Q. What is a Formal Review Hearing?
A. If arrested for DUI and you refused to take a breath test or blew over the legal limit, your license will be suspended for a period of time by the Department of Highway Safety and Motor Vehicles (DHSMV). However, you are entitled to challenge this suspension by means of the Formal Review Hearing.
The Formal Review Hearing can be a valuable tool in the investigation and the defense of your case. First, it allows your Attorney to challenge the suspension of your license and, if successful, obtain the reinstatement of your license. Secondly, it permits your Attorney to interrogate the police officers in order to gain detailed knowledge concerning their observations, actions and opinions.
Q.Can I get a hardship license or a temporary driving permit?
A. You are entitled to a Temporary Driving Permit (if you otherwise have a good license) if you request a Formal Review Hearing. Be careful though!
The new DUI law allows you to apply for a hardship license immediately if you waive your rignt to a Formal Review Hearing. This means that you will not have to suffer any “hard time” without license. Remember, this new law only applies to first time offenders.
If you wish to challenge the suspension and have a Formal Review Hearing, then you get a permit and have the hearing.If you are unsuccessful at the hearing, you will lose your license for 6 months, 1 year, or 18 months depending on if you blew or not. Also, you will have to suffer the “hard time” without driving for either 30 or 90 days depending on whether you blew or not.
You will have to attend DUI School to be entitled to hardship license.
Q. If I’m stopped by a police officer and he asks me if I’ve been drinking, what should I say?
A. You are not required to say anything. A polite “I would like to speak with an attorney before I answer any questions” is a good reply. Just remember, anything you say is going to be used against you.
Q. Do I have a right to an attorney when I’m stopped by an officer and asked to take a field sobriety test?
A. As a general rule, there is no right to an attorney until you have submitted or refused a blood, breath or urine testing.
Q. What should I do if I’m asked to take field sobriety tests?
A. Unlike the chemical test, where refusal to submit may have serious consequences, you are not legally required to take any tests or “exercises.” The reality is that officers have usually made up their minds to arrest when they give these tests. The tests are simply additional evidence which the suspect inevitably “fails”. Thus, in most cases a polite refusal may be appropriate. You cannot be punished for refusing these roadside tests or exercises. There is no good reason to take them.
Q. Why did the officer make me follow a penlight with my eyes to the left and right?
A. This is the “horizontal gaze nystagmus” test, a relatively recent development in DUI investigation. The officer attempts to estimate the angle at which the eye begins to jerk (“nystagmus” is medical term for a distinctive eye oscillation); if this occurs sooner than 45 degrees, it theoretically indicates a blood-alcohol concentration over .05%. The smoothness of the eye’s tracking the penlight (or finger or pencil) is also a factor, as is the type of jerking when the eye is as far to the side as it can go.
This field sobriety test has proven to be subject to a number of different problems, not the least of which is the non-medically trained officer’s ability to recognize nystagmus and estimate the angle of onset. Because of this, and the fact that the test is not accepted by the medical community, it is not admissible as evidence in many states; it continues, however, to be widely used by law enforcement.
Q. Should I agree to take a chemical test? What happens if I don’t?
A. The decision is one of weighing the likelihood of a high blood-alcohol reading against the consequences for refusing.
If you refuse, your license will be automatically suspended for a period of time. The length of suspension depends on whether it is your first or subsequent refusal to submit to a chemical test. For example, a first refusal results in a 12 month suspension. If you take a chemical test and your blood alcohol level is over .08, this is evidence that will be used against you to prove you were driving under the influence.
Q. Can my case be dismissed if the officer never gave me a “Miranda” warning?
A. No. The officer is supposed to give Miranda warnings after he arrests you. Often, however, they do not. The only consequence is that the prosecution cannot use any of your answers to questions asked by the police after the arrest.