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At the ALR Hearing the Texas Department of Public Safety must prove, by a preponderance of the evidence, that: 1) there was reasonable suspicion to effectuate a legal detention (in most cases to initiate a traffic stop of the vehicle; 2) that the police officer had the requisite legal standard of  probable cause to make an arrest; 3) that the person was operating a motor vehicle in a public place while being  intoxicated; and 4) the person was placed under arrest and offered an opportunity to give a voluntary chemical specimen of breath or blood, 5) the person either refused to give permission to voluntary to consent; or if consent was given how 6) the person failed a breath or blood test by having a BAC level of a .08 (or more). At the ALR hearing, the attorney for the individual is afforded the opportunity to present arguments and whatever proof that contradicts the evidence that DPS argues when advocating for a suspension. If the ALR hearing is won, and the DPS motion to suspend the license to drive is denied or dismissed, and as such, it is a successful result and the person’s ability to drive and have a valid driver’s license will not be revoked (at least for this proceeding).

Implied Consent

If you take a chemical test and it is deemed a failure (by having a BAC level of a .08 or more), this can potentially be used as evidence that you were intoxicated and your license may be revoked. The Texas “implied consent laws” essentially dictate that any refusal to submit to a voluntary chemical specimen upon request can result in the possible driving license revocation and/or a period of suspension. Essentially, by being issued a Texas driver’s license, you voluntarily imply and agree to submit a chemical specimen upon request of a police officer. In essence, your consent to this is deemed to be implied if one has been issued a Texas driver’s license and utilize the privilege of driving and operating a motor vehicle on our state roads.

ALR Hearing Process

DPS is a very inefficient entity and if at all possible, they try to make it as difficult as possible to get the ALR request in, I personally believe because they do not want to do the work necessary to present the proper evidence at the hearing and also the necessary documents that can be requested to prepare. I believe that honestly, Texas DPS would prefer that people avoid making the request for their ALR hearing. Despite however difficult they may be when ensuring the request is timely made, once you are in possession of the piece of paper titled the DIC-25 “Temporary Driving Permit” (if you consented to a blood test and the result comes back at some point at some level at or above the 0.08 level and you receive a letter they sent in the mail notifying you of such, you should immediately request your ALR hearing. You should make this request, simply put, because it is your right, and you should always exercise the rights you are afforded when you are able to do so.

As discussed previously it is true that under the “implied consent” statute in Texas, everyone who has a Texas driver’s license technically gives automatic consent to give a voluntary chemical specimen upon request, however – that does not mean that one should or is required legally to give it. You can still refuse, and you should. Always choose to refuse a breath or blood test, and make the police officer obtain a search warrant if he is so inclined.

If you request the ALR hearing, they must allow you a date to have one to contest the matter. In order to have a chance to do this, the attorney must issue a proper subpoena to the relevant police officers or other agents. Once the initial hearing date is set, the individual contesting the suspension (usually through an Attorney) can request at least one continuance on the matter. As long as it is done within 5 days of the date of the hearing, it must be granted. Once the date is set again at a later date, if a proper subpoena was issued and if the officer does not appear at the hearing (and assuming all the relevant paperwork was submitted properly and on time), the proceeding and the motion to suspend the driving privileges of the individual will be dismissed or it will be denied.

However, even if the officer does appear pursuant to the issued subpoena, the defense attorney is then allowed an opportunity to fully question him on all matters relating to the incident (that pertains to the ALR). If done correctly, this can often be helpful later on in the criminal portion of the case because you’re getting a chance to cross-examine them on the incident, all assumptions and reasons concluded that led to the arrest for a charge of DWI, which can yield fruitful information where you can potentially tie his testimony at that proceeding (because usually, they are not quite as  prepared for the ALR as they are for any criminal hearing), and if they contradict what they said, later on, you can bring this is up to discredit their overall credibility as a witness.

However, it is also noteworthy to understand how the standard and threshold needed for DPS to prevail at an ALR if an officer appears is incredibly low. If the arresting officer shows up, all he has to do is give his testimony on how he developed the reasonable suspicion for why he made the traffic stop and/or the detention, and then what led him to believe he had probable cause to make the decision to arrest the individual for a charge of DWI. In more cases than not, the police officer is indeed able to meet this extremely low threshold and is able to articulate at least some fact that justifies having reasonable suspicion and probable cause level needed for this hearing. If this is the case, as it is in the majority of ALR hearing cases where the police officer appears and testifies at the hearing, his testimony is usually found to be true by the Administrative Law Judge (or “ALJ”). If this occurs, then the ALJ will order the suspension of the driver’s license for whatever period of time the type of case calls for, the license will then be suspended accordingly, and the individual will need to start the process of obtaining a valid occupational driver’s license (or “ODL), or what is sometimes called an “essential needs” license. If the ALJ finds that there was no reasonable suspicion for the traffic stop, the ALJ could dismiss the case and make a finding in favor of the accused. You might not even want to subpoena the officer and just argue at the ALR hearing, what is usually referred to as “on paper” – meaning pointing out some possible deficiency with the required “DIC” paperwork. With the latter, could possibly prevail in this manner, more or less, on a technicality due to a deficiency with what should have been done.

Does the Individual Accused of DWI Need To Be Present at the ALR Hearing?

The answer is no, and it is also not advisable to be present. In theory, if one does appear, the attorney representing DPS could call the defendant has a witness to testify. This could prove problematic, in that—and it could damage the case later for the criminal portion, in the same fashion, it can and often does when the police officer testifies at the ALR hearing. In almost every case, our office never advised someone to be present for the ALR hearing. There is almost never a need or a strategic reason to justify having someone being physically present for this hearing.

Will The Process Of ALR Hearing Help The Criminal Portion Of My Case In Texas?

The only overlap between the civil and criminal sides of a DWI case is the facts of the case. If the ALR, in the ALR hearing, for instance, issues a ruling and an order denying the motion presented by DPS finding perhaps that there was not sufficient not reasonable suspicion for the traffic stop or enough evidence presented and testified to when questioned to justify probable cause for the arrest, while this is good factually speaking, it does not mean despite this favorable decision that in the criminal phase a judge presiding over that matter or jury will perceive it the same way and find the same result. In this context, there is no overlap at least in this regard.

The overlap occurs, however, with being able to cross-examine the officer, if they’re in a situation where they believe that the only issue with why they stopped someone was something very specific, and you think he was wrong and you may be able to obtain information that could likewise help in the criminal phase of the case. You can pin him down and sort of marry him to that testimony, and sometimes if nothing else, the attorney conducting the ALR hearing can personally observe how well or articulate the police officer will testify later at trial. It is always possible that they were young, and scared and nervous leading to a mistake being made, or perhaps catching them off guard at the ALR hearing and perhaps gaining something like an admission of a fact that would lead to a possible positive result later in the criminal case.

Even still when this does happen, it is not uncommon if later at a trial the police officer suddenly changes his testimony regarding the reason for the traffic stop, or whatever inadvertent remark he made detrimental to his case when testifying at the ALR hearing. Previous testimony at an ALR hearing can sort of prevent them from doing that in many ways to a large degree because if they try and do this, you can point out the contradiction and the obvious conflict in testimony given with each proceeding.  At the very least, the police officer would lose credibility. You may also prevail in the criminal phase by conducting the ALR because when the subpoena is issued for an officer, you may learn that the officer quit from the department, moved, or is now doing another line of work. Or, they may simply inform the process server that they don’t plan to show up, which means they likely won’t show up for the criminal side of the case either. That can very much impact the knowledge and information you have for your criminal case.

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