ADMINISTRATIVE DRIVERS LICENSE HEARINGS

Remember, there are two separate proceedings initiated when a person is cited for a DUI in Kansas or a DWI in Missouri. At the same time that a person is being prosecuted criminally, a civil administrative suit is brought by the State Department of Revenue against his or her driver's license. Neither case has any bearing on the other.

CALL KCTRAFFICLAWYER NOW TO SAVE YOUR LICENSE . . . IF YOU HAVE BEEN ARRESTED FOR DUI IN KANSAS YOU HAVE TEN (10) DAYS, CALL NOW (913) 707-HELP (4357)

KANSAS ADMINISTRATIVE DRIVERS LICENSE HEARING

In KANSAS, After a person has been read the implied consent notice, been tested, or refused the test, the police officer will keep his or her plastic driver's license. He must serve the person with a pink form that has been properly filled out by the officer. This form, titled "Officer's Certification and Notice of Suspension, but commonly called a DC-27, will serve as the person's driver's license during the pendency of the administrative suit.

On the pink form, in the fine print, are instructions informing drivers that they must make a written request for a hearing concerning their driving privileges within 10 days. If the driver fails to make a written request within the 10 day limit, or doesn't make the request properly, his license will be automatically suspended by the Department of Revenue. If the driver, or his attorney, does request a hearing, the driver will be given what is called an Administrative Hearing. This hearing will be conducted by telephone unless the driver or his attorney requests a face to face hearing. The request must also request that the certifying officer(s) be subpoenaed to the hearing.

American Due Process provides that before the government can take away your property, you must be given an administrative hearing to determine whether that taking is lawful. Of course, you have to make a request for that hearing to get one. When the Department of Revenue receives this request, they will send notice to the driver and/or his attorney that they have received it. The driver's privileges will be extended until the date of the hearing. About three to six weeks after the request is mailed in, the driver and/or his attorney will receive notice of the hearing date and time. The hearing date is chosen by the Department and generally cannot be changed, moved or continued. The Department will also subpoena the arresting officer to be present for the hearing if you request that it do so.

The Kansas Department of Revenue will issue an order requiring that any video or audio tapes be provided by the police to the driver prior to the hearing. They will also mail the driver or his attorney certain documents which are important for the hearing. Our firm also frequently files motions at these hearings, and usually files a list of objections to the proceedings with the hearing officer/judge.

It is important that discovery be obtained through the criminal case prior to the hearing so that your attorney is prepared with all of the police reports, videotapes, audiotapes, documents concerning the breath testing machinery and its maintenance, the officer's field sobriety training manuals, and other documentation so that you get a full and fair hearing and the officer can be properly cross-examined.

IF YOU TOOK THE TEST: At the administrative hearing of a driver who took and failed a test, the driver has the burden to prove (1) that the officer did not have reasonable grounds to believe that the person was operating a vehicle while under the influence of alcohol and/or drugs; or (2) that they were not arrested or were improperly arrested; or (3) that they were not given the implied consent notice; or (4) that the testing procedure was done incorrectly. Those are the only issues at the hearing and if you can't prove it, you lose your license.

IF YOU REFUSED THE TEST: At the administrative hearing of a person who refused a test, the driver has the burden to prove (1) that the officer did not have reasonable grounds to believe that the person was operating a vehicle while under the influence; or (2) that they were not arrested or were improperly arrested; or (3) they were not given the implied consent notice; or (4) that they did not refuse the test. Those are the only issues at the hearing and if you can't prove it, you lose your license.

IF YOU WERE IN A TRAFFIC ACCIDENT: At the administrative hearing of a person involved in a traffic accident, no matter how minimal the damage was to persons or property, the issues are the same except that if there is any indication that alcohol was involved (even if the driver had a teaspoon of beer), the only issue is whether the implied consent notice was given and whether the test was done properly.

