Almost every state is an implied consent jurisdiction. When people sign their drivers’ licenses, they agree to provide chemical DWI samples on demand. In most state, a refusal triggers the Administrative License Revocation process. A specimen above the legal limit, which is usually a .08 BAC, has the same effect.
The possible drivers’ license suspension period varies in different states. In Minnesota, the penalty is usually a 90-day license suspension for a first failure and a one-year suspension for a first refusal. The penalties increase substantially for subsequent refusals and/or failure. Most other states have roughly the same penalty structure.
On a side note, in some states, refusing to provide a chemical sample is not just an administrative infraction. It’s a separate criminal offense. Minnesota does not have such a law, bur neighboring North Dakota does, as do several other Midwestern states.
Requesting an ALR Hearing
People who are arrested for DWI always go through the criminal justice process. These people automatically get their day in court, at least metaphorically.
License suspension is different. These defendants must request hearings in writing. Typically, they only have about two weeks to make such a request. Since the ALR notice is usually buried in an avalanche of DWI paperwork, many defendants miss this opportunity.
Other defendants have a fatalistic attitude about the ALR process. They believe that license suspension is inevitable, whether they request a hearing or not. So, they do not ask for one. As outlined below, these defendants miss a golden opportunity to give their Minnesota criminal defense lawyer a critical edge in judicial proceedings.
A quick word about the difference between “suspension” and “revocation.” If your license is suspended, you may pay a reinstatement fee and jump through some other hoops and get your old license back. If your license is revoked, you must take the test over again and get an entirely new license.
No matter what you call it, the ALR process is not a criminal proceeding. So, there are some significant procedural differences between an ALR hearing and a criminal trial, as outlined below.
Some Nuts and Bolts
For example, the Fifth Amendment’s prohibition against self-incrimination doesn’t apply during most ALR hearings. The administrative law judge, who is usually a paid DMV employee, can force defendants to testify against themselves.
Furthermore, the ALJ serves as prosecutor, judge, jury, and executioner. The ALJ presents the state’s case for license suspension, decides what evidence is admissible, weighs that evidence, and pronounces sentence.
The standard of evidence is also different in an ALR hearing. If the ALJ determines that officers had probable cause to request a sample, the judge can suspend the defendant’s license. That level of proof is much lower than beyond a reasonable doubt, which is the standard of proof at trial.
Usually, poor performance on the Field Sobriety Tests serves as probable cause for the chemical sample demand. An officer’s subjective pass-fail grade usually doesn’t hold up in criminal court. But it usually is enough to establish probable cause.
“Winning” the ALR Hearing
There are several ways a Minnesota criminal defense lawyer can obtain a positive result at the ALR hearing.
The Fifth Amendment might not apply during the ALR hearing. But it applies during a SWI arrest, which means defendants have the right to refuse to perform the walk-and-turn and other field sobriety tests. That refusal removes the best evidence which supports probable cause. In a FST refusal case, the state must rely on weak circumstantial evidence, like bloodshot eyes, to establish probable cause. At best, such circumstantial evidence proves consumption. It doesn’t indicate intoxication.
Partial refusal cases also come up from time to time. The defendant performs one test, usually the DWI eye test, and then refuses to perform further tests. If poor performance on the Horizontal Gaze Nystagmus test is the only evidence, the ALJ often at least reduces the suspension period.
Even if the ALJ imposes the maximum suspension period, the defendant wins, at least in the overall picture. A court reporter is present at the ALR hearing. So, a Minnesota criminal defense lawyer has an opportunity to cross-examine the arresting officer under oath. Defendants usually pay hundreds of dollars for that kind of discovery, if it’s available at all. If the arresting officer testifies inconsistently at trial, even on a seemingly minor point, the officer’s credibility is at issue.
Furthermore, the ALR hearing involves no risk. The worst possible outcome is the maximum drivers’ license suspension, and that would have happened anyway.
Please be aware that this article was written and published in conjunction with the help of Gorilla Web tactics, Law Firm Marketing Agency, and does not contain legal advice. Please do not act or refrain from acting based on anything you read in this article.
About the Author
Cody Wright is a principal attorney at Gerald Miller P.A., a Minneapolis criminal defense law firm. Cody is a respected advocate who is an active member of several state and national bar associations. In addition to DWI defense, Cody handles drug cases, sex crimes, assaults, and other criminal offenses. Click here to learn more.
