Why Have an ALR Hearing Anyway?
We believe that the ALR hearing is an integral part of our representation in a DWI case. A potential client should definitely ask a prospective attorney what he or she intends to do with regard to the ALR hearing. We have heard tales that some lawyers tell their potential clients not to bother with the ALR hearing, since they never “win” anyway. Of course, if you never request an ALR hearing, you will never “win” an ALR hearing.
However, one excellent lawyer with whom we often work, has said that he has “never lost an ALR hearing”? He did not mean that he had never had an ALR hearing wherein the State was not allowed to suspend his client’s drivers license. He meant that he always received some valuable benefit from the ALR proceedings. A lawyer could not have very many ALR hearings without losing his share.One prominent attorney wrote in the Texas Bar Journal words to the effect that DPS wins ALR hearings at “an astonishing rate”. However, the benefit to an ALR hearing may not be just that you might prevent a suspension.
Obtaining Records Through the ALR Hearing Process
We find it extremely helpful that, by requesting the documents that DPS intends to offer at the ALR hearing, we can cause DPS to FAX the arrest report to our office in the early stages of the investigation; sometimes the complete arrest report and sometimes an abbreviated report that has been purposely written in order to prevent the defense from deriving any meaningful information. However, these latter types of reports are often too sketchy to rate a suspension by the judges who hear ALR matters.
Client’s Priorities — The “Battle” vs. the “War”
We need your input into your primary motivations for the ALR hearing. It may be that you feel that your primary motivation is to save your license. It may be that you want the arresting officer to have to explain his decision to arrest you at the earliest possible opportunity, which is generally at the ALR hearing. You may have a rare “ALR Defense”, such as the fact that you did not “refuse” to provide a breath specimen but, rather, could not provide a specimen due to some lung condition, such as asthma.
You may have received improper warnings, or no warnings, from the arresting officer related to the breath test. In some cases, the arresting officer may have had no valid reason for the stop (i.e., an illegal seizure based upon less than reasonable suspicion or probable cause); if so, we may want to “lock him down” on his or her reasons for this bad stop at the ALR hearing before an unscrupulous prosecutor may attempt to cause that officer to “shade” his testimony.
Conducting an ALR Hearing Based Upon DPS’s Documentary Evidence
If your only goal is to “save your license”, then DPS’s paper-work is often far from perfect. However, the fact that a lawyer can mount a good argument that the client should be entitled to keep his or her license due to these perceived imperfections does not mean that the Administrative Law Judge (“ALJ”) will agree. The appellate courts have been astonishingly lenient in permitting suspensions based upon incomplete or conclusory documentary evidence.
Those courts have frequently blamed the defendants for not requesting a subpoena for the police officer, if that defendant really had an issue with the officer’s report, in order to “clear things up”. Of course, this does not seem to be fair because the burden of proof is on the DPS. DPS often apparently feels queasy about their documentary evidence, because they frequently “route” arresting officers to these ALR hearings in order to compensate for a vague or plainly inadequate report. It is for these reasons that a decision to conduct a “paper” ALR hearing may not prove to be successful in saving the client’s license after careful consideration.
An attorney may have a winning case upon the documentary evidence against the client and unexpectedly encounter the arresting officer. We have repeatedly seen defense attorneys who were not prepared to cross-examine an arresting officer in such situations. A well-prepared defense attorney should never squander your best opportunity to acquire a detailed knowledge of the facts of your case or to test the knowledge and qualifications of the arresting officer.
Conducting a “Live” ALR Hearing with Witnesses
1. Requesting the Presence of the Breath Test Operator and/or Technical Supervisor: In breath test cases, the defense attorney may compel the presence of the Breath Test Operator and the Breath Testing Program Technical Supervisor without a subpoena. The presence of these witnesses ensures a certain degree of fairness at the ALR hearing. I have occasionally “won” ALR hearings because something turned out to be problematic with the breath test.
At DWIDALLAS.COM, we actually own two (2) “Intoxilyzer 5000” breath testing machines. We have conducted hundreds of breath tests under controlled conditions utilizing highly-qualified chemists. Our experience with this machine has been critical to our ability to defend breath test cases. Further, the non-appearance of either one or both of these witnesses has frequently caused DPS to be forced to dismiss the ALR proceeding and reinstate the defendant’s driver’s license.
2. The Decision to Subpoena the Arresting Officer (Conducting a “Live” ALR Hearing): If you timely subpoena the arresting officer and (s)he does not appear at the scheduled hearing, then his or her affidavit (i.e., the DIC-23) shall not be admissible. Non-appearance of witnesses has proven to be one of the most frequent reasons for the dismissal of ALR cases and the reinstatement of our clients’ driving privileges. However, the key to winning is in what you do with the witness who appears at the ALR hearing. Careful preparation and experience are the indispensable ingredients.
Cross-examination of the arresting officer is the key to winning the ALR hearing and the DWI case. Many officers are highly-vulnerable to cross-examination regarding the so-called “Standardized Field Sobriety Tests“, which must be performed exactly according to the procedures in a manual published by the National Highway Traffic Safety Administration (“NHTSA”). A defense attorney must be familiar with this manual and must have a copy of it in order to effectively cross-examine the arresting officer. ALR hearings provide an excellent opportunity to determine the precise reasons for the stop, which may not even be recorded on the officer’s “in-car” video due to the fact that the officer does not normally activate the camera until after the completion of the traffic offense, if any, when the officer activates the emergency lights on the patrol vehicle.
