How to fight the DPS and avoid a license suspension

Paul Brian Kennedy

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DUI / DWI Attorney - Houston, TX

Contributor Level 9

Posted about 5 years ago. Applies to Texas, 5 helpful votes

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1

Requesting the ALR Hearing

If you are arrested for a DWI, you have 15 calendar days to appeal the suspension of your license. If you fail to request it in a timely manner, you license will be suspended on the 41st day following your arrest. If you are asked to submit a breath or blood sample after being placed under arrest for DWI and you refuse, your license may be suspended for up to 6 months. If you provide a sample and your alcohol concentration is over .08, your license may be suspended for up to 90 days. Should your suspension be for blowing over the limit, you are entitled to request the presence of the breath test operator and the technical supervisor at the ALR hearing. Upon the receipt of your request for an ALR hearing, the license suspension will be stayed until the hearing date. In other words, your license is still valid while you wait for your hearing.

2

Preparing for the ALR Hearing

Once the DPS receives your request for an ALR hearing, it will be assigned a docket number and a hearing date. You may request certain documents from the DPS through the discovery process. Once you've received the Notice of Hearing from the DPS, you may send a written request for any documents filed with the DPS regarding your case. These documents include the officer's sworn statement (DIC-23), the statutory warning (DIC-24), the notice of suspension (DIC-25) and an affidavit from the technical supervisor regarding the breath test result (DIC-56). These documents can prove invaluable in fighting both the license suspension as well as the DWI itself.

3

Compelling the presence of the witnesses

You have the rights under the Texas Administration Code to subpoena the officer who arrested you (probable cause) as well as the officer who stopped you (reasonable suspicion). You must use the forms on the State Office of Administrative Hearings (SOAH) website (http://www.soah.state.tx.us/) Under the new rules governing ALR hearings, you may issue up to 2 subpoenas without having to obtain the administrative law judge's approval. But you must be careful to observe the time limits as set out in the rules. Upon issuance of a subpoena, you must provide a copy of the subpoena to the DPS. The subpoena must be served at least 5 business days prior to the hearing. You must also provide a copy of the return of service at least 3 business days prior to the scheduled hearing. The failure to follow these timelines may result in your subpoena being quashed at the hearing.

4

The ALR hearing - the Department's burden

For a "refusal" case, the DPS must prove, by a preponderance of the evidence, that (1) there was either reasonable suspicion to stop you, or that there was probable cause to arrest you for DWI; (2) the officer requested a breath or blood sample; and (3) that you refused to provide the requested sample. For a "failure" case, the DPS must prove, by a preponderance of the evidence, that (1) there was either reasonable suspicion to stop you or probable cause to arrest you for DWI; (2) that you provided a breath or blood sample; and (3) that your alcohol concentration at the time of driving was .08 or higher. If the DPS cannot meet its burden of proof, their request for a license suspension will be denied.

5

The ALR hearing - evidence

As the courts have determined that an ALR hearing is a civil proceeding, the rules of confrontation as defined by the 6th Amendment and the recent Crawford decision, do not apply. Should you fail to serve the officer(s) with a subpoena - or if your subpoena is quashed because you did not follow the proper procedures - the documents filed with the DPS (see Step 2) are admissible. However, if you served the officer and he fails to appear, any documents he signed are inadmissible. Should the officer appear, you will have the right to cross-examine him under oath. You may question him regarding his assertion of reasonable suspicion to make contact and/or his assertion of probable cause to arrest. Unlike the criminal trial, the officer will not be "woodshedded" by the prosecutor beforehand and you have the opportunity to pin him down long before trial (and you can use the transcript of the hearing to impeach him at trial).

6

The aftermath

If the administrative law judge finds the DPS failed to meet its burden of proof, the request for a license suspension will be denied. If, on the other hand, the administrative law judge finds the DPS met its burden, your license will be suspended immediately. In the event of a suspension you have the right to file an appeal in the county courts. This request must be made within 30 days of the hearing date and you must provide certified copies of your request to the DPS and SOAH. You are also responsible for ordering a transcript of the hearing.

7

In conclusion

While most license suspension requests are granted in these ALR hearings, the process allows you to gather evidence that may be used in the criminal proceeding. If you don't request a hearing to contest the license suspension, your license will be suspended. If, on the other hand, you request a hearing, you have a chance to win either because an officer fails to appear or because the DPS cannot meet its burden of proof. Should you be arrested for driving while intoxicated you need to hire an attorney who is familiar with the ALR process and who is willing to fight to save your driver's license.

Additional Resources

Law Office of Paul B. Kennedy

State Office of Administrative Hearings

Texas Department of Public Safety

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