Section 113.04. Reviews.

 

(1)  Written request for a review must be received or postmarked within 10 days after the date of the notice of intent to suspend operating privilege under s. Trans 113.03 or if notification is by mail, within 13 days, excluding Saturdays, Sundays and holidays, after the date of mailing.

(2)  Reviews shall be conducted:

(a) By the department at the office in the county where the offense allegedly occurred or, if the offense allegedly occurred in a county in which the department does not maintain an office, at the office of the department nearest to the location where the offense allegedly occurred.

(b) Within the 30 day period after the date of the notice of intent to suspend operating privilege.

(3)  The issues the person wishes to contest at the review may be specified with the request for review. At the review, the person may present evidence and may be represented by counsel. The examiner shall consider and determine the reliability of all the evidence presented at the time of the review. Statements and reports of law enforcement officers are subject to the same standards of credibility applied to all other evidence presented. The issues shall be limited to any of the following:

(a) The correct identity of the person.

(b) Whether the person was informed of the options regarding tests as required under s. 343.305 (4) , Stats.

(c) Whether the person had a prohibited alcohol concentration at the time the offense allegedly occurred.

(d) Whether one or more tests were administered in accordance with s. 343.305 , Stats.

(e) If one or more tests were administered in accordance with s. 343.305 , Stats., whether each of the test results for those tests indicate the person had a prohibited alcohol concentration.

(f) Whether probable cause existed for the arrest.

(g) Whether the person was driving or operating a commercial motor vehicle when the offense allegedly occurred.

(4)  Upon receipt of a request for review, the examiner shall schedule the time and place and send notice to the person by first class mail at least 5 days prior to the review. The 5 day notice may be replaced by actual notice if a shorter period is necessary in order to hold the review within the 30 day period after the date of the notice to suspend operating privilege.

(5)  If the person requests a review but does not appear at the time and place scheduled, the administrative suspension shall take effect as provided in s. Trans 113.05 .

(6)  The person may submit written arguments limited to the issues in sub. (3) if the written arguments are submitted with the request for review and the person indicates the written arguments are in lieu of a personal appearance.

(7)  The examiner may permit testimony by telephone if the site of the administrative review is equipped with telephone facilities to allow multiple party conversations.

(8)  If at any time the person submits written evidence from a facility certified by the state laboratory of hygiene and meeting the requirements of s. 885.235 (1) , Stats., indicating the person did not have a prohibited alcohol concentration, the suspension will be vacated.

(9)  If the examiner finds to a reasonable certainty by evidence that is clear, satisfactory and convincing that the criteria in s. 343.305 (8) (b) , Stats., for administrative suspension have not been satisfied, or that the person did not have a prohibited alcohol concentration at the time the offense allegedly occurred:

(a) The examiner shall notify the person in writing and shall order that the administrative suspension of the person's operating privilege be rescinded; and

(b) The person's license shall be returned without payment of a reinstatement fee under s. 343.21 (1) (j) , Stats.

(10)  If the examiner finds to a reasonable certainty by evidence that is clear, satisfactory and convincing that the criteria for administrative suspension have been satisfied and that the person had a prohibited alcohol concentration at the time the offense allegedly occurred:

(a) The examiner shall provide the person with a judicial review request form and notify the person in writing of the review decision and right to judicial review and stay of the suspension as provided in s. 343.305 (8) (c) , Stats.

(b) The administrative suspension shall take effect as provided in s. Trans 113.05 and s. 343.305 (7) (a) , Stats.

(c) The administrative suspension is vacated if the examiner fails to mail the notice to the person within 30 days after the date of the notice of intent to suspend operating privilege under s. Trans 113.03 .

(11)  Examiners shall conduct reviews in an impartial and detached manner. The result of an individual review may not be considered in any personnel action involving the examiner or performance review of the examiner by the department.

(12)  No testimony given by any witness may be used in any subsequent action or proceeding.

History: Cr. Register, December, 1987, No. 384 , eff. 1-1-88; emerg. cr. (7g), (7m) and (7s), am. (9) (a) eff. 12-30-88; am. (1), (3) (intro.), (c) and (e), renum. (7) to (10) to be (8) to (11) and am., cr. (3) (g), (7), (10) (c) and (12), Register, January, 1991, No. 421 , eff. 2-1-91; am. (3) (c), (e), (8), (9) (intro.) and (10) (intro.), Register, August, 1993, No. 452 , eff. 9-1-93; r. (2) (b), renum. (2) (c) to be (2) (b), am. (11), Register, July, 1995, No. 475 , eff. 8-1-95.