DMV-BAR is not court (unless you want to argue that its a Kangaroo Court) and the rules of evidence do not apply at DMV-BAR hearings. It is not a constitutional arena and you are not dealing with rights; rather it is an administrative arena which focuses on privileges (thus, due process applies, but man-o-man is it ever limited in scope). And, just like with Las Vegas, what happens at DMV-BAR stays at DMV-BAR (that is to say that winning or losing at DMV-BAR has no bearing on what happens in Court, and visa-verse).
When you accept a FL/DL you agree to take a breath test if asked to do so, and if you refuse, or if you blow over the legal limit, then your “privilege” is revoked. They are required to afford you some form of due process before they revoke your driving privilege, so they give you a whomping 10 days to get your affairs in order and, if you pay for and request it, then another approximately 40 day window within which a{n alleged} hearing takes place and they determine if the suspension should be invalidated or sustained.
The only (and I mean “only”)issues that DMV-BAR addresses in the scope of its review is 1) whether the officer had probable cause to ask you to blow, 2) whether you blew and 3) whether you were informed of the consequences. That’s it. Period paragraph. No pomp. No circumstance. Just extremely limited issues and tightly controlled questions and answers (by a Hearing Officer who is not trained in the law but who is thoroughly trained in the administrative code and process that s/he is directed – on pain of being fired – to follow to the tee). If the H/O decides that the officer had PC (whether rightly or wrongly), that you blew over or refused and that you were told of the consequences, then they will validate the suspension regardless of what happens in court; if they decide that any of their limited 3 issues has not been satisfied then they will invalidate the suspension – but that won’t preclude a later suspension IF you ultimately fail win in Court.
Bottom line: The only remedy you have is to appeal the DMV-BAR decision, and you are free to cite and argue the lack of PC issue until you are blue in the face. If your lawyer is tenacious enough, and if the facts and circumstances mitigate against the LEO having PC to have asked you to blow in the first place, then the appellate court can Order DMV-BAR to reinstate your DL. Unfortunately you have no other course of action whatsoever and are in DMV-BAR purgatory.
(As an aside, a new law went into effect yesterday which essentially provides a way for folks to side-step the “hard-time” suspension of their FL/DL for DUI arrests, but in order to avail oneself of the new law one must first waive one’s due process right to a formal review hearing.)
