After an arrest for driving under the influence (DUI), if the driver is alleged to have refused to provide a breath sample or provided a sample resulting over .08, then the arrestee’s driver license is supposed to be automatically suspended. This suspension takes place after ten (10) days. A driver must apply to challenge the suspension at the Department of Highway Safety and Motor Vehicles (DHSMV) or DMV within those same ten (10) days. DHSMV blog.
Prior to collecting a breath sample for analysis, the machine operator is supposed to observe the arrested driver for twenty (20) minutes. This is designed to ensure an accurate sample by eliminating foreign objects, substances and things like regurgitation that can all affect the analysis of the sample. The required twenty (20) minute observation period is only one item that is subject to attack in the administrative license hearing.
At a hearing, the State must show competent substantial evidence to prove law enforcement conducted this observation period. Competent substantial evidence is evidence that will establish or cause the reasonable inference of a fact, such as whether the waiting or observation period occurred. Like many other aspects of criminal and traffic defense, the supporting documents can be vital to any challenge of the sample. There could be arguments based upon the lack of documents or based on the conflicts in the documents. The burden of proof at a driver license hearing is by a preponderance of the evidence, much lower than the beyond a reasonable doubt standard at the DUI trial.
Having a lawyer for these hearings is recommended because in any appeal of the Department’s decision, the Circuit Court will not reweigh evidence, nor to substitute its judgment for the findings of the hearing officer. Any review of the record determines whether the hearing officer’s findings were supported by competent, substantial evidence and whether the essential requirements of the law were applied.
DUI Defense is a technical area of practice; there are many avenues that are subject to attack. Every word used to communicate with the suspect can make a difference to what evidence is allowed to be presented to the jury. To hire a lawyer to assist in a DUI case of any kinds, please click, call or fill out the form.
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