A civilian witness called the police about a possible intoxicated driver, and reported that the driver threw up next to the vehicle. The car was parked with the driver in the driver’s seat when the police arrived. The report notes large amounts of vomit around the vehicle, it also notes, that the keys were in the ignition and the car was on. Our client reported that the car was not on, and that keys were in his wife’s purse located on the passenger side floor. The police allege that he was asleep when they approached the vehicle. Officers noted that the driver could not keep his balance and administered field sobriety exercises, however, the report was inconclusive due to the inability of the driver to follow instructions. He was arrested and consented to a breath test, where he had vomited several times, making it impossible for the police to administer the test. The driver then consented to a blood test. Blood was drawn and sent for testing.
RESULT: A formal prehearing motion to dismiss was submitted. The Administrative Code Rules allow an administrative suspension to be issued only in two circumstances: either the driver refuses breath, blood, or urine testing, or the driver consents to testing and the results are over the limit. Neither of the circumstances applies in this case and there should not have been an administrative suspension issued. Blood was drawn, but there was no testing done to determine whether the driver was over the legal limit. The hearing officer ruled on the motion at the formal administrative review hearing and granted the motion. Two police officers were subpoenaed and appeared, however, no testimony was taken and no testimony was necessary. License REINSTATED!