An effective ALR cross-examination should at least always cover the officer’s reasons for the initial stop, the initial observations that led him to conduct the field sobriety tests, and his exact procedures in conducting those Standardized Field Sobriety Tests, as well as any non-standardized tests. Of course, this ALR cross-examination may later turn out to be an irreplaceable basis for our cross-examination of the police officer at the trial of your DWI case. Since the ALR case is conducted “on-the-record” by means of a tape recording, we can obtain a copy of this tape recording, which may later be transcribed at a slight additional cost to the client.
We want you to listen to the tape recording of your ALR hearing and provide us with your feedback. Combined with the Police Video, the ALR hearing tape is the most critical single other item that you will need to review in making your decision to have a trial in your case or accept a plea bargain.
Clients have occasionally had a “brain-storm” following their review of the ALR hearing tape that provided the basis for their ultimate acquittal in the DWI case, such as one client who took detailed photographs and a video of the scene where the field sobriety tests were conducted that revealed the fractured, broken pavement (really rubble) where he was unfairly forced to “walk-and-turn”. The pictures were worth a thousand words.
3. Advantages of ALR Cross
a. Officers Tend to Take a more “Laid Back” Approach to ALR hearings: Unlike the later DWI trial, the officer will not likely have reviewed his or her police video prior to the ALR hearing. This factor may cause the arresting officer to actually contradict the plain facts on the video. By way of example, the police video will occasionally show the client drifting to the outside of his lane with his vehicle touching, but not going over, the lane divider. This is an important distinction.
At the ALR hearing, officers are more likely to admit that every incident of “weaving” was of a similar nature. It is a sad reflection of our criminal justice system that the more-formal criminal courtroom that in many ways resembles a “theater”, combined with the jury that seems like an “audience”, brings out the “actor” in some officers. In the courtroom, some individual officers succumb to the temptation to overact or “play to win”, rather than to seek the truth and see that justice is done.
At the ALR hearing, the officer will be in a small, bare room, without anyone to “play” to, creating inherently different dynamics. This has frequently resulted in dramatically-different testimony from the same officer regarding the same subject matter, which is you.
b. The ALR Hearing Occurs at a (Sometimes much) Earlier Stage of Your Case: At the ALR hearing the facts of your case should actually be fresher in the officer’s mind, since the ALR hearing comes at an earlier stage in most cases. Over a period of time, even the best officer’s memory may become “confabulated”, or mixed up, with the facts of other cases.
Rather than admit that they really don’t remember your case, and risk losing, officers tend to take the unrealistic, and often untenable, position that the facts of your case are still indelibly etched into their memories. This will generally result in several conflicts between their ALR testimony and their trial testimony, which reveals their trial testimony in its proper light: a vague memory of a “garden-variety” arrest that has none of the “fireworks” that some jurors come expecting to hear.
However, some unscrupulous officers have revealed a greater value of the ALR hearing. Some unscrupulous officers view your case as just an opportunity to “win”. They write sketchy reports that give them an opportunity to “improvise” at your trial like a jazz musician. They may even “embroider” the facts of your case with “riffs from DWI’s Greatest Hits”, such as the client allegedly having admitted that he was intoxicated during the ride to the jail or the client having urinated on himself. Such craven individuals will invariably respond to questioning as to why such details are not in the arrest report with a disingenuous response, such as, “I only put things in my report that I will have a hard time remembering.
I will never forget that as long as I live!” In the days prior to ALR, the only thing that defense attorney’s could do would be to attempt to browbeat the officer with the fact that he nevertheless did not put that “detail” into the report, a technique that sometimes worked and sometimes did not. After the ALR program began, officers of that ilk were forced to either avoid the ALR hearing, drop that “bombshell” at the ALR hearing when the defense attorney might be in a position to perform a little additional investigation to disprove such folderol, or drop that type of tactic from their repertoire. Several officers actually tried to play “DWI’s Greatest Hits” for a jury after appearing at an ALR hearing, to their regret.
c. ALR Hearings Tell Us What Areas are Fruitful Areas of Cross-Examination: When we have determined that an officer really does know the jargon surrounding the “Standardized Field Sobriety Tests”, we may avoid a long, grueling cross-examination about those matters at trial. However, in our experience, we have found that a great chasm may exist between the officer’s knowledge of those tests and how he actually may perform them in the field.
Many honest officers have admitted at the ALR hearing that the manner in which he or she conducted those tests rendered them “invalid”. Many other officers have conceded that they did not perform them under Fair conditions or that they did not perform them as they were trained to perform them. At any rate, our cross-examination need not proceed down any “blind alleys” or Dead-end streets” after the ALR hearing. This is to everyone’s advantage in the criminal justice system. A bad case should probably be pled, except in unique circumstances.
d. The ALR Hearing Can Give the Questioning Client His or Her “One Day in Court”: It is an unfortunate aspect of our criminal justice system that many defendants feel pressured to plea guilty without ever having an opportunity to confront and cross-examine their accuser. It seems as if everyone in the courthouse just wants to get you to “throw in the towel” so they can get on to something more fun, like playing golf. However, ALR cases do not get “pled out”.
Since you cannot receive probation for an ALR suspension, you have absolutely no incentive to waive this right to a hearing. You may just want to hear the arresting officer’s version of the facts to know for yourself that you are justified in making one of the most important decisions of your life in a gravely important matter by accepting a plea bargain. However, it is one of the biggest shortcomings of the criminal justice system that defendants so frequently feel forced to make such a decision without really knowing, or comprehending, just what it was that landed them there in the first place.
Merely hearing the facts may commence a therapeutic process that will prevent the truly guilty individual from making the same mistake again.