Interviewer: Are DMV hearings, compared to court cases, more difficult to defend?
David: Well, the DMV hearings are substantially shorter. The New Hampshire DMV has an unwritten rule that they don’t let the hearings go longer than hour. Court trials can go on for considerably more time than that. The administrative hearings are relatively short compared to trials.
People Determined to Have Physical Disabilities That Impair Driving Can Have Their Licenses Suspended Ex Parte
They do have amazing consequences with respect to a medical review hearing, for example. A medical review hearing comes into play when a person is involved in an accident and the police realize that person is not impaired by alcohol and not a DWI. The police realize the driver is physically incapacitated for some reason. As an example, they have epilepsy and that’s what caused the accident, an epileptic seizure or they have some kind of health issue that compromises their capacity to drive.
Those people can have their license suspended ex parte. Police report are filed, requesting the person be suspended immediately pending the hearing. That can sometimes happen.
At the hearing, the client has to go up and demonstrate to the Bureau of Hearings that they’re physically fit from a medical point of view to actually drive a car. That would involve documentation, letters, medical records, and an opinion letter from a doctor saying the person qualified.
Sometimes, they’ll require the client to actually go with the hearings officer and drive a car. I’m thinking of grandmother, for example, that probably shouldn’t be driving at age 84.
Can a First Offender with a Lower Blood Alcohol Level Prevail at the DMV Hearing?
Interviewer: With DWI, let’s say, for a first time offender, if the blood alcohol was .09 instead of .08, would it be at any way possible to win at the hearing?
David: Would it be possible to win the hearing? Maybe, it all depends on the circumstances. Again, there’s some consideration upfront in terms of whether the police officer had reasonable grounds to believe the person was driving under the influence.
The New Hampshire Supreme Court in cases of Lopez and Jacobs ruled that even if the motor vehicle stop was unconstitutional and illegal, the Division of Motor Vehicles can take administrative action based on what occurred after the stop. Even if the stop is illegal, they can suspend the license.
Occasionally, circumstances where the person who’s stopped is taken into custody, the circumstances prior to that don’t justify reasonable grounds. In that case, there will be a finding that there is no reasonable basis to believe that the person was driving under the influence or something is wrong with the test.
When Independently Tested, Breath Tests Can Have Different Results
Blood tests are difficult because the blood test is generally more reliable. Occasionally, in a breath test, the second sample will come back with number dramatically different then the number that the police registered when they ran the breath through the machine the first time.
It’s the exact same air that goes through the machine that comes up with a number and the exact same air goes into a tube that you take to an independent chemist. Every once in a while the numbers will be different. Then if they’re dramatically different, then the hearings officer can conclude that something was wrong with the machine and then choose to not accept the number.
There has to be a factual finding that it was a properly conducted test. If the government’s test result is .09 and the second sample result .18, twice the number, must be something wrong here. We would argue there’s something wrong.
With the Right Representation, It Can Be Possible to Prevail at the DMV Hearing
The government will offer some other alternative theory as to why there might be such a big discrepancy and the hearings officer would decide whether or not that’s a properly conducted test or not. So, there are sets of circumstances where the defense can win the administrative hearing. We can prevail even if it appears, just based on the first couple of sentences on the police report, that the client is going to lose.