License Suspension & ALR Hearing

Over two years ago, I wrote a post called “The Implied Consent Fallacy”. In the essay I objected to the legal fiction that everyone knows they are consenting to give a breath or blood test when asked by the police, simply by virtue of applying for and accepting a Texas Driver’s License.

Semi-anonomous first time reader “Jason” weighed in recently with this comment:

It’s a good law. Bottom line, don’t drive after consuming alcohol.

Simple enough, why don’t they get it? Too bad there are attorney’s [sic] who defend these people of lower than average intelligence.

Well, Jason, despite the fact that you missed the entire point of the post itself, let’s address your point. It seems to be that you think:

Driving after consuming alcohol is illegal…

and that therefore,

You deserve to have your license suspended…

even if the suspension is predicated on the falsehood that you knowingly and willingly agreed to provide a breath specimen when you got your driver’s license.

Just one problem with your theory… taint so. It is not illegal to consume an alcoholic beverage and get behind the wheel in Texas. You can make a good argument that it should be; but until you change the law to make it so, your premise is 100% incorrect.

One last thing. I often edit people’s grammar and spelling errors in comments, but given this particular combination of double ad hominem attack with a healthy dose of self righteousness I decided to let your comment stand as is.
 

My internet stats program for this blog – Mint – keeps track of IP addresses associated with various searches as well as other interesting (if you’re a geek) tidbits of information. Tonight I saw the following string of searches, which started five weeks ago:

How long does a DWI case take in Travis County?

Of course the answer to this question, like all of those that don’t provide enough information to properly answer, is… it depends. But let me see if I can do better than that anyway. The discovery process – getting the video, offense report, intoxilyzer records if it’s a breath test case, and sitting down at least once to substantively chat with a prosecutor about your case? – will take at least three to four months, sometimes longer.

Several more uncontested settings and at least one contested pretrial setting on a motion to suppress can be several more months, depending primarily on availability of the officer and your lawyer’s schedule.

How long will you be on the jury docket if you don’t work out a plea? I talked to a client earlier today and his case is a year and half old. We are just now bubbling to the top of the jury docket in that court. (I’d say that’s a little unusual, but it’s by no means record-setting either.)

Next search, some time later, same IP:

Travis County DWI No Contest

Can’t tell if this is part of a “do I have to hire a lawyer” stage. Since the first search is only five weeks ago, it seems a tad early to be hearing this from your lawyer, but who knows? Maybe it’s just ‘background’ research on what happens. Next query:

Transcripts of ALR hearings

Seems like something a lawyer might Google if they were trying to learn some good cross examination questions. Or maybe the client wants to know how much something like that might cost. Next search, a little later still:

What if officer does not appear at ALR hearing?

A lawyer would know the answer – I hope – to this one, so maybe this really is a defendant trying to figure out how things work. Assuming the officer has been properly subpoenaed, and DPS doesn’t have ‘good cause’ for his absence, it should be dismissed. (But don’t hold your breath – I’ve objected to and been overruled on some pretty flimsy ‘good cause’ issues at SOAH.)

What if my attorney did not get an ALR hearing?

Well now things have taken a turn for the worse. The next search/same IP provides us some insight into the mystery:

My attorney did not request ALR because I passed breath test did not take a blood test

“I see,” said the blind man. I think I’ve figured this out. You told your lawyer that you passed the breath test – blew under .08 – and I hope for your sake that you told him about the blood test part.

Was your license confiscated? Did they ask for blood after you passed the breath test? If you refused the second test, they may have issued the DIC paperwork and started the license suspension process. Including that 15 day period you’ve been reading about – at least since you started doing your own internet research.

I think it’s good advice for the lawyer to request an ALR in every case, including when the potential client comes in and says, “I passed the test”. First, I’ve had cases where clients told me, “They said I blew .07”, but we find out later there was some confusion about the “.0” part. (i.e., “.17”)

Second, if DIC paperwork was issued, it has to be done. DPS is basically just a big bunch of computers. There are humans too, of course, but by and large they are there to correct the computer errors. Some clerk receives a Notice of Suspension from a police agency, enters the info, and that 15 day time limit starts ticking.

