After an arrest for DUI you have 10 days to protect your driver’s license. You can:
- do nothing;
- hire an attorney to request a “formal review hearing” to contest the suspension and pick up your 42 day driving permit; or
- go to the DHSMV to stipulate to the administrative suspension and to request a “waiver review hearing” for immediate reinstatement of hardship privileges (only available if you have no prior DUI arrest).
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.
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 (90 days in a refusal case). During those 30 days the person cannot drive for any reason. On the 31st day after the arrest for DUI involving a breath test reading over .08, the person can apply for a hardship license at the Bureau of Administrative Review with proof of enrollment in DUI school. The hardship license last for the rest of the six month suspension.
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 the ability to fight to invalidate the suspension. It is important to fight the administrative suspension because unless you get it invalidated, it will remain on your driving record for 75 years.
This notation on your driving record is an administrative finding that you were DUI. It remains on your driving record even if you win a “not guilty” verdict in a DUI refusal case or enter a plea to a lesser charge such as reckless driving. [The only exception to that rule is that if you get a “not guilty” verdict in a breath test case then the administrative suspension will be removed from your driving record.]
If the person hires an attorney during the first 10 days after the arrest, then the attorney can demand the formal review hearing. The attorney can also demand a 42 day driving permit on your behalf so that you can keep driving while the attorney fights to invalidate the suspension.
You are entitled automatically to receive the 42 day permit after you request the formal review hearing (as long as your driving privileges are otherwise valid).
If the arresting officer or breath test technician fails to appear at the formal review hearing than the suspension SHALL be invalidated. That means that any mention of DUI for the administrative suspension disappears off the driver’s record. You can then get a duplicate driver’s license and avoid paying any reinstatement fee. 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 (sometimes called the “waiver review”.)
The driver must personally appear within 10 calendar days. The driver must pay for DUI school during those 10 days. After paying the $25 fee for the hearing, the driver must also pay a reinstatement fee.
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 ever (unless he obtains a “not guilty” verdict at trial in a breath test case).
The Rules are Complicated
How do you explain the ridiculously complicated new rules for the administrative suspension? The rules have gotten so complicated that I needed to create these graphs to explain it. The graph used in this article applies to a driver (with no prior DUI arrest) who took the breath test and blew over the legal limit.
Hopefully these charts will help me explain these complicated rules – at least until the next legislative session when our lawmakers come up with something even more complicated.
Article last updated on Thursday, August 13, 2015.