Arizona Admin Per Se DUI Hearing Rules

At an Arizona MVD admin per se hearing for a DUI arrest, the administrative law judge (ALJ) will have to decide if the State has met its burden of proof to sustain the suspension. Sustaining the action means that the driver will have a 90 day license suspension. Reversing the action means that the driver will be given the option to not have his/her driving privilege suspended.

The following apply:

The hearing is civil in nature. This is in stark contrast to the misdemeanor or felony DUI case that you will face, which is criminal in nature. In criminal cases, the state has to prove its case beyond a reasonable doubt. In civil case such as the Admin Per Se hearing, the state only needs to prove its case by a preponderance of the evidence, which means that it is more likely than not.

The rules of evidence do not apply. This means that an officer can use information against you that they may not be allowed to use in the criminal DUI case.

The ALJ can allow reliable hearsay into evidence. This is best illustrated by example. If your blood is drawn in the hospital by hospital personel, the officer would be allowed to testify that the person was qualified to draw your blood even if that person was not available at the hearing for your attorney to cross examine. Another example is the officer testifying to what a civilian witness to your driving or accident told the officer that she saw.

The law says that the hearing is not adversarial in nature. There is no prosecutor present. There is no attorney representing the MVD. The only witnesses that appear for the state are law enforcement witnesses. Because of this, there is no right for a petitioner (you if you face such a hearing) to demand a different judge unless you can prove that the judge is biased and has prejudged the fact of the case, and that his or her mind is irrevocably closed.

The scope of the hearing:

Actual MVD hearing notice.

The scope of the hearing is limited. The state has only to establish the following to suspend the driver's license.

That the officer had reasonable grounds to believe the person was in violation of Arizona DUI Law;
That the person was placed under arrest for a violation of misdemeanor, felony or minor DUI law;
Whether a chemical test was taken and indicated an amount above the legal limit

0.08 or more
0.04 or more in a commercial motor vehicle (2500 lbs. plus GVW)

Whether the testing method was reliable
Whether the results were properly evaluated.

Now lets break down the elements that they must prove by a preponderance of the evidence in order to suspend your driving privilege:

Reasonable Grounds is defined by various Arizona cases as:

Facts and circumstances which would warrant the belief in a person of ordinary prudence.
Cumulative knowledge of all officers involved.
Even if you have a defense as to whether you were actually in physical control of the vehicle in the criminal case, it does not necessarily provide a defense to the MVD action.
Even if a trier of fact in a criminal DUI case would find that you pulled safely off the road ("safe harbor"), the officer can still have reasonable grounds to have arrested you for violating Arizona DUI law.
The legality of the stop (whether it was legitimate and constitutional) is beyond the scope of the MVD hearing and does not affect the outcome. In other words, the criminal case could be thrown out for a bad stop and the MVD case could still proceed.
Weaving within the lane is enough for an investigatory stop.
The officer must show some factual basis by which it can be determinedthat he was not acting arbitrarily or with intent to harrass.
A citizen's report of erratic driving justifies a stop when it describes the vehicle and the location, place and time, even if the officer doesn't personally witness any bad driving.

What is necessary for element 2 from above, the arrest?

An arrest can be for any of the following:
1. 28-1381 - DUI
2. 28-1382 - Extreme DUI
3. 28-1383 - Aggravated DUI
4. 4-244(33) - Driving with alcohol in system while under 21 years of age
The subjective intent of the officer does not matter. In other words, the officer does not have to intend to arrest you.
The test is, would a reasonable innocent man of ordinary education and intelligence believe he was arrested.
The arrest can be made by an objective standard, even if the officer tells you that you are not under arrest.

What constitutes a valid test?

For breath tests, they need to show the following:

The device used is certified (a certificate from DPS is sufficient, but not necessary in all cases);
The operator was certified at the time of the test;
That duplicate tests were taken and agree with eachother within 0.02 percent, or for a single test that a 20 minute observation period was conducted prior to the test;
That the operator followed an approved checklist;
That the device was in proper operating condition before and after the subject sample (this can be done by the calibration checks done concurrently with your breath test).

For blood tests, they need to show the following:

The analyst who handled your blood had a permit;
That the DPS rules were followed;
That the result is stated on the lab report;
The analyst must file an affidavit with the MVD Hearing Office.

What constitutes "above the legal limit?"

The test must be a .080 or above. This is true even if the person is under 21 and only charged with underage drinking and driving.
There need not be evidence presented that links the test result of 0.080 or more to the time of driving. The time of the test is sufficient. The "two hour rule" that applies in criminal cases does not apply to the MVD. So even if your blood was taken 4 hours after driving and is not admissible in criminal court, it can still be used as a basis to suspend your license by Admin Per Se.

What constitutes a properly evaluated test result?

For breath tests, the Intoxilyzer printer rendering of the numbers attributable to the subject is adequate to show alcohol concentration.
The ALJ does not have to consider any of the error factors for the Intoxilyzer, including the 10 percent margin for error. This means that, while a criminal judge might throw out a result of .081 because it is within 10 percent of the legal limit, the MVD ALJ does not have to.
Maintainance records are admissible and not considered to be hearsay.
Results are admissible even if the rules are not entirely followed as long as a foundation is laid.
There is no need for the ALJ to have quarterly maintainace checks to admit the result.