found without a supervisor Making Sure that it is the only, just result.  Finally, DMV hearings have the very strong appearance that it is not only important to be right, but to be right for the correct reasons.  I call this the algebra factor- it's not the answer, but how you got to the answer.  It is a culture in the driver safety offices that it is their job to suspend licenses, and they are encouraged to do so.

The last factor is the remedy for a poorly decided hearing.  First, there is a “departmental review.”  In this scenario, a recording of the hearing, and all documentation, is sent to a DMV office in Sacramento.  The DMV charges $125 for this review, not including what your attorney may charge.  I've learned how to maximize the departmental review based on discussions with other defense attorneys comparing tactics and results.  During the review, the driver's license is still suspended.

Or, the driver can appeal the case to the Civil Division of Superior Court.  It is not a criminal case (recall, driving is a privilege, not a right).  So the filing fee is about $365.  The court assumes the finding of fact are correct, and it is the legal standard that is reviewed.  Prior to the decision, any DUI attorney worth his salt will motion the court for interim relief- that the client be allowed to drive pending the decision.  If not granted, the appeal can take months.

Meanwhile, the driver's suspension for a standard first time, no injury, DUI can be as low as one month with a five month restricted driver's license (restricted- can only drive to school, work, or other necessary events).  After the one month hard suspension, most clients are not interested in paying more money for a court review.  Either it is a very good case, DUI while on DUI probation (one year suspension), or there is little practicality in challenging the DMV's decision.  Long story short, there is little court review of DMV decisions.

So, you have a class of people that are generally vilified, an administrative structure built on suspending licenses, and little oversight for bad decisions.  Also, DMV hearing officers are not lawyers, and need not have a bachelor's degree to qualify.  Not that lawyers are a separate class, but we are licensed by the state and are sworn to uphold both the body and spirit of the law.  We are sworn to do our best to do the right thing, whereas DMV hearing officers are not.  They are also paid well, but not great.  *A review of a DMV driver safety officer job announcement has their maximum pay at around $60,000.

It creates a perfect environment for abuse.  The pressures and stresses on lawyers can also be significant, and will be discussed in the next blog entry.  These are lawyers that San Diego US Attorney Laura Duffy called, “co-conspirators."

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FBI Announces San Diego DMV Hearing Officer Pleads Guilty to Bribery in Federal Court, Part 2

Last week I wrote a blog post about the former San Diego Safety Officer (DSO, Hearing Officer) pleading guilty to bribery charges in federal court. Also, there was a brief discussion of the environment in which the DMV APS hearing takes place. APS stands for Administrative Per Se- which refers to the .08% BAC DUI license suspension. Because hearing officers are not lawyers, they are not regulated by the state. The appellate review process is extensive and expensive, so there is not a large body of law to guide hearing officers towards the right decision. By default, the right decision is to suspend the driver's license.

From the point of view of the lawyer, it can be very frustrating. In this blog post, some of those frustrations will be discussed.

In a DMV driver license hearing, all the hearing officer needs to prove is that three elements were met: that the driver was “driving” (put behind the wheel); that the driver was found to be greater than .08%; and that there was probable cause to stop the driver. The standard, because it is an administrative hearing, is a mere preponderance of the evidence- which is sometimes equated to 50%.

In a typical new client consultation for a DUI, the license can be their biggest concern. Particularly if a person is a salesperson, executive, single parent, or a number of other unique circumstances. I had one client that was a process server. And everyone, across the entire socio-economic spectrum, gets DUIs. When I tell a client their case can be dismissed and they still get their license taken away, they are crushed. And this can lead to temptation.

DUI hearings are very difficult for the reasons stated above and in the last post. From a lawyering perspective, we are taught the difference between what we know, and what we think. Even if what we “think” is the most likely scenario, it is essentially useless because it is not certain. Certain is what we know. The DMV has little incentive to follow the cold, hard evidentiary rules, as well as common sense differences between know and think, when, from their perspective, they are pulling the license of a drunk driver. In other words, who cares, or why should they care?

So a lawyer defending a driver in a DMV APS hearing can be right, and still lose. A better explanation may be that if the driver's case was a law school exam, he would win- the precise execution of evidentiary rules, and excluding all assumptions, there is no case. But in the real world, in the real DMV world, a driver's license can be suspended with a dare- if you think we're wrong, appeal it.

It falls on the lawyer to tell the bad news to the prospective driver- to be the voice of the system. It may be unfair, but there is societal pressure that supports the system- fair or not. For instance, the Union Tribune articles don't state, “single mother paid DMV employee to keep her license to keep her job and stay off welfare,” or “license suspension avoided so father can keep joint custody of his son.” But these are real world scenarios we see all the time.  Instead, the San Diego Union Tribune perceives the story as a conspiracy to keep DUI drivers on the road.

Which is the lead in to the last and final blog post in this series- how a successful San Diego DUI attorney handles- and wins- DMV APS hearings honestly and ethically.

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Will I be required to appear at the 5-year hearing on a deferred prosecution?