IF YOU WERE UNDER 21 YEARS OF AGE AND TOOK THE TEST: Any person under the age of 21 who operates a motor vehicle with an alcohol concentration of .02 or greater is subject to having his or her driving privileges suspended. The issues at the hearing are the same as those for the over-21's that took the test. If the underage person tested between .02 and .08 the suspension period is 30 days followed by 330 days of restrictions on the first occurrence and a one year suspension on the second. If the underage person tests between a .08 and .149, the suspension period is one year. If the test result is .150 or higher, the license is suspended for one year followed by one year of restriction to only operating a motor vehicle equipped with an ignition interlock device.

OTHER ISSUES OR DEFENSES: Administrative hearings are tough to win because the driver has the burden of proving that he wasn't DUI, whereas in a criminal case it is the prosecutor's burden to prove all elements of a DUI beyond a reasonable doubt. The easiest way to win is if the officer fails to appear. If the police officer doesn't show up to the hearing - case dismissed. Whether a person was even driving may be a defense. Whether a person drank alcohol after driving may be a good defense. There are a multitude of technical statutory or constitutional arguments and defenses. There are also medical defenses (diabetics may often appear intoxicated during a period of insulin deficiency; asthmatics may have a hard time blowing into an Intoxilyzer machine). The list of defenses is only limited to the work and creativity that you and your attorney put into developing a defense for the administrative hearing.

SUSPENSION PENALTIES:
If you fail to meet your burden of proof at the administrative hearing:

• FIRST TIME TEST FAILURE BETWEEN .08 AND .149: Driving privileges are suspended for 30 days and restricted to driving to and from work, during the course of employment, and to school for 330 days. The reinstatement fee is $100.00.
• FIRST TIME TEST FAILURE OF .150 OR HIGHER: Driving privileges are suspended for one year followed by one year of restriction to only driving a vehicle equipped with an ignition interlock device.
• SECOND AND THIRD TEST FAILURE BETWEEN .08 AND .149: Driving privileges are suspended for one year followed by one year of restriction to driving only a motor vehicle equipped with an ignition interlock device. The reinstatement fee is $200.00.
• SECOND TEST FAILURE OF .150 OR HIGHER: Driving privileges are suspended for one year followed by 2 years of ignition interlock.
• THIRD TEST FAILURE OF .150 OR HIGHER: Driving privileges are suspended for one year followed by 3 years of ignition interlock.
• FOURTH TEST FAILURE BETWEEN .08 AND .149: Driving privileges are suspended for one year followed by one year of restriction to driving only a motor vehicle equipped with an ignition interlock device. The reinstatement fee is $300.00.
• FOURTH TEST FAILURE OF .150 OR HIGHER: Driving privileges are suspended for one year followed by 4 years of ignition interlock.
• FIFTH TEST FAILURE: Permanent revocation. The license is suspended for the rest of the person's lifetime and there is no provision currently provided in the law for reinstatement.

TEST REFUSAL

• FIRST TIME REFUSAL: Driving privileges are suspended for one year. The reinstatement fee is $400.00.
• SECOND TIME REFUSAL: Driving privileges are suspended for two years. The reinstatement fee is $600.00.
• THIRD TIME REFUSAL: Driving privileges are suspended for three years. The reinstatement fee is $800.00.
• FOURTH TIME REFUSAL: Driving privileges are suspended for TEN YEARS. The reinstatement fee is $1,000.00.
• FIFTH TIME REFUSAL: Driving privileges are suspended FOREVER. The license is suspended for the rest of the person's lifetime and there is no provision currently provided in the law for reinstatement.

NOTE: The administrative hearing and the criminal case are two separate suits. Neither one has any bearing whatsoever on the other. However, if you are suspended pursuant to one, that suspension will be run concurrent with a suspension in the other. So, if you lost at the administrative hearing and at trial, and it was your second time DUI, you would only be suspended for one year total. But, your driving record will reflect two separate suspensions for the same arrest.

