If you have been arrested for a DUII in Oregon, you were probably asked to take a breath test.
If you refused the test or blew at 0.08% or above, then the officer will have submitted the paperwork for your driver license to be suspended by DMV. The suspension should be for anywhere between 90 days to three years – depending on your circumstances. The only to way to terminate and cancel this suspension, and get your license back right away, is to request and win a DMV administrative hearing. Otherwise, the suspension will automatically go into effect, based upon the officer’s actions taken on the day of your arrest.
- Generally, you only have 10 days from the date of arrest to give DMV notice of your intent to challenge the suspension of your driver license at this DMV administrative hearing. Absent special exceptions, after 10 days you will be out of luck, so contact an attorney ASAP for help in properly doing this. You can apply yourself, but most people are unaware that certain other notices need also be given or various matters may not be allowed to be raised at the hearing. [DMV judges, who I regularly see, comment that I always raise these legal issues, but that some lawyers fail to give proper notice on behalf of their clients. I like getting the inside scoop from judges and listen to them speak “off the record” often. The judges’ comments are a great source of information to enhance one’s courtroom skills.]
- If you are going to contest the suspension of your driver license by the Oregon Department of Motor Vehicles you are going to need a lawyer to have any real prayer for success. You should get an expert DUI defense attorney to represent you as soon as possible, so you have a chance of winning back your driver license. [People say that riding a bicycle in the Oregon rain gets kind of old fast.]
- The DMV hearing will typically be set to be held within 30 days of the arrest. The hearing occurs in a conference room, rather than an actual courtroom. DMV administrative hearings are not criminal court proceedings, but administrative proceedings that have to do with a due process protection of your civil privilege to drive. There are various hearings offices around the State, and the hearing will occur closest to the site where your arrest occurred. Because the hearing gets scheduled quickly, it’s important to get an attorney on board to represent you ASAP. If you show up at the hearing without an attorney, you will probably lose.
- The DMV hearing is conducted by an administrative law judge (ALJ) and is rather informal. Even the normal rules of evidence do not apply at the DMV hearing. [For example, hearsay is permitted.] At the hearing the arresting officer must appear and testify about the arrest and the person’s performance on any field sobriety tests or breath tests, as well as the driving and other matters. During the hearing the officer will testify concerning facts to establish that the stop was valid and lawful; there was probable cause for the police officer to believe you were under the influence of intoxicants; you were properly advised by the officer of your obligations to take the breath test and the consequences if you refused. If you refused to take the breath test the officer must also demonstrate you knowingly refused the test. If you took the test, the officer must prove that the test was administered properly and that the breathalyzer machine recorded a blood alcohol content of .08% or higher. The defense attorney should inquire about and examine the repair and service records of the breathalyzer machine and determine on what date the device was last calibrated for accuracy? The results will not be considered valid if the breathalyzer machine was not timely calibrated and serviced.
- A skilled lawyer can use any errors or irregularities in the process to point out critical flaws in the police officers case. The Administrative Law Judge will listen to and review these errors. An experienced driving under the influence of intoxicants attorney will then argue that the officer failed to meet one or more of the requirements for the suspension to be deemed valid and ask the Administrative Law Judge for the driver license suspension to be rescinded.