THE DUISEATTLE.COM BLOG : Will I be required to appear at the 5-year hearing on a deferred prosecution? THE DUISEATTLE.COM BLOG Your Community Resource for DUI and Criminal Traffic Defense in Washington State. Writings of Seattle DUI Lawyer and Seattle Criminal Lawyer W. James Kotlowski. A Discussion of Washington State DUI, Physical Control, Reckless Driving, Negligent Driving, Deferred Prosecution, Department of Licensing and Criminal Traffic Law Issues. 20 years of experience. Call or Text - 206.335.2422 for a Free Consultation. HomeArchivesProfileSubscribe Lawyer Walter Kotlowski | Top Attorney DUI How long will my DUI case last?Will I be required to appear at the 5-year hearing on a deferred prosecution? Will a Fourth DUI be a felony in Washington State?How many days do I have to request a DOL Hearing?Will a DUI probation violation suspend my license?Will my alcohol evaluation be accessible by the public?Am I entitled to an attorney at my DUI Probation Violation Hearing?Is Washington State coming out with a new breath test machine?Will the roadside portable breath test (PBT) at the vehicle be used in my DUI case?Will my license be punched when arrested for DUI? Search OFFICEContact Information
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Categories20 day hearing notice2012 Boating opening day2013 Boating Under the Influence2nd deferred prosecution60 days ABOUT THE AUTHORAlcohol ReportAlcohol/Drug EvaluationalcoholismArraignmentAttorney FeesBAC LimitBailBail Bond CompanyBail HearingBoating chargesBoating under the influencebreath test machineBreath Test RecordsBUICanadaChanges to the Law Choosing an AttorneyCommunity Serviceconditions of releaseCost of DUICourt CostsCourt ProcessCourt Recordscoverage areaCriminal History (DCH)Current AffairsCustodydeferred prosecutiondeferred sentenceDifferences in JurisdictionDifferent JurisdictionsDOL administrative hearingDOL HearingDOL IssuesDOL SubpoenasDraegerDrivers LicenseDriving TestDUI arrestDUI arrest DUI arrest videoDUI BailDUI BlogsDUI Deferred ProsecutionDUI filingDUI JailDUI newsDUI Payment PlansDUI preventive measuresDUI ProbationDUI Probation violationsDWLS/3EHDEHMEmergency Vehicles Employer ExemptionevidenceExpert Expunge DUIFelony DUIfinesGamesHelpful TipsHiring an attorneyHit & RunIgnition Interlock LicenseIIDIILImmigration ConsequencesIMPOUNDImpound LawInterstate drivers license compactinvestigationJailjurisdictionJurorsJury Trialmental health deferredMissed DOL Hearing NVOLOccupational LicenseOfficeOne a lifetimeonline case evaluationPayment PlansPBTPDRPlea BargainPractical TipsPre-arrestpre-trial hearingsPrescription Drugsprobable cause to arrestProbable Cause to StopProbable Cause to Stop ProbationProbation Probation OfficerProbation ViolationPunched LicensequestionsRALJReckless DrivingReinstate LicenseRelapseRestricted Licenserevoked deferred prosecutionRight to AttorneyRoad BlocksSCRAMSeattle Municipal CourtSentencingSentencing OptionsSOCSOLSPDSpecial Series: DUI 2012 Law ChangesSR-22 InsuranceState ID statementsStatementssuspension period expirestalk to policeTow feesTracking InfractionsTraffic SchoolTravelTravel to CanadaTreatmentVacate DUIVacate recordvideoviolation of conditions or releasewaiveWarrantsWashington State DUI NewsWashington State Ferry WitnessesDUI Newshttp://www.wkyt.com/home/headlines/Senator-talks-about-DUI-charge--289625721.html
SCOTUS to hear Colorado DUI blood test case « Hot Air
Video emerges of Texas judge who failed sobriety test and DUI charges dropped | Daily Mail Online

Beer batter led to DUI? 5 craziest crimes of week
http://www.indystar.com/story/news/crime/2014/12/11/indiana-judge-resigning-after-dui-clarksville-mickey-weber/20239393/
Judge on trial: Cynthia Imperato's DUI and reckless driving case will be heard by a jury starting Dec. 16 - Sun Sentinel
SEE IT: Texas judge stumbles through DUI sobriety test - NY Daily News
New award recognizes DUI officers doing exceptional work | www.kirotv.com
This victim impact panel is for young people charged with DUI - Chicago Tribune
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CELEBRITY DUISDetroit Lions' Nick Fairley rejects plea offer in DUI case | AL.com
Yolanda Foster Opens Up About Daughter Bella Hadid's Shocking and Disappointing DUI Arrest | E! Online
Manziel’s bodyguard arrested for DUI, while driving Manziel’s car | ProFootballTalk
Snooki's Husband Jionni LaValle Pleads Guilty to DUI After Wedding - Us Weekly
Rapper Xzibit Arrested for Alleged DUI Shortly After Getting Married - Yahoo
Amanda Bynes pleads no contest to 'wet reckless' in DUI case - latimes.com
Justin Bieber Reportedly Rejects DUI Plea Deal | Celebrity-gossip.net
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January 26, 2015 Will I be required to appear at the 5-year hearing on a deferred prosecution?Maybe. It depends on the Court. This is the hearing where your DUI is dismissed. If you are in compliance, timely completed the 2-year treatment and complied with all the other court's conditions - your appearance is usually not required in most Courts. However, I would check with the Court Clerk or your attorney just to be sure. 

