WHAT HAPPENS AT A DUI ADMINISTRATIVE HEARING?
Any person that is served with an officer’s certification and notice of suspension after a DUI arrest may request an administrative hearing to contest the suspension of their driver’s license. The hearing must be requested in writing and the appropriate fee must be paid. The request must be postmarked within 14 days of the issuance of the officer’s certification and notice of suspension.
To learn more about the DC-27 Officers Certification and Notice of Suspension click here.
After an administrative hearing is requested there is limited discovery that one can do to prepare for the hearing. You are entitled to receive the following documents before the hearing takes place.
The officer’s certification and notice of suspension
In the case of a breath or blood test failure, you are entitled to copies of documents indicating the result of any evidentiary breath or blood test administered at the request of a law enforcement officer.
In the case of a breath test failure, a copy of the affidavit showing certification of the officer and the instrument.
In the case of a breath test failure, a copy of the Kansas department of health and environment testing protocol checklist.
An order from the Division of Motor Vehicles allowing the licensee or their attorney to review any video or audio tape made of the events upon which the administrative action is based.
The discovery listed above is usually sent to the person who has requested the administrative hearing or their lawyer via us mail. The order from the division to inspect the video/audio footage will not be sent to the licensee. The division will also send notice of the place and time that the administrative hearing is to take place.
On the date of the hearing, several people will be present. The hearings are set one after another every 15 minutes. The licensee and the licensee’s lawyer will make up your side. The other side will consist of the officer or officers who certified your DC-27 and anyone else that you requested be there who was in the physical presence of the officer whom served you with the DC-27. The only other relevant party is the Administrative Hearing Officer (Judge) from the Kansas Department of Revenue.
The license hearings are limited in scope. In other words, you can only talk about specific topics.
If you get off topic or start talking about something that is not within the scope of the hearing the Judge may let you continue or they may tell you to keep it to the information that is within the scope of the hearing. The judge will only consider evidence presented that is within the scope of the hearing.
Things You Can Talk About If You Refused The Breath Or Blood Test.
Whether or not the officer had reasonable grounds to believe the person was operating or attempting to operate a vehicle while under the influence of alcohol or drugs, or both, or had been driving a commercial vehicle while having alcohol or drugs in their system.
Whether or not the person was in custody or arrested for an alcohol or drug offense or was involved in a vehicle accident or collision resulting in property damage, personal injury or death.
Whether or not the officer had presented the person with the oral and written notice required by K.S.A. 8-1001. (See What is a DC-70 for further information)
Whether or not the person actually refused to submit to and complete a test as requested by a law enforcement officer.
Things You Can Talk About If You Took The Breath Test And Failed.
Whether or not the officer had reasonable grounds to believe the person was operating or attempting to operate a vehicle while under the influence of alcohol or drugs, or both, or had been driving a commercial vehicle while having alcohol or drugs in their system.
Whether or not the person was in custody or arrested for an alcohol or drug offense or was involved in a vehicle accident or collision resulting in property damage, personal injury or death.
Whether or not the officer had presented the person with the oral and written notice required by K.S.A. 8-1001. (See What is a DC-70 for further information)
Whether or not the testing equipment used was certified by the Kansas Department of Health and Environment. (See Can the Breathalyzer be beat?)
Whether or not the person whom operated the testing equipment was certified by the Kansas Department of Health and Environment. (See Can the Breathalyzer be beat?)
Whether or not the testing procedures used substantially complied with the procedures set out by the Kansas Department of Health and Environment.
Whether or not the test result determined that the person had an alcohol concentration of .08 or greater in such person’s breath.
Whether or not the person was operating or attempting to operate a vehicle.
Things You Can Talk About If You Took The Blood Test And Failed.
Whether or not the officer had reasonable grounds to believe the person was operating or attempting to operate a vehicle while under the influence of alcohol or drugs, or both, or had been driving a commercial vehicle while having alcohol or drugs in their system.
Whether or not the person was in custody or arrested for an alcohol or drug offense or was involved in a vehicle accident or collision resulting in property damage, personal injury or death.
Whether or not the officer had presented the person with the oral and written notice required by K.S.A. 8-1001. (See What is a DC-70 for further information)
Whether or not the testing equipment used was reliable.
Whether or not the person whom operated the equipment was qualified.
Whether or not the testing procedures were reliable.
Whether or not the test results determined that the person tested had an alcohol concentration of .08 or greater in such person’s blood.
Whether or not the person was operating or attempting to operate a vehicle.
So now that you know what you can talk about and who can attend the hearing you need to know what evidence can be presented, what the burden of proof is and who has the burden of proof. Remember you are not entitled to help from the hearing officer or anyone else during the hearing, it is always best to have a lawyer that is well versed in this administrative process. In some cases, it can be the difference between keeping your driver’s license and losing your driver’s license.
What Evidence Can Be Presented At The Hearing?Just like the scope of the hearing is limited. The evidence that can be presented at the hearing is limited. The only evidence that can be presented at the hearing must be in the following form:
The documents that are produced in discovery.
The testimony of the licensee.
The testimony of the certifying officer.
The testimony of any witness present at the time of the issuance of the DC-27, that was named by the licensee.
Any affidavit submitted by other witnesses.
Any document submitted by the licensee to show the existence of a medical condition
Any video or audio tape record of the events upon which the administrative action is based.
Who’s Burden Of Proof Is It At The Administrative Hearing?It is the Licensee’s burden to prove by a preponderance of the evidence that the facts set forth in the officer’s certification are false or insufficient and that the order suspending the licensee’s driving privileges should be dismissed.