Kevin Roach: Your license is now automatically suspended, but they will give you a temporary driving permit to drive on for the next 15 days. Whether it’s a breath case or a refusal, they give you a different set of paperwork, but they’re both temporary driving permits.
Interviewer: What happens in the first 15 days? With a temporary permit, what do you have to do? Is there anything you can do to stop your license from being suspended? What happens?
Kevin Roach: For instance, if it’s a breath test, you have 15 days to request a hearing with the Missouri Department of Revenue.
If you request a hearing within 15 days, your driver’s license suspension is stayed, meaning that your license is not suspended, pending the outcome of the hearing. At that point, once they receive your request for a hearing, they will mail you another temporary driving permit to drive on until the outcome of your case is determined.
Interviewer: It’s the Department of Revenue; that’s kind of strange. I would think that it would be the Department of Motor Vehicles that would be trying to take your license. Are people confused by that?
Kevin Roach: Yeah, it is somewhat confusing because you go to the DMV to get your license plates and your driver’s license and whatnot, but, yeah, it’s through the Department of Revenue where they do the driver’s license cases.
Interviewer: Will they have a separate hearing to determine the outcome of your license, or is that the responsibility of someone else?
Kevin Roach: Yeah, they will have a hearing. Typically, I handle the hearings for my clients. Once you request a hearing, it’s normally set within 30 to 45 days, and those are normally done over the phone. We file any objections we may have with the hearing officer on the day of the hearing and, like I said, those are conducted over the phone.
Interviewer: Okay. The hearing is done over the phone?
Kevin Roach: Yeah. The breath case hearings are all done over the phone.
Interviewer: At that point, this is a hearing to decide if your license will be suspended or not. Are you as an attorney able to intervene and to make statements to try to stop the license from being suspended?
Kevin Roach: Yeah. What I’ll typically do is go through the packet that the Department of Revenue sends me on your case. They have the burden of proof to prove up their case. They have to show that the police officer followed all the correct procedures. For instance, they have to show that they observed you for 15 minutes prior to administering the test. That’s to make sure that you’re not throwing up or make sure you don’t have something in your mouth, just to ensure the validity of the test. They also have to show that the Breathalyzer has been maintained and they have to have a maintenance certificate, and that maintenance certificate has to be dated within a 35-day window prior to the arrest.
There’s a whole list of things that I go through. For instance, if a maintenance certificate is missing or if it’s dated outside of that window, I will file an objection with the hearing officer on the day of the hearing.
Interviewer: It’s really strange that they’re by phone. Does the arresting officer appear on a phone call? Is it like a conference call?
Kevin Roach: Yeah, it’s a conference call.
Interviewer: Very strange. Okay. Besides this hearing, there’s a criminal case going on, too, at the same time, right?
Kevin Roach: Yeah, there’s also a criminal proceeding. There are two proceedings. The first one we talked about was the driver’s license administrative hearing, and then there’s also the criminal proceeding.
Interviewer: Just to be clear, the driver’s license portion is not criminal; it’s called – what – administrative or civil or something else?
Kevin Roach: Yeah. There’s a different burden of proof. It’s a civil proceeding. Your driver’s license is a privilege; it’s not a right like your freedom. There’s a different burden of proof. It’s a whole separate case.
Interviewer: Do folks realize that there are two types of cases going on at the same time and they have to address them?
Kevin Roach: Some people do. I see more and more that people will do some research online before they come into my office, so they’ll be somewhat familiar with it. A lot of people don’t; they don’t get it, really. They don’t understand. They think that there’s just one case. I’ve had cases where, for instance, we win the administrative hearing, so the license portion of it is dismissed. Then they think, “Oh, great, I’m not going to have to do anything.” I explain to them, “Well, this is just a proceeding on your driver’s license; this has really no bearing on the criminal proceeding.” People don’t really understand it, but they really are separate. We could win one of the cases, but it doesn’t necessarily mean you’re going to get the other case dismissed.
Interviewer: You can win one and lose the other, so they still have problems from a DUI arrest?
Kevin Roach: Correct.
Kevin J. roach is a St. Louis DWI defense attorney who has defended thousands of DWI and DUI cases in the St. Louis Metro area. Call us today at (636) 519-0085 or (866) 519-0085 for your Free Consultation!