Burden of Proof

Unlike a criminal case, the burden of proof for a driver’s license suspension is not beyond a reasonable doubt, but rather, much lower. The state must prove the elements of the offense against you by a preponderance of the evidence. The burden goes to the plaintiff at the administrative hearing to prove that the decision by the DMV to suspend his license doesn’t have basis. See Schallenkamp v. DelPonte, 229 Conn. 31, 39, 639 A. 2d 1018 (1994); Lawrence v. Kozlowski, 171 Conn. 705, 713-14, 372 A. 2d 110 (1077).

However, there must still be “substantial evidence” in the record to support the Commissioner’s findings. Bialowas v. Commissioner of Motor Vehicles, 44 Conn. App. 702, 692 A. 2d 834 (1997). They can do this because as driving is a privilege, they can rescind that privilege. They can do this much easier than taking away a constitutional rights. This means that you, the respondent, are responsible for providing evidence. You have to provide enough evidence to counter the state’s reports beyond a preponderance of the evidence.

Double Jeopardy and Burden of Proof

Now, many people wonder, “How can the state take away my license and try to put me in jail; isn’t that double jeopardy?” The short answer is no. Back in the early 1990s, a number of other citizens throughout the United States also thought that the state was punishing them twice for one solitary act. In the state of Connecticut, a woman named Wendy Hickam appealed this exact issue after she lost her license.

The court said that driving isn’t considered a constitutional right protected by the state and federal Constitution. Licensed driving is a privilege given to people by the state and because it is a privilege, and not a Constitutional right, the state can take it away much easier than your right to freedom and it is not double jeopardy. The judges reasoned that the state has compelling interest to keep accused drunk drivers off the road. It is for this reason that it is far harder for the state to suspend one’s license than to require jail time.

DMV Defenses and Burden of Proof

There are defenses to the DMV process, but each year the DMV and legislature change the rules to take away these defenses. One of the best ways to win is to simply fight the case. People who don’t fight the DMV suspension always lose because the suspension is automatic.

In Cusano v. Commissioner of Motor Vehicles, 2 Conn, Ops. 1262 (1996), the plaintiff decided to submit to chemical testing only four minutes after initially refusing the test. The court held that this did not constitute an unreasonable delay or “refusal” for testing under Conn. Gen. Stat. §14-227b, because it was “unreasonable for police to refuse to accede to the plaintiff’s request to be tested.” Id. At 1263.

One of the areas which also plays a significant role in determining if the test is valid is the timing of the test. As you can see from the law above, the test must happen within two hours. The court, however, decided that the two hour rule was not a hard and fast rule.

Case Law and Burden of Proof

In Tuttle v. Commissioner of Motor Vehicles, 2 Conn. Ops. 812, 17 Conn. L. Rptr. 231 (1996), the plaintiff argued that the Commissioner did not have the power to suspend his operator’s license because the police requested the test more than two hours after operation of the vehicle. Specifically, the plaintiff got tested twice but the machine malfunctioned, and the police requested that he get tested in a neighboring police station approximately two and a half hours after the arrest.

The court conducted an exhaustive review of §14-227b and its “per se” provisions and concluded: The obligation of a person who operates a motor vehicle in this state to submit to a chemical test, in accordance with the provisions of that statue, is independent of the “per se” provisions in that statue relating to the timing of the test and the test results.

Specifically, the two-hour time limitation for administering the test to a person who has agreed to take it is of critical significance in many respects, but it not a limitation on the general obligation of all motor vehicle operators in the state to submit to a test when requested by the police.

It follows that the Commissioner is required to suspend the license of an operator who has been arrested for drunk driving and who refuses to be tested, even if the police request the test after the two hour time period required by the “per se” provisions of the statute. It is not necessary, in test refusal cases, to show that the request was made within a reasonable time after the arrest, considering all the circumstances, including the availability of the testing devices and the physical condition of the person arrested. Id. at 813.

Hiring a Lawyer

Finally, one of the ways a DUI attorney may try to win your license back is by bringing in the police officers to cross examine them at the hearing. In Silver v. Commissioner of Motor Vehicles, 3 Conn. Ops. 243 (1997),the arresting officer failed to appear for cross-examination after two subpoenas got issued and the plaintiff had agreed to a continuance to ensure the witness’ appearance. However, the police report got admitted over the plaintiff’s continual hearsay objection under Conn. Gen. Stat §4-178, and denial of the opportunity to cross-examine the author of the report. The court held the officer’s statements were ripe for cross-examination. Also, they claim that the report was not inherently reliable to be admitted. Id. at 244.

Sometimes, however, it may be for good reason that an attorney chooses not to subpoena an officer to a hearing, especially when it is likely that the officer’s testimony may jeopardize a possible defense to the criminal portion of the case. Only a DUI attorney who has thought through about every possible outcome can make that decision.