To subpoena or not to subpoena that is the question
A few weeks back I was retained on a driving while license suspended case. The client was suspended administratively by the DOL for a Seattle DUI arrest which was handled by a different attorney. When I sent a subpoena to DOL to request all the driving records, and all the other documents associated with the suspension I also received the ruling from the DOL administrative hearing.
If you follow this blog you know now that when a person is arrested for a DUI they are given the choice of either taking a breath test or not. If they take the test then they face a minimum 90 day license suspension if its over the legal limit. If they don’t take the test then they face a minimum 1 year license suspension. If they want to challenge that suspension then they request a DOL hearing which is done over the telephone.
State wide there is around a 25% dismissal rate at these hearings so they are always an uphill battle. When challenging these administrative suspensions the accused has two options when it comes to the arresting officer. They can either subpoena the officer or not. This is up to the discretion of the Seattle DUI Lawyer.
In my clients case the other attorney who represented him chose not to subpoena the arresting officer and instead made a technical argument about the validity of the police report. Subsequently they lost, and now my client is dealing with a 1 year license suspension.
But reading that ruling got my thinking when should an officer be served a subpoena to appear at the DOL telephone hearing, and when shouldn’t they. I would say in my practice I subpoena the arresting officer 95% percent of the time. Maybe more. Very rarely is there going to be some technicality in the police report that will result in the license suspension.
In addition to that even if there is some minor scribners error in the report, or some technicality you have to consider who the DOL hearing officer is. Believe it or not there are some hearing officers who have lower dismissal rates than others. In my clients particular case he had one of the toughest DOL officers, one who is known to have an extremely low dismissal rate. I could have taken one look at who the DOL officer was, and what this technical argument was going to me and predicted it wouldn’t be dismissed.
Now Im not one to really second guess what another attorney does. But in my opinion you better have a clear cut, 100% you know its going to get dismissed winner to argue a DOL hearing without the officer being present.
If not then why not subpoena the arresting officer. Remember if they don’t appear than that also can get the DOL hearing dismissed, and I would say maybe 2 or 3 out of 10 times they don’t appear. But even if they do, you get a free deposition of the arresting officer without a prosecutor being present. As a Seattle DUI Lawyer, this is a dream. Think about it you can pretty much ask the arresting officer anything you want within reason, and they have to answer it.
But to each their own I guess. This is just my opinion. Remember if you have been arrested for a DUI, and you’re looking for a DUI Attorney to represent you. Give me a call anytime, and I’ll gladly go over all your options including what may happen at your DOL hearing.