Posted at 12:54 AM in deferred prosecution, Differences in Jurisdiction | Permalink

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How many days do I have to request a DOL Hearing?

THE DUISEATTLE.COM BLOG : How many days do I have to request a DOL Hearing? THE DUISEATTLE.COM BLOG Your Community Resource for DUI and Criminal Traffic Defense in Washington State. Writings of Seattle DUI Lawyer and Seattle Criminal Lawyer W. James Kotlowski. A Discussion of Washington State DUI, Physical Control, Reckless Driving, Negligent Driving, Deferred Prosecution, Department of Licensing and Criminal Traffic Law Issues. 20 years of experience. Call or Text - 206.335.2422 for a Free Consultation. HomeArchivesProfileSubscribe Lawyer Walter Kotlowski | Top Attorney DUI How many days do I have to request a DOL Hearing?Will a DUI probation violation suspend my license?Will my alcohol evaluation be accessible by the public?Am I entitled to an attorney at my DUI Probation Violation Hearing?Is Washington State coming out with a new breath test machine?Will the roadside portable breath test (PBT) at the vehicle be used in my DUI case?Will my license be punched when arrested for DUI?What happens at my 1st DUI Court appearance?How many days do I have to appeal a DOL Decision?How many Jurors will be in my DUI Trial? Search OFFICEContact Information
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December 13, 2014 How many days do I have to request a DOL Hearing?20 days from the date of your arrest. This can be completed online or by mail. See link to Department of Licensing (DOL). Request DOL Hearing Cost is $375.00. See Mail in Form 

Posted at 04:43 PM in DOL administrative hearing, DOL Hearing, DOL Issues | Permalink

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What is an Administrative Hearing in South Carolina in DUI/Drunk Driving Cases?

First, this is a confusing area of the law for many drivers who find themselves arrested or charged with DUI and also facing an “administrative suspension.” If you are confused it is probably because it is confusing. What is an “administrative suspension” and what is an “administrative hearing?”

The South Carolina law on point is fully listed below, but here are the highlights:

1. An administrative suspension is totally separate and distinct from the DUI charge. It is handled in front of a different court where different rules and procedures apply than the DUI charge.

2. An administrative suspension is usually sought against a driver in a DUI case who either refuses the breath test or takes the breath test and registers .15 percent or higher.

3. An administrative suspension from 30 days on up to six months, generally, is what is at stake for the driver in this administrative action. Any suspension levied administratively is in addition to any license suspensions levied because of a DUI conviction.

4. The hearing takes place before a hearing officer and not a jury. The basic issues are whether or not there was probable cause to justify the DUI arrest, and whether or not the breath test was offered according to SLED procedure.

5. An important point is that this hearing must be requested promptly within 30 days of the date of the arrest or else the driver has forfeited the right for this hearing.

SECTION 56-5-2951. Suspension of license for refusal to submit to testing or for certain level of alcohol concentration; temporary alcohol license; administrative hearing; restricted driver’s license; penalties.

(A) The Department of Motor Vehicles must suspend the driver’s license, permit, or nonresident operating privilege of or deny the issuance of a license or permit to a person who drives a motor vehicle and refuses to submit to a test provided for in Section 56-5-2950 or has an alcohol concentration of fifteen one-hundredths of one percent or more. The arresting officer must issue a notice of suspension which is effective beginning on the date of the alleged violation of Section 56-5-2930, 56-5-2933, or 56-5-2945.

(B) Within thirty days of the issuance of the notice of suspension, the person may:

(1) obtain a temporary alcohol license by filing with the Department of Motor Vehicles a form for this purpose. A one hundred dollar fee must be assessed for obtaining a temporary alcohol license. Twenty-five dollars of the fee must be distributed by the Department of Motor Vehicles to the Department of Public Safety for supplying and maintaining all necessary vehicle videotaping equipment. The remaining seventy-five dollars must be placed by the Comptroller General into a special restricted account to be used by the Department of Motor Vehicles to defray its expenses. The temporary alcohol license allows the person to drive without any restrictive conditions pending the outcome of the contested case hearing provided for in subsection (F) or the final decision or disposition of the matter. If the suspension is upheld at the contested case hearing, the temporary alcohol license remains in effect until the Office of Motor Vehicle Hearings issues the hearing officer’s decision and the Department of Motor Vehicles sends notice to the person that he is eligible to receive a restricted license pursuant to subsection (H); and

(2) request a contested case hearing before the Office of Motor Vehicle Hearings in accordance with its rules of procedure.

