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Admin Per Se Hearing

Arizona Admin Per Se DUI Suspensions

Arizona Admin Per Se DUI Suspensions

If you are stopped for a DUI in Arizona and the police officer asks you to take a chemical test, and you submit voluntarily to the test, your license is at risk for a 90 day suspension if the chemical test shows a .08 percent or higher alcohol concentration.

NOTE: This suspension is different from an Implied Consent suspension, which is the one you face if the officer alleges that you refused to voluntarily give the blood or breath sample.

You may have noticed that many Arizona DUI attorney's websites urge you to "act now," because you only have 15 days. This urgency may or may not be true, depending on the facts of your case. Remember, for the sake of this explaination, we are assuming that you voluntarily submitted to the test that the officer chose, or tests if the officer asked you to take both an evidentiary breath and blood test. ( Note: this does not apply to the handheld portable breath tests (PBT) which you can refuse without consequence, but does apply to evidentiary breath tests on Intoxilyzer 8000 and Intoxilyzer 5000 machines, and to blood tests). For differences in breath testing devices, refer to theDUI breath testing section.

If you took an evidentiary breath test:

If you took an Intoxilyzer breath test, then the clock starts ticking from the time of the test. The officer will issue you a piece of paper called an "ADMIN PER SE/IMPLIED CONSENT AFFIDAVIT."

This affidavit is, in essence, your notice that your license will be suspended in 15 days. It also will serve as your temporary driving permit during the time between your arrest and the start of your suspension. If you had an Arizona Driver License, the officer should have impounded it upon your failure of the breath test. If your driver license is from another state, an Arizona police officer has no authority to impound your physical license ID card, but still has authority to issue you the Arizona driving suspension.

Be cautions when you interpret the Admin Per Se document. Since this document is also used for the other type of suspension (Implied Consent), take a look at it to make sure you are actually facing a 90-day suspension, rather than a 1 year revocation. Near the bottom of the document there are two possible boxes for the officer to check:

Notice in this example that the box that says ARS 28-1385 is checked. That is the 90 day suspension for failing the chemical test. If the other box is checked, see implied consent suspensions. If you received this document and you don't request a hearing, then your driving privilege will automatically go into suspension after 15 days.

If you voluntarily took a blood test:

If you took a blood test (and not an evidentiary breath test) voluntarily, then the police officer has no authority to suspend your license unless the blood test comes back showing a .08 percent alcohol or higher. Once the officer gets the blood test result from the crime lab, the officer forwards a request to suspend your license to the Arizona MVD. The Arizona MVD then sends you a document called a "Corrective Action."

Once you get this, you must then request a hearing or your driving privileges will go into suspension on the date under the section "Date Action Begins."

NOTE TO OUR CLIENTS: This MVD case is separate from the court case, and therefore has a different case number. Since the two are not automatically linked by the government, we will not receive notice of this aspect of your case. If you get this document in the mail, please notify our offices immediately, as time is of the essence.

If you don't request a hearing, the suspension will start as indicated. It is important to note that the "Date Action Ends" indicated on the form does not mean that your license automatically reinstates at that point. As with any Arizona license suspension, you must take steps to reinstate. The date the action ends is the date you become eligible to reinstate your license.

Should you (or your lawyer) request an Admin Per Se hearing?

This is a question about which reasonable DUI attorneys can disagree. There are some advantages to requesting a hearing, and some potential pitfalls. First, the advantages:

  1. By requesting a hearing, you will have control over the aproximate start date of a suspension if you receive one;
  2. You will have a chance to have the suspension reversed if the facts of the case and the law warrant it;
  3. Requesting a hearing will buy your attorney time to investigate the case before you have to make any critical decisions about the license suspension.

Just because you request a hearing does not mean that you (or your attorney) is obligated to do a hearing. At any time prior to the scheduled hearing, the request for a hearing can be withdrawn. In that event, you would then be able to designate the start date of your suspension for any day up to 45 days from the date of the scheduled hearing. There is no harm to you in doing it this way (only a slight inconvenience as explained below). Since it sometimes takes several months for a hearing to be scheduled, requesting the hearing can buy you a lot of time to make plans in the event you lose your license.

Unless the time noted on the Admin Per Se affidavit or Corrective action for the start of the suspension is the least inconvenient time for you to have a suspension, and you don't care if you lose your license, we typically recommend to our clients that they allow us to file a request for the hearing. That puts us in control of the situation.

