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Administrative Review Hearing in Wisconsin

Wisconsin allows that only the Department of Motor Vehicles can suspend a license, either because of an unsuccessful DMV hearing or a criminal court conviction.  If a driver is acquitted from their trial, the DMV may still decide to suspend their license.  The DMV hearing following An OWI arrest is known as an administrative per se hearing, or APS.  They are held at the DMV offices nearest to where the offense occurred.  The DMV hearing will focus on the various police and chemical test reports.  Much of the evidence introduced at a DMV hearing is usually hearsay, which are statements made by people who are not present at the hearing.  However, the DMV cannot suspend a license on the basis of these types of statements.  Hearsay evidence is usually inadmissible at trial.  The DMV is not a court of law, and as such, the evidence can be challenged.  If the evidence cannot be legally introduced, the DMV cannot suspend the driver’s license.

Another aspect of the DMV hearing is that the prosecutor and the judge are the same person.  This person is not a judge or an attorney, but an employee of the DMV.  Typically, there are several issues that can be raised at a hearing.  Some possible issues include: Was the accused driving the vehicle?  Was the stop by the officer a legal one?  Was the arrest by the officer valid?  What was the BAC and was it above the legal limit.

If a chemical test was administered, and it typically is, then there can be issues associated with the test.  These issues will usually be whether the officer had a reasonable belief that the driver was intoxicated or under the influence.  Another possible issue would be whether the tests were administered properly, and another would be if the results gave an indication that the driver did in fact have a BAC that was higher than the legal limit.   Should a chemical test be refused, then it will be determined if the driver was advised of the consequences of refusing the test, and whether they still refused the test after being advised of the consequences.  If a person loses the DMV hearing, the length of the license suspension will be substantially longer if the chemical test was refused.

The arresting officer is required by law to immediately send to the DMV a copy, with a sworn report, of the notice of suspension or revocation and any driver’s license taken into possession. The DMV automatically conducts an administrative review that includes an examination of the officer’s report, the suspension or revocation order, and any test results.  If the suspension or revocation is upheld during the administrative review, a hearing may be requested to contest the decision.

The driver’s license will be returned to the accused at the end of the suspension or revocation period, provided that a reissue fee is paid to the DMV.  Additionally, proof of financial responsibility is required to be filed.  If it is determined that there is no basis for suspending or revoking the license, then the license will be issued or returned to the accused driver.


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