ALASKA DRIVING WHILE INTOXICATED (DWI)

Transcription

1 ALASKA DRIVING WHILE INTOXICATED (DWI) Alaska DWI arrests trigger two separate cases, and each of these cases must be defended following a drunk driving arrest. First, there is the court case, which can result in punishment that includes jail time, fines, mandatory DWI educational programs, ignition interlock devices, and more. Additionally, every driver arrested for Alaska DWI that submits to a chemical test of.08% or more, or who refuses to take a chemical test following their arrest for Alaska DWI, DUI, or any drinking and driving charge, will be subject to a Division of Motor Vehicles (DMV) case where their license may be taken away. TAKE NOTE: YOU MUST REQUEST A DIVISION OF MOTOR VEHICLES HEARING WITHIN SEVEN (7) DAYS OF YOUR ARREST. CONTACT AN ALASKA DWI DEFENSE LAWYER RIGHT AWAY TO ENSURE THAT YOUR LICENSE IS PROTECTED. Please go website: Alaska DWI cases can be prosecuted on one of two theories: either violation of Alaska s "per se" law by driving with a blood or breath alcohol content of.08% or higher, or by driving while impaired. Impairment, for purposes of Alaska s drunk driving laws, can be proved by driving patterns, field sobriety test performance, and chemical test results. A skilled DWI defense lawyer will know how to deal with each type of evidence in an Alaska drunk driving case. Thankfully, someone accused of drunk driving in Alaska has the right to a trial to defend him or herself in a court of law. Alaska DWI convictions are generally misdemeanors (although may be treated as a felony if it is a third-offense or greater, or involves bodily injury). Punishment for Alaska DWI (or for related Alaska drunk driving convictions) includes fines, jail time, and community service. Electronic monitoring may be obtained in lieu of jail time in appropriate cases, although it is important to discuss this with an experienced Alaska drunk driving defense attorney. The Alaska Division Of Motor Vehicles, under the Department Of Administration, imposes a revocation of driving privileges as an administrative penalty for any driver who (after being lawfully arrested for DWI) refuses to take a breath test or who takes a breath test with a result of.08 or greater. The only way to possibly avoid this administrative revocation is to contest the revocation by requesting an Administrative Review/Hearing within seven (7) days of your arrest. Alaska DMV Actions The revocation of a driver's license, or privilege to drive in this state (for citizens of other state arrested in Alaska) is imposed in an administrative proceeding outside of the criminal case. It is possible to have one's driving privileges revoked in an administrative proceeding even though the criminal charge of DWI or refusal is dismissed or successfully defended in Alaska criminal court.

2 The period of the revocation varies depending on whether the driver has any DWI convictions in Alaska, or any other state. If the driver has no prior convictions for DWI or refusal, the revocation period is 90 days. There may be a possibility of obtaining a limited license for work purposes only during the last 60 days of this 90 day period if the revocation is for a breath test result of.08 or greater, but not for refusal. If the driver has 1 prior DWI or refusal conviction, the revocation period is 1 year, with no opportunity for a limited work permit. If the driver has 2 prior convictions, the period of the revocation is for 3 years, with no opportunity for a limited work permit. If the driver has 3 or more DWI convictions, the revocation period is 5 years, with no opportunity for a limited work permit. If your license is revoked by the DMV, you will need to pay a fee to the DMV, and take any additional testing they require in order to get your driving privileges reinstated. You will also be required to show proof of insurance for a period of 3 years after the revocation period ends. This usually involves increased insurance premiums. How to "Contest" the Revocation (Requesting an administrative review/hearing) The revocation is initiated on the date of the arrest by the officer serving a copy of a "Notice And Order Of Revocation" on the driver who is arrested for suspicion of violating Alaska DWI laws. From the time that this documents is served on the driver, the driver has 7 days to request an Administrative Review/Hearing of the revocation. A person who contests the revocation by filing a request for a hearing within 7 days after the Notice And Order Of Revocation is given to the driver, may be successful in preventing the DMV from revoking his license. If the driver does not request a hearing within 7 days, the license revocation will go into effect the following day, by default, and the driver will not have an opportunity to contest the revocation period. The request for hearing must be made within seven (7) days of the date you receive the Notice And Order Of Revocation. The driver should state the grounds for his/her request. An attorney's assistance will be helpful to set forth all of the available grounds. There may be many issues raised in an Administrative Review/Hearing. The written request should either be hand delivered to Division of Motor Vehicles, Department of Administration, Driver Improvement Bureau, 1300 W. Benson, Suite 100, Anchorage, Alaska 99503, or sent by mail. If the request is sent in the mail, it must be postmarked within the 7 day time frame. (Don't simply drop it in the mailbox and keep no record of it being received at the post office). As an extra precaution you can fax your request for a hearing to (907) However, a fax request should not be relied upon as the official request for a hearing. We recommend personal hand delivery to the DMV Office or by certified mail.

