Category Archives: Alcohol

Stopping a Driver’s License Suspension After Paying An Alcohol or Marijuana Violation

I have a section on my law office website about Possession of Alcohol by a Minor and other alcohol-related offenses involving persons under 21. Although the offense is only a violation and not a crime, it carries the nasty collateral consequence (there’s also a section on these) of a DMV driver’s license suspension. There is a similar suspension for conviction of the non-criminal marijuana possession offense.

The suspension of a driver’s license, for 30, 60 or 90 days, is often far more devastating a punishment to young people than the fine for an alcohol or marijuana ticket. For a great movie on what a driver’s license means to a high schooler, check out the 1988 Coreys vehicle, License to Drive, which also features Heather Graham.

But what if you didn’t read the website and thus did not know about the driver’s license suspension until after you paid the ticket (police tend to tell offenders that “it’s only an infraction” and don’t mention the driver’s license suspension which is authorized by another statute) when you received a letter from DMV? It actually might not be too late. In some circumstances you can move to reopen the case. If the case is reopened, the conviction is vacated and the suspension is rescinded. You can then fight the ticket or work out an alternative disposition to avoid a conviction which would cause a license suspension. If you are facing a suspension for paying a ticket and wish to reopen it, give me a call. I’ve done it before.

Have a brew–but it might cost you your license if you receive a Minor in Possession ticket and pay it.

DUI Per Se Hearing victory: implied consent and the administrative suspension process

Last week I defended a client before the Department of Motor Vehicles who was facing suspension for an alleged refusal to take a breathalyzer test. A few days later I received notice that we won the hearing and that her license would be restored. I am now 2-0 in such hearings. The hearing officer found that there was no refusal and that there was not a valid witness to the alleged refusal.

This was not a criminal proceeding. In Connecticut and most other states, drunk driving cases usually occur in two parallel phases: the criminal case and the administrative case. The criminal case is obvious–the arrest and court appearances for a violation of 14-227a, which is a crime punishable by imprisonment. At the same time, at least when someone is stopped for suspected drunk driving, the DMV’s case starts right at the arrest. Drivers licenses are granted by the Department of Motor Vehicles, which is an administrative agency. Sec. 14-227b is the Implied Consent statute, which gives DMV the authority to suspend a driver’s license (or driving privileges for someone not licensed in CT or at all) if he or she fails or refuses a chemical alcohol test following a drunk driving arrest. In short, through the act of operating a motor vehicle in the state, a person gives the state his or her consent to be tested for alcohol by a blood, breath or urine test. This obviates Fourth Amendment issues of the test itself. The stop is another story.

Peter’s idea was to take his driver’s license picture drunk so that when he got pulled over for driving drunk, he would just appear to be in his “normal” state. Peter however did not account for the erratic driving and other factors that would give police the reasonable suspicion they need to stop him.

To stop a car, police need reasonable suspicion that an offense has taken place, is taking place or is about to take place. Following the stop, the police need probable cause to arrest and take into custody a person suspected of driving drunk. Once the person is in custody, the testing rules apply.

A person who takes and passes the test is good to go. Someone who fails or refuses the test will have his or her license held for 24 hours and then face further suspension. For a first offense, a person 21 or over faces a six-month suspension for refusing the test, 90 days for a 0.08 up to 0.08 BAC and 120 for 0.16 and up. The penalties are harsher for subsequent offenses and for people under 21.

Refusal does not have to be express. A person can also refuse by his or her conduct–such as by not seriously attempting the test. Often when the machine does not register a reading, the officer will mark refusal.

Due process requires DMV to provide a hearing (this is the Per Se hearing) to determine whether a suspension should be upheld. DMV must prove four things to uphold a suspension: (1) That there was probable cause to arrest the driver; (2) That the person was placed under arrest; (3) That the person failed or refused the test; and (4) That the driver was operating the vehicle. If any is not proven, the suspension fails and the license is restored. Note that the hearing must be requested and scheduled.

In the last case I had, my client attempted to take the test but was unable to blow hard enough to register a valid sample. We demonstrated at the hearing that she suffers from asthma and, despite her sincere attempts, just didn’t have the air in her to blow. Additionally, there was no other evidence of noncompliance. DMV could not prove that she the test. Her license was restored.

For many people the license suspension is the worst part of a DUI charge because it takes effect early in the process and exists even if they take the diversionary program to avoid a criminal conviction.

Note that alcohol is not the only intoxicating suspense that triggers the DUI/OWI statute. Any intoxicating substance qualifies.

Driving while stoned is also a violation of 14-227a.

Intoxication and motor vehicle operation do not go together. The lyrics to this classic punk song by Murphy’s Law should not be followed but the eponymous axiom usually is: whatever can go wrong, will go wrong.

Drinking and riding: can automobile passengers consume alcohol in Connecticut? The answer may surprise you.

As everyone should know, it is illegal to drive drunk, even in Wisconsin. In Connecticut and every state other than Mississippi, it is also illegal to operate a motor vehicle and imbibe at the same time. Section 53a-213 of the General Statutes makes that a C misdemeanor here in the Nutmeg State. Mississippi is the one state remaining in the country in which a person can drink and drive at the same time provided that he or she is not drunk.

“What state are we in and what are its laws?”

But what about passengers? Can they legally drink in a car? In most states the answer is that they cannot. In Connecticut and a handful of other states, there is no state law prohibiting passenger alcohol consumption. That does not mean that everyone but the driver can be boozing it up on a car ride. It depends on where the car is being driven. Many cities and towns have ordinances against open containers on public roads and in public places. New Haven has such an ordinance: Sec. 18-39 of the Code of General Ordinances. Violations of ordinances are not criminal acts but may carry fines. Additionally, minor in possession laws are always applicable.

This might not be illegal. It can however, still cause some trouble.

Whether it is allowed under the law or not, alcohol and cars do not mix. Drunk passengers may distract a driver and a car that looks like a party on wheels may attract police attention.

Christopher DeMatteo is an attorney who knows about alcoholic beverages, the law and alcohol law. He operates his own practice, DeMatteo Law LLC, 129 Church St, New Haven CT 06510 (203) 815-6299. To learn more about this and other topics visit DeMatteo Law LLC at its website: New Haven lawyer.