A TEST REFUSAL- AN MVA HEARING A WIN
Before telling you about the above specific MVA hearing I recently won, I will give you some pitfalls that face you, the client, in what happens if you go to the wrong lawyer. Obviously to protect my client’s privacy I shall refer to him as Mr.X.
( for a first time refusal you face a four month suspension of your license or in the alternative, under certain conditions, you can sign up for an interlock device on your car for one year)
Lawyer 1 – Mr.X precedes to tell me this lawyer can guarantee a win at the MVA because the law states that the test has to be given within 2 hours of the arrest and his was not. I think the only reason he believed me when I gave him the correct information on this subject was because I actually know the case names by heart concerning this “law” , in addition to the other matters we will get to. I explained to him as emphatically as possible this was not true. So hard to get someone to believe you when another lawyer has lied to them either intentionally or by mistake. In the case of MVA vs. Jones, 844 A.2nd 388 the court unequivocally ruled that not giving the test within this 2 hour window was absolutely not a factor to be considered by the MVA Judge. To quote the court ” The plain language of the Md.Code does not include any time related issues pertaining to the chemical breath test or the DR-15 advice form ” and then the court goes on to list the 6 issues involved, of which, the time limit is not one.
Lawyer 2 – This lawyer was either the worlds biggest idiot or liar. He told Mr.X that he could get him a job restricted driver’s license for his period of suspension. I told Mr.X that the last time this guy must have had an MVA hearing had to have been 7 years ago because the law had been changed and UNDER NO CIRCUMSTANCES can one get a job restricted license for an MVA chemical test refusal.
this was wrong, as evidenced by the fact that I won his hearing. This was obviously a lawyer who had done no legal research on the subject. Some of the possible ways to win such a hearing will be discussed later on when I discuss how this particular hearing was won.
Well, these refusal hearings can be won – but you win them or you lose them – there is nothing in between. Another words, when one takes the test, and “blows” at least an 0.08 and no more then 0.15, and one loses the hearing, you can still be eligible for a job restricted and or educational restricted license. As stated above there is no such a thing for a refusal. But and its a big but:
- the officer still had to have had reasonable grounds to have stopped or detained the driver to begin with;
- the reasonable grounds had to be stated on the appropriate forms given to the driver;
- the driver still had to have been advised of his rights with regards to the taking of the test;
- was there really a refusal – now we are finally at the case at hand.
When Mr.X came into the office I, of course, first went over all of the paper work given to him by the officer to see if all the required t’s were crossed and all i’s dotted. They were. There were ample grounds for the stop and ample grounds for the officer to believe my client was under the influence. The probable cause for the stop was correctly stated and all rights explained to my client. So how did I win it ? In questioning my client about his background ( I do in in depth interview) I learned that he suffered from asthma since birth. In further questioning he said he did try and blow on the device given to him, but it did not register. He said he did not at first mention this to me because he figured no one would believe him. I did. I explained to him that this was a valid defense and I felt confident about it. I had to warn him, though, that if we lost the hearing, and he wanted to continue to drive, we could request the one year interlock and would probably get it, but there was no guarantee. Another words, if you request the interlock and do not request a hearing you get the interlock ( certain restrictions). The MVA judge does not have to give it to you. My client said he was telling the truth so we requested the hearing.
MVA & Breathalyzer In plain English
It’s the rare instance when one is arrested for a DUI that somehow or other the MVA is not involved. Here we are talking about pre-trial. Please note that depending on what happens in court you very well may have yet another hearing at the MVA to try and save your license.
Although the court cannot and does not give points in any traffic case, what they in fact do, will determine what the MVA does in terms of assessing points on your driving record. At any rate at this point we are concerned with your pre trial MVA issues.