Why Is It Considered a Right to Request a DMV Hearing?
Interviewer: Why is it considered a right to request the DMV hearing?
Steve Tomeo: What triggers the hearing is you get a letter from the Department of Motor Vehicles generally within a week or two. It is telling you that you’ve been arrested for a DUI and your license will be administratively suspended on a certain date.
Generally, that date is 30 days from the date of your arrest. They tell you it’s in the statute and the letter tells you that you have the right to have an administrative per se hearing if you request it. You must request it within seven days of the date of the letter.
If you’re represented by an attorney or you are representing yourself, you call the DMV up within the seven day period and they schedule a hearing date for you. What is good about having a hearing, at times, depends on the severity of the case and whether this is your first, second, or third offense.
You Have the Right to Present a Case in Your Defense at the DMV Hearing, Including Having the Arresting Officer Testify
You have the right to subpoena the arresting officer and to present a case in your defense. If there are issues with anything, you have the right to put expert witnesses on. You have the right to put on the arresting officer to make sure that what he testifies to is consistent what he wrote in his report.
Contradictory Evidence Can Be Presented to the Prosecutor and May Effect a Dismissal
Oftentimes, if you develop any inconsistencies, you can go to the prosecutor with those inconsistencies. You can advise the prosecutor that, “At the DMV hearing, this is what the officer testified,” which might be contradictory or contrary to what is written in the arrest report. That might have an effect on the prosecutor as to whether he’ll continue with the charge in court.
The request for the hearing is at the request of the person charged of the DUI. If you do not request a hearing, then your license will be automatically suspended on the 30th day after your arrest.
Interviewer: Are you ever able to assist people in getting their license back from the DMV? Can they hire you to help them get their license back?
A Private Attorney Can Handle Both the DMV Hearing and the Court Case
Steve Tomeo: I think it’s advantageous for them to if they want to contest the suspension. If you hire us for the criminal case, we handle the DMV hearing also. Oftentimes, at the DMV hearing, we may uncover a questionable issue with the breath, blood, or urine test.
The Attorney Can Have an Expert Witnesses Testify about Questionable Issues with the Chemical Testing
If we think that the machine wasn’t calibrated properly or the machine had a problem or there is a problem with the results, we hire an expert to testify to point that out. In many instances over the years, we’ve been successful in having the clients retain their license.
Interviewer: What kind of experts do you call on?
Steve Tomeo: Generally, they are toxicologists, people that have expertise with what the blood alcohol concentration is in your blood and how alcohol is eliminated from your system to come up with the correct amount. For instance, the blood alcohol concentration in your blood has to be .08 or above at the time of operation.
Say you were given the breath test an hour and a half after you operated the car. That’s when you took the breath test. It is possible that if they extrapolate back in time, based on your weight, how much you had to drink, and all these other variables we’ve spoken about, it is possible for them to extrapolate back that you may have been less than .08 percent at the time of operation.
If the hearing officer goes along with that, then you win your case. Also, if people get into an accident, say it’s a one car accident, they run off the road, hit a tree or a pole, whatever a one car accident would be involved in. It’s just the driver and they are taken to the hospital right away. Oftentimes the officer will get a search warrant later on to get a copy of the medical record, which will show the results of the blood analysis taken at the hospital.
Then, the issue could be was the blood drawn properly and when you analyze the graphs and the results of the blood analysis, whether or not they could come to the conclusion that it was .08 or above at the time of operation.
There’s a whole list of science-based issues involved and experts can be immensely helpful when it comes to the blood, breath, and urine tests. Then, there’s also the operation of the breath machine. There are experts that can verify whether or not the police officer operated the machine properly. These are all things that the hearing officer can listen to and will assist in his determination of whether the person should lose his license or not.
Last Words on Retaining an Attorney—Virtually Every Aspect of the Arrest and Investigation Needs to Be Scrutinized for Adherence to the Law
Interviewer: Is there any other information that you’d like to share?
Steve Tomeo: There are always issues on virtually every word in the statute. For example, they have to find that you were operating a motor vehicle while under the influence of alcohol, say on a public road or highway. What is operation? If you’re sitting in your car and the car isn’t running. What constitutes operation?