3 The Importance of the Administrative Hearings Administrative Hearings can be critical to the client's case. First, if the driver does nothing, his/her license or privilege to drive in Alaska will be revoked, even if the driver is able to beat the DWI or refusal charges in the criminal case. There may be grounds for defeating the revocation at the Administrative Review/Hearing, depending on the facts of your case. Second, the Administrative Review/Hearing offers your lawyer the opportunity to crossexamine the officers involved in your arrest and investigation, so that important issues can be reviewed before the criminal DWI case is resolved. The sworn testimony of the officers is recorded, and can be very important in helping to resolve or win the criminal DWI case. This also provides an important way to impeach the officer if he attempts to testify in a different fashion later on at trial in the criminal case. Further, this will give you and your attorney the opportunity to hear the officer's testimony under oath, and obtain a better understanding of their observations and the extent of the evidence that they have against you. Finally, if you request an Administrative Review/Hearing within 7 days, you will be granted temporary driving privileges by the DMV at least until the date of your Administrative Review/Hearing. Usually, the Administrative Hearing is scheduled within approximately 1 month after you request the hearing, although the hearing may be continued for a longer time after your attorney enters his/her appearance on your behalf. Always keep copies of all documents that you submit to the DMV and always keep your postage receipt so that you can show it was timely sent. Jail Alternatives Even in the case of a conviction, it is possible for a skilled defense attorney to obtain alternatives to jail for their clients. Alternatives to jail include: Electronic Monitoring Work Release or Work Furlough City Jail Alcohol or Drug Rehabilitation Sober Living Each of these options should be fully explored, and a decision reached based upon the individual facts in each case. Electronic Monitoring: This is also known as "House Arrest", and involves wearing an ankle bracelet that electronically monitors the whereabouts of the wearer. Usually, arrangements can be made for the wearer to go to work or school, so long as they are home by an appointed time.

4 Work Release: This involves working at a site determined by the Probation Department. The participant works there during the day, and gets to go home at night to sleep. Work Furlough: This option allows the participant to keep their own job; however, they return to a dormitory-style facility to sleep at night. They are released to go to work during the day. City Jail: Also known as "private jail" or "weekend jail." Many local police departments operate a City Jail program. Participants check themselves in to the police station, and usually spend the night there, to be released sometime the following day. Alcohol or Drug Rehabilitation: Sometimes a DUI or drug-related arrest is merely the unfortunate symptom of an underlying addiction issue. While this is certainly not the case in every instance, some people who are arrested for these types of cases can best address alcohol or drug rehab as an alternative to jail. A skilled defense attorney will know how to obtain this type of relief for their clients, and prevail upon a judge to allow this as an alternative to custody and fines. Sober Living: For those that are multiple offenders, or have a drug or alcohol problem that has not responded to past attempts at treatment, sober living is sometimes the best alternative. These are houses, both for men and women, where all of the residents are sober. The structure of each house will vary, but residents are usually required to attend a 12-Step meeting daily, participate in house groups and functions, and perform a household chore. In addition to allowing the participant to avoid a lengthy jail stay, sober living environments have helped many improve the quality of their lives.

