Drunk Driving Defendants Are Avoiding 'License Suspensions'

Driver's license suspension hearings can be won by drunk driving defendants as much as 60% of the time in some states, experts tell Lawyers Weekly USA.

There are a large number of technical defenses available in these hearings, although many lawyers are unaware of them.

"Lawyers fail to appreciate that, by God, these things can be won," says Douglas Cowan of Bellevue, Washington, co-author of a book on drunk driving law.

Winning the hearing may weaken the argument that a subsequent criminal trial is "Double Jeopardy." But the client may still be better off, especially now that the Double Jeopardy defense has been rejected in most states.

Even if a lawyer doesn't believe a suspension hearing is winnable, he or she can still take advantage of it by using it as a "deposition" of the arresting officer, experts say.

At the hearing, there is no prosecutor and the officer is usually unprepared. Questions can cover nearly everything related to the arrest. The officer's testimony can then be used to impeach him at a pre-trial suppression hearing or at trial. It can also be used in plea bargaining.

"A lot of lawyers are not taking advantage of this, and they are making a major mistake," says Donald Day, a defense attorney in Naples, Florida.

License suspensions are imposed in every state for refusing a breath test, and they are imposed for failing a test in 37 states. It appears that defendants can get a suspension hearing in every state if they request one.

Lawyers Weekly USA interviewed drunk driving defense experts around the country to find out which defenses are working. Here's what they told us:

If an officer's advice to the defendant about the state's "implied consent law" was defective in any way, then a suspension shouldn't be imposed, experts say.

This defense is "the biggest winner" in the state of Washington, says Cowan.

In some cases, officers won't even bother to read the language that the state requires, says Robert Chestney, a defense attorney in Atlanta.

But more often, the officer will read it and then give additional advice, says Cowan. For instance, he may tell someone that if he refuses the test he will go to jail.

"Or he may say, 'If I were you, I'd blow,'" says defense attorney Leonard Stamm of Greenbelt, Maryland.

Or he may change the wording of the required language when he responds to the driver's questions, says Cowan.

In some states, it's a defense that the advice was given too late. For instance, in Georgia the driver must be advised of his implied consent rights at the time he's arrested, says Chestney. The officer can't wait until they get to the breath tester at the police station.

In many states, the arresting officer is required to attend the suspension hearing, and if he doesn't show up, the defendant wins automatically.

This is the most common way to win in New Mexico, says defense attorney Roderick Frechette of Albuquerque.

If the officer isn't required to attend, the defense attorney can subpoena him. In some states a failure of the officer to respond to a subpoena can result in a dismissal of the suspension, either automatically or at the discretion of the hearing judge.

In general, a police stop is justified if there was a "reasonable and articulable suspicion" that a crime was being committed.

Generally it's enough that the defendant weaved, says Leonard Sharon, a defense attorney in Lewiston, Maine.

But a legal U-turn late at night should not be enough, says William Head of Atlanta, a regent of the National College for DUI Defense.

For an arrest, it's enough that the defendant failed the field sobriety tests, says Sharon.

However, failure of a preliminary breath test generally isn't enough, says Chestney.

The odor of alcohol might not be enough either, says Stamm.

This type of defense is more likely to succeed if the officer isn't present at the hearing and thus can't provide an additional justification, says Cowan.

In some states, if a defendant asks for an independent test after taking the breath test, an officer is required by statute to make reasonable efforts to accommodate him.

In Georgia, this can include driving the defendant to a hospital, says Chestney.

This rule can provide a defense not only where the defendant made an explicit request for an independent test, but where he did so impliedly, Chestney says. For example, the defendant might have reacted to his breath test result by saying, "That can't be right," or "Gosh, could you do that again?"

Samuel McCloud of Shakopee, Minnesota says that when a defendant calls him at the time of the arrest, he often will ask a friend of the defendant to attempt to visit him in jail for the purpose of collecting a urine sample. Invariably, he says, the friend isn't allowed to visit, and an argument can then be made that the defendant's right to an independent test was unreasonably denied.

A number of states require that the breath test be given within a certain period of time after the defendant was driving, or after he was apprehended, says Head. The period usually ranges from two to four hours.

This defense can be raised if the officer didn't see the defendant until after he had stopped driving, such as where the defendant was in an accident or had passed out, says Head.

In Colorado, singer John Denver avoided a suspension on these grounds last year when he was arrested after crashing his Porsche into a tree.

Most courts have said a defendant doesn't have a constitutional right to talk to an attorney before taking a breath test. However, some states give defendants the right to call an attorney if it doesn't delay the breath test for too long. The denial of this right can be a defense, says John Henry Hingson of Portland, Oregon, a former president of the National Association of Criminal Defense Lawyers.

This right is denied not only if the police don't allow the call, but also if they allow it and then eavesdrop, says Hingson.

County, municipal, park and university police have limited jurisdictions. Sometimes they won't state in their report any basis for believing that the stop was made within their jurisdiction, and in Maryland that can invalidate a suspension, says Stamm.

However, the officer may have an explanation, so the defense works best if the officer isn't present at the hearing, says Cowan.

At least in Georgia, the arresting officer's report to the motor vehicles department must be sworn by the officer in the presence of a notary. Often, however, the officer will just sign the report and leave it for a secretary to notarize later, and that invalidates a suspension, says Chestney.

In the state of Washington, the report doesn't need to be notarized but it must include the date and time when it was signed. In some cases, officers fail to include that information, says Cowan.

Sometimes an officer won't sign the report at all, says Stamm.

Some states require a certificate to be signed by the operator of the breath test machine, and the defendant can win the hearing if it hasn't been completed, says Head.