APPEALING THE SUSPENSION: Every driver has the right to appeal the administrative driver's license suspension to the district court of the county in which the hearing was held. This petition for review must be filed within 10 days or the suspension will stand. If an appeal is taken, the matter is heard anew by a judge and the administrative hearing is treated as though it never happened, except objections at the district court level must have been previously raised at the administrative level or they are deemed waived.  The driver's privileges will most likely remain valid while the case is pending before the district court. Appealing an administrative hearing is an exceptionally complex task. The Kansas Department of Revenue will assign one of its attorney's to "defend" against your petition for review and they do little else all day every day than try these cases.   Timothy R. Tompkins is the KCTRAFFICLAWYER & is licensed in Kansas & Missouri, a member of the National College of DUI Defense, CALL Tim Tompkins before the DEADLINE SLIPS AWAY.

MISSOURI ADMINISTRATIVE DRIVERS LICENSE HEARING

CALL KCTRAFFICLAWYER NOW TO SAVE YOUR LICENSE . . . IF YOU HAVE BEEN ARRESTED FOR DUI IN KANSAS YOU HAVE TEN (10) DAYS, CALL NOW (913) 707-HELP (4357)

In Missouri there are two separate proceedings initiated when a person is cited for DWI. At the same time that a person is being prosecuted criminally, a civil administrative suit is brought by the Department of Revenue against his or her driver's license. Neither case has any bearing on the other.

After a person has been read the implied consent notice, been tested, or refused the test, the police officer will keep his or her plastic driver's license. He must serve the person with a form entitled "Notice of Suspension/Revocation of Your Driving Privileges" that has been properly filled out by the officer. This form will serve as the person's driver's license during the pendency of the administrative suit.

This slip of paper, if you read the fine print, will tell you that the driver/arrestee must send a request for a hearing concerning the driver's license in to the Department of Revenue in Jefferson City within 15 days of the arrest. The form for requesting the hearing is at the bottom of the "Notice of Suspension/Revocation". If the officer did not keep the driver's license for some reason, that license must be submitted to the Department of Revenue within 15 days, as well. If the driver fails to send this piece of paper in within the time limit, his license will be automatically suspended by the Department of Revenue. If the driver or his attorney does request a hearing, the driver will be given what is called an Administrative Hearing.

IF YOU TOOK THE TEST: At the administrative hearing of a driver who took and failed a test, the state has the burden to prove (1) that the officer had probable cause to believe that the person was operating a vehicle while under the influence of alcohol and/or drugs; and (2) that the subject tested at .08 or more. Those are the only issues at the hearing and if they prove it, you lose your license. The state will often rely on a form called an "Alcohol Influence Report" (AIR) filed by the officer. The driver may put on any evidence that may be relevant at the hearing. If the hearing officer finds against the driver, he or she issues a "Sustain Order" and suspension/revocation commences 15 days from the date the order is mailed.

SPECIAL NOTICE FOR MINORS: Missouri has a "zero tolerance" law pertaining to minors. It is illegal for a person under the age of 21 to operate a vehicle with a blood alcohol of .02 or more. If you are under the age of 21 and you submit to a breath, blood or urine test and your alcohol concentration is determined to be .02 or greater, and you have no prior alcohol related law enforcement contacts, your driving privileges may be suspended for 30 days followed by 60 days of restricted driving. If the person has a prior alcohol related contact within 5 years, privileges will be suspended for one year. You must also complete the SATOP program. The good news is that the suspension will be expunged after 2 years or when the person turns 21, whichever comes first. If you refuse a test, the potential penalties are the same as for those over 21.

Persons under the age of 21 are also exposed to the "Abuse and Lose" provisions of the law which can affect their driving privileges. A court will enter a suspension/revocation for any minor who commits and alcohol related traffic offense, an offense of possession of alcohol while operating a car, possession of drugs, using or creating a fake I.D., or a second possession of alcohol by a person under age 18. The first time gets you a 90 day suspension. 2nd time is a 1 year revocation.

