The Flip Side

June 26, 2015

 

A DWI usually triggers a two prong problem for the client.  The first is the criminal issue involving the police and the prosecuting attorney and maybe a month in jail.  The second is the Administrative Revocation by the Department of Revenue.   After the traffic stop and the failure of the roadside sobriety tests, the Breath Test (or blood test or urine test) is administered. If the result is .08 blood alcohol by volume or greater, the Department of Revenue revokes the drivers’ license for thirty days, followed by a limited driving privilege for sixty more days.  If the driver refuses the Breath Test, the revocation is for ninety days with a limited privilege for the remainder of the year.  That is if there are no prior alcohol related offenses on the record.

 

The review process can take up to a year or more and runs parallel with the criminal proceedings.  An admission in one can be used in the other, so drivers need to be careful about the order in which they are disposed.  While the matter is pending, the driver is driving on a privilege created by the Request for Review. 

 

The issues here are two fold, first the police do not always recognize this technicality and give tickets for driving while revoked/suspended anyways, creating more problems. 

 

The second   is that the employee of the department of Revenue is only reviewing whether or not the police officer had probable cause to initiate the traffic stop.  It is a very liberal standard.

 

Although it is still considered a traffic offense by most people, Driving  While Intoxicated is a crime punishable by jail or prison and serious loss of privileges.  Driving is a privilege not a right and therefore the State has significant control over it and due process does not come into play until jail is proposed.  That is why it is so easy, i.e. the standard so low, to suspend or revoke driving privileges. 

 

The flip side of that is that the driver should –and needs to—defend the privilege vigorously.  First by not drinking and driving and secondly by holding the State to its own standards. 

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