Attorney Mark Stevens

This month, ByeByeDWI.com offers a look at a victory in an administrative license suspension (“ALS” suspension) proceeding. In this case, the officer alleged that the defendant “refused” to submit to a breath test when the officer demanded one. On closer examination, and after appropriate cross examination at the administrative license suspension hearing, it was discovered that the defendant never actually refused to do anything at all.

Most of our case examples are dramatic courtroom victories, where the defendant is found not guilty or a conviction is reversed against all odds. Nothing is more important though, than preserving your right to drive at any stage in the proceedings. This is the first in a series of case examples involving victories at administrative license suspension hearings.

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CLIENT SUFFERS FLAT TIRE, “FAILS” SEVERAL “FIELD SOBRIETY TESTS”, BLOWS .22 ON PRELIMINARY BREATH TEST AND “REFUSES” TO SUBMIT TO A BREATH TEST AT THE POLICE STATION

BASIC FACTS: Defendant gets a flat tire and officer finds the defendant next to his car in a driveway. The officer immediately interrogated the defendant about drinking and asked the defendant to take “field sobriety tests”. The defendant agreed to take the field sobriety tests. The officer claimed that the driver needed assistance to walk to the rear of the vehicle. The driver performed the standard battery of roadside gymnastics: the HGN test (this is where the officer directs the driver to “follow-the-pen” and then determines that the driver is drunk because his eyes twitch slightly while following the pen), the “heel to toe test” and the “one-leg-stand test”. The driver allegedly fails all the tests. The officer directs the defendant to take a “preliminary breath test”, a hand held device kept in police cars for such occasions. Like most preliminary breath testing devices, this one produces no printout and the place the “result” is only stored in the officer’s memory. The defendant allegedly blows a .22. The officer eventually arrested the driver and charged him with DWI.

At the police station, the officer asks the defendant if he will take another breath test. The defendant asks him if he can speak to a lawyer or his parents before deciding. The officer denies these requests. The defendant then agrees to take the test and the officer begins the 20 minute observation period required prior to administering a breath test for alcohol. After a few minutes, the defendant asks again if he could speak to a lawyer or his parents. Somehow annoyed by this request, the officer “determines the defendant to be a refusal” and requests that his license be suspended for 180 days.

Attorney Stevens requested a hearing on this suspension. After the hearing, it was determined that the defendant had not refused to do anything. The ALS suspension was dismissed and his right to drive was restored.

It is important to note that most ALS suspensions are upheld after hearing. It is also important to realize that if you don’t challenge a suspension it will never be rescinded.

RESULT: CASE DISMISSED!!!

Attorney Stevens thanks God for this successful defense!!!

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