An often overlooked part of DWI defense is the administrative license revocation (ALR) hearing. While many times the outcome is a foregone conclusion as the burden for the Department of Public Safety (DPS) is so low, the hearing affords the experienced DWI practitioner the means to build a solid defense to the criminal charge.
In Texas, an individual arrested for driving while intoxicated has 15 days to request an ALR hearing to contest their license suspension, or face a suspension of between three and six months for a first offense or up to two years for a subsequent offense.
Too many attorneys show up at the ALR hearing without having done anything to prepare other than look over the documents filed by the arresting officer. Those attorneys are missing a golden opportunity to help their clients. The ALR process allows an experienced DWI attorney to cross-examine the witnesses the state will call at the DWI trial without those witnesses undergoing a proper woodshedding from the prosecutor.
The attorneys for the DPS do not have the time to go over every detail of a stop with the arresting officer due to time constraints in the ALR process. More importantly to the experienced DWI attorney, since the burden of proof is lower than in a criminal proceeding, and because the elements that the DPS must prove differ from the elements of driving while intoxicated, witness preparation by the DPS attorney is minimal at best.
The ALR process allows the experienced DWI attorney to subpoena the arresting officer and other officers who participated in the stop, detention or arrest of the motorist. Through the rules governing the ALR process, a defense attorney is able to obtain documents the arresting officer filed with the DPS, such as his sworn report as well as the statutory warning issued to the motorist and the notice of license suspension.
In the event a breath or blood test was performed, the experienced DWI attorney may also subpoena the breath test operator, the technical supervisor (the state's expert on the Intoxilyzer) or the technician who interpreted the blood test result.
Since these individuals will be testifying under oath at the ALR hearing, this is the opportunity for the experienced DWI attorney to pin down each witness's story in order to provide impeachment material for use at the criminal proceeding. Questions about the driving facts can narrow the reasonable suspicion cited by the officer as the reason for the encounter. Questions about the officer's observations can be used to erode that officer's probable cause for arresting the motorist and requesting a breath or blood specimen. Questions about the field sobriety tests administered in the field, or at the station, can be used to exclude any evidence of those tests from admission into evidence at trial. Questions to the state's expert regarding a breath or blood test at the ALR hearing can provide ammunition to use to limit the impact of a breath or blood test at trial.
The ALR hearing provides the experienced DWI attorney with the opportunity to depose all of the witnesses who are going to testify against his client at trial. The transcript of the hearing allows the defense attorney to prepare the case accordingly and to highlight the weaknesses of the state's case. The transcript also provides the experienced DWI attorney with a weapon to attack the integrity and credibility of the state's witnesses. Should the officer give an answer on the stand at trial that differs from the answer he gave under oath at the ALR hearing, the experienced DWI attorney can pull out the transcript and impeach the officer in front of the jury.
Finally, the transcript of the ALR hearing also allows the experienced DWI practitioner to show the prosecutor the weaknesses in the state's case. On a borderline case, a good ALR transcript can be the difference between a dismissal and a trial.
Remember, if you've been arrested for DWI in Texas, you have only 15 days to request an ALR hearing to contest your license suspension. Do not waste your opportunity to gather evidence that could lead to a dismissal or acquittal. Contact Houston DWI Attorney Paul B. Kennedy for more information and a free consultation.
No comments:
Post a Comment