Misconceptions about the Driver’s License Division Hearing
Interviewer: Are there more common misconceptions people have about this particular kind of hearing?
It Is a Mistake to Not Request the Hearing Due to a Feeling of Hopelessness about the Outcome
Matthew Nebeker: First of all, they’re feeling a bit badly. They’ve just gotten out of jail. They had to have their friend or family member come and get them out. Their car’s been impounded and they’re worried about their job, things like that. They’re just feeling so low already, that they don’t feel like they have a defense. They don’t feel like it will do any good to call an attorney or to even bother having the hearing.
There Are Viable Defenses an Attorney Can Utilize During the Hearing
They feel like, “Well, I was over the limit. I’m just going to suck it up. Take my punishment, and go on with it.” That’s really not the case. There are all kinds of defenses. For example, many times officers stretch the boundaries of the law. They stretch the truth sometimes.
It’s always worth having a DUI attorney take a look at their case. Most attorney’s offer a free consultation, where they’ll discus some of the major points of the case. That’s the biggest misconception—why should I? They automatically think they’re guilty. They automatically think they did something wrong.
It is Always Advisable to Have Legal Representation at the Hearing
Interviewer: When individuals are at that hearing, what are some actions or statements that someone may do that may hurt their case during that process?
Why Should You Avoid Self-Representation at the Driver’s License Division Hearing?
Matthew Nebeker: There is a great deal of information out there on the Internet and many people will do a little research and then go to the hearing themselves. They will try and represent themselves. There are a number of smart people that can figure out how to get the hearing requested and they can figure out how to get to the hearing and go there.
It is More Than Likely You Did Not Pass the Field Sobriety Tests
Here’s the biggest thing; they think that they passed the field sobriety test. They think that they did the walk and turn perfectly, they think they did the one leg stand perfectly, but they’re not trained. They don’t know what the small clues are that the officers are looking for.
People try and represent themselves. They usually end up making statements that hurt them. They try and testify. They try and make an argument against the officer’s statement.
When that happens, you have the driver’s word, the driver’s opinion, his testimony, versus the officer’s testimony. You can imagine how that’s going to play out.
If you go in with an attorney you are assured of a number of factors. The attorney has been through the same training that the officer has. The attorney knows what little tiny mistakes that can be made and what the officer is looking for during the field sobriety tests.
What Might Your Attorney Utilize to Help during the Hearing?
What I do is I test, in that hearing, the officer’s knowledge on the field sobriety test. I ask him specific details such as how far he held out the pen? How fast he moved it back and forth in front of the driver’s eyes? Did the officer make sure that my client understood the test and understood the requirements?
Did the officer properly administer the test? If he didn’t properly administer it, then he can’t draw the proper conclusions. That’s the difference between someone going there and representing themselves and going with a DUI attorney.
An Attorney Knows What Questions to Cask to Refute law Enforcement’s Testimony and Prevents His or Her Client from Making Incriminating Admissions
When we have those arguments, the other day for instance, I had a hearing where I asked the trooper, “Well, how many points are possible on this test?” He paused for a minute, and finally he said, “I don’t know.” I asked, “Well, how many points are on this one leg stand test?” He replies, “I don’t know.”
I did that for the rest of the remaining tests. He couldn’t answer basic simply questions about the test, so I made the argument that, “Well, if he doesn’t know how many points are possible on a test, how could have he properly administered it? How could he have drawn the right conclusions?” That’s the difference between retaining an experienced DUI attorney and self-representation.
When most people go there without an attorney they usually end up saying things such as, “Well, I only drank two beers.” That just sinks them. That’s the main difference.
Why the “I Only Had Two Beers” Defense Rarely Works: No Two People Have the Same Tolerance for Alcohol
The problem is a lot of people have those one or two drinks and they feel, “I was fine to drive. I did well on the field sobriety test. I shouldn’t be here. I shouldn’t have to hire an attorney.” The problem is we all have different tolerances for alcohol.
Some people may be able to consume a six pack of beer and still have the ability to drive. They may be able to do many activities just fine. That doesn’t matter. If they’re .08 or higher, then they violated the law.
What matters to the hearing officer is, “Were you over the limit?” You might have felt fine, you might have had only had two drinks, you might have thought you passed the field sobriety test, but the machine said your blood alcohol content is over and so done deal—they’re taking your license.
In the Driver’s License Division Hearing, if It Is Established the Officer Had Reasonable Suspicion of a DUI, the Driver’s License Will Be Suspended
Interviewer: What sort of evidence does the officer present? Do they bring in video footage?
Matthew Nebeker: A driver’s license hearing is an informal proceeding. The burden is was the officer reasonable in his belief that the driver was in violation of the DUI law. Reasonable suspicion, versus a court hearing on the criminal side of a DUI, is beyond a reasonable doubt. The highest burden in our legal system, beyond a reasonable doubt versus, in Utah, we’re taking your privilege to drive, and it’s reasonable.
That’s all it is. What evidence do they have to show that they were reasonable? They just have to show up and testify, “Well, I stopped them for this reason. I smelled the odor of alcohol. They had red, bloodshot, glassy eyes or some other alcohol or drug indicator. I gave them the field sobriety test. They failed the sobriety test. I arrested them. They submitted to the chemical test. They blew this on the Breathalyzer or the blood level said this.”
That’s about the extent of the officer’s testimony. That’s all he has to say. The driver’s license division will have the results of the blood test or the breath test.
It’s easy for them to take the license because the burden of proof is so low. On the other hand, the DUI attorney can present a video. I can provide medical information, such as if my client had a recent surgery or a broken ankle. I can take in a document that says, “Look, it wasn’t reasonable to administer the walk and turn test, my client had a broken ankle.” Or, “The one leg stand test was unreasonable because my client just had a back surgery.”
For the Best Outcome, What Experience Should Your Attorney Have?
Interviewer: What can the accused do to help their case?
Matthew Nebeker: Well, the biggest thing they can do to help their case is to call myself. They need an attorney who’s been through this hundreds if not thousands of times. They need someone who knows the officers, who knows their qualifications, where they can be challenged, where they’re weak in their knowledge.
They need an attorney who has the experience to really test their knowledge to make sure that what they put in their DUI report and what they testified about at the hearing is true and it’s accurate.