Greensboro DWI Attorneys and DMV Hearings Don’t Mix

In Greensboro DWI Attorneys and DMV Hearings Don't Mix by GWAO

Greensboro DWI Attorneys and DMV hearings don’t mix.

Challenging a refusal (or other license revocations, which have similar procedures) is a true uphill battle. The DMV Hearing Officer acts as both the prosecutor and the Judge; if there is a question of law, they contact the North Carolina Attorney General’s Office for a resolution.

Understand there is no such thing as a fair hearing, and if you are a defense attorney, advise your clients of this. Be fair and honest with them – this is a fishing expedition. Unless there is a true question of fact, the odds are not even calculable in the defendant’s favor. Always advise, however, that these hearings may be appealed to Superior Court (and expensive, time consuming and procedurally detailed process, but one where there is usually a greater chance of a positive outcome).

Focusing on a refusal hearing, the most common hearing DWI practitioners will encounter, means advising clients to (1) make sure their mailing address is correct with the DMV, and (2) be on the lookout for a letter informing them of the date of their revocation. This letter will instruct the defendant on the first step of an appeal – a request that must be in writing, and within 10 days. The best practice is to both mail and fax the letter (keep the confirmation receipt from the fax). Prior to the hearing date, a further request must be made to subpoena the Law Enforcement Officer. The revocation is stayed after the request until the hearing.

A hearing prior to the DMV challenge may be made in court. This hearing would focus on probable cause; if successful, and if a judge will sign an order stating there was no probable cause for the arrest, then the DMV is estopped from revocation.

At the DMV hearing, there are few issues that even be addressed. These include whether or not the defendant was under arrest for an implied consent law, whether the defendant was advised of their rights, and whether the refusal was willful.

Remember this is not a “court” hearing. Hearsay usually is allowed (object anyway), and affidavits usually come into evidence (also object anyway). Prepare your witnesses, and remind them that their testimony is being recorded. Many hearing officers will advise you of their decision right there on the spot; others will call you or send you an official letter as their only means of contact, depending on the individual officer’s standard practice.

If you have scheduled a DMV hearing or need representation, contact the top rated criminal defense attorneys at Garrett, Walker, Aycoth and Olson.  AVVO rated 10.0, our attorneys are hear to help with your DWI, license, or any criminal or traffic matter.