Thursday, April 10, 2014

Is there a way to stop the DOT from suspending my license before my case is over?

Possibly. If you have filed the Department of Transportation (DOT) form requesting an "administrative suspension review hearing" before the 10 day deadline, you or your lawyer will have a chance to cross examine the officer who arrested you at an informal hearing held at the DOT. If, after the hearing, the DOT decides to suspend your license, your lawyer may be able to get a court order preventing that suspension.

About a week or so after the hearing, you should receive a notice from the DOT with their decision and a form to request a judicial review of their decision. Some judges believe that the statute governing this procedure prevents them from reviewing the DOT decision before the day of the trial. This is a common misinterpretation, by lawyers and judges alike. The confusion lies in a subtle distinction in the wording of the statute.

Wisconsin Statutes § 343.305(8)(c) does indeed provide that the review shall be heard at the time of the trial. The “review” described in subsection (8)(c), however, pertains to a judicial hearing held for the purposes of determining whether to rescind or sustain the administrative suspension. A "stay," on the other hand, is a separate determination, made available to the court by subsection (8)(c)2, pending or in advance of the court's decision to rescind or sustain the administrative suspension. Subsection (8)(c)2 provides, in relevant part:

The department shall vacate the administrative suspension under sub. (7) unless, within 60 days of the date of the request for judicial review of the administrative hearing decision, the department has been notified of the result of the judicial review or of an order of the court entering a stay of the hearing examiner’s order continuing the suspension.
In other words, section 343.305(8)(c)2 acknowledges two separate mechanisms by which the court may change the status of the administrative suspension: a judicial review hearing, or a discretionary stay of the suspension.

Because the legal issues yet to be adjudicated in the underlying OWI (operating while intoxicated) charge may determine whether the suspension will be enforceable in the first place, your lawyer may be able to persuade a judge to sign a legal motion and order "staying" or temporarily preventing the DOT from administratively suspending your license until such time as a final determination may be made by the court at a judicial review hearing.

This information is not meant to serve as legal advice. You should consult with a qualified attorney before making any decisions about your case and never rely solely on information found on the Internet.