At the contested case hearing if:

(a) the suspension is upheld, the person’s driver’s license, permit, or nonresident operating privilege must be suspended or the person must be denied the issuance of a license or permit for the remainder of the suspension period provided for in subsection (I). Within thirty days of the issuance of the notice that the suspension has been upheld, the person must enroll in an Alcohol and Drug Safety Action Program pursuant to Section 56-5-2990;

(b) the suspension is overturned, the person must have his driver’s license, permit, or nonresident operating privilege reinstated.

The provisions of this subsection do not affect the trial for a violation of Section 56-5-2930, 56-5-2933, or 56-5-2945.

(C) The period of suspension provided for in subsection (I) begins on the day the notice of suspension is issued, or at the expiration of any other suspensions, and continues until the person applies for a temporary alcohol license and requests a contested case hearing.

(D) If a person does not request a contested case hearing, he waives his right to the hearing, and his suspension must not be stayed but continues for the period provided for in subsection (I).

(E) The notice of suspension must advise the person of his right to obtain a temporary alcohol driver’s license and to request a contested case hearing before the Office of Motor Vehicle Hearings. The notice of suspension also must advise the person that, if he does not request a contested case hearing within thirty days of the issuance of the notice of suspension, he waives his right to the administrative hearing, and the suspension continues for the period provided for in subsection (I). The notice of suspension also must advise the person that if the suspension is upheld at the contested case hearing or if he does not request a contested case hearing, he must enroll in an Alcohol and Drug Safety Action Program.

(F) A contested case hearing must be held after the request for the hearing is received by the Office of Motor Vehicle Hearings. The scope of the hearing is limited to whether the person:

(1) was lawfully arrested or detained;

(2) was given a written copy of and verbally informed of the rights enumerated in Section 56-5-2950;

(3) refused to submit to a test pursuant to Section 56-5-2950; or

(4) consented to taking a test pursuant to Section 56-5-2950, and the:

(a) reported alcohol concentration at the time of testing was fifteen one-hundredths of one percent or more;

(b) individual who administered the test or took samples was qualified pursuant to Section 56-5-2950;

(c) tests administered and samples obtained were conducted pursuant to Section 56-5-2950; and

(d) machine was working properly.

Nothing in this section prohibits the introduction of evidence at the contested case hearing on the issue of the accuracy of the breath test result.

A written order must be issued to all parties either reversing or upholding the suspension of the person’s license, permit, or nonresident’s operating privilege, or denying the issuance of a license or permit. If the suspension is upheld, the person must receive credit for the number of days his license was suspended before he received a temporary alcohol license and requested the contested case hearing.

The Department of Motor Vehicles and the arresting officer shall have the burden of proof in contested case hearings conducted pursuant to this section. If neither the Department of Motor Vehicles nor the arresting officer appears at the contested case hearing, the hearing officer shall rescind the suspension of the person’s license, permit, or nonresident’s operating privilege regardless of whether the person requesting the contested case hearing or the person’s attorney appears at the contested case hearing.

(G) A contested case hearing is governed by the Administrative Procedures Act, and a person has a right to appeal the decision of the hearing officer pursuant to that act to the Administrative Law Court in accordance with its appellate rules. The filing of an appeal stays the suspension until a final decision is issued on appeal.

(H)(1) If the suspension is upheld at the contested case hearing, the person must enroll in an Alcohol and Drug Safety Action Program pursuant to Section 56-5-2990 and may apply for a restricted license if he is employed or enrolled in a college or university. The restricted license permits him to drive only to and from work and his place of education and in the course of his employment or education during the period of suspension. The restricted license also permits him to drive to and from the Alcohol Drug Safety Action Program classes or to a court-ordered drug program. The department may issue the restricted license only upon showing by the individual that he is employed or enrolled in a college or university, that he lives further than one mile from his place of employment, place of education, or location of his Alcohol and Drug Safety Action Program classes, or the location of his court-ordered drug program, and that there is no adequate public transportation between his residence and his place of employment, his place of education, the location of his Alcohol and Drug Safety Action Program classes, or the location of his court-ordered drug program.

(2) If the department issues a restricted license, it must designate reasonable restrictions on the times during which and routes on which the individual may drive a motor vehicle. A change in the employment hours, place of employment, status as a student, status of attendance of Alcohol and Drug Safety Action Program classes, status of attendance of his court-ordered drug program, or residence must be reported immediately to the department by the licensee.

(3) The fee for a restricted license is one hundred dollars, but no additional fee may be charged because of changes in the place and hours of employment, education, or residence. Twenty dollars of this fee must be deposited in the state general fund, and eighty dollars must be placed by the Comptroller General into a special restricted account to be used by the Department of Motor Vehicles to defray the expenses of the Department of Motor Vehicles.

(4) Driving a motor vehicle outside the time limits and route imposed by a restricted license by the person issued that license is a violation of Section 56-1-460.

