Riffel &
  Bowlin, P.A.

   Attorneys At Law
DWI DEFENSE 


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.