During an arrest for DUI, the officer will make a request for the defendant to submit to a chemical test. If the defendant agrees and the result of the test is a blood alcohol content of 0.08 or above, or the urine or blood test discloses the presence of prescribed medication combined with alcohol, or cannabis or a controlled substance, the defendant’s driver’s license will be suspended. On the other hand, if the defendant refuses to submit to any test, her license will also be suspended.
The officer will give the defendant a notice of summary suspension. The notice is a written document generally entitled, “Notice of Summary Suspension” or “Law Enforcement Sworn Report.” The notice will indicate that the defendant’s driver’s license will be suspended on the 46th day after the officer gave notice.
On the reverse side, there is a section that reads, “IMPORTANT – READ CAREFULLY.” The purpose of this section is to advise the driver how to obtain reinstatement of her driver’s license in court.
The defendant can file a petition for judicial review (i.e., petition to rescind) and receive a hearing on the summary suspension. In the author’s view, the summary suspension hearing is the most important part of a DUI case. The issues that can be raised are the following:
- whether you were lawfully placed under arrest for DUI
- whether the arresting officer had reasonable grounds to believe you were driving or in actual physical control of a motor vehicle while under the influence
- whether you were properly warned that your license would be suspended
- whether you refused the test
- and whether the test indicated a blood alcohol content above 0.08, or the presence of prescribed drugs with alcohol, or cannabis or a controlled substance
The issue of whether you were lawfully placed under arrest for DUI is a question of probable cause. Did the officer have probable cause to arrest you for DUI? Did he have specific, articulable facts which would cause a reasonable person in his position to believe you had committed a criminal offense? If the answer is no, then your summary suspension will be rescinded.
The next issue is whether the police officer had reasonable grounds to believe you were driving or in actual physical control of a motor vehicle while under the influence. Where were you driving? Was it a public highway, or a private driveway or private parking lot? If it was not a public highway, you win. Second, did the police even see you driving? If not, then you can win your suspension on the issue of driving or in actual physical control of a motor vehicle.
The issue of whether you were properly warned is next. Did the officer read to you the written document entitled, “Warning to Motorist,” that describes how your license will be suspended depending on the test results or refusal? If not, then you will beat your summary suspension.
Finally, the test. If the defendant testifies that she was not under the influence, then the prosecution must rebut that evidence with the results of the chemical test. If the prosecution cannot lay a proper foundation for admitting the result of the breathalyzer into evidence, then you will beat your summary suspension.