(I)(1) The period of a driver’s license, permit, or nonresident operating privilege suspension for, or denial of issuance of a license or permit to, an arrested person who has no previous convictions for violating Section 56-5-2930, 56-5-2933, or 56-5-2945, or any other law of this State or another state that prohibits a person from driving a motor vehicle while under the influence of alcohol or another drug within the ten years preceding a violation of this section, and who has had no previous suspension imposed pursuant to Section 56-5-2950 or 56-5-2951 within the ten years preceding a violation of this section is:

(a) six months for a person who refuses to submit to a test pursuant to Section 56-5-2950; or

(b) one month for a person who takes a test pursuant to Section 56-5-2950 and has an alcohol concentration of fifteen one-hundredths of one percent or more.

(2) The period of a driver’s license, permit, or nonresident operating privilege suspension for, or denial of issuance of a license or permit to, an arrested person who has been convicted previously for violating Section 56-5-2930, 56-5-2933, or 56-5-2945, or any other law of this State or another state that prohibits a person from driving a motor vehicle while under the influence of alcohol or another drug within the ten years preceding a violation of this section, or who has had a previous suspension imposed pursuant to Section 56-5-2950 or 56-5-2951 within the ten years preceding a violation of this section is:

(a) for a second offense, nine months if he refuses to submit to a test pursuant to Section 56-5-2950 or two months if he takes a test pursuant to Section 56-5-2950 and has an alcohol concentration of fifteen one-hundredths of one percent or more;

(b) for a third offense, twelve months if he refuses to submit to a test pursuant to Section 56-5-2950 or three months if he takes a test pursuant to Section 56-5-2950 and has an alcohol concentration of fifteen one-hundredths of one percent or more; and

(c) for a fourth or subsequent offense, fifteen months if he refuses to submit to a test pursuant to Section 56-5-2950 or four months if he takes a test pursuant to Section 56-5-2950 and has an alcohol concentration of fifteen one-hundredths of one percent or more.

(J) A person’s driver’s license, permit, or nonresident operating privilege must be restored when the person’s period of suspension under subsection (I) has concluded, even if the person has not yet completed the Alcohol and Drug Safety Action Program in which he is enrolled. After the person’s driving privilege is restored, he must continue the services of the Alcohol and Drug Safety Action Program in which he is enrolled. If the person withdraws from or in any way stops making satisfactory progress toward the completion of the Alcohol and Drug Safety Action Program, the person’s license must be suspended until the completion of the Alcohol and Drug Safety Action Program. A person must be attending or have completed an Alcohol and Drug Safety Action Program pursuant to Section 56-5-2990 before his driving privilege can be restored at the conclusion of the suspension period.

(K) When a nonresident’s privilege to drive a motor vehicle in this State has been suspended under the provisions of this section, the department must give written notice of the action taken to the motor vehicle administrator of the state of the person’s residence and of any state in which he has a license or permit.

(L) The department must not suspend the privilege to drive of a person under the age of twenty-one pursuant to Section 56-1-286 if the person’s privilege to drive has been suspended under this section arising from the same incident.

(M) A person whose driver’s license or permit is suspended pursuant to this section is not required to file proof of financial responsibility.

(N) An insurer may not increase premiums on, add surcharges to, or cancel the automobile insurance of a person charged with a violation of Section 56-1-286, 56-5-2930, 56-5-2933, or 56-5-2945, or another law of this State or another state that prohibits a person from driving a motor vehicle while under the influence of alcohol or another drug based solely on the violation unless he is convicted of the violation.

(O) The department must administer the provisions of this section and must promulgate regulations necessary to carry out its provisions.

(P) If a person does not request a contested case hearing within the thirty-day period as authorized pursuant to this section, the person may file with the department a form after enrolling in a certified Alcohol and Drug Safety Action Program to apply for a restricted license. The restricted license permits him to drive only to and from work and his place of education and in the course of his employment or education during the period of suspension. The restricted license also permits him to drive to and from Alcohol and Drug Safety Action Program classes or a court-ordered drug program. The department may issue the restricted license at any time following the suspension upon a showing by the individual that he is employed or enrolled in a college or university, that he lives further than one mile from his place of employment, place of education, the location of his Alcohol and Drug Safety Action Program classes, or the location of his court-ordered drug program, and that there is no adequate public transportation between his residence and his place of employment, his place of education, the location of his Alcohol and Drug Safety Action Program classes, or the location of his court-ordered drug program. The department must designate reasonable restrictions on the times during which and routes on which the individual may drive a motor vehicle. A change in the employment hours, place of employment, status as a student, status of attendance of Alcohol and Drug Safety Action Program classes, status of his court-ordered drug program, or residence must be reported immediately to the department by the licensee. The route restrictions, requirements, and fees imposed by the department for the issuance of the restricted license issued pursuant to this item are the same as those provided in this section had the person requested a contested case hearing. A restricted license is valid until the person successfully completes a certified Alcohol and Drug Safety Action Program, unless the person fails to complete or make satisfactory progress to complete the program.