OTHER ISSUES OR DEFENSES: Administrative hearings in Missouri are tough to win because the issues are limited. The arresting officer doesn't even have to present for the hearing! Yet, there are defenses that ought to be pursued. Whether a person was even driving may be a defense. Whether a person drank alcohol after driving may be a good defense. There are certain statutory or constitutional arguments and defenses. There are also medical defenses (diabetics may often appear intoxicated during a period of insulin deficiency; asthmatics may have a hard time blowing into breath testing machine).

Another defense that works in certain cases is to hire an expert to do what is called a "retrograde extrapolation". Under this method, the expert will take the amount of alcohol consumed by an individual, and the time of such consumption, and determine what the person's blood alcohol level would have been at the time of driving as opposed to an hour or so later when he or she was tested. Sometimes, the expert can determine that the driver was actually under the legal limit at the time of driving and his or her driving privileges can be saved. The list of defenses is only limited to the work and creativity that you and your attorney put into developing a defense for the administrative hearing.

SUSPENSION PENALTIES: If a Sustain Order is issued after the administrative hearing:

• FIRST TIME FAILURE OF A TEST: For a driver with no alcohol related law enforcement contacts within the previous five years, driving privileges are suspended for 30 days followed by 60 days of Restricted Driving Privilege. The restricted license is available upon showing proof of insurance before the 30 days suspension has expired. The restriction allows a person to drive "in connection with a person's business, occupation or employment, and to and from an alcohol education and treatment program" only. This goes on the person's driving record and stays for five years.
• SECOND AND SUBSEQUENT FAILURES OF A TEST: Driving privileges are suspended for one year. You are not eligible for a hardship license. This goes on the person's driving record and stays for five years.

IF YOU REFUSED THE TEST: A Petition for Review must be filed within thirty (30) days with a Stay Order to protect your driving privileges.  If not, Driving privileges are revoked for one (1) year. However, if it is your first, you can apply for a hardship license after 90 days. This goes on the person's driving record and stays for five years. 

NOTE: The administrative hearing and the criminal case are two separate suits. Neither one has any bearing whatsoever on the other. However, if you are suspended pursuant to one, that suspension will be run concurrent with a suspension in the other. So, if you lost at the administrative hearing and at trial, and it was your second time DUI, you would only be suspended for one year total. But, your driving record will reflect two separate suspensions for the same arrest.

APPEALING THE SUSPENSION: Every driver has the right to appeal the administrative driver's license suspension to the circuit court of the county in which the arrest was made. A Petition for Review of a license revocation must be filed within 15 days of the date that the suspension was mailed by the Director. If an appeal is taken, the matter is heard anew by a judge in the courtroom and the administrative hearing is treated as though it never happened. These appeals are usually handled by the Department of Revenue.

HARDSHIP LICENSE: If you have been revoked from driving in Missouri for convictions or a refusal, you may be eligible for "Limited Driving Privileges", most commonly known as a hardship license. You may apply for a hardship license to either the circuit court of your county of residence or the Director of Revenue. There are many reasons why a hardship license may not be granted, including the fact that you have been convicted of a felony involving the use of a vehicle, the failure to pay child support, or suspension in another state. There are also many requirements concerning when a person may apply for the hardship license. For instance, a person convicted of 2 DWI's within 5 years may not apply for a hardship license until he or she has served at least 2 of the 5 years of revocation. You should consult with an attorney concerning whether you are eligible for a hardship license.

Timothy R. Tompkins is the KCTRAFFICLAWYER & is licensed in Kansas & Missouri, a member of the National College of DUI Defense, CALL Tim Tompkins before the DEADLINE SLIPS AWAY. Contact the KCTRAFFICLAWYER who can give you a solid chance of saving your license. Call 913-707-4357 (Kansas) or 816-729-2606 (Missouri) for a FREE, confidential consultation.