by Attorney Patrick T. Barone
Implied Consent Hearing
Arresting Officer in this case testified that he responded to the scene
of a property damage accident. When he arrived, another Officer
advised him that they were looking for the driver in the nearby field.
The suspect was later found in the field, laying face down. When
approached, he stood up with keys to “the truck” in his hand. A very strong
odor of intoxicants was noted, along with red, watery and glassy eyes.
He also admitted to drinking three or four beers.
sobriety tests were administered, including the horizontal gaze nystagmus
(HGN), walk-and-turn and one-leg stand. The suspect was unable to
perform any of these to the satisfaction of the officer, and he was arrested
for OUIL. He refused to submit to a breath test, and a warrant for
blood was obtained. The Officer also testified that prior to asking
the suspect to submit to the breath test, he read the Chemical Test
Rights to the suspect from “the form”, but did not further identify the
form, other than to say it was “pink in color”.
argued that the Officer had failed to meet his burden of proof in that
he had not established that the suspect was the driver of the vehicle
(in legal jargon, that there was no “corpus delicti”), and therefore,
that the arrest was unlawful. We also argued that the Officer had
failed to meet his burden of proof relative to the Chemical Test Rights
because he had not indicated specifically what the rights were, and because
the “form” was not produced or properly identified, there was no evidence
on the record that the implied consent statute had been satisfied.
Hearing Officer issued a written opinion indicating that our appeal was
granted. The opinion indicates “[A]s counsel for the petitioner
noted at the hearing the form provided to the police to read the Chemical
Test Rights from is not called a “DI177” as the officer testified to at
this hearing. Without something in the record to establish with
some specificity what Chemical Test Rights the officer advised the petitioner
(sic) of I can not find that the petitioner was properly advised
of the Chemical Test Rights request by statute”.
the Petitioner’s appeal was granted his operating privileges were not
suspended for six months based on the alleged refusal to submit to a chemical
HERE to go back to the sample cases.