Interviewer: In regards to the BMV, when I hear the term right to request a hearing, what does that actually mean?
After a Drunk-Driving Charge Is Received, the Driver Has Five Days to Have a Hearing Regarding the License Suspension Issued by the BMV
Dale Naticchia: That’s on the Administrative License Suspension. In fact you should have a hearing within five days, because don’t forget your license has been taken without any proof of guilt at all. Of course, they say that’s because it’s a civil cause of action.
It’s not a criminal action so you’re not really entitled to due process. They do say that you have a right to a hearing. The legislature says you have a right to a hearing within five days.
The Driver Receives Paperwork from the Officer Following a License Confiscation during a Drunk-Driving Charge
They issue a form when you get what is called the administry of license suspension. It’s called the BMV 2255. It’s the Administrative License Suspension Report of a Law Enforcement Officer. Certain paperwork has to be filled out. There’s the sworn statement from the officer; that’s the affidavit. That’s the state’s case against you.
If the Required Paperwork Is Not Completed Correctly, It May Be Possible to Have the License Suspension Lifted
Many times if that form is not filled out properly or if there are some other imperfections in that form, you can get out from underneath the Administrative License Suspension. That form is in triplicate. The officer fills it out. There’s a white original that goes to the BMV. There’s a canary that goes to the court. There is also a goldenrod sheet that’s given to the driver and it has to be filed with the court within forty-eight hours.
You can argue if it’s not filed with the court within forty-eight hours that suspension shouldn’t be valid. It’s got to be a sworn statement. If it’s not a sworn statement the argument can be made that it’s deficient and the Administrative License Suspension should be terminated.
The police officer keeps a copy and he gives the rest to the clerk of courts. The clerk of courts then mails one to the BMV and keeps one for the file.
Drivers Have 30 Days in Which to Appeal the Administrative License Suspension
Interviewer: Who facilitates the DMV hearing?
Dale Naticchia: It should be handled by the local prosecutor and you make the appeal to the court. You raise the appeal at your first hearing. You have thirty-days to appeal the Administrative License Suspension.