While retaining a RMV attorney is usually the best way to increase your chances of winning your breath test refusal hearing, there is no reason you cannot do it yourself with a little preparation. We have compiled key information which you can use to challenge your breathalyzer refusal suspension.
4 Steps to Winning Your Refusal Hearing
There are four steps you must follow to win your refusal hearing.
- Spend an hour or two reviewing the law and procedures applicable to all hearings. Pay particular attention to the material dealing with the statutory requirements and elements of a successful chemical test refusal appeal, as they will help you develop and establish the record necessary to succeed.
- Master the four elements the RMV needs to prove at the refusal hearing to uphold the suspension of your license so you can begin to focus on the defenses that can actually win the case for you.
- Review the defenses typically available to a refusal hearing and identify the ones you can use based on the facts of your own case.
- Prepare a written plan of attack so that your case is organized, you won’t forget anything, and you can stay calm and focused no matter what happens at the hearing. It is imperative that you put the helpful facts on the record at the Registry hearing, because later hearings, such as the District Court Appeal, are limited to the record developed at the RMV.
If despite your best efforts the hearing officer upholds the suspension of your license for 6 months up to life, you will have hopefully maximized your chances of getting the adverse decision overturned at the District or Superior Court.
Understand the Basics of all RMV Hearings
Many of the issues you will encounter in an admin per se hearing are common to all RMV hearings.
For example, every RMV hearing is governed by specific regulations. You should view this hearing as your opportunity to tell your “side of the story” and to present evidence that is favorable to your case. You are allowed to submit sworn affidavits and documentary evidence.
Know the Elements of a Refusal Hearing
At a refusal hearing, the RMV must prove four things to suspend your license:
- That the officer had reason to believe you were DUI;
- That you were lawfully arrested for DUI; and
- That you were advised if you refused to complete a chemical test that your license would be suspended or revoked; and
- That you refused or failed to complete a chemical test.
The first two elements of a refusal case really come down to the same issue: did the officer break the law in stopping and arresting you? The third element focuses on the way the officer advised you of the consequences of refusing (called the “admonishment”), and is a frequent topic of appeals actions.
Your Actual Refusal
The final element is your actual refusal, but note that it is more broadly worded to include “failure to complete.” That language puts the burden on the motorist to complete the test – you don’t actually have to refuse to be considered as having refused for suspension purposes. Also, refusals must be properly witnessed and documented.
If the hearing officer fails to address these elements (or if you refute any of them when it’s your turn to present your case), the RMV cannot legally suspend your license. Remember that the RMV has the burden of proving these elements; you do not have to disprove them. Sometimes, just objecting to the evidence may prevent the RMV from relying on it to rule against you. The formal rules of evidence do not apply to refusal hearings. However, the evidence must have some level of reliability to be introduced and it can be challenged in some situations.