Third, DPS considers passing the breath test but refusing the next round of blood tests to actually be a refusal. And more importantly, back to point number two, if the computers were fed the information about the notice of suspension, and you/your lawyer didn’t do anything then the “Automatic” License Revocation kicked in.

Something like this came up recently – although I can’t find the email so the details might have differed – on either the Texas criminal defense lawyer listserv or the Texas DWI defender listserv, and Houston DWI lawyer Troy McKinney properly referred the questioner to Texas Transportation Code 524.012:

(c) The department may not suspend a person’s driver’s license if:

(1) the person is an adult and the analysis of the person’s breath or blood specimen determined that the person had an alcohol concentration of a level below that specified by Section 49.01(2)(B), Penal Code, at the time the specimen was taken;

Unfortunately section (d) continues:

(d) A determination under this section is final unless a hearing is requested under Section 524.031

So it’s a moot point without the request. Sounds like your lawyer woulda, coulda, shoulda… Or maybe I’m missing something, who knows?
 

Continue Reading Questions: One Always Seems to Lead to Another

There are certain boring yet inevitable questions that often begin an examination of a police officer in a DWI (by a prosecutor) or an administrative license revocation ALR case (by a defense attorney):

  • State your name for the record please…
  • You’re employed by Austin Police Department?
  • Any prior law enforcement experience?

 A defense lawyer usually wants to know how many arrests a particular officer has made for DWI and how long he has been a peace officer at all. The theory is that the fewer arrests he has made or the shorter period time he has been doing this, the more likely it is that his opinion that the client was intoxicated is suspect.

 

And while the defense lawyer might not bring out the possible experience of an officer at jury trial if it is extensive – that is, if the prosecutor hasn’t done that already – there’s sort of a no harm/no foul rule when it comes to asking questions at an ALR. After all, the odds are stacked against you, there’s no reasonable doubt to rely on, and in a refusal case DPS doesn’t even carry the burden of proving that your client was actually intoxicated – simply that he was properly offered a breath test and refused.

 

Basically, if you’re going to win or lose the driver’s license hearing it won’t often be because of that painful one-question-too-many moment. At any rate, most ALRs by defense attorneys start with these type of pro forma questions.

 

So as I’m taking a break in the back of the room this afternoon waiting for my client’s ALR to start (brushing up on some top notch possible avenues of cross examination like “Are there any reasons someone might be asleep at the wheel other than intoxication?”) I hear the defense lawyer ask, “How long have you been a certified peace officer?…”

 

At which point – I am not making this up – the baby faced officer… looks at his watch.

 

OK, so he replies, “10 months” and I assume that his watch is one of those that has the month on it – but it still made me inwardly chuckle about how that might have looked to a jury.

From an email:

I was arrested in 2005 while in the military in North Carolina for a DWI. My license is suspended in North Carolina but is it suspended in Texas?

Answer:

I assume you are living in Texas now?  Ever apply for a Texas DL?  Or are you just driving around hoping not to get pulled over?  (Not the best idea – by the way.)

Basically, if Texas DPS gives you a license, you’re good.  Sounds like that’s not the case though.  You may need to clear up any problems with NC – if your license is still suspended there – before you can get a Texas DL.

If your suspension period is up you may just have to pay a reinstatement fee to North Carolina, to get in compliance with their DMV.  Once that’s done, under the interstate compact, you will probably be eligible for a regular license here.

If you aren’t eligible for a 24/7 Texas driver’s license, you may be able to get an occupational here in Texas.  That’s a bit trickier, and not answerable without knowing more facts.

I don’t know what part of Texas you’re in, but you should find a DWI lawyer that practices in your (current) neck of the woods to help you with this.

The Austin Criminal Defense Lawyers’ listserv was filled with replies and answers recently when someone inquired about the best way to make an offer of proof. As these things often do, there was a tangential question asked: “Anyone aware whether the Judge can require that an offer of proof be made after he goes on break?”

