How do you explain the ridiculously complicated new rules for the administrative suspension? The rules have gotten so complicated that I need a timeline. This particular timeline applies to a driver (with no prior DUI arrest) who took the breath test and blew over the legal limit.
After the DUI arrest, the driver has three options:
- do nothing;
- request a formal review hearing; or
- request a waiver review hearing for immediate reinstatement of hardship privileges.
For most people facing a first DUI who can afford to hire an DUI defense attorney willing to fight the suspension, Option 2 is the best option. Option 2 involves fighting to invalidate the suspension in a formal review hearing. Option 1 is the worst option.
Option 1: Do Nothing
Most people don’t understand the rules. As a result, they do nothing during the first 10 days after the DUI to protect their privileges to drive. If the driver does nothing after a first arrest for blowing over the legal limit, then the officer will take the driver’s license on the day of the arrest.
Read the citation carefully. The notice of suspension is contained on the citation and operates as the 10 day driving permit. After the 10 day permit expires, the 30 day hard suspension begins. During those 30 days the person cannot drive for any reason. On the 31st day, the person can apply for a hardship license at the Bureau of Administrative Review with proof of enrollment in DUI school.
Option 2: Demand a Formal Review Hearing
As a criminal defense attorney, I see a lot of benefits to demanding the formal review hearing. Option 2 is the only option that gives the driver any possible way to invalidate the suspension. In many ways, the administrative suspension is as bad as a DUI conviction.
If the driver hires an attorney during the first 10 days after the arrest, then the attorney can demand the formal review hearing. Most individuals are eligible for a 42 day permit while the attorney fights the administrative suspension.
If the arresting officer or breath test technician fails to appear at the formal review hearing than the suspension will be invalidated. That means that it disappears off the driver’s record. Other reasons for winning the hearing include insufficient evidence in the documents submitted to the hearing officer or inconsistencies in the evidence.
Even if the driver loses the hearing, the attorney has gathered important evidence that can be used to fight the criminal charges. The only downside to contesting the formal review hearing is that the driver might still suffer the 30 day hard suspension. On the 31st day, the person can still obtain a hardship license with proof of enrollment in DUI school.
Option 3: Request a Waiver Review Hearing for Immediate Reinstatement
For a driver with no prior DUI cases, the driver can go to the Bureau of Administrative Review to file a Request for Eligibility Review Form. The driver must personally appear within 10 calendar days. The benefit to this process is avoiding the 30 day hard suspension. But the downside to waiver review is that the driver has NO chance of getting the suspension invalidated.
Hopefully this timeline will help me explain these complicated rules. At least until the next legislative session when our lawmakers come up with something even more complicated.