If you receive a citation for Driving Under the Influence of Intoxicants (“DUII”), there is a chance you will be cited and released from the jail, be bailed out, or be released by the court with some future date to appear in court. It is likely that you won’t have to go to court for a few weeks or even a month. Without realizing it, many people give up a vital right in that short period of time– the right to contest their DMV imposed license suspension by requesting an Implied Consent Hearing.

When a person is investigated for DUII, they are asked to submit to a breath and/or urine test. If you fail or refuse that test, the officer will fill out a report called an “Implied Consent Combination Report.” That form is mailed to the DMV and a license suspension will go into effect 30 days from the date of arrest. That form will tell you that you have ten (10) days to request an Implied Consent Hearing to contest the license suspension. If you fail to request a hearing in ten (10) days, you lose your opportunity to contest the suspension.

So, what is this hearing and why is it important? At the hearing, an Administrative Law Judge (“ALJ”) will question the officer about various aspects of his or her contact with you to ensure the officer had proper legal authority at each step leading up to and including the breath/urine test. If the ALJ determines there was insufficient legal authority, they can overrule the suspension and prevent it from taking effect. If the ALJ determines there was sufficient legal authority, the license suspension goes into effect as planned.

The two most common ways to prevail at an Implied Consent hearing are: 1. an officer fails to report to the scheduled hearing, resulting in a default or 2. the officer made a critical error involving the form. If the officer reports to the hearing, and did not make any errors, the hearing serves as an opportunity to cross examine the officer prior to any major events in the criminal prosecution. The hearing is recorded, and the officer testifies under oath, providing a very early opportunity to hear the state’s evidence. That hearing can be transcribed and used to assist in trial preparation and to impeach the officer if his or her testimony changes at a later point in time. The person requesting the hearing has no obligation to present any evidence.

If you are cited for DUII, do not forget that you have ten (10) days to request an Implied Consent Hearing from the date of arrest. You have nothing to lose and everything to gain by exercising your right to this hearing. An experienced DUII attorney can assist immeasurably at this hearing by knowing what to ask the officer and being able to spot any legal issues that arise as a result of the officer’s testimony. However, you don’t need to be an attorney to exercise your rights – you can use this online form to request a hearing: https://www.oregon.gov/ODOT/DMV/Pages/Email_forms/implied_consent_hearing.aspx.

Michelle Bartov is a Member of the Oregon Bar and her practice focuses on Criminal Defense. Nothing on this website should be considered legal advice and does not replace consultation with an attorney.

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