I’d never seen it done in county or district court, but it reminded me that it had happened in an ALR. I replied:

Some ALJs do it.

I had an Administrative Law Judge try to leave the room once – after dismissing the live in person officer/witness that could have just answered the one and only question that had been objected to, and sustained – while he finally allowed me to make an offer of proof.  (There’s only a tape recorder, not a real live court reporter of course in ALRs.)  I’m pretty sure he quoted me chapter and verse on why he was allowed to leave, or it was better for him to leave the room, or something.

I managed to get out "I anticipate that Officer So-and-So would have testified that the marijuana was found in the glove compartment" (which was almost all I wanted to ask on the subject) and concluded the offer of proof before the judge was able to storm out of the room.  Unfortunately for him, although he wanted to make a point to me about how unimportant and/or irrelevant my offer of proof was, he had spent enough time lecturing me on the subject of "No appeal court will overturn my ruling" that I was able to get the Q&A in before he reached the door.

In my own defense, I still think it’s relevant to the issue of intoxication – and even the officer’s determination of probable cause to believe DWI blah blah blah – that the connection or nexus between the defendant and the marijuana was remote.  (And, to be fair, in his defense, the standards on appeal for ALRs are so ridiculous that he was right about the chances of appellate success – we didn’t even bother appealing it.)

To put it in context, my client had been charged with both possession of marijuana and DWI. In an ALR hearing, DPS is required to ‘prove’ that the officer had probable cause to believe that my client was intoxicated. Since the state can charge you with being impaired on either substance, or a combination of the two, the officer’s belief about my client’s ‘marijuana intoxication’ was at least marginally relevant.

Looking back on it, I think both the judge and the lawyer (yes, that was me) were being somewhat childish. After my email to the listserv, another attorney ribbed me about bothering to go through the offer of proof motions in the first place. I texted him back:

Yeah, basically I was RIGHT and the judge was wrong and I tried to tell him why it WAS relevant, and he wouldn’t listen so I wanted him to have to listen to the answers, then it would become clear that I was right, but then he wanted to take his basketball and go home and leave the room, but I beat him to the punch by getting it out before he could leave.

I can be very mature.

Still, you’ve got to let judges know you know how to preserve the record for appeal, even if there’s not going to be one. They may give you a little more latitude in the future with your questions.

And since one of the primary purposes of ALR is to depose the witness for the upcoming DWI case, the more questions you are allowed, the better.

I might have been able to go a little further, if allowed, and elicited testimony that the officer couldn’t or didn’t know whether my client knew about the marijuana in the glove box. Which certainly would have been useful for the possession charge.

I didn’t have a good faith basis for including that in the offer of proof; and it would only have done me good if I had gotten the officer’s sworn testimony under oath. My Q&A in an offer of proof would not have been admissible of course in the criminal trial.

Perusing my recent stats, courtesy of Mint, and I see someone has Googled the title of this post.

Maybe I’m feeling overly suspicious tonight, but I’m tempted to suspect that someone has been told by their lawyer that there’s a big difference between pleading ‘guilty’ and pleading ‘no contest’ to their (Texas) DWI charge. 

There’s not. If you weren’t involved in a collision, or something that could lead to a civil suit, there’s absolutely no difference to the defendant. Your lawyer has not worked out some ‘great deal’ by ‘convincing the prosecutor’ to ‘let you plead no contest instead of guilty’.

And frankly, if you had insurance, or weren’t at fault in the accident – that’s possible, even if you were hammered – there’s still no difference.

The only difference that counts is that a ‘no contest’ plea can’t be held against you in a civil case arising out of the criminal incident, while a ‘guilty’ plea can. If that’s a big deal to you, maybe it’s worth something. 99% of the time it won’t be.

And as long as I’m being suspicious, who else out there thinks the recent search phrase ‘preparing cops for an ALR hearing’ was done by a prosecutor? Late night search, and all I know is it was from a wireless broadband IP address, so I can’t be sure, but who else would Google such a thing?