The major disadvantage of requesting a hearing is that, once a hearing is requested, the MVD will not automatically mail you a work permit if you are eligible. For more about work permits see our primer on Arizona DUI Work Permits.

The major advantage of requesting a hearing is that it puts you and your attorney in control of the situation.

Should you (or your lawyer) actually fight to save your license at the Admin Per Se hearing?

Assuming that you or your lawyer requested an Admin Per Se MVD hearing, you will eventually be faced with the decision of whether or not to actually do the hearing, and if so, whether you actually want to win or not. If you decide not to do the hearing, your lawyer can withdraw the hearing request and then designate the start date of your suspension.

First, a word about what you will face if you either don't do the hearing and stipulate to the suspension, or if you do the hearing and lose.

Without Priors: If this is your first admin per se suspension within seven years, then you would face a 90 day suspension of your driving privilege. After the first 30 days, you will most likely be eligible for a work permit which would allow you to drive to and from work and school, and on the job.

With Priors: If you have previously had a suspension for DUI in the past seven years, then you would be looking at a flat 90 day suspension with no option for a work permit.

Now for the benefits of fighting your Admin Per Se suspension in Arizona:

  1. If you win the hearing, you will not have an immediate suspension (although you may still face suspension if you get a DUI conviction);
  2. Your attorney can use the hearing to get a feel for how the officer will testify and learn whether the officer even cares enough to bother to show up;

Now for the drawbacks of doing the hearing:

  1. If this is your first offense, if you win the hearing, you could still get the same suspension anyways if you get a DUI, in which case you would also have to get a SR22 high risk insurance policy;
  2. If you get the DUI anyways, then you will have wasted money fighting a suspension in one place only to get the identical suspension after the criminal court reports the conviction to the MVD.

Some Arizona DUI lawyers like to use the MVD hearing to conduct discovery and get the officer "on the record." This means that, since the officer would testify under oath at the MVD hearing and the defense attorney can cross examine the officer, the audio recording from that hearing could be used against the officer in your criminal DUI case if the officer changes his story. There are some good arguments for and against this practice.

DUI attorneys who use this practice argue that it puts the officer in a formal setting where you can get him on the record when there is no prosecutor there. In Arizona, the rules of criminal procedure allow defense attorneys to interview each witness (other than victims who don't consent to an interview) prior to trial. See our primer on DUI officer interviews for more details on how these are conducted.

Depending on the seriousness of the case, sometimes the expense of an MVD hearing is justifiable because it will give the defense attorney two shots at interviewing the officer. However, it can be a dangerous practice because the scope of the hearing regarding the Admin Per Se is very limited. For this reason, MVD administrative law judges (ALJs) may limit the scope of the cross examination so that the attorney is not allowed to get into every detail of the officer's memory of the events. If this happens, then the strategy of a "free interview" could backfire. An officer could then claim that the MVD hearing was the interview to which the defense was entitled, and make things difficult.

Ultimately, the decision is one that should be made on a case by case basis by the attorney working together with the client evaluating the facts of the individual case.

The scope of the Arizona Admin Per Se hearing:

Examine an actual MVD hearing notice.

The scope of an Admin Per Se hearing is very limited. Click on the link or image above to see an actual hearing notice sent by the MVD. It goes over the what the hearing is to resolve.

For Admin Per Se hearings, the state has to establish the following to suspend the driver's license.

  1. That the officer had reasonable grounds to believe the person was in violation of Arizona DUI Law;
  2. That the person was placed under arrest for a violation of misdemeanor, felony or minor DUI law;
  3. Whether a chemical test was taken and indicated an amount above the legal limit
      • 0.08 or more
      • 0.04 or more in a commercial motor vehicle (2500 lbs. plus GVW)
      • Whether the testing method was reliable
      • Whether the results were properly evaluated.

    For a more detailed explaination hearing rules and laws that apply, see Arizona MVD Admin Per Se Hearing Rules.

    Expunging the record of suspension:

    Arizona MVD Admin Per Se suspension records can be expunged if:

    1. After the suspension period is served and the license is reinstated;
    2. A certified copy of a dismissal order or a not guilty verdict fromt he criminal court is presented to the MVD; and
    3. The person did not get any conviction for a moving violation during the period of the suspension.

    NOTE: A DUI that is reduced to reckless driving through a plea bargain is not grounds to have an Admin Per Se suspension record expunged.