That DUI Paperwork Saying You Have 10 Days to Request an MVA Hearing

If you were arrested in Maryland for a DUI, you were probably given paperwork that suggests you have 10 days to request a hearing.   This article contains some general information about that hearing request and what it means.  The information contained in this article should not be relied upon as legal advice for any specific situation.  The decisions to be made after a DUI arrest depend on a wide variety of factors.  Those decisions can significantly impact your ability to drive in the following months and years.  Therefore, if you are reading this article because of a DUI situation, we recommend contacting one of our attorneys before committing to any specific course of action.

Following a DUI arrest in Maryland, there are two government offices that seek to hold the driver accountable for his or her actions.   One is the county State’s Attorney’s Office (and sometimes  the federal U.S. Attorney’s Office) that will seek to enforce, in a courtroom, criminal penalties, such as jail and probation.   The other agency is the Maryland Motor Vehicle Administration that will seek to impose driver license penalties against drivers who hold a Maryland license, drivers who hold an out of state license, and drivers who hold no license

For people with Maryland driver license, the Maryland MVA may seek to suspend or revoke the drivers LICENSE for a variety of reasons related to the DUI arrest.   For people with an out of state license or no license at all, Maryland law has created the PRIVILEGE for all people who drive on the road of Maryland.   And for those people, the Maryland MVA will seek to suspend or revoke that privilege to drive in the future, in Maryland, for a variety of reasons related to the DUI arrest. 

What is on the list of reasons that the MVA may suspend or revoke a license or privilege to drive because of a DUI arrest?  First, it is important to understand that the MVA can take adverse action against a driver BEFORE the DUI case goes to court, and also AFTER court. 

Before the case goes to court, the MVA may typically seek to suspend or revoke a license or privilege to drive in Maryland for the following reasons:

• Recording a breath or blood test of 0.08 BAC to 0.149 BAC.
• Recording a breath or blood test of 0.15 BAC or above.
• Refusing to take a breath or blood test.
• Driving in violation of a license restriction that prevents the driver from driving with any alcohol in his or her system.
• Driving after consuming alcohol while being under the age of 21. 
• Driving in a manner that indicates it is immediately unsafe to allow the driver to continue driving.

At this point, you may be thinking: “I want to know about the paperwork the officer gave me that says I have ten days to request a hearing.”   If you held a Maryland license at the time of your arrest, the officer probably took that from you.   But the officer also likely gave you a form called “Officer’s Certification and Order of Suspension.”   In most cases (not all), that piece of paper acts as a temporary license for 45 days while the driver makes important decisions about what to do next.  If the driver did not have a Maryland license, that same piece of paper may act as a temporary privilege to drive in Maryland for 45 days while the driver decides what to do next.   Be aware, if the driver did have any valid license in any state at the time of his or her arrest, that piece of paper did not suddenly grant the defendant the right to legally drive for 45 days.  

On the back of that temporary license form (or temporary privilege form) is the option to request an MVA hearing within 10 days of the driver’s arrest.  The constitutional right of due process does not allow Maryland to take away an individual’s driver’s license or privilege to drive without providing the defendant the right to challenge that action.  That hearing option on the back of the temporary license is the due process right to challenge the proposed suspension that will go into effect in 45 days from the date of arrest.   That offer of a hearing on the back of the form is only for the purpose of challenging a limited number of suspensions arising from the arrest including:

• A proposed suspension for recording a breath or blood test of 0.08 BAC to 0.149 BAC.
• A proposed suspension for recording a breath or blood test of 0.15 BAC or above.
• A proposed suspension for refusing to take a breath or blood test for drugs and/or alcohol.

The same paperwork the driver received explaining these proposed suspensions and right to a hearing, will also explain a possible right to avoid the suspensions by installing the interlock device in the driver’s vehicle for a period of time.   For example, a driver who blows a BAC between 0.08 and 0.149, can usually avoid the first-offense six-month suspension by opting to drive with the interlock device installed in his or her vehicle for six months.  A driver who blows 0.15 or above may have to drive with the interlock device for one year.   A driver who refuses to take a test may also have to driver with the interlock for one year.   The length of the suspensions and the length of the interlock terms depend on a wide variety of factors.  The ability of a person to successfully complete an interlock term will also depend on a vide variety of factors.   For example, a person who does not own a car, or a person who is often out of town for work, and may not frequently use his or her vehicle, may not be able to successfully satisfy all of the conditions of the interlock program. Therefore, we recommend consulting with an attorney experienced in Maryland DUI cases to assist with these important decisions.