What the heck… Never been a prosecutor, but I’m going to hand out some advice in that regard anyway:

Say, “Officer, thanks for showing up. The hearing’s about to start. Have you reviewed the documents? You remember the arrest? OK, great. You’ll get called as a witness in a few minutes.”

Pretty simple stuff. He’ll be sworn in under penalty of perjury. They taught him in the Police Academy to just tell the truth – well, didn’t they?

What other kind of ‘preparing’ could you (not a witness to the events in question) give to an officer anyway?

[OK, OK, I’m being something of a smart-alec.  I know there are prosecutors that read this blog.  Feel free to add comments on how to ‘ethically’ prepare a witness.  You may do so anonymously, or leave your name.  I’d be happy to hear from you.]

If a get a temporary suspension of my driver’s license in Texas can I get a permit for school? [from a recent Google query]

I’m not 100% sure what is meant by ‘a temporary suspension’ but let me piece this together if I can.

Sounds like the question may refer to being arrested for DWI in Texas, having your driver’s license confiscated (not returned after your release from jail) and being issued a piece of paper that says ‘Notice of Suspension’ and ‘Temporary Driver’s License’. 

The answer to the question, in that case is this: if you qualify for an occupational driver’s license, then your DWI lawyer should include in the petition that you be allowed to drive not only ‘to and from work’ (i.e., your occupation) but also ‘to and from school’. You will probably need to provide your attorney with some form of proof that you are in school, such as an official list of the classes that you are in this semester.

Your lawyer will then also need to know the hours that you will need to drive for classes, studying at the library, etc. The default amount of time to drive per day is usually 4 hours, but it’s not unusual to get an extension of that up to 12 hours a day, which is the statutory maximum.

DWI lawyers tend to refer to ‘occupational licenses’ and that is indeed their official name. But I prefer to call it an ‘essential needs’ license, because you can be granted the right to drive to work, school, church, groceries, etc. Everywhere you need to go. Just not everywhere you want to go 24/7.

Question: My wife and I were pulled over in August 2005 on a rural road approximately 5 miles from my house by DPS who at the time was going the other direction on a two lane road. 

We had been out seeing my wife’s favorite band and it was her night out.  He asked me if I know what we were pulled over for and I say no.  License plate light out!  So no big deal until he shines the light at my wife and says, “What’s wrong with her?”

"She’s sleeping,” I say.  Well he asks where we have been and I’m truthful, her night out and I’m the designated driver.  He proceeds through the get out of the car deal, does the eye test, then the one leg to 30, then walk the line….then the finger count….no problem here…..

He goes and finally wakes up my wife and talks with her.  Well she’s hammered of course.  Then he comes back and arrests me after I refuse the breathalyzer. 

Then he arrests her for public intoxication.  I convince him to let a friend come get her and the vehicle.  He does and takes me to the pokey.  Since then my lawyer has sent three letters to the court letting them know when he will be out of town.  The court has never sent anything to me at my home or office. 

Since it has been two years, can I stroll down to the DPS and get my license or will they snatch me up?  I appreciate any input. 

Reply: What county is this from?  Also, you are saying it has been almost two years from the arrest?  The ALR suspension would usually be over well before then.  (Unless there are priors, perhaps…do you have any prior DWI arrests? or prior alcohol related license suspensions?)

Follow Up: I had one prior when I was 20 and I was 35 when I got this one.  Yes two years since arrest in August.  It is in [Anonymous] County.  I got my license suspended for not taking the breathalizer. 

I haven’t done anything since.  No license, [rest of sentence deleted]. But if I can go and get it without being harassed I would love to do so.

Reply: Well, the 15 year old DWI can now (unfortunately) be used to enhance your new DWI charge to a DWI 2nd.  It used to be the law that after 10 years, new DWI charges would be filed as Class B ‘first offense’ DWIs.  But that’s no longer the case.

But ALR (pretrial Driver’s License Suspensions arising out of the DWI arrest) only started in 1995, so you shouldn’t have any enhanceable alcohol related contacts.  If there were prior DWI related license suspensions within the applicable time period, DPS would have sought a 2 year suspension.

