How Does Implied Consent Law Affect the ALS or ALR Hearing?

In every state, implied consent laws control any administrative driver license suspension or revocation, which is to be imposed in connection with the criminal charges for driving under the influence. In some states, like in the Georgia implied consent law, this suspension is targeted to imposing suspension (or revocation) before the criminal case gets resolved. Other states, like North Carolina, allow a small administrative fee to be paid that delays imposition of any suspension or revocation until the criminal case is concluded.

How Does the ALS or ALR Hearing Differ From the Criminal Trial?

The matters to be resolved at implied consent administrative license suspension (ALS) or administrative license revocation (ALR) hearings are civil matters, not criminal, in most states. About a dozen states DO have criminal penalties for an arrested drunken driver’s “refusal” to be tested, and this can be a financial penalty or jail or prison time (depending on whether the criminal charge is a first DWI-DUI offense, a 2nd DUI, a DUI 3rd offense, or other repeat driving while intoxicated offense). Barring those states that criminalize refusal, all other hearings in the remaining states are limited by statute in the respective states to the following “civil” law issues, relating to loss of driving privileges:

  1. Whether the accused drunk driver was lawfully arrested for a DUI-DWI offense
  2. Whether the arresting officer gathered sufficient evidence to create reasonable cause to believe that the alleged drunk driver was operating a motor vehicle while under the influence of alcohol or drugs
  3. Whether the giving of the implied consent notice by the officer was timely, fully and properly done. (Each state’s implied consent laws determines what steps the officer must take in reading or placing a written form containing the implied consent advisement in front of the accused drunk driving suspect, or both).
  4. Whether the accused DUI driver refused to submit to chemical testing when requested to do so, or was “over the legal limit” by virtue of a breathalyzer test (or other types of tests, in some jurisdictions). Since blood testing takes time, it is rare for an immediate administrative license revocation or suspension to be issued, but various states permit a supplemental filing if the blood test or urine test shows a DUI per se “number.”

Some Common Implied Consent Challenges That Can Be Made by a DUI Lawyer

Additionally, 90% or more of the administrative license suspension or revocation proceedings are for a breath test, and not for a DWI-DUI blood test or urine test. The DUI-DWI lawyer dealing with administrative issues at the civil license suspension hearing is seeking to prove that no “refusal” to be tested occurred, or (when a breathalyzer was taken) trying to eliminate the breath alcohol test result, or bringing in expert testimony to “whittle down” the high BAC level number that will neutralize the harmful effects of an ALS hearing.

The right to an independent DUI test in some state’s laws (e.g., GA) generally is also applicable to administrative “per se” proceedings. This is because the denial of the right to an independent test also prevents the defendant from effectively challenging the accuracy of the police “chemical tests” (blood test, alcohol breath test, urine test) relied on by the State in the administrative proceeding. Denial of access to an independent test is an implied consent violation, and can help the DUI attorney win a case.

Challenging the accuracy and proper maintenance records for the State’s chemical test evidence (on a variety of grounds) is one of the few defenses available in administrative “per se” proceedings. So, the criminal defense lawyer handling this administrative aspect of a driving while impaired case must be well-versed in breathalyzer instrumentation and test card errors.

In hearings under an administrative “per se” statute, the State must normally prove that you drove or operated a vehicle, that your breath or blood alcohol content (BAC) as established by chemical testing was at or above the prohibited level, and that the chemical testing equipment was functioning properly when the test was performed. Some state guidelines require proof that the state’s chemical test was taken within a certain time period after the driving ended, typically within 2 to 3 hours. Again, the specific issues may vary in a particular state, and your DUI attorney should be totally aware of your state’s requirements.

Does the Arresting Officer Testify at the ALS Hearing?

The burden of persuasion at an implied consent hearing is always on the state to prove by a preponderance of the evidence that a violation of the implied consent statute occurred. This burden is typically met by introducing the report, statement, or testimony of the arresting officer to establish a few basic facts to support the license suspension or revocation action being taken. In some states, e.g., California, your defense attorney must subpoena the officer to come to court in order to cross-examine him or her. In other states, e.g., Georgia, Texas and South Carolina, the officer’s failure to appear will result in any proposed administrative license suspension or revocation being “rescinded” or lifted.

It is important that your drunk driving lawyer vigorously cross-examine the arresting and testing officers at this hearing, and get a transcript of the sworn testimony from a certified court reporter, because it is often the only evidentiary hearing allowed prior to trial. Especially if the hearing is held under the state administrative procedure act, liberal discovery may be permitted in implied consent cases, and the testimony or other evidence produced here might provide a winning defense strategy for your attorney.

Can I Appeal the Administrative Court’s Ruling?

In most states the hearing officer’s decision may be appealed to another court for review of the administrative judge’s decision. The court that hears the appeal must review the case based on the record established at the implied consent hearing. This is yet another reason to use a court reporter at the hearing. Again, the exact procedure varies from state to state, and procedures followed by your state should be ascertained through your DWI-DUI specialist.

Does the Outcome of the ALS Hearing Affect My Criminal Case?

Many of the issues determined at the implied consent hearing are identical to those faced in the criminal trial of the DUI-DWI offense. However, because the implied consent proceeding is deemed to be a civil proceeding, and because of the differences in the burden of proof in the two proceedings, the doctrines of res judicata and collateral estoppel have consistently been held not to be applicable. Neither the prosecutor nor you are bound in one case by a finding in the other.

Finally, the double jeopardy clause in the Fifth Amendment does not prevent the state from imposing implied consent sanctions upon you even if you are later acquitted of the criminal DUI-DWI offense. However, a few states have passed statutes that provide that winning the criminal case or having the DUI-DWI charge reduced or dismissed will allow immediate reinstatement of your license, regardless of the remaining suspension period of the administrative license action.