By Allen, Texas Criminal Defense Lawyer Kyle T. Therrian
Office Number: (972) 562-7549
24 Hr Jail Release: (214) 403-6522
www.rosenthalwadas.com

Section 724.011 of the Texas Transportation code says that, as citizens of this state, we have impliedly consented to providing a breath or blood specimen if arrested for DWI. How a person impliedly enters into an agreement they did not even know existed is difficult to grasp. Nonetheless, a person arrested for a DWI must choose between two options: (1) consent to the taking of a blood or breath specimen, or (2) refuse. The only way to go home without a license suspension is to consent and pass–a high risk low reward proposition.

Any person who has their license suspended as the result of a breath or blood test can request an administrative license revocation (ALR) hearing. When the laws seem stacked against you, many people say “why bother requesting the ALR hearing.” Before simply allowing your 15-day request window to slip away, consider the following advantages of an ALR hearing.

Early Discovery and Opportunity to Interview the Officer

Discovery is a legal process by which you learn about the other party’s case. In criminal law, discovery flows in one direction–the State must turn evidence over to the defendant but the defendant does not have a similar responsibility. While the law permits the accused to learn about many aspects of the case against him/her, the Code of Criminal Procedure does not normally permit a defendant to interview hostile witnesses prior to trial. An ALR hearing (which is separate and different from the criminal process) gives a unique opportunity to interview an arresting officer in a DWI case, ask questions about his report, and explore his investigation in further detail. Anything the officer has to say about the case will be under oath, recorded on a transcript and can be used to rebut his testimony on a later date, if necessary.

The Officer Might not Show

Of the two legal proceedings generated by a DWI arrest, the State gives the criminal proceedings much more reverence than the ALR proceedings. What this means is that when a subpoenaed officer doesn’t care to appear at an ALR hearing or even when he/she fails to appear because of a scheduling conflict made well known in advance, the license revocation case is likely to be dismissed by the judge. A dismissal results in restoration of the normal driving privileges.

The Revocation Could be Denied on the Merits

Frankly, these hearings can be won. There are a number of procedures which must be followed by officers before the administrative law judge will issue an “affirmative finding” (a finding which results in a license suspension). Depending on the type of case, there are usually four aspects of the officer’s investigation and decision to suspend a license which are reviewed by a judge: (1) whether the officer’s original stop of the vehicle was appropriate, (2) whether the officer had probable cause to make a DWI arrest, (3) whether the proper statutory warnings were given prior to requesting a specimen, (4) if the suspension was for failing a breath/blood test–whether the results admissible and/or reliable. One misstep by the officer may result in a negative finding by the judge–a finding which restores your normal driving privileges.

*Kyle Therrian is an attorney licensed to practice in the State of Texas. Nothing in this article is intended to be legal advice. For legal advice on any case you should contact an attorney directly.