The Importance of Requesting an ALR Hearing following a DWI Arrest in Texas by Bo Kalabus

The current law allows law enforcement officers to immediately seize the driver’s license of a person arrested for DWI if the person either refuses or fails a chemical test (blood or breath). If this happens, the officer should also issue the citizen a temporary driving certificate authorizing the person to drive legally for 40 days. Although the license has been seized, a person has the right to an Administrative License Revocation Hearing (ALR hearing). After a person is arrested for DWI and either refused or failed chemical testing, a peace officer is required to give you written notice that their driver’s license will be suspended. After the officer does that, the person has 15 days from that date to request, in writing, a hearing from the Department of Public Safety (DPS) headquarters in Austin. Alternatively, if the person does not request a hearing, he or she waives that right and their license will be suspended on the 40th day after receiving notice.

There are many reasons to request an ALR hearing. First and most important, the best reason to request such a hearing is to attempt to save the person’s driving privileges. Second, by requesting an ALR the State of Texas is forced to prove the police officer that stopped and arrested the individual did so with either reasonable suspicion or probable cause. By litigating these issues, the individual’s rights are protected. Also, if the State fails to prove that probable cause or reasonable suspicion existed to stop or detain the person, it might be prevented from re-litigating the same issues in the subsequent criminal prosecution for DWI and this could result in a dismissal of the criminal charges.

In the ALR hearing there are two possible theories of prosecution that the State will usually argue. The first is that the subject refused to take an alcohol breath-test and the second is that the subject took such a test and failed it. The DPS must prove the following depending upon the facts of the case:

<strong>a) Suspension based on a refusal: </strong>
If the subject refused to submit to chemical testing then Texas law requires the State of Texas to prove the following at an ALR hearing:
1) reasonable suspicion or probable cause existed for the stop or arrest;
2) probable cause existed to believe the subject operated a motor vehicle in a public place while intoxicated;
3) the subject was placed under arrest and properly requested to submit to chemical testing; and,
4) the subject refused the test upon proper request of the officer.

<strong>b) Suspension based on a test failure: </strong>
The issues are slightly different if the subject submits to and fails chemical testing. If the subject fails, DPS must prove the following two issues:
1) that the subject had an alcohol CONCENTRATION of .08 or more while operating a motor vehicle in a public place and at the time of testing; and,
2) that there was probable cause to arrest or reasonable suspicion to stop the subject.

Proof at the hearing is generally submitted in the form of the arresting officer’s written affidavit, but usually subpoenas are issued and the officer testifies at the hearing. In either event, a knowledgeable attorney that is familiar with the practice is a necessity to ensure that your rights are protected.

 

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