Q: I was arrested for DUI and have a DMV hearing pending. How do I prepare for the DMV hearing?
Answer: If you were arrested for driving under the influence in Colorado, chances are you have a pending DMV case as well as your criminal court case. The DMV hearing regards your privilege to drive in Colorado, and whether that privilege will be revoked for an excess BAC (blood alcohol content) or for refusing a chemical test.
In order to have a DMV hearing and not have your driver’s license automatically revoked, you must request the hearing. If you took a breath test or the officer alleges that you refused a test, the hearing must be requested within seven days from the date of arrest. If you took a blood test, you will keep your license, but may get a letter from the Department of Revenue once the blood results have been received notifying you of the pending revocation action. In this scenario, you will receive a letter from the Department of Revenue about 3-4 weeks after the arrest date notifying you of your blood test results and telling you about the pending revocation. In this case, you must request the hearing within ten days of the date that the letter was sent.
At the DMV hearing, there are only a few issues that are considered. They are as follows:
- Whether a police officer had a reasonable suspicion to make contact with you, or whether there was some other legal justification to contact you, such as a voluntary encounter or a welfare check;
- Whether the arresting officer established probable cause to believe that you were impaired by alcohol. This determination must also be made if you refused a test after the officer requested it believing you were under the influence of a drug, and;
- Whether you took a test within two hours with a BAC of .08 or more (if you are under 21, there must be a shoeing of a BAC at or above .02) or refused a test;
The DMV hearing officer will not take into account any evidence of good character or the reasons for why you need your driver’s license at this hearing. The issues are limited to the above pursuant to Colorado’s DUI and traffic law.
The DMV hearing also differs from your court case in that the hearing officer must find the above elements by a preponderance of the evidence, which is a much lower standard than the burden of beyond a reasonable doubt that must be established in court in order to find you guilty of DUI. Essentially, by a “preponderance of the evidence” means “more likely than not,’ while in order to be convicted of a criminal charge the proof must be higher.
Not everyone is revoked at a DMV hearing. While the majority of driver’s suffer a driver’s license revocation at the hearing, not all do. Sometimes motorists win the hearing based on a good legal or factual issue raise by their DUI lawyer, and other times there may be luck involved, such as a police officer failing to appear once they are requested or subpoenaed.
It is always a good move to be represented by an experienced attorney at your DMV hearing. Having someone in your corner that understands the rules and regulations of the Colorado Department of Motor Vehicles could be the difference between getting your license back and suffering the loss of your driving privilege.