5-65-402. Surrender of license or permit to arresting officer.

5-65-402. Surrender of license or permit to arresting officer. (a)(1)(A) At the time of arrest for violating § 3-3-203(a), § 5-27-503(a)(3), § 5-65-103, § 5-65-205, § 5-65-303, § 5-65-310, § 27-23-114(a)(1), § 27-23-114(a)(2), or § 27-23-114(a)(5), the arrested person shall immediately surrender his or her license, permit, or other evidence of driving privilege to the arresting law enforcement officer. (B) The arresting law enforcement officer shall seize the license, permit, or other evidence of driving privilege surrendered by the arrested person or found on the arrested person during a search. (C)(i) If a juvenile, as defined in the Arkansas Juvenile Code of 1989, § 9-27-301 et seq., is arrested for violating § 3-3-203(a) or § 5-27-503(a)(3), the arresting officer shall issue the juvenile a citation to appear for a juvenile intake with a juvenile intake officer. (ii) The arresting officer shall forward a copy of the citation and the license, permit, or other evidence of the driving privilege to the juvenile office before the scheduled juvenile intake. (iii) Juveniles subject to the jurisdiction of the circuit court under the Arkansas Juvenile Code of 1989, § 9-27-301 et seq., shall not be subject to this section, except as provided in this subdivision (a)(1). (2)(A)(i) If the license, permit, or other evidence of driving privilege seized by the arresting law enforcement officer has not expired and otherwise appears valid to the arresting law enforcement officer, the arresting law enforcement officer shall issue to the arrested person a dated receipt for that license, permit, or other evidence of driving privilege on a form prescribed by the Office of Driver Services. (ii) This receipt shall be recognized as a license and authorizes the arrested person to operate a motor vehicle for a period not to exceed thirty (30) days. (B)(i) The receipt form shall contain and shall constitute a notice of suspension, disqualification, or revocation of driving privileges by the office, effective in thirty (30) days, notice of the right to a hearing within twenty (20) days, and if a hearing is to be requested, as notice that the hearing request is required to be made within seven (7) calendar days of the notice being given. (ii) The receipt form shall also contain phone numbers and the address of the Office of Driver Services and inform the driver of the procedure for requesting a hearing. (C) If the Office of Driver Services is unable to conduct a hearing within the twenty-day period, a temporary permit shall be issued and is valid until the date of the hearing. (D)(i) The seized license, permit, or other evidence of driving privilege and a copy of the receipt form issued to the arrested person shall be attached to the sworn report of the arresting law enforcement officer and shall be submitted by mail or in person to the Office of Driver Services or its designated representative within seven (7) days of the issuance of the receipt. (ii) The failure of the arresting law enforcement officer to timely file the sworn report does not affect the authority of the office to suspend, disqualify, or revoke the driving privilege of the arrested person. (3)(A) Any notice from the Office of Driver Services required under this subchapter that is not personally delivered shall be sent by first class mail and is deemed to have been delivered on the date when postmarked and shall be sent to the last known address on file with the Office of Driver Services. (B) Refusal of the addressee to accept delivery or attempted delivery of the notice at the address obtained by the arresting law enforcement officer or on file with the Office of Driver Services does not constitute nonreceipt of notice. (C) For any notice that is personally delivered, the person shall be asked to sign a receipt acknowledging that he or she received the required notice. (4)(A) The Office of Driver Services or its designated official shall suspend, revoke, or disqualify the driving privilege of an arrested person or any nonresident driving privilege of an arrested person when it receives a sworn report from the arresting law enforcement officer that he or she had reasonable grounds to believe the arrested person: (i) Was under twenty-one (21) years of age and purchased or was in possession of intoxicating liquor, wine, or beer in violation of § 3-3-203(a); (ii) Was under twenty-one (21) years of age and attempted to purchase an alcoholic beverage or use a fraudulent or altered personal identification document for the purpose of purchasing an alcoholic beverage illegally or other material or substance restricted to adult purchase or possession under existing law in violation of § 5-27-503(a)(3); or (iii) Had