I asked because based on your facts, it sounds like DPS probably sought a 180 day license suspension, which would have started either 40 days after the arrest, if you did not request a hearing to contest the suspension.  And if you, or your DWI lawyer did request the hearing within the first 15 days of the arrest, certainly the hearing would have happened and the 180 day suspension is probably up.  I know that would be the case for an Austin DWI arrest, but I am unfamiliar with practice and docketing in your neck of the woods.

If you got an occupational license during the original ALR refusal 180 day driver’s license suspension, and filed it within the 30 day grace period with Texas DPS, then they would have made you pay the $125 reinstatement fee at that time.  That would mean your license was no longer suspended.

If you never filed an occupational, or never went to pay DPS the reinstatement fee, then that is still owed, and will be necessary to get your license back.

Sounds like you’ve got an attorney helping you on the DWI.  You probably need to contact him for more specific information.

One last note:  Looks like you found my DWI blog by searching for "Statute of limitations" and "DWI Texas".  You certainly need to find out from your current DWI attorney whether or not the State has filed a complaint and information officially charging you with the DWI at your local County Clerk’s office.  If the full 2 years runs without them doing that, you should have a legal defense to being prosecuted for the DWI criminal charge.

Let’s say you are arrested for DWI in Austin, Tx, and face 2 cases: (1) the criminal DWI charge, and (2) the Driver’s License Suspension Hearing.

In Austin, the Driver’s License hearing will be probably be held before a resolution of the DWI, so again, continuing our hypothetical, let’s say the 180 day driver’s license suspension is imposed for your refusal to take the breath test. Remember, you were already under arrest for DWI when you were asked to submit to a specimen of breath or blood, so you made a wise choice as far as the criminal charge is concerned to refuse the test.

Now let’s say that your DWI lawyer goes to court, and prior to trial, works out a deal with the prosecutor that they agree to reduce the charge of DWI to Reckless Driving, or maybe even a traffic ticket. The benefit to you is that you are assured of not being convicted of DWI.

So you accept.

Well, you may still be under that DL suspension, driving around town with an Occupational License, but not 24/7 like you are used to. The suspension will be lifted, right?

Wrong. Only a ‘Not Guilty’ verdict at bench or jury trial will reverse the suspension now. Texas Transportation Code Section 524.015 states, in part:

…the disposition of a criminal charge does not affect a driver’s license suspension under this chapter and does not bar any matter in issue in a driver’s license suspension proceeding under this chapter… A suspension may not be imposed under this chapter on a person who is acquitted of a criminal charge under Section 49.04

A ‘dismissal’ of a DWI charge is not an ‘acquittal’ (i.e., not guilty verdict), and therefore the license will stay suspended for the original term imposed. An in jurisdictions outside of Austin, where the DWI case may run quicker than the suspension hearing, you will still be facing the loss of your license.

In my experience, most clients prefer a certain outcome in terms of getting the DWI dismissed, than to risk it all by rolling the dice at trial. But it’s something to think about. And if you are facing DWI charges in Texas, your lawyer needs to be able to lay out all the options for you.

If your license is suspended through the ALR process for a DWI arrest in Texas, the default for occupational license driving time is four hours a day.

However, a judge has discretion to increase the time allowed to twelve hours a day. Likewise, a judge has the ability to reduce it below four hours a day…and in some jurisdictions, they do that quite frequently.

The number of hours you are granted will depend on how much you (or your DWI lawyer) can show the court you need to drive. It is, after all, an “essential needs” license.

In my experience, most judges in Austin understand that in today’s world people work various hours, have multiple jobs, use daycare and have child rearing responsibilities and other types of important commitments. If it is a first time DWI with no collision and no ‘aggravating’ factors, most of my Austin clients can provide me with the documentation I need to get a judge to increase the driving time from the four hour default rule all the way up to the twelve hour a day maximum.

No, an occupational license is not the same as your regular “24/7 drive anywhere anytime you want” license that you are used to. But it’s probably going to allow you to continue to do all the things you need to do.