Frequently Asked Questions
WHEN SHOULD I CALL MY LAWYER?
As soon as possible. The day of your arrest is best. The
following day if possible. There is no period of time that
is necessary up until your trial date, but he sooner the better.
IF YOU PLEAD GUILTY, WHAT HAPPENS
AFTER YOU COMPLETE YOUR SUSPENSION?
You have to take affirmative actions to get your license back.
This will not happen automatically and your license will remain
suspended after the sentence is up if you do not do the
following:
Pay $150 reinstatement fee to Revenue Dept.
Show proof of attending DWI school
Show proof of insurance
Remember it is your job to know when your suspension is up and
to get this done.
WHAT RULES APPLY TO TAKING A BREATH,
BLOOD, OR URINE SAMPLE?
The Police Dept. will designate what test you take, not the
officer. It is not your choice, except that you may decline a
blood test if you are willing to take a breathalyzer or
urine test
The police shall be responsible for paying all expenses incurred
in conducting the tests.
If you request an additional test, you pay the costs. If you are
found not guilty, then the police will pay this bill too.
If you object to blood being drawn, they have to take breath or
urine, so always object.
All tests to be considered valid shall be performed according to
methods approved by the Arkansas State Board of Health. §5-
65-204(c). Most hospitals are not qualified to test blood
for legal purposes. Take possession of your own sample,
refrigerate it and send it to a reputable lab the next day.
Your lawyer will help you with this.
Defendant (you) has the right to have a qualified person OF YOUR
OWN CHOICE administer a complete chemical test in addition to
any test administered at the direction of a law enforcement
officer. OFFICER MUST TELL YOU THIS IN WRITING.
Also, if you request, full information concerning the test shall
be made available to you or your attorney. §5-65-203 (f).
WHEN CAN A LICENSE BE SUSPENDED
ADMINISTRATIVELY?
They must give you notice. Routinely, cop will give hand
delivered notice at time of arrest. However (a)(3) says "For all
notices which are personally delivered, the person shall be
asked to sign a receipt acknowledging he received the required
notice."
When the Department of Finance and Administration receives a
sworn report from the law enforcement officer that he had
reasonable grounds to believe the arrested person had been
operating or was in actual physical control of a motor vehicle
while intoxicated or over the per se limits. Within 7 days of
the issuance of the receipt. The failure of the officer to
timely file this report shall not affect the authority of the
Office of Driver Services to suspend or revoke the driving
privilege of the arrested person.
AND
The report must be accompanied by a written
chemical test report reflecting that the arrested person was
intoxicated or had an alcohol concentration of 0.08.
OR
Is accompanied by a sworn report that the
arrested person refused to submit to a chemical test of blood,
breath or urine FOR THE PURPOSE OF DETERMINING THE ALCOHOL OR
CONTROLLED SUBSTANCE CONTENTS OF THE PERSON’S BLOOD OR BREATH.
In Order to Prevent Administratively
losing your license, you must ask for a hearing.
HEARING PROCEDURES:
You must request a hearing.
§ 5-65-104
The hearing MUST be requested within 7 calendar days or you lose
your right to a hearing. Use the form given you by the police
officer and they must give you a hearing within 20 days. If
hearing not scheduled within 20 days, they must give you a
temporary driving permit until the hearing.
Where and when will the hearing take
place?
In the office of the Revenue Division of the Department of
Finance and Administration nearest the county wherein the
alleged events occurred UNLESS the Driver Services and the you
agree otherwise to the hearing being held in some other county,
or Driver’s Services may schedule the hearing or any part
thereof by telephone.
What can be contested at the hearing? Believe it or not,
currently nothing can be contested at the hearing. They simply
look to see if they have a report showing driving and
intoxication. If so, that is it. But this is not what the law
requires and the legality of these hearings are now being
contested.
Can the hearing be recorded?
No
WHAT THE LAW SAYS SHOULD BE CONTESTED AT
HEARING: §5-65-104 (8)(a) says:
The scope of the hearing shall cover the issues of whether:
The officer had reasonable grounds to believe the person had
been operating or was in actual physical control while
intoxicated or 0.08.
OR refused a chemical test.
If the accusation is based upon a chemical
test result and a sworn report the hearing shall also cover the
issues as to whether: (Act 561 p44)
The person was advised that his privilege to drive would be
revoked, suspended, or denied if the test result reflected an
alcohol concentration of 0.08 or more
The breath, blood, or urine specimen was obtained from the
person within four hours.
The testing procedures used were in accordance with existing
rules; and
The test result in fact reflects an alcohol concentration, other
intoxicating substances, or a combination thereof.
If the suspension is based on a refusal, then the scope of the
hearing shall also include whether:
The person refused to submit to the test or tests
The person was informed that his privilege to drive would be
revoked, suspended, or denied if he refused.
WHAT IS A PREVIOUS CONVICTION FOR
ADMINISTRATIVE SUSPENSION PURPOSES?
Act 561 p45 (§5-56-104)
Any DWI, but not a DUI ("Any suspension under §5-65-103").
Doesn’t count if not convicted.
Any refusal, unless acquitted of the criminal charge.
WHO HAS THE BURDEN OF PROOF?
The state does (Act 651 p44.) The decision shall be based on a
preponderance of the evidence.
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