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    Intoxication Tests: Administrative Suspension Procedures Change July 1

    Attorneys who work on OWI cases, specifically 10-day hearings that challenge administrative license suspensions based on the results of chemical tests should be aware of procedural changes applicable to law enforcement appearances.


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    Drunk driving

    June 23, 2017 – Attorneys who work on cases involving driver intoxication should note that, starting July 1, the Wisconsin Department of Motor Vehicles (DMV) will not automatically dismiss cases involving administrative suspensions if an arresting officer fails to appear, if the attorney appears by phone or other remote communication.

    Drivers give implied consent to chemical tests if suspected of drunk or drugged driving. The presence of a restricted substance in the person's blood or a prohibited alcohol concentration can result in license suspension for six months.

    Law enforcement must notify a driver of possible administrative suspension. The notice must inform the driver that he or she has the right to request administrative and judicial review of suspension by submitting a request form within 10 days of the notice date.

    If the driver submits the request, the state Department of Transportation (DOT) must hold the hearing “in the county in which the offense allegedly occurred or at the nearest office of the department if the offense allegedly occurred in a county in which the department does not maintain an office,” under Wis. Stat. section 343.305(8)(b)1, “[u]nless the hearing is by remote communication mechanism or record review.”

    Further, “[t]he department, upon request of the person, may conduct a hearing under this paragraph by telephone, video conference, or other remote communication mechanism or by review of only the record submitted by the arresting officer and written arguments. The department shall hold a hearing regarding the administrative suspension within 30 days after the date of notification. …”

    Further, “[t]he person may present evidence and may be represented by counsel. The arresting officer need not appear at the administrative hearing unless subpoenaed unders.805.07and need not appear in person at a hearing conducted by remote communication mechanism or record review, but he or she must submit a copy of his or her report and the results of the chemical test to the hearing examiner.”

    DOT Notice

    Recently, the DOT issued the following notice regarding the procedure under section 343.305(8)(b)1: “If a hearing is conducted by a remote communication mechanism (i.e. by phone), the arresting officer need not appear in person. Beginning on July 1, 2017, Wisconsin DMV will no longer dismiss BAC suspensions if the arresting officer fails to appear in person for a review held over the phone. The driver and/or their attorney is required to contact the arresting officer (and any other subpoenaed witnesses) by phone and then connect the call with the Wisconsin DMV at the scheduled hearing time via the phone number provided on the appointment.”

    Brad Babler, a program supervisor at DOT, said the notice addresses situations in which an attorney subpoenas an officer to appear in person but then the attorney appears by phone.

    If the attorney is going to appear in person and has subpoenaed the arresting officer, the officer still must appear in person. Babler said attorneys should note the change because typically, the officer shows up and the attorney calls in by phone.

    Starting July 1, DOT will not dismiss the case if the attorney appears remotely and the officer does not appear in person. The case will proceed without the officer’s personal appearance, but as noted in the DOT’s notice above, the “driver and/or their attorney is required to contact the arresting officer (and any other subpoenaed witnesses) by phone and then connect the call with the Wisconsin DMV at the scheduled hearing time via the phone number provided on the appointment.”

    For questions relating to this matter, please contact the DOT’s Administrative Suspensions Unit at 608-261-0127.