How Can a Motorist Win a DWI Administrative Hearing in Louisiana?

When a motorist is arrested in Louisiana for Driving While Intoxicated (DWI), the Louisiana Department of Public Safety and Corrections (DPSC) will suspend the motorist’s driving privileges. This is a civil process that is totally separate from the DWI charge that will be brought by the prosecutor, usually the District Attorney or the City Attorney. In other words, Louisiana has two statutory schemes regarding the suspension of driving privileges for persons who are arrested for DWI. One scheme is a civil and administrative licensing proceeding instituted by the DPSC under Louisiana’s Implied Consent Laws (La. R.S. 32:661 et seq) to determine whether a person’s driving privileges should be revoked.

The other is a criminal action instituted by the prosecuting attorney to determine whether a crime has been committed. Both schemes are independent of each other, and the outcome of one action is unlikely to affect the other. In Louisiana, the right to drive is a privilege granted by the State, not a right. Because it is a privilege, motorists in Louisiana impliedly consent to chemical tests under the specified conditions of La. R.S. 32:667, and once the conditions of the statute are met, refusal to submit the test results in a mandatory suspension of one’s license.

After a DWI arrest in Louisiana, the officer will actually seize the motorist’s license and give the motorist a temporary license on a form approved by the DPSC. This document gives the motorist the right to operate a motor vehicle in Louisiana for a period not to exceed 30 days from the date of arrest. Furthermore, the temporary driver’s license provides and serves as notice to the arrestee that they have 30 days from the date of arrest to make a written request to the DPSC for an administrative hearing.

The purpose of the administrative hearing under La. R.S. 32:668 is to provide an individual arrested for DWI an opportunity for administrative review of the proposed suspension of his license based upon the Department of Public Safety and Corrections’ records and other evidence. La. R.S. 32:668. The scope of the hearing is limited to factors that necessitate the involvement of the arresting officer, including whether the law enforcement officer had reasonable grounds to believe the individual was driving a motor vehicle under the influence of alcohol, whether the law enforcement officer arrested the individual, whether the law enforcement officer advised the individual of his rights, and whether the law enforcement officer administered an approved chemical test or whether such test was refused. La. R.S. 32:668.

After the administrative hearing, the motorists’ driver’s licenses will be suspended approximately 90% of the time. That is, the motorists will win the administrative hearing only about 10% of the time. This means that the motorist after a DWI arrest who requests and actually participates in an administrative hearing will get their licenses back 10% of the time.

DWI administrative hearings are conducted by the Louisiana Division of Administrative Law (LDAL). No representative of the DPSC appears at the administrative hearing. Except for sending the DWI packet that contains the documents and records relating to the arrest to the DAL before the administrative hearing is scheduled, the DPSC has no role in the administrative hearings. The only people who usually appear at the administrative hearings are the administrative law judge, the motorist’s lawyer, and the motorist.

In order to examine the reasons for the recalls of the suspensions, or the reasons that motorists won DWI administrative hearings, we made a public records request to the Louisiana Division of Administrative Law requesting all administrative decisions in 2018, 2019, and 2020 where the motorists won the administrative hearing. A review of those decisions show that there were a number of reasons that motorists won administrative hearings. These results were compiled by students who took a DWI Practice and Procedure course at Loyola University New Orleans College of Law. Those students are Courtney Blevins, Dr. Deshanda Firmin, Daniel Marler, Breanna Parra, Joshua Senter, and Nicki Villarrubia.

The reasons that Administrative Law Judges might recall a suspension of a person’s driver’s license after a DWI arrest in Louisiana are stated in La. R.S. 32:668(A)(1). This means that under certain circumstances after a DWI arrest when a motorist requests a DWI administrative hearing, that motorist might “win” the hearing and get their driver’s license back.

Below you will find some of the specific reasons that a Louisiana motorist who has been arrested for a DWI might win an administrative hearing and get their driver’s license back without a suspension. Among those reasons are:

  1. The law enforcement officer did not have reasonable grounds to believe the individual was driving a motor vehicle under the influence of alcohol;

  2. The law enforcement officer did not actually arrest the motorist;

  3. The law enforcement officer did not advise the motorist of their statutory rights;

  4. The law enforcement officer did not properly administer an approved chemical test for DWI as required by law;

  5. The motorist did not refuse an approved chemical test for DWI;

  6. The motorist did not voluntarily submit to a chemical test because a search warrant was used to obtain the blood sample;

  7. The law enforcement officer failed to specifically state the reason they came into contact with the motorist;

  8. There was an illegal stop because the police department did not prove that the DWI checkpoint complied with Louisiana law;

  9. The arrest report did not indicate if the water vessel was motor operated;

  10. The Body/Dash cam footage differed from the officer’s statements that the motorist was swaying and had slurred speech;

