When you either refuse to take the breathalyzer test, or you produce a breath sample indicating .08 or higher, the officer will provide you with a Notice of Suspension. A summary suspension hearing is your opportunity to contest the underlying reason/s for your license suspension. This is NOT a trial to determine your guilt or innocence. It is a civil hearing in front of a judge who will decide to either “sustain” your driver’s license suspension, or “rescind” your suspension. Nothing more. It does NOT affect your underlying DUI criminal charge in any way.
Pay special attention to the fact that the summary suspension hearing request must be filed within 90 days after the notice of suspension has been served on the defendant. In particular, here are the issues that can be addressed at a summary suspension hearing:
(1) Whether you were placed under arrest for being under the influence of alcohol and/or an intoxicating compound.
(2) Whether the officer had reasonable grounds to believe that you were driving or in actual physical control of a motor vehicle upon a highway with under the influence of alcohol and/or intoxicating compound.
(3) Whether you, after being advised by the officer that refusing to take a test to determine your BAC would result in your license being suspended, did in fact refuse to submit to a test to determine your BAC.
(4) Whether you, after being advised by the officer that refusing to take a test to determine your BAC would result in your license being suspended, submitted to a test that indicated .08 or higher BAC or the presence of a controlled substance.
In order to win a rescission of your suspension, you must establish a prima facie case for rescission. In other words, you must prove sufficient evidence to support your claim. For example, if you were contesting section (1) above, you’re going to have to prove sufficient evidence that will cause the judge to believe that you may not have been intoxicated. If you are successful, then the burden shifts to the State, which must now prove sufficient evidence to justify the suspension. If the State cannot justify the suspension, your suspension will be rescinded. However, if you are successful at establishing a prima facie case for rescission, but the State successfully provides evidence justifying the suspension, your suspension will be sustained. Please take special note that when the burden is shifted to the State, the State does NOT have to prove its case “beyond a reasonable doubt.” That is an evidentiary bar used in criminal trials, not civil hearings! The bar for the State is much lower in civil hearings.
At an SSH hearing, because you have the burden of establishing a prima facie case, you will present your case first. Your attorney will typically call, as an adverse witness, the officer/s that were involved in your DUI arrest. After the close of your case, if the judge determines that you have established a prima facie case, the State will then have an opportunity to put on their case and call witnesses. A brief argument by both parties is typically allowed at the close of the State’s case.
Some judges will announce their decision at the end of arguments, but the majority will take the matter under advisement. This allows them to take the time necessary to review the evidence in the case and reflect upon the testimony and credibility of the witnesses. When the case is taken under advisement, the decision is usually rendered within a few days to a week.
If your suspension is rescinded, the clerk’s office will send notice to the Secretary of State. You can expect to wait at least two weeks for the SOS to process the notice of rescission. During the time the judge enters an order for the rescission of your suspension and when the SOS actually processes it, if you are pulled over and a police officer runs a check against your license, your license will come back as suspended. I usually advise clients to keep a copy of the court order with them showing that their license suspension has been rescinded, or if possible, not to drive until the SOS has updated their database.
One other option is to request that you be given the physical copy of the notice for the SOS. By electing this option, you or someone else can hand-deliver the notice a SOS location. It is strongly advised that you contact the SOS and communicate your intentions beforehand. The advantage of taking the notice to the SOS and not waiting for the clerk to send it through the mail is that you can get your suspension removed from your record the same day.
It is important to note that whether you win or lose your SSH, the DUI charge against you remains. Again, the SSH is only dispositive of your suspension, not the underlying DUI. That said, if you are successful at your SSH, depending on the circumstances, the State might be willing to offer you a substantially more reasonable plea bargain than they would have before the hearing, including possibly amending the charge to something other than DUI, reducing the fine amount, etc. The reason for this is that when you win your SSH, the State realizes that there is likely a significant issue in prosecuting the charge against you, and they have therefore lost some leverage in negotiations.
This article is in no way intended to be, nor should it be construed as, legal advice and you should not rely on the information herein. I’m simply sharing some random thoughts and ideas, my experience, and I’m certainly not touching on every issue that is necessary to consider for any serious legal analysis.
Through the years Jason has served as an advocate for numerous clients in matters before various Circuit Courts in Illinois and Missouri as well as before the Missouri Court of Appeals. He represents clients in various areas of law including personal injury, automobile accidents, workers' compensation, criminal defense, DUI/DWI defense, and traffic cases.. Jason is licensed in Illinois, Missouri, and Florida.