Anytime you have been accused of OWI (essentially failing either a breath or blood tests by having a BAC of .08 or above) you will be given several documents that will help us start forming your defense:
- Informing the Accused (Implied Consent Law): This document tells you that you are required by law to give a sample of your blood, breath, or urine for the purpose of measuring your level of intoxication. In order take this sample, the officers must read the Informing the Accused form to you before they act.
- Notice of Intent to Suspend Driving Privileges: As a result of your arrest, the State will move to suspend your driver’s license “administratively” (as opposed to “judicially”) while your case is pending. As a result of this move by the state, you are entitled to an Administrative Suspension Review Hearing (ASRH) within 30 days of the date you were notified that your license would be suspended. It is important to remember that you must request this hearing in writing within 10 days of your arrest. If you are ultimately suspended, you may still be able to obtain an occupational license during this time (unless it is your 2nd OWI within 5 years). Any suspension time while your case is pending will be credited towards any future suspension or revocation that may result.
- Intoximeter read-out (if you took a breath test): The result of this test will go a long way in determining how to defend your case. If you are close to the “legal limit,” you may want to focus on when and how the test was conducted, whether you were in the alcohol absorptive or discharge phase at the time of driving, and whether there may have been defects in the machine. If you tested high (.15 or above), you will want to focus on legal arguments that would exclude the test, or other damaging evidence altogether (illegal searches, non-Mirandized statements, etc.) If the results of the test do not correspond to what is observed on the squad video, you may have what is termed a ‘disconnect defense.’
- If you had blood drawn, then you will likely be sent the results (with a citation for operating with a “prohibited alcohol concentration”) in the mail at a later date.
After the ASRH, you will have your initial appearance where you will enter a plea of not guilty. The matter will be set for a pretrial hearing where we will file motions challenging the stop, arrest, and admissibility of the chemical sample, when those motions are appropriate.
If these motions fail, you must either enter a plea to the charge or take the case to trial. At trial, we will challenge the validity of the field sobriety tests, chemical results, and the methodology used in obtaining those chemical results.