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

29

30

31 Case Type: DVI IN THE DISTRICT/SUPERIOR COURT FOR THE STATE OF ALASKA AT Petitioner Date of Birth ) ) ) ) v. ) )) Respondent Date of Birth ) CASE NO. ) ) PETITION FOR PROTECTIVE ORDER (DOMESTIC VIOLENCE) I, petitioner, swear or affirm under penalty of perjury that all the information I provide in this petition is true to the best of my knowledge and belief. 1. I am requesting (check all that apply) a 20-day protective order. (This order, called an "ex parte" order, can take effect immediately without prior notice to the respondent.) I understand that I can get a 20-day order without prior notice to the respondent. However, the law requires that I tell the court about any efforts I have made to notify the respondent. I certify that I have not tried to notify the respondent that I am filing this petition. notified or tried to notify the respondent as follows: a long-term protective order. (This order can only be issued after notice to the respondent and a court hearing. Most provisions of this order will last for one year. However, the provision that prohibits the respondent from committing domestic violence will last indefinitely (until the court terminates it).) NOTE: If there is any chance you might need protection for more than 20 days, you should request both a long-term order and a 20-day order. To do this, check both boxes. 2. The respondent is (check all that apply) my spouse my former spouse my parent my grandparent my child my grandchild my brother my sister my first cousin my aunt my uncle my nephew my niece a person with whom I presently have or previously had a dating or sexual relationship. someone who lives or has lived with me. a person related or formerly related to me by marriage (for example, stepparent, stepchild) other (specify relationship) Page 1 of 6 DV-100 (9/04)(st. 4) AS PETITION FOR PROTECTIVE ORDER (DOMESTIC VIOLENCE) Civil Rule 65.1

32 3. There are children in my household. yes no 4. I have been the victim of domestic violence by respondent as described below. (Include date of incident, place where incident occurred and injuries suffered, if any. List the most recent incident first and specify whether weapons or children were involved. Attach additional sheets if necessary.) 5. Has the respondent been involved in other instances of domestic violence? 6. I request an order from the court directing (check all that apply) a. respondent not to threaten or commit acts of domestic violence, stalking, or harassment. b. respondent not to be in my physical presence and not telephone, contact, or otherwise communicate directly or indirectly with me. Exceptions (if any): c. respondent to leave and stay away from my residence. Exception: I request an order directing a peace officer to accompany the respondent to my residence to remove respondent's essential personal belongings including This is also respondent's current residence. yes no (If yes, answer the following.) (1) The address is: (2) The residence is also used for business purposes. yes no If yes, describe: (3) The title or lease for the residence is in the name of: (Note: Temporary possession of the residence may be given to the petitioner regardless of ownership of the residence. AS (c)(3)) Page 2 of 6 DV-100 (9/04)(st. 4) AS PETITION FOR PROTECTIVE ORDER (DOMESTIC VIOLENCE) Civil Rule 65.1

33 d. respondent to stay away from and not telephone or contact the following additional locations: my school my place of employment the following places frequented by me or by the member of my household listed below: Place Name of Household Member Exceptions e. respondent not enter or follow a vehicle in my possession or occupied by me. f. I be given temporary possession and use of the following, regardless of ownership: a vehicle and all keys to it. Vehicle license number: Vehicle Description: essential personal items, including: g. a peace officer to accompany me to my residence to ensure that I: safely obtain possession of the residence and any vehicle or personal items which the court gives temporary possession of to me. am able to safely remove a vehicle and personal items from my residence. h. respondent not to possess or use controlled substances. i. respondent to pay support to me. I understand that support cannot be awarded unless the respondent has an independent legal obligation to support me. (1) My estimated monthly income from all sources $ My estimated monthly expenses $ (2) Respondent's monthly income from all sources $ Respondent's monthly expenses $ (3) I have been completely partly supported by the respondent since. j. other: Page 3 of 6 DV-100 (9/04)(st. 4) AS PETITION FOR PROTECTIVE ORDER (DOMESTIC VIOLENCE) Civil Rule 65.1

