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How Can I Beat the Statutory Summary Suspension on My DUI?

The first concen one faces when charged with a DUI is the pending Statutory Summary Suspension ("SSS").  This is an administrative suspension that takes effect 46 days after the Notice of Suspension is issued.  The SSS law affords the subject of the suspension a hearing to contest its issuance.  The motorist must file a request for heearing within 90 days of the Notice.  Failure to file the petition to rescind within that time frame results in the loss of ability to contest the SSS.

At the SSS the court addresses the following issues:

1.  Did the arresting officer have "reasonable suspicion" to initially stop the motorist?

2.  Did the arresting officer have "probable cause" to arrest the motorist for DUI?

3.  After being arrested for DUI was the motorist read the Warning to Motorist?

4.  And lastly, after the Warning to Motorist was read did the subject refuse a breath test or submit to a test with results in excess of the legal limit?

The motorist has the burden of proof in these hearings.  The burden shifts to the State when the motorist proves at least one of the aforementioned elements.  The normal rules of evidence apply with the exception that the State can present the Notice of Suspension as evidence if the officer fails to appear to testify.  Subpoenas may be issued if necessary.  Normally, the State will organize necessary witnesses and produce them in court if requested ahead of the hearing.  The motorist can use Supreme Court Rule 237(b) to cause such witnesses to be produced in open court. 

The hearing begins with opening statements which may be waived.  The Court generally wants to know what issues are being addressed during the hearing.  The motorist does not have to advise any narrowing of issues and can wait until the evidence has concluded before narrowing them. 

The hearings usually last about an hour.  I like to call the officer first and sometimes ask to treat as an adverse witness if it becomes apparent that the officer has the demeanor that makes such motion appropriate.  Most police officers don't act in such a manner.  But it seems I run across them from time to time.  Judges don't always allow this method.  First the police officer's qualifications must be defined.  How much training in the field of DUI and field sobriety testing does the officer have?  Some police officers haven't received any subsequent training on DUI cases since they passed the academy.  These officers generally don't do very well during these hearings.  Some other officers like to act like they are very current in DUI processing.  But a thorough examination often reveals they have shaky foundation.  By that I mean they don't understand the correct manner in which to administer each of the three standardized field sobriety tests.  If you can prove to the judge the police officer did not correctly administer the SFSTs you can win the SSS hearing.  The issue being attacked in this manner is #2 above (probable cause to arrest).  Other issues arise in the hearings.  For instance, I won a hearing recently when I proved that the reason claimed for the initial stop was untrue.  The officer claimed that he stopped my client for driving with her high beams on.  We watched the video during the hearing and it was obvious she never had her high beams on. 

The advent of videos creates lots of viewing time for the attorney.  This takes about one and a half hours for each DUI case.  But, watching the videos is a must.  I recently watched a video for a DUI (2nd time offender).  The officer skipped several portions of the Warning to Motorist when reading it to the client.  We raised that issue (#3 above) and won the hearing.  This is not dispositive of the DUI but was determinative for the SSS. 

It is important to consult a qualified experienced attorney when fighting the SSS. 

Brian L. Polinske
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