In Maryland, the form the officer gives to the defendant serves as the original suspension order, and technically the purpose of the suspension hearing is to determine whether that order will be given effect, says Stamm. Often, however, the officer will fail to date the form. Without a date, it's not a valid order.

In some states, if the defendant makes a timely request for a hearing, the state is required to issue a temporary license until the hearing, and to issue an additional one if the hearing is continued.

In Maryland, if the state fails to send out a temporary license on time, state regulations require that the suspension be dismissed, says Stamm. Because hearings are frequently continued, this defense works in about 10% of his cases, he says.

In New Mexico, a similar defense arises when the officer gives a notice to the defendant and fails to check the box that tells him he has temporary driving privileges, says Frechette.

Sometimes a defendant will agree to take the test but not blow hard enough for the machine to work. It can be argued that a medical condition such as asthma or emphysema prevented him from blowing harder, says Sharon.

Another argument is that the mouthpiece may have been clogged, says McCloud.

In other cases, the defendant may have refused to take the test at first but then changed his mind in time for a test to still be valid. In Georgia, that's a defense that works often, says Chestney.

But in Minnesota, a refusal is regarded as final unless the person changes his mind "instantaneously," says McCloud.

Another argument is that the defendant refused to take the breath test only because he was confused about his rights. For example, he may have insisted on calling an attorney first even though his state doesn't give him the right to do so. A defense is that he made an honest mistake of law for which he shouldn't be punished.

This argument is strongest if the driver tried to get clarification of his rights and asked the officer more questions than the officer was willing to answer, says Chestney.

However, most courts have rejected it, says Lawrence Taylor of Long Beach, California, the author of a book on drunk driving defense.

In some cases, such as where more than one person was in the car, it won't be clear that the defendant was driving, says Taylor. If the officer doesn't state that he saw the defendant driving, the suspension shouldn't be imposed, he says.

In response to this defense, some judges will say, "Give me a break," but others will agree, says Stamm.

This is another defense that's more likely to succeed if the officer isn't at the hearing, says Head.

The "batting averages" of defense lawyers appear to vary greatly from state to state. Although no statistics have been compiled, it appears that lawyers in some states win more than 60% of their hearings, while in other states they win less than 10%.

Lawyers seem to fare best in states where officers are required to attend every hearing but are given little incentive to do so, and defendants win automatically when they don't show up.

However, in states where officers aren't required to attend, lawyers have more success with certain defenses because the absent officer can't supplement his report with testimony based on his notes and memory.

Another factor is whether the "judges" at the hearings are lawyers. It's harder to win if the "judge" is merely an employee of the department of motor vehicles, says Taylor.

Even if a lawyer believes that a hearing can't be won, it can still be a gold mine if it's used as a deposition of the officer, experts say.

In most states, no deposition of the officer is otherwise possible.

If the officer isn't required to attend the hearing, he can be served with a subpoena.

At the hearing, the officer is usually unprepared and uncoached and is less likely to embellish his testimony to support the prosecution's case, says Chestney.

The hearing transcript can be used to limit the officer's testimony at a pretrial suppression hearing or at trial. And if the officer changes his testimony, it can be used to impeach him, says Troy McKinney of Houston, Texas, a co-author of a book on drunk driving law.

If the testimony at the hearing shows weaknesses in the state's case, or if the testimony is inconsistent with the officer's report, it can also be used in plea bargaining, McKinney says.

Often the prosecutor will realize that the case is not as strong as he or she thought, says Taylor.

Technically, the officer can only be asked questions at the hearing that relate to the issues involved in the suspension. But those issues, which include probable cause, are so broad that just about anything a defense lawyer would ask at trial or at a suppression hearing can be brought up, experts say.

"You can ask all the questions you don't know the answers to," says Hingson.

"There's pretty wide latitude," says Day. "You'd be surprised at what you can get away with."

The way to get a transcript varies among the states. In most states, the agency holding the hearing will simply tape it. Defense lawyers can get a copy of the tape and make a transcript on their own. In some other states, the agency will prepare the transcript, while in others it won't even tape the hearing.

A drawback of using the hearing as a deposition is that it can make the hearing harder to win. And a lawyer may decide that winning the hearing is more important.

"You often have to make a tactical decision," says William Cook, a defense attorney in Anchorage, Alaska.

"Avoiding the suspension is almost always better accomplished where you don't use the hearing for discovery," says Miami attorney Richard Essen, who has written a drunk driving law treatise.

For instance, if the officer isn't required to attend and you have a potential defense that's more likely to succeed in his absence, you may not want to subpoena him, says Taylor.

Or, if the officer is present, you may want to focus on the facts that support your defense rather than get into a lot of facts that make your client look bad. For instance, you may not want the hearing judge to know that your client ran three red lights and was belligerent and vomiting, says McCloud.

The tactical decision will usually depend on how badly the defendant wants to avoid the suspension.

"For many people, especially first-time offenders, the main concern is with avoiding the suspension, not with the trial," says Edward Maukawsher, a defense attorney in Groton, Connecticut.

However, "If I have a client who's not that sensitive to a loss of his license, I would much rather have the testimony," says Chestney.

Winning the suspension hearing does not necessarily invalidate the "Double Jeopardy" defense because the license suspension technically begins at the time of the arrest, regardless of whether it is dismissed as a result of the hearing, lawyers say.

This is true even if the defendant is given a temporary license until the time of the hearing, says Taylor. The temporary license isn't the same as a real one, he says. For instance, it can't be used to rent a car, and it won't work as a photo ID.

However, lawyers concede that the Double Jeopardy argument may not be as strong if the hearing is won. The crux of the argument is that a criminal conviction would impose a second punishment, and if the defendant wins the hearing he won't have been punished as much the first time.

But this shouldn't cause a defense attorney to concede the issue, they say.

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