Taimoor Rana is seasoned criminal defense attorney specializing in DUI related cases. He shares his expert legal opinion here « Due Process and Automatic DUI License Suspensions
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- So last night you were stopped by the cops and then they arrested you for drunk driving. And just after the Breathalyzer showed that the reading of a blood-alcohol level was .12%, the officer take away your driver’s license and gave you a piece of paper on which it was mentioned that your license was immediately suspended.
Here several questions comes in your mind that you might be wanted to ask, you may ask that what happened?. Are they allowed to do that? I thought I was believed to be innocent, and it is necessary for the state to prove my guilt that should be beyond a reasonable doubt before that they can punish me. And I remember something about "due process": Are they able to suspend my license for DUI before giving me a chance to defend myself?
I must say that all these are quite good questions that are asked by you.
It is required by law that The Department of Motor Vehicles (or whatever they call it in your state) has to immediately suspend the driver’s license of anyone who is arrested for but not convicted of DUI who
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has a .08% breath reading,
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or who takes a blood or urine test (which will be analyzed later),
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or who refuses to take any test.
What it means is that immediately on the spot: the license is taken away and the DUI suspension is legally effective right from the moment when the officer signs the notice and give it to you.
If this thing is viewed in another way, in a DUI case the arresting police officer is constable, prosecutor, judge, jury and executioner. You do not posses any rights. In fact, if you have taken a blood or urine test, they don’t even wait for the results of these tests which will come back from the lab days later. They not only think that you are guilty, but they also presume that this will be shown by the evidence.
So, again a question may arise here: How can they do that in USA?
Well, at first it has been decided by MADD and various other state legislatures that the have to find a way to get drunk drivers off the highways RIGHT NOW and it should not be diverted by any technicalities like, well, the Constitution. That is why so-called "APS" laws were enacted by them. The phrase stands for "administrative per se", that refers to the "per se" crime of .08%, as opposed to the crime of driving under the influence of alcohol, which is for the courts. They have given a justification for this by saying that a license was just a "privilege", and not a "right" and as the license holder had no rights, so the state is able to do whatever it wanted to do.
Well, the U.S. Supreme Court sends away that justification out of the water. In Bell v Burson (402 U.S. 535) it was acknowledged by the Court that the right to drive is a privilege. Despite of all the facts, once a license is given to someone by the state, then that person has a property right in it and without giving him due process that right cannot be taken away. And due process is referred to as a fair procedure by which he can contest the confiscation of his property.
As a reaction to this the license were continued to suspend on the spot, but to then the driver is given a short-term temporary operating permit during which an administrative hearing can be requested by him. In a few states, the process is handed over to the courts and the suspension is combined with the criminal proceedings.
MADD has achieved success in getting the Feds involved; a highway appropriations bill was passed and the states were pretty much forced into adopting APS suspensions or else they would get no funds. In DUI cases do these APS hearings provide due process? Or saying in other words, how fair are they?
Let us take California’s APS hearings as an example. These hearings are conducted by a "hearing officer". Is this an impartial judge? Well, he’s hardly impartial: He is a DMV employee. DMV is that agency that is trying to suspend the license, it seems like a judge being paid by the prosecutor. And he is not a judge. In actual sense, he is not even a lawyer; he is only needed to be a high school graduate. So who is the prosecutor? He is, well, the same person.
Yes this is what I want to say, this DMV employee having no legal education is both judge and prosecutor. Put another way, this government bureaucrat, who has never read the Evidence Code, is able to object to the driver’s evidence and then he has the right to sustain his own objection! Now you must not surprise, about 95% of these hearings are won by the DMV.
That is all about what we call "due process" in a drunk driving case.
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