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.
Justia Ask a Lawyer is a forum for consumers to get answers to basic legal questions. Any information sent through Justia Ask a Lawyer is not secure and is done so on a non-confidential basis only.
The use of this website to ask questions or receive answers does not create an attorney–client relationship between you and Justia, or between you and any attorney who receives your information or responds to your questions, nor is it intended to create such a relationship. Additionally, no responses on this forum constitute legal advice, which must be tailored to the specific circumstances of each case. You should not act upon information provided in Justia Ask a Lawyer without seeking professional counsel from an attorney admitted or authorized to practice in your jurisdiction. Justia assumes no responsibility to any person who relies on information contained on or received through this site and disclaims all liability in respect to such information.
Justia cannot guarantee that the information on this website (including any legal information provided by an attorney through this service) is accurate, complete, or up-to-date. While we intend to make every attempt to keep the information on this site current, the owners of and contributors to this site make no claims, promises or guarantees about the accuracy, completeness or adequacy of the information contained in or linked to from this site.