  11. There were no reasonable grounds to stop the motorist because even though the left tires crossed the center line, cars were parked on both sides of the road, making it reasonable to drive in the middle of the road;

  12. The arresting officer stated that the motorist refused a chemical test when in fact the motorist submitted a urine test;

  13. The DPSC did not present any objective facts that the motorist committed improper lane change usage;

  14. The officer failed to observe the motorist for the full 15 minute observation period prior to the chemical test as required by the DPSC;

  15. Inconsistencies in the DWI Packet as to whether the motorist submitted to or refused the HGN Test;

  16. Inconsistencies in the DWI Packet as to whether the motorist submitted to or refused the a chemical test;

  17. Inconsistencies in the DWI Packet which called into question whether the motorist was actually advised of his rights;

  18. The DPSC did not prove that the trooper complied with the Department’s procedures regulating the administration of the test, that is, that the trooper followed the Intoxilyzer 9000 Check List;

  19. No arresting officers were listed on any of the DWI paperwork;

  20. The officer read the Arrestee Rights Form in English to the Spanish-speaking motorist thus failing to read the form in a language that was understandable to the motorist;

  21. The criminal charges were dismissed, which means that there is no legal basis for the proposed suspension of the motorist’s driver’s license;

  22. The DPSC did not provide any evidence to explain why two differing Official Notice of Withdrawal of Driving Privileges forms would be in existence;

  23. The DWI Packet contained no facts to establish by whom the motorist was observed driving or how the officer developed reasonable grounds to believe that the motorist was driving or in actual physical control of a motor vehicle;

  24. The DPSC failed to establish that the person who drew the motorist’s blood was a physician, physician assistant, registered nurse, licensed practical nurse, emergency medical technician, chemist, nurse practitioner, or other qualified technician on the date the motorist’s blood was drawn;

  25. The officer did not read to the motorist with a Class B commercial driver’s license a particular part of the form that must be read to holders of Class B commercial driver’s licenses;

  26. The results of the motorist’s blood test were not available within 30 days of the arrest;

  27. There was no refusal to take a chemical test because the motorist was physically unable to complete the Intoxilyzer breath test as a result of his incoherence and because the officer did not ask him to submit to chemical testing of his blood or urine;

  28. The motorist was not under arrest at the time he submitted to a chemical test for intoxication and he was read his rights relating to chemical tests for intoxication before he submitted to the test. (Although the motorist submitted to chemical tests on the night of the DWI-related accident, he was not arrested until 3 weeks later.);

  29. The trooper gave the motorist unclear information that failed to advise him that his license would be revoked if he refused to submit to a urine test;

  30. The DPSC could not prove that the motorist’s chemical breath test result was at or above 0.080g% because the motorist used an Albuterol metered dose rescue inhaler before she submitted to a breath test. Rescue inhalers can cause false-positive blood alcohol content readings during breath analysis of blood alcohol.;

  31. The DPSC did not prove that the Louisiana State Police Crime Laboratory possessed a valid certificate to conduct a forensic analysis of the motorist’s blood as required by law;

  32. The times recorded in the arrest documents for the encounter, arrest, the reading of the Arrestees’ Rights Form and refusal were in conflict as well as the time recorded for the Intoxilyzer 9000;

  33. The arresting officer only summarized the rights for the arrestee instead of orally reading the Arrestees’ Rights Form to the motorist;

  34. The DWI administrative hearing was not heard for more than two years after the motorist’s arrest;

  35. The officer failed to read the Arrestee’s Rights Form to the motorist before the motorist was asked to submit to the Intoxilyzer breath test;

  36. The fact that a motorist could not submit enough urine for a urine test does not amount to a refusal; and

  37. The motorist was not driving on a public roadway in Louisiana.

The documents that were produced by the Louisiana Division of Administrative Law are contained in the three attached documents for calendar years 2018, 2019, and 2020. To examine the information, viewers can simply click on the documents and read the entire decisions that were drafted by the Administrative Law Judges.

  • To review the 2018 DWI Administrative Hearings Where Motorists Won the Administrative Hearings, click here.

  • To review the 2019 DWI Administrative Hearings Where Motorists Won the Administrative Hearings, click here.

  • To review the 2020 DWI Administrative Hearings Where Motorists Won the Administrative Hearings, click here.

Contact Us Today

Gaynell Williams LLC Attorney at Law offers a free initial consultation to discuss your case. The first consultation can be in person or it can be virtual, on the Internet. Call Gaynell Williams today at (504) 302-2462 for a free consultation as soon as possible. We will work around your schedule. New Orleans lawyers Gaynell Williams LLC Attorney at Law have offices in Gretna and Downtown New Orleans by appointment only.

This information has been provided for informational purposes only and is not intended and should not be construed to constitute legal advice. Please consult your attorney in connection with any specific situation under Louisiana law and the applicable state or local laws that may affect your legal rights.

© 2022 Gaynell Williams



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