The
ALR Hearing: Making Lemonade
When the police arrest someone for a
suspected DWI, there is a criminal charge filed. There is also a parallel civil
case that starts — often unknown to the person arrested. This civil case is an
Administrative License Revocation proceeding, or ALR. If the arrested person
either refused to give a breath or blood sample, or gave a breath or blood
sample and failed, the State will try to suspend his or her driver’s license
for 90 to 180 days. The ALR process is automatic, and if the person arrested
does nothing, his or her license will be automatically suspended, even if that
person doesn’t know the proceeding is happening.
Once this train gets rolling down
the tracks, it’s hard to stop. The only way to derail it is to send the DPS a
request for an ALR hearing, either by fax or by mail, and the request must be
received by DPS within fifteen days after the arrest. This will temporarily
stop the ALR process until you have a hearing before an administrative law
judge to decide whether the DPS can legally suspend your license.
Many lawyers see the ALR hearing as
a waste of time; just postponing the inevitable suspension. But we have found
that not only can these hearings be won, they may actually be the best thing
that ever happened to the DWI defense bar. To understand this, you have to
first know two things: 1. The ALR process is very technical, and suspension can
often be avoided simply by outworking the DPS lawyers. 2. Win or lose, the ALR
hearing can provide the criminal defense lawyer with valuable discovery that
could not otherwise be obtained.
Regarding the first issue, the ALR
process is technical and rules-bound. The burden of proof is on the Department
of Public Safety, and every step of the way the Department must jump through a
lot of hoops to make sure their evidence is admissible at the hearing. If they
miss just one of those hoops, the Judge may not allow the Department to put on
any evidence at all, which means the defendant wins by default. In baseball
terms, the tie goes to the runner. This is one reason it is important to be
represented by counsel at an ALR hearing; the ALR request is just the first
step in derailing the train, and a lot of other steps are required to hold the
Department to its burden of proof.
But secondly, win or lose, the ALR
hearing can be an invaluable tool in fighting a criminal DWI case. In civil
cases, the rules allow the parties to the case to engage in
"discovery," a process that allows each side to learn in advance what
the other side’s evidence will be. Discovery includes taking the depositions of
the witnesses for the other side, under oath, and allows the lawyers to prepare
their case for trial without surprises. Not so in a criminal case. When a
person’s liberty is at stake, the legislature and the courts have consistently
held that the defendant has no right to discover in advance what the witnesses
against him will say, or what the other evidence against him will be.
At the ALR hearing, your lawyer can
call the arresting officer to the stand and cross-examine him about the arrest,
under oath and on the record. The ALR rules require that the hearing be held
within 40 days of the arrest. The criminal case may take anywhere from 6 months
to a year to be disposed of. Therefore, the ALR hearing gives your lawyer a
chance to prepare for the criminal case, without surprises.
For this reason, we insist that
every client that hires us to defend a DWI also retain us for the ALR, if
applicable. The fee for the ALR hearing is built in to the fee we quote to
handle the whole case, since we consider the two to be part of the same
"package" of proceedings against you. Whether you choose this firm or
another one, you should also insist that your lawyer handle the ALR hearing as
part of the package. If you are considering hiring a lawyer to handle a DWI and
he or she tells you their firm "doesn’t do" ALR hearings, or that the
hearings are a "waste of time," you should consider hiring a
different lawyer. A lawyer cannot adequately prepare a DWI defense without the
ALR hearing.
Choosing
a Lawyer to Represent You on a DWI
"I’m guilty, so I’ll just take my medicine."
If you’ve been arrested for drunk
driving, don’t even think about proceeding without a lawyer. A person who
represents himself or herself in court has a fool for a client. You need a good
lawyer, even if you're guilty.
First, even if you believe that
you're guilty, that doesn’t mean that you are legally guilty. An experienced
lawyer can evaluate the strength of the proof against you in ways that you
cannot do yourself.
Second, there are a lot of
"technical" defenses to what may seem like an open and shut case. For
example, a major issue in every case is whether the police overstepped their
bounds and unlawfully stopped, arrested, tested and charged you. A good lawyer
will evaluate whether you were treated properly. If your rights were violated,
there may be no case against you.
Finally, even if you are legally
guilty, the help of a good lawyer is critical in limiting the damage that a DWI
conviction can have on your family, your life and your livelihood. A good
lawyer will direct you to the help and counseling that you may need to rebuild
and restore your life after the damage of alcohol and a DWI case. Of course, a
good lawyer can minimize the penalties, such as jail and license suspension.
Consider that a first-time DWI
conviction in Texas can result in up to 180 days in jail, a $2,000.00 fine,
court costs, and driver’s license suspension for up to a year. Even a probated
sentence can result in two years probation (with probation fees of $50 per
month), a $2,000.00 fine, court costs, 6 days in jail as a condition of
probation, and driver’s license suspension for up to a year. In addition, DPS
will charge a $1,000.00 per year "supervisory fee" on your driver’s
license for three years after the conviction. With the stakes this high, it is
important to choose a lawyer experienced in fighting the case where possible,
and in damage control where necessary.
Choose A Lawyer Experienced In Fighting DWI Cases.
There are various kinds of lawyers
out there, and you will need to know how to choose. In general, you will find
the following:
Avoid the discount lawyer. You will
get only what you pay for, and that won’t be much. Discount lawyers make their
money by handling a high volume of cases or by maintaining unreasonably low
office overhead (no secretary, etc). Often, these lawyers are not skilled in
analyzing and defending cases. Rather, they are skilled in quickly disposing of
cases by guilty pleas to maintain their profit margin.
This may be true even if the lawyer
handles a significant number of drunk driving cases. Most likely, few of these
cases are fought rather than plea-bargained.
If you are thinking about going with a court appointed lawyer, be aware that you do not get to choose your attorney. You may be lucky and get a qualified attorney or you may get somebody that just passed the bar exam. also, be aware that a court appointed attorney is not a free attorney. If you plea bargain your case or lose at trial with a court appointed attorney, you will have to pay attorney's fees.
Your best choice is a reasonably
priced DWI specialist. Be
careful, however, that your lawyer is experienced in fighting DWI cases. Many
lawyers handle a lot of DWI cases, but do not fight them and do not have the
special training and experience necessary to evaluate and fight these types of
cases. Attorneys who focus on fighting DWI cases will probably handle only
criminal cases, although they may also handle other types of litigation such as
personal injury. These lawyers will have extensive
experience in DWI law, and understand the special complexities of a drunk
driving case. In fact, these lawyers will usually be far more experienced in
DWI cases than the ultra-high priced pre-eminent criminal lawyers. In Bexar
County, these lawyers may charge retainers in the $5000.00 range, depending on
the severity of the offense, with additional fees for trial. Further, a lawyer who has a reputation
as a fighter tends to be able to negotiate the better plea bargains, when
necessary. Avoid the high volume guilty plea specialist.