Thursday, April 7, 2011
DWI - Implied Consent Hearings (Explained)
The State of Minnesota - like most states - presumes that any person who drives, operates, or is in physical control of any type of motor vehicle anywhere in the state consents to a test of his or her breath, blood, or urine (for the purpose of determining alcohol and/or the presence of controlled or hazardous substances - and their levels) in their body.
Minnesota's Implied Consent law permits the revocation of your driver's license - if you refuse to be tested or if the results of the test disclose the presence of a controlled substance (other than marijuana) or an alcohol concentration of .08 or more. (BE AWARE: One thing most people I speak to fail to understand that the license revocation process is completely separate from any related criminal prosecution they face.)
How to Fight a Revocation
In order to challenge the legality of this license revocation, you must file a petition for review by a judge within 30 days of the date of the notice of revocation. Failure to stick to this time line - forever waives your right to challenge it and ensures that this alcohol-related driving violation will remain on your driving record forever, regardless of the outcome of any related criminal prosecution.
Upon filing of the petition, the law entitles you to a hearing before a judge within 60 days. At that hearing, the Commissioner of Public Safety, who is represented by the Minnesota Attorney General's Office, will put forth any evidence it has as to why it is seeking the revocation.
The issues generally contested include: examining whether the test you took was accurate and/or reliable, the legality of the stop of your vehicle, the basis for your arrest, whether you were sufficiently advised as to the rights and obligations you had - pursuant to the Implied Consent law, whether you someone actually refused to submit to testing and whether your rights to consult with a lawyer - prior to taking a test - where exercised.
If the judge finds in your favor - and against the commissioner - your driver's license will be reinstated. If the judge sustains the revocation, you can appeal that order to a higher court.
Do I Need an Attorney to Fight my Revocation
Although I have expressed my opinion on this issue, time and time again, if you consult the back of the Notice and Order of Revocation form issued you - either at the time of the test (if it is a breath test) or later by way of the mail (if your blood or urine were examined) - there is some information about the procedures available for challenging the license revocation. Although the information is accurate, I would suggest that it does not provide enough detail to enable the average person to do the job him or herself.
As such, while it is not required that a person use an experienced Minnesota DWI Attorney to handle an Implied Consent case - the technical requirements and the legal issues are fairly complex.
At a minimum, even if you decide to go it alone, if you're considering challenging your revocation - you should consult with a lawyer regarding the specifics of his case. If you have a good case, you may want to seriously consider seeking out the services of the attorney to handle the paperwork and represent you.
In the end, the more information you get - the better. Remember, just because you've been arrested - it does not mean that you'll be convicted.