In most cases there are two parts of a DUI case- The Criminal Case and the Statutory Summary Suspension. What follows below is a brief explanation to help you understand what you are facing in court.
Statutory Summary Suspension – The main consequence of the civil part is that the Secretary of State will suspend your licenses for either 6 months, 1 year or 3 years. If this is your first DUI arrest and you submit to the breathalyzer and the result is above .08, the suspension will be 6 months. If you refuse to submit to the breathalyzer, the suspension will be 1 year. Three-year suspensions come into play for people with prior DUI’s or Statutory Summary Suspensions. The “Summary” part means that if you take no action, the suspension will go into effect without a judge needing to make a ruling 46 days after your arrest. Furthermore, if you wait too long (90 days from the date of your arrest) you lose the right to contest the suspension at all. This part of a DUI prosecution is a hybrid of civil procedure and criminal law. There are two types of basic challenges to a Statutory Summary that you typically see. The first is a hearing trying to establish that the arresting officer lacked Reasonable Suspicion or Probable Cause to place you under arrest for DUI. The second is Due Process violations.
Reasonable Suspicion – Did the Officer Have Grounds to Conduct a Traffic Stop? Under both the State and U.S. Constitution an officer cannot simply pull a vehicle over for no reason. The law requires that law enforcement must have specific and articulable facts that a crime has been committed or is about to be committed. This can’t be a “wild hunch”. Most DUI cases arise out of a simple traffic stop. While the officer is interacting with the driver, he or she develops Reasonable Suspicion to believe that the driver is under the influence of drugs or alcohol. Through further investigation, if the officer develops Probable Cause to believe the person is under the influence of drugs or alcohol, then the officer can conduct the arrest. So, if your attorney can show that there was no moving or equipment violation in the first place, then everything that happened after the illegal traffic stop is suppressed and the suspension will be rescinded. This is the case regardless how strong the evidence of DUI is.
Probable Cause – Did the Officer Have Grounds to Place You Under Arrest for DUI? Should the officer have placed you under arrest for DUI or simply let you go? This is Probable Cause. The officer must be able to articulate specific facts supporting a belief that the driver is under the influence of illegal drugs, alcohol, cannabis (medical or otherwise), or drugs in order to arrest the person for DUI. Everything you do and say can be used by the officer- not just the Field Sobriety Test. The officer can use observations of your speech, appearance, odor or other signs of impairment. From the moment the officer stopped you, he is looking at how you answer his questions and if you have difficulty retrieving your drivers license or insurance card. When he asks you to get out of the car, a thorough officer is looking to see if you use the door to help you exit. Officers will look for other signs of impairment including slurred or mumbled speech and bloodshot and glassy eyes. Officers will look to see If you sway or have any trouble walking both before, during and after the Field Sobriety Test. To put it simply, when you are suspected of DUI, a thorough officer is making note of everything you do and say. Keep in mind that just because a judge finds that the officer had Probable Cause, does not mean there is proof Beyond a Reasonable Doubt.
A Rescission of a Statutory Summary Suspension Based on Due Process Grounds – Experienced DUI attorneys, like the Law Office of O’Donnell & Nierman know what to look for to see if your rights were violated. When an officer submits paperwork to initiate a statutory summary suspension, they need to follow strict guidelines to ensure that the suspension can withstand court challenges. The Secretary of State has the right to suspend your drivers license based on a “Sworn Report” being filed by the arresting officer. However, the law requires some basic tenants of Due Process. For example, the paperwork (the Sworn Report) must be filled out correctly. There are several other grounds that an experienced DUI attorney may be able to spot. One such requirement is that the prosecution must give you a hearing within 30 days or the first court date- if you formally request it in writing. So a client that hires an attorney immediately after his or her arrest, has a greater chance of getting the suspension rescinded. This is because if the officer fails to appear on the first court date and the petition for a hearing was filed, the prosecution may not have time within the 30 day window to get the officer into court. This happens more often then you would think. The result usually is that the suspension get rescinded- meaning removed. There are other Due Process violations that we may be able to identify that can lead to the same result.
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