HISTORY: 1998 Act No. 434, Section 8; 1999 Act No. 115, Sections 7, 8, 13; 1999 Act No. 100, Part II, Section 11; 1999 Act No. 115, Section 15; 2000 Act No. 390, Sections 15 to 22; 2001 Act No. 79, Sections 2.I.1. and 2.I.2.; 2002 Act No. 296, Sections 2, 3; 2002 Act No. 348, Sections 10 and 11; 2002 Act No. 354, Sections 4 and 5; 2003 Act No. 61, Section 7; 2006 Act No. 381, Section 7, eff June 13, 2006; 2008 Act No. 201, Section 10, eff February 10, 2009; 2012 Act No. 212, Section 4, eff June 7, 2012; 2012 Act No. 264, Section 5, eff June 18, 2012.

South Carolina DUI Attorney Steve Sumner primarily handles misdemeanor and felony DUI/drunk driving defense. Steve is a South Carolina Super Lawyer® in the field of DUI defense. He is a member of the National Trial Lawyers: Top 100 Trial Lawyers™. He is a member the National College for DUI Defense, holds an AV-preeminent rating from Martindale-Hubbell® and a “Superb” ranking with Avvo. He is a frequent lecturer and author on topics related to the defense of DUI charges. He represents clients in Greenville, Spartanburg and Anderson counties, South Carolina.

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Fee Increase to Request Administrative DOL Hearing

Washington DOL Increases Fee for DUI Administrative Hearing Requests | Washington DUI Washington DUI HomeAbout Our FirmYour DUI DefenseDUI Facts and InfoBlogContact Recent Posts DUI With Child in Car? Preparing for CPS Referral in Washington DUI Cases Challenges, Stays and Early Reinstatements of HTO License RevocationsPhysical Control in Washington - Confusion, Elements and DefensesSeattle and Washington State Marijuana DUI LawFee Increase to Request Administrative DOL HearingNew Washington DUI Laws Address Reckless Driving, Home Detention And HuffingReductions From DUI to Reckless Driving No Longer To Result In Additional License SuspensionsDUI Victims Panel, Attend Early, Be ProactiveDUI Emphasis Patrols for King, Pierce and Snohomish Counties Announced for St. Patrick's DaySeattle Police Officer Arrested For DUI; Refuses Field Sobriety TestsMore Fee Increase to Request Administrative DOL Hearing Submitted by tcmilios on Tue, 10/02/2012 - 12:20pm

Effective October 1, 2012, the State of Washington now requires that any driver arrested for a DUI who either refuses a breath/blood test or provides a blood or breath sample in excess of the .08 legal limit, must now pay an administrative fee of $375.00 in order to contest the proposed license suspension or revocation.  This represents an almost 100% increase above the previous fee of $200.00.  Despite the fact this new law did not take effect until October 1st, the DOL's position is that the fee applies retroactively so that even in incidents prior to October 1st, the new fee must be paid.  Given the 20 day deadline to request a hearing, the new law effectively applies to all incidents that occurred on or after September 11, 2012.  A word of caution: for all incidents that occurred prior to October 1, 2012, it is likely that the hearing request form provided to the driver will state that only the $200 fee must be provided.  Per the Department of Licensing, any request made after October 1st that does not include the increased fee will be denied.  Whether the applicant would be given the opportunity to provide the difference remains to be seen.  Further, it is also likely that even after October 1st, law enforcement will continue to provide the old outdated forms. 

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Use of this legal website constitutes acceptance of the Milios Defense Terms of Service. The material on this site is for informational purposes only regarding DUI legal issues, and is not a substitute for legal advice provided by an attorney or lawyer and does not establish an attorney-client relationship. © 2014 Milios Defense, LLP. We want to be your Seattle DUI Attorney. All rights reserved. Seattle DUI Lawyer website Last Updated: October 27, 2014.

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Former South Hadley Prosecutor Testifies At Boston Bullying Hearing – Attorney Sam’s Take

How do former Massachusetts prosecutorial politicians and general politicians admit that they were wrong? Well, they don’t. They simply, and quietly, try to seek a “do over”, as young kids would say.

And so it was that former South Hadley prosecutor, Elizabeth Scheibel (hereinafter, “EXDA”), joined with others yesterday to address the fact that her and other heroic (and speedy) legislators’ measures regarding bullying do not seem to be working very well.

You remember EXDA, don’t you? In response to the public outcry of Phoebe Prince’s suicide, she is the political prosecutor (“PP”) who made headlines, instead of sense, when she indicted a bunch of kids for, when it comes down to it, bullying. Rather than doing further investigation (which the media did later for her), it was more palatable for her to ruin the lives of the other kids involved.

The transparently political move, while gaining accolades at first, soured in the light of day and she thereafter retired. However, the damage had been done. Part of that damage was to “up the ante” with her fellow politicians regarding bullying. So, in true political fashion, they pushed through what they called “the toughest anti-bullying law in the country” Unfortunately, the awesome law did little save give a false sense of security to the general public and confuse those who had to actually read the thing.