been operating or was in actual physical control of a motorboat on the waters of this state or a motor vehicle in violation of § 5-65-103, § 5-65-303, § 27-23-114(a)(1), or § 27-23-114(a)(2) and the sworn report is accompanied by: (a) A written chemical test report or a sworn report that the arrested person was operating or in actual physical control of a motorboat on the waters of this state or motor vehicle in violation of § 5-65-103, § 5-65-303, or § 27-23-114; or (b) A sworn report that the arrested person refused to submit to a chemical test of breath, saliva, or urine for the purpose of determining the alcohol concentration or controlled substance content of the arrested person's breath or blood in violation of § 5-65-205, § 5-65-310, or § 27-23-114(a)(5). (B) The suspension, disqualification, or revocation shall be based as follows: (i) The driving privileges of a person violating § 5-65-103 shall be suspended or revoked as provided by § 5-65-104; (ii) The driving privileges of a person violating § 5-65-205(a) shall be suspended or revoked as provided by § 5-65-205(b); (iii) The driving privileges of a person violating § 5-65-303 shall be suspended or revoked as provided by § 5-65-304(b); (iv) The driving privileges of a person violating § 5-65-310(a) shall be suspended or revoked as provided by § 5-65-310(b); (v) The driving privileges of a person violating § 27-23-114(a)(1) or § 27-23-114(a)(2) shall be disqualified as provided by § 27-23-112; (vi) The driving privileges of a person violating § 27-23-114(a)(5) shall be disqualified as provided by § 27-23-112; (vii) The driving privileges of a person violating § 3-3-203(a) shall be suspended, revoked, or disqualified as provided by § 3-3-203(e); and (viii) The driving privileges of a person violating § 5-27-503(a)(3) shall be suspended, revoked, or disqualified as provided by § 5-27-503(d). (5) In addition to any other penalty provided for in this section, if the arrested person is a resident without a license or permit to operate a motor vehicle in this state: (A) The Office of Driver Services shall deny to that arrested person the issuance of a license or permit for a period of six (6) months for a first offense; and (B) For a second or subsequent offense by a resident without a license or permit to operate a motor vehicle, the Office of Driver Services shall deny to that arrested person the issuance of a license or permit for a period of one (1) year. (6)(A)(i) If the arrested person is a nonresident, the arrested person's driving privilege in Arkansas shall be suspended in the same manner as that of a resident. (ii) The Office of Driver Services shall notify the office that issued the nonresident's driving privilege of the action taken by the Office of Driver Services. (B) When the arrested person is a nonresident without a license or permit to operate a motor vehicle, the Office of Driver Services shall notify the office of issuance for that arrested person's state of residence of action taken by the Office of Driver Services. (7)(A) Upon the written request of a person whose driving privilege has been revoked, denied, disqualified, or suspended, or who has received a notice of revocation, suspension, disqualification, or denial by the arresting law enforcement officer, the Office of Driver Services shall grant the person an opportunity to be heard if the request is received by the Office of Driver Services within seven (7) calendar days after the notice of the revocation, suspension, disqualification, or denial is given in accordance with this section or as otherwise provided in this chapter. (B) A request described in subdivision (a)(7)(A) of this section does not operate to stay the revocation, suspension, disqualification, or denial by the Office of Driver Services until the disposition of the hearing. (8)(A) The hearing shall be before the Office of Driver Services or its authorized agent, in the office of the Revenue Division of the Department of Finance and Administration nearest the county where the alleged event occurred for which the person was arrested, unless the Office of Driver Services or its authorized agent and the arrested person agree otherwise to the hearing's being held in some other county or that the Office of Driver Services or its authorized agent may schedule the hearing or any part of the hearing by telephone and conduct the hearing by telephone conference call. (B) The hearing shall not be recorded. (C) At the hearing, the burden of proof is on the state and the decision shall be based on a preponderance of the evidence. (D) The scope of the hearing shall cover the issues of whether the arresting law enforcement officer had reasonable grounds to believe that the person: (i) Had been operating or was in actual physical