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How do BMV hearings work?






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Sep 27, 2015

How do BMV hearings work?

If you’ve never been charged with or arrested for OUI or DUI in the state of Maine you need to understand how this process works. In Maine, if you’re charged with Operating Under the Influence, you can expect that your right to drive or your actual drivers license, will be placed under suspension for a period of time. If this is a first offense OUI, you are looking at 150 day period of suspension time. If this is a second offense, you are looking at a three-year loss of license. If this is a third offense, you are looking at a six-year loss of license. If this is a fourth or greater offense within the past 10 years, you are facing an eight euro loss of license.

So if you’ve been charged with an OUI, what happens next? The Secretary of State will send you a letter of suspension indicating the amount of time your license will be suspended. You have 10 days from the date of the suspension to request a hearing before your license actually goes under suspension. If you fail to request a hearing you will just go under suspension and remain under suspension until you have completed your reinstatement requirements and served out the entirety of the suspension.

Hopefully, you took the steps to retain a DUI defense attorney. If that’s the case, your attorney will request a hearing for you. You don’t have to take any action, personally. Instead, your DUI defense attorney will handle all aspects of the BMV case for you.

Assuming that your attorney requested a hearing, at some point in the near future the BMV will set up a hearing date and time for your case. The purpose of the hearing, from the BMV’s perspective, is about providing you the bare minimum of due process in order to suspend your right to drive. From a defense perspective this well may be the most important aspect of the defense case for the following reasons: first, this is an opportunity to cross-examine the police officer about all the aspects of the case from the time he first spotted your car until you are bailed out from jail and everything in between; second, there is no district attorney present at this hearing to object to the defense attorneys questions; third the officer has to testify under oath during both direct and cross-examination; fourth, the information obtained through cross-examination and direct can prove invaluable to the defense of the criminal case; finally, the intent and hope is to not only defend the criminal case successfully, but also to prevail on the merits at issue in this hearing in order to preserve your right to drive.

There are only two issues for contest at the Bureau of motor vehicles where a breath or blood test result has been obtained. Number one, the first issue concerns probable cause for arrest. What this means is, is that the state has to show there was probable cause to believe you are operating under the influence that night. This is an extremely low standard of proof and a very easy issue for the state to prevail at this hearing. Number two, the other issue for contest is whether or not the test result obtained was a point shows that you a .08% or greater at the time of driving. This is often the most hotly contested issue at the Bureau of motor vehicle hearing. Many things can go wrong with the breath test or that can cause doubt as to the reliability of that test result. Examples include the following: improperly administered wait period issues, machine reliability issues, chemical interference issues, medical issues that would explain an unreliable test result, and finally, issues concerning the failure to check the subject’s mouth prior to the administration of the breath test.

A question I routinely field from clients is: do I have to testify at my Bureau of motor vehicle hearing? The answer is, generally, no. However, there are times when it will be necessary for you to testify in order to lay the foundation for us to argue a certain defense in a breath or blood test. Examples of these rare instances where clients have needed to testify in order to prevail in here include: where we had to present a medical defense through the client’s testimony, where it was necessary to admit his or her medical records; where there was a clear dispute as to whether or not a proper 15 minute wait or mouth check ever occurred. If your attorney believes it will benefit your case to testify that you were not drunk that night, or that you weren’t speeding, or that you were only slightly impaired and certainly not double the legal limit; I beg to differ. Again, there are very narrowly prescribed circumstances where I would ever think to expose my client to cross-examination and I thought it would benefit them to testify at their own BMV hearing. Keep in mind that the prosecutor can get a copy of the transcripts from that hearing just like we can. If you testify, there is a good chance you could actually do more damage to the criminal case due to your inexperience testifying, subject to cross-examination. The old legal maxim of keep your client off the stand, still rings true today for the purposes of the criminal case and the BMV hearings; except during those narrowly prescribed circumstances touched upon earlier.

I cannot over emphasize enough, the importance of conducting a thorough examination of the police officer during the Bureau of motor vehicle hearings process. I have personally won more cases based on destroying the state’s criminal case through a properly conducted and thorough cross-examination of the police officer on all of the issues concerning the stop, the field sobriety tests, the arrest, and the testing of the person charged with DUI.

I would imagine that Maine is not unique when it comes to the importance of conducting a thorough cross-examination of the police officer during these administrative hearings. I would assume it is no different in New York or Connecticut than it is in New Jersey as to the primary importance of conducting a proper hearing. In my experience, I have seen many new or neophyte attorneys who are unfamiliar with both Maine DUI laws as well as our administrative hearing processes, botch cases that I then have to take on for a client and try my best to fix after the fact. This is why it is so crucially important that you, as the client, take the time to properly research and identify the best DUI defense attorney that you can afford and that fits with you and your case.

When you’ve been charged with a DUI, going the cheap route will almost assuredly equate to a lost cause and conviction for DUI. Ask your prospective attorney what his or her philosophy is concerning the conduct of Bureau of motor vehicle hearings. Ask your attorney whether or not he or she feels it will be necessary for you to testify at the hearing. Ask that attorney whether or not they believe it is even necessary to conduct a Bureau of motor vehicle hearing and why or why not they they feel that way. You can learn a lot about an attorney’s level of professionalism, education level, and commitment to defending DUI cases by taking the time to meet with that person at their office.



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