Oh. And it also gave us "No Name Calling Day".

Well, since the bullying problem is, if anything, getting worse, folks are meeting to figure out what to do. A hearing took place at the State House in Boston yesterday. It was convened by PP Attorney General Martha Coakley, who is leading a seven-member panel charged with assessing the anti-bullying law enacted last year.

There were various participants testifying. For purposes of this blog, EXDA was the most interesting of them. One of the obvious problems that she addressed was that there are no “teeth” in the bill as described in this blog on Tuesday.

EXDA opined that the anti-bullying law should be more like laws governing child abuse, a criminal offense, which require a broad range of caretakers to report suspected abuse or face civil penalties.

The law does urge school officials to refer anything that could be considered criminal to law enforcement. EXDA, however, feels it should go further. She suggested that administrators report to prosecutors all episodes they have determined to be bullying, not just those they believe are criminal, as the law currently demands.

EXDA explained that referring credible bullying cases to law enforcement would not increase the number of criminal prosecutions because law enforcement officials share school administrators’ hopes of keeping students out of the criminal justice system.

Apparently, this is a bad thing in EXDALAND.

However, EXDA explains, prosecutors do not have such an odd reluctance. Further, she says, that district attorney’s offices are better equipped to make the call when criminal charges are appropriate.

Coakley declined to comment on Scheibel’s testimony.

I have been imbedded in the criminal justice system for over 25 years. I have been on both sides of the aisle. I think I have a fairly accurate picture of who the players and their mindsets.

Judges judge. They are human, of course, and therefore susceptible to various influences like the rest of us. However, they try to rise above that and they judge. Defense attorneys defend. It is what we are supposed to do and it is what we do...when the job is done right.

Prosecutors, though, are not meant to simply prosecute. Their job description is to “do justice”. While most assistant district attorneys probably want to do that (again, with their own frailties and prejudices), they must obey office policies and directives. These are handed down by the particular PP who’s office it is.

Doing “Justice” is not necessarily the goal of a politician who knows that he or she will be judged simply on whether they were “tough” enough on crime.

I do not hate to say “I told you so”, so I will just tell you that I did. While it was all happening. Just check the blogs from back then. It is no surprise that the problem has simply gotten worse and that school officials, PPs and legislators are all scratching their heads at the problem.

Just like it is not brain surgery to suggest that putting prosecutors in charge of all bullying instances is sheer lunacy. On the other hand...look who suggested it

The issue of bullying is an age-old one and it is not going to be solved by knee-jerk quick political answers.

So, assuming you have no affiliation or interest in schools or kids. What does this posting have to do with you?

It is a reminder that is not often presented with such a clear illustration. However, it is an important one and, thanks to EXDA, I have a great illustration.

As mentioned, prosecutors prosecute. It is the mindset as well as the political motivation.

I meet many people who still believe that if they just “play ball” with the prosecution and tell the truth, as they see it, then everything will be ok and those investigating officers will simply go away.

This is naivety.

When the investigation leads to your door….call a lawyer!

An experienced criminal defense attorney is your best bet in having….to be kind to my friends representing the Commonwealth…another mindset involved.

One that cares about you.

If you have a criminal case and would like to discuss it with me, , please feel to call me to arrange a free initial consultation at 617-492-3000.

To view the original story, please go to : http://www.boston.com/news/local/massachusetts/articles/2011/02/10/activists_urge_lawmakers_to_extend_law_on_bullying/

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What Happens at a DUI Arraignment Hearing?

Washington DUI

The arraignment hearing generally is the first time a defendant appears in front of a criminal court judge. In most jurisdictions a prosecutor will be present representing the rights and interests of the government. In Washington State the defendant’s presence is REQUIRED for a DUI arraignment hearing. Most criminal courts in Washington State will have an on-call public defender present to assist defendants that appear without an attorney. Why would cities and counties extend such an expensive courtesy at the arraignment? Well it can be one of the most important hearings throughout the court process.

The court will cover three very important issues on the record: [1] notice; [2] conditions of release; and set a [3] future court date.

Notice – The judge will read the formal criminal complaint filed by the prosecution. The complaint will inform the defendant of the criminal charge against them and the alleged date of the criminal conduct. When the judge has finished reading the complaint they will typically ask the defendant, “Do you understand the complaint?” and “How do you plead?” The only ACCEPTABLE responses are, “Yes, I understand and I plead not guilty.”

This is NOT an opportunity for the defendant to make statements about the arrest. It is NOT an opportunity for the defendant to provide a defense or an excuse for their actions. Anything a defendant says at the arraignment is being recorded and can be used against them at a later hearing. Defendants that have an attorney present usually say nothing and let their attorney respond. Defendants that do not have an attorney tend to be the ones that speak up to their own detriment. I have heard some people claim, “I might have had too many drinks but I was not drunk!” Guess what? DUI is not a drunk driving crime. DUI is driving under the influence, so consuming “too many drinks” can be a damning statement.