control of a motorboat on the waters of this state or a motor vehicle or commercial motor vehicle while: (a) Intoxicated or impaired; (b) The person's blood alcohol concentration measured by weight of alcohol in the person's blood was equal to or greater than the blood alcohol concentration prohibited by § 5-65-103(a)(2); (c) The blood alcohol concentration of a person under twenty-one (21) years of age was equal to or greater than the blood alcohol concentration prohibited by § 5-65-303; or (d) The person's blood alcohol concentration measured by weight of alcohol in the person's blood was equal to or greater than the blood alcohol concentration prohibited by § 27-23-114; (ii) Refused to submit to a chemical test of the breath, saliva, or urine for the purpose of determining the alcohol concentration or controlled substance content of the person's breath or blood and whether the person was placed under arrest; (iii) Was under twenty-one (21) years of age and purchased or was in possession of any intoxicating liquor, wine, or beer; or (iv) Was under twenty-one (21) years of age and attempted to purchase an alcoholic beverage or use a fraudulent or altered personal identification document for the purpose of purchasing an alcoholic beverage illegally or other material or substance restricted to adult purchase or possession under existing law. (E)(i) The Office of Driver Services or its agent at the hearing shall consider any document submitted to the Office of Driver Services by the arresting law enforcement agency, document submitted by the arrested person, and the statement of the arrested person. (ii) The Office of Driver Services shall not have the power to compel the production of documents or the attendance of witnesses. (F)(i) If the revocation, suspension, disqualification, or denial is based upon a chemical test result indicating that the arrested person was intoxicated or impaired and a sworn report from the arresting law enforcement officer, the scope of the hearing shall also cover the issues as to whether: (a) The arrested person was advised that his or her privilege to drive would be revoked, disqualified, suspended, or denied if the chemical test result reflected an alcohol concentration equal to or in excess of the amount by weight of blood provided by law or the presence of other intoxicating substances; (b) The breath, blood, saliva, or urine specimen was obtained from the arrested person within the established and certified criteria of the Department of Health; (c) The chemical testing procedure used was in accordance with existing rules; and (d) The chemical test result in fact reflects an alcohol concentration, the presence of other intoxicating substances, or a combination of alcohol concentration or other intoxicating substance. (ii) If the revocation, suspension, disqualification, or denial is based upon the refusal of the arrested person to submit to a chemical test as provided in § 5-65-205, § 5-65-310, or § 27-23-114(a)(5), reflected in a sworn report by the arresting law enforcement officer, the scope of the hearing shall also include whether: (a) The arrested person refused to submit to the chemical test; and (b) The arrested person was informed that his or her privilege to drive would be revoked, disqualified, suspended, or denied if the arrested person refused to submit to the chemical test. (b) After the hearing, the Office of Driver Services or its authorized agent shall order the revocation, suspension, disqualification, or denial to be rescinded or sustained and shall then advise any person whose driving privilege is revoked, suspended, or denied that he or she may request a restricted permit as otherwise provided for by this chapter. (c)(1)(A) A person adversely affected by the hearing disposition order of the Office of Driver Services or its authorized agent may file a de novo petition for review within thirty (30) days in the circuit court in the county in which the offense took place. (B) A copy of the decision of the Office of Driver Services shall be attached to the petition. (C) The petition shall be served on the Secretary of the Department of Finance and Administration under Rule 4 of the Arkansas Rules of Civil Procedure. (2)(A) The filing of a petition for review does not stay or place in abeyance the decision of the Office of Driver Services or its authorized agent. (B) If the circuit court issues an order staying the decision or placing the decision in abeyance, the circuit court shall transmit a copy of the order to the Office of Driver Services in the same manner that convictions and orders relating to driving records are sent to the Office of Driver Services. (C)(i) The circuit court shall hold a final hearing on the de novo review within one hundred twenty (120) days