PlayerRep said:
Nice post. Thx.
If one refuses the breath test, and the dui charge is dropped or won by the defendant in court, does the drivers license come back immediately our easily, or not?
To me, some aspects of these dui and consent laws, are un-American and either are or should be unconstitutional.
Thanks, unfortunately the answer is no. If your license is suspended for failure to comply with the implied consent law and you lose your probable cause hearing in district court, which most plaintiffs do because the standard is so low only a “probable cause determination” regarding the request by the cop to ask you to blow compared to the reasonable doubt burden of proof in a criminal dui prosecution. We have to wrap our minds around the concept that one is civil the implied consent suspension and the other is a criminal conviction sanction.
So even if the dui is dismissed or you are acquitted at trial the civil suspension still stays in effect. That’s why its almost like pick your poison either a 6 month civil suspension if you refuse to blow which at least usually means no dui conviction or chose to blow and you are over .08 which pretty much ensures a dui conviction and a 6 month suspension and a fine, jail time, alcohol eduction classes and a reinstatement fee and a dui conviction that stays on your record for lifetime. All other misdemeanor offenses other then pmfa go off your record usually after 3-5 years in most states.
Some smart slimy dui lawyers started challenging the probable cause determination for the stop and arrest in the civil proceeding and if they won they would then move to dismiss the dui charge in the criminal case under the doctrine of res judicata. This worked for quite well for sometime then the Supreme Court in the last couple of years held that the doctrine would no longer apply to dui prosecutions.
The other bad thing is you normally have your civil probable cause hearing before your dui trial, so you get hit with the civil suspension for 6 months then if your are convicted at your dui trial you get hit with another 6 months suspension as a criminal sanction. So you lose you license to drive for a year.
Under the implied consent law the statue provides for the petitioner to apply for a stay of the suspension pending the probable cause hearing which would seem to make a lot of sense and be fundamentally fair. Most districts courts use to routinely grant them, because well the state is going ultimately get their suspension either before the hearing for after if he lose. But the state has more and more started to challenge these proforma motions and because of MADD and adverse publicity a lot of the judges now routinely deny them which now means you could wait up to six months for your hearing by which time the suspension has ended and you then even if win the probable cause determination your license was still suspended.
Slimy dui lawyers used to try and negotiate a deal to dismiss the dui charge in exchange for not fighting the civil suspension which also worked well. Now that has gone away because of the no res judicata holding on duis.