Conditions of Release – After the judge has accepted the defendant’s plea of not guilty, the judge must determine whether or not to impose bail. If a defendant cannot post bail, then they will sit in jail throughout the duration of their criminal case. A DUI case can take up to 30 to 180 days to conclude. Judges can also impose lifestyle restrictions while the case is pending. For example, a judge might require a defendant to attend AA meetings, install an Ignition Interlock Device in their car and might require no consumption of alcohol.

The judge will determine bail by evaluating if you are a danger to the community and if you are a flight risk. Assessing a defendant’s danger level is determined by reviewing the alleged facts of the current case and the defendant’s past criminal activity. Individuals with criminal history can expect some level of bail to be imposed. The judge will also review the facts of the case, so if the defendant caused injury, property damage and/or had a high breath test reading bail might be imposed. Bail can range from a few hundred dollars to tens of thousands. It is imperative you have an attorney present at the DUI arraignment if you have past criminal convictions or arrests.

Even if it is your first offense I strongly recommend you have an experienced DUI attorney present.

Future Court Date Notice – The last thing that should occur at the DUI arraignment is the scheduling of the next court date. A defendant must not leave the arraignment until they know when the court expects to see them again. Failure to attend a scheduled court hearing will result in an issued bench warrant for your arrest. So make sure you see the court clerk and do not leave the courthouse until you have a written document stating the date, time and location of your next hearing. The next hearing will be the DUI Pretrial hearing.

That is an explanation of a Washington State DUI arraignment. Make sure you have an experienced DUI attorney present to protect your interests and rights. Contact an experience Seattle DUI attorney for a free consultation.

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What Happens at a DUI Arraignment Hearing?

In this post we'll talk about the exact case relevant to Washington state. However, it could be applied to other states as well.

The arraignment hearing generally is the first time a defendant appears in front of a criminal court judge. In most jurisdictions a prosecutor will be present representing the rights and interests of the government. In Washington State the defendant’s presence is REQUIRED for a DUI arraignment hearing. Most criminal courts in Washington State will have an on-call public defender present to assist defendants that appear without an attorney. Why would cities and counties extend such an expensive courtesy at the arraignment? Well it can be one of the most important hearings throughout the court process.

The court will cover three very important issues on the record: [1] notice; [2] conditions of release; and set a [3] future court date.
Notice – The judge will read the formal criminal complaint filed by the prosecution. The complaint will inform the defendant of the criminal charge against them and the alleged date of the criminal conduct. When the judge has finished reading the complaint they will typically ask the defendant, “Do you understand the complaint?” and “How do you plead?” The only ACCEPTABLE responses are, “Yes, I understand and I plead not guilty.”

This is NOT an opportunity for the defendant to make statements about the arrest. It is NOT an opportunity for the defendant to provide a defense or an excuse for their actions. Anything a defendant says at the arraignment is being recorded and can be used against them at a later hearing. Defendants that have an attorney present usually say nothing and let their attorney respond. Defendants that do not have an attorney tend to be the ones that speak up to their own detriment. I have heard some people claim, “I might have had too many drinks but I was not drunk!” Guess what? DUI is not a drunk driving crime. DUI is driving under the influence, so consuming “too many drinks” can be a damning statement.

Illustration of a DUI Arraignment Hearing

Conditions of Release – After the judge has accepted the defendant’s plea of not guilty, the judge must determine whether or not to impose bail. If a defendant cannot post bail, then they will sit in jail throughout the duration of their criminal case. A DUI case can take up to 30 to 180 days to conclude. Judges can also impose lifestyle restrictions while the case is pending. For example, a judge might require a defendant to attend AA meetings, install an Ignition Interlock Device in their car and might require no consumption of alcohol.
The judge will determine bail by evaluating if you are a danger to the community and if you are a flight risk. Assessing a defendant’s danger level is determined by reviewing the alleged facts of the current case and the defendant’s past criminal activity. Individuals with criminal history can expect some level of bail to be imposed. The judge will also review the facts of the case, so if the defendant caused injury, property damage and/or had a high breath test reading bail might be imposed. Bail can range from a few hundred dollars to tens of thousands. It is imperative you have an attorney present at the DUI arraignment if you have past criminal convictions or arrests.
Even if it is your first offense I strongly recommend you have an experienced DUI attorney present.

Future Court Date Notice – The last thing that should occur at the DUI arraignment is the scheduling of the next court date. A defendant must not leave the arraignment until they know when the court expects to see them again. Failure to attend a scheduled court hearing will result in an issued bench warrant for your arrest. So make sure you see the court clerk and do not leave the courthouse until you have a written document stating the date, time and location of your next hearing. The next hearing will be the DUI Pretrial hearing.
That is an explanation of a Washington State DUI arraignment. Make sure you have an experienced DUI attorney present to protect your interests and rights. Contact an experience Seattle DUI attorney for a free consultation.

Continue Reading...