Q: A.R.S. 28-1321(I)- does the driver automatically win if the MVD does not set an implied consent hearing within 60 days?
I requested for an MVD hearing in Arizona, to challenge an implied consent license suspension (for failure to submit to DUI alcohol testing). This automatically stayed my license suspension, pending an administrative hearing.
Per A.R.S. 28-1321(I): "On the receipt of a request for a hearing, the department shall set the hearing within sixty days." I have not received a hearing date from the MVD and it has been over 4 months since I requested a hearing,
Given that it has been over sixty days since the MVD acknowledged receipt of my hearing request and stayed my license suspension, do I win the implied consent case on procedural due process grounds? Because the MVD failed to set the hearing within the statutorily required time.
A: This is a good question because according to statute these hearings are supposed to be held within sixty (60) days. Unfortunately, the delay alone will not void the suspension. For the past 2+ years the administrative hearings have typically been delayed past the 60-day timetable. Arizona case law suggests you need to show prejudice caused by the delay and seems to also suggest that as long as the suspension remains stayed pending the hearing there is no prejudice. While I do not necessarily agree with this interpretation of the statute, that is the current state of the law.
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