ARIZONA MVD HEARINGS


Arizona Department of Transportation Motor Vehicle Division (“MVD”) hearings are civil in nature and differ in several ways from the courtroom proceedings in a criminal matter. The hearings are more informal, and are decided by an Administrative Law Judge, rather than a jury. The standard of proof in these hearings is a "preponderance of the evidence” (more probable than not); a much lower standard than the “beyond a reasonable doubt” standard in criminal court. MVD conducts different types of hearings depending on the nature of the suspension or other contemplated action.
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DUI Hearings
- Administrative Per Se Hearing
- Implied Consent Hearing
Negligent Operator "Points" Hearing
Medical Review Hearing
Reinstatement of Driving Privileges Following Suspension
Reinstatement of Driving Privileges Following Revocation
SR22 Insurance

DUI HEARINGS

At MVD hearings related to DUI arrests, the officer is subpoenaed to testify and present evidence against the defendant. The defendant is entitled to be represented by counsel and is entitled to present evidence and dispute the charges and the officer's order of license suspension. Even if all officers appear, testify and prove their case, your license will not be suspended immediately after the hearing. If the Administrative Law Judge upholds the suspension of your license, then the suspension will usually begin 20 days from the date of the Order.

The MVD will take administrative action against your driver’s license and/or privilege to drive in the State of Arizona separate and apart from the criminal prosecution for driving under the influence of alcohol. In fact, if you "refused" testing or provided blood, breath or urine samples showing an alcohol concentration of .08 or higher, the police issue a pink and a yellow copy of the "Administrative Per Se/Implied Consent Affidavit," which explains you have only 15 days from the date the notice of suspension is served to request an MVD hearing. A.R.S. § 28-1385(C). A timely request for a hearing postpones the suspension until a hearing is held. A.R.S. § 28-1385(H). Conversely, should you fail to timely request an MVD hearing, the MVD will automatically suspend your driver's license for a period of 90 days if you submitted to the test and registered .08% BAC or higher, and for one year for a "refusal" to submit to testing.

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ADMINISTRATIVE PER SE HEARINGS

The scope of an Administrative Per Se hearing is limited to the following issues: (1) whether the officer had reasonable suspicion to believe the defendant was driving or was in actual physical control of a motor vehicle while under the influence of intoxicating liquor; (2) whether the defendant was arrested for DUI, DWI, Extreme DWI or Aggravated DUI; (3) whether the blood or breath test indicated a .08 blood alcohol concentration (“BAC”) or .04 or more for a commercial license while driving a commercial vehicle; (4) whether the testing device used was valid and reliable; and (5) whether the test results were accurately evaluated. A.R.S. § 28-1385(I).

Note: Arizona licensee’s, who have no DUI convictions in the past seven years, no DUI related driver’s license suspensions, and did not cause serious physical injury, are entitled to have the 90-day administrative per se suspension imposed as an initial 30-day flat suspension (no driving whatsoever), to be followed by a 60-day period which allows driving on a restricted basis, i.e., to, from and for work, school and medical appointments. A.R.S. § 28-1385(F).

If a state other than Arizona issued your driver's license, you will usually have your "Arizona Driving Privileges" suspended without the benefit of a 60-day restricted permit. While the MVD does not have the authority to alter your out-of-state license, they can restrict your right to drive while you are in Arizona. However, if you are convicted of DUI, the MVD will report the conviction to the MVD in your home state. For this reason, it is imperative that you consult an attorney from your home state to determine what action, if any, your home state’s MVD will take against your driver’s license.

In an Administrative Per Se Hearing, the Administrative Law Judge’s decision may be appealed to the Superior Court. Often a Superior Court Judge will stay the MVD suspension order (direct the Motor Vehicle Division to reinstate the client’s driving privileges) pending a formal hearing.

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IMPLIED CONSENT HEARINGS

Any person who operates a motor vehicle within the State of Arizona and is arrested for a DUI-related offense is presumed to have given consent to a test of his/her breath, blood, urine or other bodily substance, for the purpose of determining alcohol concentration.

If you are stopped, and the officer requests that you take a test or tests, you must cooperate or you will lose your Arizona driver's license, or Arizona driving privileges for a period of 12 months. If you have, within the past seven years, refused to take a breath, blood or urine test, then your Arizona driver's license or privilege to drive will be suspended for two years.

The scope of the Implied Consent hearing is limited to the following issues: (1) whether the officer had reasonable suspicion to believe the defendant was driving or was in actual physical control of a motor vehicle while under the influence of intoxicating liquor; (2) whether the defendant was placed under arrest; (3) whether the defendant “refused” or failed to successfully complete a designated test for alcohol concentration or drug content; and (4) whether the defendant was informed of the consequences of the refusal. A.R.S. § 28-1321(K).

Note: As an Arizona licensee, you are obligated to submit to a chemical test consisting of either a blood or breath test upon demand. Failure to submit to the officer’s alcohol concentration test may constitute a “refusal” resulting in the loss of driving privileges for 12 months.

