The DMV Process
When you get arrested for a DUI, the arresting agency must report this to the Department of Motor Vehicles. The DMV then processes your information and will issue a notice to you. They claim that they plan on suspending your license. The DMV can suspend your driver’s license because of the state’s implied consent law. The implied consent law states that whenever you drive on the roads in the State of Connecticut, you have given your consent to submit to a chemical test of your blood, breath or urine. If you fail this test, or refuse to give a sample, the DMV can strip you of your privilege to drive for a specified time period.
When you have a license automatically suspended by application of 14-227b, it is deemed a “Per Se” case. “Per Se” is Latin for “Of Itself.” Per se hearings held pursuant to §§ 14-227b get limited to four issues: See Buckley v. Muzio, 200 Conn. 1, 8, 509 A. 2d 489 (1986); Weber v Muzio, 204 Conn. 521, 523, 528 A. 2d 828 (1987).
The four (4) issues at the administrative hearing are as follows:
(1) Did the police officer have probable cause to arrest the person for operating a motor vehicle while under the influence of intoxicating liquor or drug or both or while his ability to operate such vehicle got impaired by the consumption of intoxicating liquor; (2) was such person placed under arrest; (3) did such person refuse to submit to such test or analysis or did such person submit to such test, commenced within two hours of the time of operation and the results of such test or analysis indicated that the ratio of alcohol in the blood of such person was eight-hundredths of one percent or more of alcohol, by weight; ad (4) was such person operating the motor vehicle”. Conn. Gen. Stat. §§14-227b(f).
Burden of Proof
Unlike a criminal case, the standard of proof for a driver’s license suspension is not beyond a reasonable doubt, but rather, much lower. The state must prove the elements of the offense against you by a preponderance of the evidence. The plaintiff has the burden at the administrative hearing to prove that the decision by the DMV to suspend his license is clearly erroneous based on the record. See Schallenkamp v DelPonte, 229 Conn. 31, 39, 639 A. 2d 1018 (1994); Lawrence v. Kozlowski, 171 Conn. 705, 713-14, 372 A. 2d 110 (1077). However, there must still be “substantial evidence” in the record to support the Commissioner’s findings. Bialowas v. Commissioner of Motor Vehicles, 44 Conn. App. 702, 692 A. 2d 834 (1997). They can do this because as driving is a privilege, they can rescind that privilege much easier that to take away your constitutional rights.
Now, many people wonder “How can the state take away my license and try to put me in jail; isn’t that “double jeopardy?” The short answer is No. Back in the early 1990’s, a number of other citizens throughout the United States also thought that the State was punishing them twice for one solitary act. In the State of Connecticut, a woman named Wendy Hickam appealed this exact issue after she lost her license.
The Court said that driving is not a constitutional right protected by the State and Federal constitution. Licensed driving is a privilege given to people by the state and because it is a privilege, and not a Constitutional right, the State can take it away much easier than your right to freedom and it is not double jeopardy. The judges reasoned that the state has compelling interest to keep accused drunk drivers off the road. It is for this reason that it is far harder for the state to suspend one’s license than to require jail time.
There are defenses to the DMV process, but each year the DMV and legislature change the rules to take away these defenses. One of the best ways to win is to simply fight the case. People who don’t fight the DMV suspension always lose because the suspension is automatic. In Cusano v. Commissioner of Motor Vehicles, 2 Conn, Ops. 1262 (1996), the plaintiff submitted to chemical testing only four minutes after initially refusing to testing. The Court held that this did not constitute an unreasonable delay or “refusal” to get tested under Conn. Gen. Stat. §14-227b, because it was “unreasonable for police to refuse to accede to the plaintiff’s request to be tested.” Id. At 1263.
One of the areas which also plays a significant role in determining if the test is valid is the timing of the test. As you can see from the law above, the test must get conducted within 2 hours. The Court, however, decided that the 2 hour rule was not a hard and fast rule.
Tuttle v. Commissioner of Motor Vehicles
In Tuttle v. Commissioner of Motor Vehicles, 2 Conn. Ops. 812, 17 Conn. L. Rptr. 231 (1996), the plaintiff argued that the Commissioner did not have the power to suspend his operator’s license because the police requested the test more than two hours after operation of the vehicle. Specifically, the plaintiff got tested twice but the machine malfunctioned, and the police requested that he get tested in a neighboring police station approximately two and one-half hours after getting arrested. The Court conducted an exhaustive review of §14-227b and its “per se” provisions and concluded:
The obligation of a person who operates a motor vehicle in this state to submit to a chemical test, in accordance with the provisions of that statue, is independent of the “per se” provisions in that statue relating to the timing of the test and the test results. Specifically, the two-hour time limitation for administering the test to a person who has agreed to take it is of critical significance in many respects, but it not a limitation on the general obligation of all motor vehicle operators in the state to submit to a test when requested by the police.
It follows that the commissioner must suspend the license of an operator arrested for drunk driving and who refuses testing, even if the police request the test after the two-hour time period required by the “per se” provisions of the statute. In test refusal cases, you don’t have to show that the request happened within a reasonable time after the arrest, considering all the circumstances, including the availability of the testing devices and the physical condition of the person arrested. Id. at 813.
Silver v. Commissioner
Finally, one of the ways a DUI attorney may try to win your license back is by bringing in the police officers to cross examine them at the hearing. In Silver v. Commissioner of Motor Vehicles, 3 Conn. Ops. 243 (1997), the arresting officer failed to appear for cross-examination after two subpoenas got issued and the plaintiff had agreed to a continuance to ensure the witness’ appearance. However, the police report got admitted over the plaintiff’s continual hearsay objection under Conn. Gen. Stat §4-178, and denial of the opportunity to cross-examine the author of the report.
The Court held the officer’s statements were ripe for cross-examination: and that the report was not inherently reliable to be admitted. Id. at 244. Sometimes, however, it may be for good reason that an attorney chooses not to subpoena an officer to a hearing, especially when it is likely that the officer’s testimony may jeopardize a possible defense to the criminal portion of the case. Only an experienced DUI attorney who has thought through about every possible outcome can make that decision.