At this point you may be wondering: “If requesting that hearing within 10 days is my due process right to challenge a proposed suspension, shouldn’t drivers arrested for DUI always request a hearing?”   The answer is “no – not always.”   First, it is important to know that the issues at this MVA suspension hearing are different from the issues that can be argued in the DUI court case.   In court, the issue is usually: Is there proof beyond a reasonable doubt that the driver was impaired or under the influence of drugs and/or alcohol – and are all the witnesses present to make the case against the defendant.   T

That is not the issue at this post-arrest MVA hearing.  Instead, the issues are typically, (1) did the officer have reasonable grounds to suspect the driver of being under the influence of drugs or alcohol that allowed the officer to ask the driver to take a breath or blood test; (2) did the officer properly advise the driver of the consequences of taking or refusing a breath or blood test; and (3) did the driver fail or refuse the test.   The standard of proof at the MVA is not “beyond a reasonable doubt.”  Instead, the standard of proof is “by a preponderance of the evidence.”   That means “more likely than not.”   Hearsay is admissible at an MVA hearing, unlike in Court for the actual DUI charges.  That means that no police officers or other witnesses usually need to appear at the MVA hearing. The administrative law judge can rely simply on reports and paperwork submitted by the arresting officer. 

The suspicion needed at an MVA hearing for an officer to ask a driver to take a test is very low.  Various Maryland cases have decided that an officer can ask a driver to take a breath test if the officer smells a moderate odor alcohol – even if the driver displays perfect coordination on the field sobriety tests. 

The other problem with an MVA hearing is that the presiding administrative law judge is usually severely restricted in what penalties the judge may or may not impose.   For example, many people erroneously believe, “Well, I’ll explain to the  MVA judge that I need to drive my kids around a lot for school and sports, and once I am done explaining everything, the judge will probably go easy on me.” Unfortunately, it does not work this way with these MVA hearings.   Because of the way the relevant laws are worded, the MVA judge is often not permitted to alter the term of the proposed suspensions or the term of the proposed interlock duration.  Therefore, requesting an MVA may only delay the inevitable imposition of a suspension or interlock term.

There are times when requesting an MVA hearing within 10 days of the arrest can be useful.   For example, a hearing can be used to challenge any proposed suspension on the grounds that the arresting officer failed to follow certain required procedures.  For example, if the officer did not advise the driver of the administrative penalties associated with taking or refusing the breath test, the Administrative Law Judge may dismiss the suspension.   If the defendant wants to establish that he or she was not driving or operating the motor vehicle, this hearing would be the method of challenging the proposed MVA suspension.   Sometimes, a driver will attempt to take the breath test but, because of a medical condition, is not able to provide sufficient breath to record a BAC result.   This, too, could be grounds to dismiss the petition.     If the driver was suspended for other reasons, a hearing could be useful to make the DUI suspensions concurrent to the other suspensions, or even retroactive to an earlier date.   The benefits of a hearing very much depend on the unique circumstances of the individual driver, and the individual case.   It is not advisable to apply a one-size-fits-all formula to deciding whether or not to request the DUI post arrest MVA hearing.

Additionally, there are times when requesting an MVA hearing will delay the suspension in a manner that is useful to the driver.    For example, let’s say a driver is arrested on May 15^th.  At the time of the arrest, the officer properly confiscates the driver’s license, and issues to the driver a temporary 45 day license.  That license will expire on June 30 (45 days later).  Now let’s say the driver is going off to college on September 1^st, where he will not need a car for the next 9 months.   Requesting an MVA hearing within 10 days will often delay the date of the MVA hearing by a month, or two, or even three months.  (When the MVA actually sets the hearing historically has been fairly unpredictable).  The hearing request  will usually extend the driver’s temporary driver’s license until the MVA hearing.   Therefore, a request for a hearing may allow the driver to keep driving during the months of July and August, before he has to go to college.  Then at the MVA hearing the driver can ask that the 6 or 9 month suspension to go into effect — when the driver is at college and does not need to drive anyway.