34 7. I also request that the following be included in the long-term protective order. I understand that these requirements cannot be included in the 20-day order. I request that the court direct: 8. Children. a. respondent not to use or possess a deadly weapon (including a firearm). b. respondent to surrender any firearm owned or possessed by respondent. c. respondent to reimburse me or the person named below for expenses associated with the domestic violence (such as medical expenses, counseling, shelter, and repair or replacement of damaged property) as described below: Pay to Type of Expense Amount $ $ $ d. respondent to pay to the costs and fees I have incurred in bringing this action, in the amount of $. e. respondent to enroll in and complete, at respondent's expense: a program for the rehabilitation of perpetrators of domestic violence that meets the standards set by the Department of Corrections under AS (b). treatment for the abuse of alcohol. treatment for the abuse of controlled substances. I request that the court enter the following orders concerning the child(ren). a. I request the court to award me temporary physical custody of the minor child(ren) named below: (1) Child's Name Date of How Long My Respondent's Birth in Alaska relationship relationship to child is: to child is: (2) The child(ren) and I have lived in Alaska for the past six months. yes no Page 4 of 6 DV-100 (9/04)(st. 4) AS PETITION FOR PROTECTIVE ORDER (DOMESTIC VIOLENCE) Civil Rule 65.1

35 (3) There is a custody order over one or more of the children. yes no do not know If yes, describe each order below: Child's Name State that Case No. The order grants issued order (if known) custody to: (4) I currently have the child(ren) request an order directing a peace officer to assist me to obtain the child(ren) from who now has them. b. Visitation. I understand the court may only grant visitation to the respondent if my safety and the safety of the children can be protected. If the court considers visitation, these are my safety concerns: c. Child Support. I request that the court order the respondent to pay child support to me for the child(ren) named in section (a)(1) during the period I have temporary physical custody of them. yes no (1) Financial Information About Respondent. Respondent's Occupation: Name of Employer: Respondent's take-home pay: $ each week monthly every 2 weeks (2) Child support checks should be sent to: (mailing address safe to reveal to respondent) I understand that the above information is sufficient for the 20-day order. However, to get a long-term (one-year) child support order, I understand that I must complete form DV-101, Child Support Information, and bring it with me when I come back to court for the hearing on whether the long-term protective order will be granted. 9. Other Cases. a. The following are all the pending civil (for example, divorce or child custody) cases or domestic violence criminal cases, in this or another state, involving either me or respondent (that I know of): Type of Case Court Location Petitioner or Respondent Page 5 of 6 DV-100 (9/04)(st. 4) AS PETITION FOR PROTECTIVE ORDER (DOMESTIC VIOLENCE) Civil Rule 65.1

36 b. The following are other court cases (civil or criminal) involving the respondent that I want the court to know about: Type of Case Court Location 10. Information About Respondent. Respondent s full legal name and any nicknames or other names used: Respondent's Mailing Address: Respondent's Home Phone: Work Phone: 11. Petitioner Information. [The court needs your mailing address in order to send court papers, including notices of hearing, to you. If you believe you may endanger yourself by giving your mailing address, write a "message" address where you can be sure you will receive court papers. If you do not have an address and telephone number that can safely be revealed to the respondent, ask the court clerk how you can provide this information so that it will be kept confidential and not revealed to the respondent. Civil Rule 65.1] My mailing/message address is: Street or Box No. City State Zip My message phone: My full legal name: Any nicknames or other names: Date Petitioner's Signature Print Name Subscribed and sworn to or affirmed before me at on. (date), Alaska (SEAL) Clerk of Court, Notary Public or other person authorized to administer oaths My commission expires: Page 6 of 6 DV-100 (9/04)(st. 4) AS PETITION FOR PROTECTIVE ORDER (DOMESTIC VIOLENCE) Civil Rule 65.1