Just as in an Administrative Per Se hearing, the Administrative Law Judge’s decision in a refusal case may be appealed to the Superior Court. A petition for review must be filed within 45 days of the Motor Vehicle Department’s final Order of Suspension and will be heard on an expedited basis.

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NEGLIGENT OPERATOR "POINTS" HEARING

Any motorist who accumulates too many “points” based upon multiple moving violations can be suspended by the MVD as a “negligent operator.” A driver has only 15 days after the date of the order of assignment or suspension to request an MVD hearing.

In calculating a motorist’s points, the MVD totals points accumulated within a “twelve-month period” and a “thirty-six month period,” respectively, from the date of the most recent traffic violation for which the driver has a conviction or judgment, to that day and month for the prior period. The MVD assigns points to a driver as follows:

Offense Points
DUI - A.R.S. 28-1381(A)(1) 8
DWI - A.R.S. 28-1381(A)(2) 8
Extreme DWI - A.R.S. 28-1382 8
Reckless Driving - A.R.S. 28-693 8
Racing on Highway - A.R.S. 28-708 8
Aggressive Driving - A.R.S. 28-695 8
Leaving the Scene of an Accident - A.R.S. § 28-662, 663, 664, or 665 6
Failure to Stop for a Traffic Signal, Stop Sign or to Yield the Right-of-Way, Causing Death - A.R.S. 28-672 6
Failure to Stop for a Traffic Signal, Stop Sign or to Yield the Right-of-Way, Causing Serious Injury - A.R.S. 28-672 4
Speeding - A.R.S. 28-701 3
Gore Area Violations - A.R.S. 28-644 3
Any other moving traffic violation 2

For purposes of the 12-month assessment, the MVD, in its discretion, may suspend a driver for three months for the accumulation of eight to 12 points within that period. But, if the driver has not attended Traffic Survival School (“TSS”) within the past 24 months, the MVD will likely assign the driver to complete TSS in lieu of suspending his/her license. For the accumulation of 13 to 17 points, the MVD will suspend a driver for three months. For the accumulation of 18 to 23 points, the MVD will suspend a driver for six months.

Note: A DUI conviction will result in the MVD assessing eight points and, assuming the driver has not completed TSS within the past 24 months, assigning a driver to complete TSS. Consequently, any additional point assessments in the ensuing 12 months will, at a minimum, lead to a three month suspension.

In regard to the 36-month assessment, the MVD will suspend a driver for one year for accumulating 24 points within that period.

Note: There is no restricted permit available to drivers with points-based suspensions.

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MEDICAL REVIEW HEARING

Any motorist that is involved in an accident due to his/her health condition, such as epileptic seizures or a diabetic loss of consciousness, can be suspended or revoked by the MVD. Often, the MVD only needs to be educated or informed as to a client’s particular circumstances, and proper representation and expert testimony can be quite helpful in reaching an appropriate resolution to the problem.


REINSTATEMENT OF DRIVING PRIVILEGES FOLLOWING SUSPENSION

Driving privileges are not automatically reinstated following a period of suspension. The driver must complete some paperwork and pay a fee to have his/her privileges reinstated, otherwise his/her privilege to drive are still considered to be suspended. This fact is sometimes overlooked by drivers and may result in stiff penalties should the driver commit another driving offense while his/her license is still considered suspended.


REINSTATEMENT OF DRIVING PRIVILEGES FOLLOWING REVOCATION

Reinstatement of privileges following a revocation is much more difficult than reinstatement of privileges following a suspension. It involves an investigation of the driver’s character, habits, and driving abilities, as well as a written evaluation from a physician, psychologist or certified substance abuse counselor stating that the person is able to safely operate a motor vehicle.

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SR22 INSURANCE

An SR22 is proof of financial responsibility. Following various court ordered license suspensions, motorists must carry SR22 insurance for three years. Insurance companies are required to notify the MVD upon cancellation of SR22 insurance. Such insurance is basically a safeguard to ensure that a motorist, who the MVD considers to be a higher risk, maintains constant insurance.

In Arizona, your first DUI conviction will not automatically require you to obtain SR22 insurance. In fact, you will be exempt from SR22 insurance entirely, if:

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 MVD upholds the Administrative Per Se suspension of your driver’s license prior to being convicted of the DUI; or
 
•  MVD voids the Administrative Per Se suspension and the DUI charges are dismissed or reduced to a non-DUI offense.

If, however, the MVD voids the Administrative Per Se suspension and subsequently suspends based upon the DUI conviction, the driver must carry SR22 insurance as a condition of reinstating and/or maintaining a valid driver’s license.

Note: This SR22 information is only valid for the State of Arizona.

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The Gillespie Law Firm, P.C. is a leading Phoenix, Arizona DUI and criminal defense law firm dedicated to the aggressive representation of clients involving all aspects of vehicular crimes and criminal litigation. We handle cases in Federal, State, Municipal, Juvenile, and Appellate Courts throughout the greater Phoenix Metropolitan Area and all of Arizona.

 
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