after the date that the order staying the decision or placing the decision in abeyance is entered. (ii) The circuit court may conduct the final hearing by telephone conference with the consent of the parties. (3) An administrative hearing held under this section is exempt from the Arkansas Administrative Procedure Act, § 25-15-201 et seq. (4)(A) On review, the circuit court shall hear the case de novo in order to determine based on a preponderance of the evidence whether a ground exists for revocation, suspension, disqualification, or denial of the person's privilege to drive. (B) If the results of a chemical test of blood, breath, saliva, or urine are used as evidence in the suspension, revocation, or disqualification of the person's driving privilege, then § 5-65-206 shall apply in the circuit court proceeding. (d)(1) A decision rendered at an administrative hearing held under this section shall have no effect on any criminal case arising from a violation of § 3-3-203(a), § 5-27-503(a)(3), § 5-65-103, § 5-65-205, § 5-65-303, § 5-65-310, § 27-23-114(a)(1), § 27-23-114(a)(2), or § 27-23-114(a)(5). (2) Any decision rendered by a court of law for a criminal case arising from any violation of § 3-3-203(a), § 5-27-503(a)(3), § 5-65-103, § 5-65-205, § 5-65-303, § 5-65-310, § 27-23-114(a)(1), § 27-23-114(a)(2), or § 27-23-114(a)(5) shall affect the administrative suspension, disqualification, or revocation of the driving privilege as follows: (A) A plea of guilty or nolo contendere or a finding of guilt by the court has no effect on an administrative hearing held under this section; (B)(i) An acquittal on the charges or a dismissal of charges serves to reverse the suspension, disqualification, or revocation of the driving privilege suspended or revoked under this section. (ii) The Office of Driver Services shall reinstate the person's driving privilege at no cost to the person, and the charges shall not be used to determine the number of previous offenses when administratively suspending, disqualifying, or revoking the driving privilege of an arrested person in the future; and (C) The Office of Driver Services shall convert any initial administrative suspension or revocation of a driving privilege for violating § 5-65-103 to a suspension or revocation for violating § 5-65-303 if the person is convicted of violating § 5-65-303 instead of § 5-65-103. (e) A person whose privilege to drive has been denied, suspended, disqualified, or revoked shall remain under the denial, suspension, disqualification, or revocation and remain subject to penalties as provided in § 5-65-105 until such time as that person applies for, and is granted by the Office of Driver Services, reinstatement of the privilege to drive. (f) The administrative suspension, disqualification, or revocation of a driving privilege as provided for by this section is supplementary to and in addition to a suspension, disqualification, or revocation of a driving privilege that is ordered by a court of competent jurisdiction for an offense under §§ 5-64-710, 5-65-116 [repealed], and 27-16-914, or other traffic or criminal offense in which a suspension, disqualification, or revocation of the driving privilege is a penalty for the violation. (g)(1)(A) A person whose driving privilege is suspended or revoked under this section shall: (i) Both: (a) Furnish proof of attendance at and completion of the alcoholism treatment program, alcohol education program, or alcohol and driving education program required by § 5-65-104(b)(1) or § 5-65-307(a)(1) and, if applicable, at a victim impact panel as provided in § 5-65-121 before reinstatement of his or her suspended or revoked driving privilege; and (b) Pay a fee for reinstatement required under § 5-65-119, § 5-65-304, or, if applicable, § 5-65-121; or (ii) Furnish proof of dismissal or acquittal of the charge on which the suspension or revocation is based. (B) An application for reinstatement shall be made to the Office of Driver Services. (2) Even if a person has filed a de novo petition for review under subsection (c) of this section, the person is entitled to reinstatement of driving privileges upon complying with this subsection and is not required to postpone reinstatement until the disposition of the de novo review in circuit court has occurred. (3) A person whose driving privilege is suspended or revoked under this section may enroll in an alcohol education program prior to disposition of the offense by the circuit court or district court but is not entitled to a refund of a fee paid if the charge is dismissed or if the person is acquitted of the charge. (h) Except as provided in subsection (a) of this section, this section shall not apply to juveniles subject to the Arkansas Juvenile Code of 1989, § 9-27-301 et seq.