Another very important considering in deciding to request an MVA hearing within 10 days of an arrest, is the probability of what may happen with the case when it gets to court.    This is because what happens in Court may start a whole new round of MVA administrative penalties associated with the conviction or finding of guilt for Driving Under the Influence or Driving While Impaired.    For example, a new law that went into effect in Maryland in October 2024 requires nearly everyone who receives a conviction or probation before judgment for an alcohol related DUI or DWI case, to install the interlock in his or her car for 6 months.    This new law makes it possible for a driver to get credit against this interlock requirement for any time the driver had the interlock installed before court.   Therefore, it might be a wise decision to have the interlock installed before court (to avoid the post-arrest MVA interlock requiremen) if there is a high risk the interlock is requirement is going to be imposed after Court.  The time the driver spends driving with the interlock before court may make the interlock unnecessary after court. 

Here is another important example to demonstrate the relationship between MVA penalties before Court and after Court.   Drivers who record a breath test of 0.08 BAC to 0.149, can request an MVA hearing and then, at that hearing, request a restricted license that allows the driver to drive for 6 months for employment, school, or health related reasons only – without the interlock.   Driving for these limited reasons only for 6 months can be challenging.  But some people prefer that over driving for 6 months with the interlock device.    However, if the defendant may have to install the interlock device for six months because of what happens in court, the restricted license could end up being a bad decision.    If the Court date comes two months after the arrest (very likely), the defendant may end up having to drive for a few months with the interlock, and at the same time, he will be limited to driving only for school, work or health reasons.  So the driver, is stuck for few months with a restricted license and the interlock.

There are many, many, many other considerations that could come into play in making a decision to request an MVA hearing within 10 days of a DUI arrest.    For example, in Maryland, a holder of a commercial drivers license is not allowed to have an interlock or other restriction on his or her license.   So, installing the interlock device his or her personal vehicle will forfeit the driver’s commercial license.

Additionally, sometimes an Administrative Law Judge will refer a defendant to the Medical Advisory Board of the MVA for an investigation into the driver’s health.  This can be a lengthy process that requires disclosure by the driver to the MVA of otherwise private health information.   The process often ends with a requirement that the driver install the interlock for a very lengthy period of time.   Sometimes, we will advise certain clients to not request an MVA hearing to minimize the risk that such an investigation will be triggered.

You may notice that paperwork you were given from the arresting officer indicates that MVA hearing should be requested within 10 days of the arrest, and  no later than 30 days from the arrest.  Why is that?   If the defendant in a DUI case requests an MVA hearing within 10 days, the MVA is usually required to extend the temporary license until such time that the MVA hearing is held.   This is important because MVA hearings almost never are held within 45 days of the arrest date.   If the defendant requests a hearing after the 10 day period but before the 30 day period expires, the MVA will grant the defendant an MVA hearing, but the MVA will usually not extend the temporary license beyond the 45 day period.   So, if the hearing does not happen until 6 months after the arrest date, the defendant may be without a license for four and one-half months. ( 6 months minus the 45 day temporary license)  If the hearing request is sent in after 30 days from the arrest, the MVA will usually not grant a hearing.

Please be aware, that this MVA hearing request is not related to any request for a court date.   Because DUI charges carry the possibility of jail time, under Maryland law as of the drafting of this article in December 2024, all defendants will be given a COURT DATE (different from an MVA hearing) to determine the outcome of the COURT case.

As you can see from this article, there are many important factors that need to be considered in deciding whether or not to request an MVA hearing within 10 days of a DUI arrest.  We cannot emphasize enough how useful the advice of an experienced attorney can be in helping drivers to make this decision.   If you find yourself in a situation that you are reading this article, you may want to contact David Martella and Raquel Smith at 301-251-9001.