37 REQUEST FOR SERVICE OF PROTECTIVE ORDER DOCUMENTS Court Case No. Court Location Fax # Police Case No. Petitioner's Full Name Respondent's Full Name Please immediately serve the following documents on the respondent. The court hearing on this is scheduled for. Petition and Ex Parte Protective Order (20-Day Order) Order Extending Ex Parte Protective Order Notice of Hearing Protective Order (long-term) Petition and Notice of Hearing A return of service must be filed with or faxed to the court listed above before the hearing. I hereby certify that I RETURN OF SERVICE served the above-listed documents on the respondent named above by handing to and leaving a true and correct copy with him her; and turned custody of the minor child(ren) over to ; evicted respondent from petitioner's residence at ; personally at (address, street number, rural route, milepost, etc.) in, Alaska on, at.m. did not serve the above-listed documents on the respondent named above because Return Date Signature Print Name and Title Distribution: 1. Original to law enforcement agency with jurisdiction over place respondent is located. 2. Copy to court file. DV-125 (9/03)(cs) REQUEST FOR SERVICE AND RETURN OF SERVICE

38 LAW ENFORCEMENT INFORMATION SHEET (Confidential) [Note: The DV-125 Request For Service must also be filled out.] Notice To Petitioner. You must supply the respondent's name and birth date, if known. Fill in as much of the other information as you can to help the police locate the respondent. This information will NOT be given to the respondent. Notice To Law Enforcement. This information is confidential and is supplied to assist you in serving the protective order. The petitioner needs to be notified if you are unable to serve the order. After serving (or failing to serve the order), you MUST complete the return of service section of DV-125. Petitioner Information Name: Residence Address: Contact Address or Phone (Confidential): Respondent Information Name: Date of Birth: SSN ID/Driver's License No. Sex Race Height Weight Hair Eyes Nickname or Street Name: Scars/Marks/Tattoos: Facial Hair: Home Address: Home Phone: Work Address: Work Phone: Friends/Relatives/Hangouts: Where do you think respondent is now? Vehicle Year: Make/Model: Color: Vehicle License Number:: State: Additional Information (Pending Court Dates? On Probation?): Officer Safety Information Previous contact with police by respondent? No Yes Explain: Any threats by respondent toward petitioner, family, police? Describe: Weapons accessible to respondent (pistol, rifle, knife, other): Expected mental state or history of respondent (include alcohol or drug use): Is a divorce or other legal action pending that involves the respondent (child custody, eviction, bankruptcy, repossession of property)? Distribution: Original to Police. If the court retains a copy, it must be kept confidential. DV-127 (9/03)(cs) Civil Rule 65.1 LAW ENFORCEMENT INFORMATION SHEET (DOMESTIC VIOLENCE OR STALKING)

39

40

41

42

43

44

45

46 VISITATION PLAN & CHILD SUPPORT WORKSHEET A) Visitation Schedule I would like the kids to live with Mom Dad except as follows: Visitation as arranged between us. Visitation on a schedule set by the court. I request the following schedule (days & times): B) Third Party Help (Are there friends or family who would be willing to help so that you and the other party do not have to talk or see each other? Do these people get along with both of you?) No third party help is necessary I would like a third party to help for the following: to relay messages about the children and/or help set up the visitation schedule. to transport the children between me and the other person for visitation. to supervise visits because I do not think the children will be safe otherwise. My safety concerns are: These are the people I think could help out: (REMEMBER: Before the hearing, ask these people if they are willing to do it.) Name Phone (home, work, cell) There is nobody I know that can supervise the visitation. I request a professional supervisor. C) Pick up and drop off of the kids The kids will be picked up and dropped off by us through a 3 rd party at the following public place: at my home at the other parent s home other D) Child Support I request child support. The other parent takes home approximately $ /month. I do not request child support because: DV Visitation Plan & Child Support Worksheet SHC-2600 (3/05)