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When a police officer decides he thinks it is appropriate to revoke someone's driver's license, he fills out a form and sends a copy of it to the Department of Public Safety in St. Paul. This is actually a copy of the "Notice and Order of Revocation" form which he also gives to the driver. When the Department of Public Safety receives this form from the police officer, they put the revocation into effect. They do not do any investigation of the facts. They do not ask any questions. They presume that the officer had a legitimate legal basis for the revocation, and that the officer followed all proper procedures during the stop, arrest, booking and testing process.

If the person whose license is being revoked wants to fight the revocation on legal grounds, he has the right to request a hearing before a judge called an Implied Consent hearing. This hearing is separate from the criminal court case. It is optional, and it is only held if the revoked driver requests it. In other words, if the revoked driver does not request an Implied Consent hearing, none will be held, and the revocation will proceed. The burden is on the revoked driver, if he wants to contest the legality of the revocation, to request the Implied Consent hearing.

IN ORDER TO BE EFFECTIVE, A FORMAL WRITTEN REQUEST FOR AN IMPLIED CONSENT HEARING MUST BE FILED WITH THE COURT AND SERVED ON THE COMMISSIONER OF PUBLIC SAFETY WITHIN 30 DAYS OF THE ARREST. A request for an Implied Consent Hearing filed more that 30 days after the arrest is not valid, there is no grace period.

On the back side of the Notice and Order of Revocation form is some information about the procedures available for challenging the license revocation. Although the information is accurate, it does not provide enough detail to enable an average person to do the job himself. While it is not legally required that a person use an attorney to handle an Implied Consent case (also referred to as a Judicial Review) the technical requirements and the legal issues are fairly complex. It makes good sense for someone who is considering an Implied Consent case to consult with an attorney regarding the specifics of his case, and if the case looks promising, use the attorney to handle the paperwork and represent him at the court hearing.

In analyzing a case to determine whether or not an Implied Consent hearing should be requested, an attorney should perform the same kind of step by step examination as would be done to evaluate the case for criminal defense purposes. All of the many possible defenses outlined earlier in this website apply to Implied Consent cases as well as criminal cases. In fact, many of those defenses have a much more dramatic result in the context of an Implied Consent case. For example, if the defendant in a criminal case can prove that the police officer did not read him the Implied Consent Advisory before requesting him to blow into the Intoxilyzer, the Intoxilyzer results cannot be used against the defendant in the criminal court case. The prosecutor, however, can still prosecute the defendant for driving while under the influence of alcohol without the test results. The prosecutor's case is weakened, but not destroyed. In the Implied Consent case, the test results form the basis for the license revocation. If the test results can be excluded using the same legal defense, the result is that the state no longer has any legal basis to revoke the license, and the revocation is lifted.

Not every driver who has his license revoked under the Implied Consent law will benefit from having an Implied Consent hearing. If the police officer has done everything correctly, had a valid basis for the traffic stop and arrest and followed all necessary procedures, there is no reason to expect the judge would overturn the license revocation. And because Implied Consent hearings are considered civil law proceedings, rather than criminal law proceedings, the state is held to a lower burden of proof. They only have to prove their side of the case by "a preponderance of the evidence" rather than by "proof beyond a reasonable doubt." So, unless it appears that there are one or more valid legal defenses involved in the case, it will probably not be worthwhile for the revoked driver to spend his time and money on an Implied Consent hearing. On the other hand, if the case does appear to involve a valid defense, an Implied Consent hearing can be very worthwhile. It is the revoked driver's opportunity to present his side of the case to a judge and reverse an unjust revocation. If successful, the Implied Consent hearing will result in the immediate reinstatement of full driving privileges and the removal of the alcohol-related revocation from the driver's record.

Most attorneys who practice DWI law can prepare, file and serve the necessary Implied Consent paperwork in one day. After the paperwork is filed, the Clerk of Court will assign a date for the hearing and mail a notice out to the attorneys on both sides. The time between filing the papers and the hearing varies, but averages about five weeks. Unfortunately, there is no way to simply extend the 7-day temporary driver's license while waiting for the hearing. If the driver is eligible for a limited license (work permit) he may choose to apply for it in order to have some driving privileges while the Implied Consent case is pending. Getting the limited license will require payment of the application fee and reinstatement fee, $308.50 total, which will not be refunded even if the revocation is eventually overturned by the judge.