Texas is an implied consent state. When people receive their drivers' licenses, they consent to chemical tests, specifically BAC breath tests. So, many people think that license suspension is automatic if they fail or refuse one of these tests.
That's not exactly true. Defendants have the right to contest pre-conviction license suspension at the Administrative License Revocation hearing. Even if the hearing officer imposes the maximum suspension period, the ALR hearing is still an important component of an overall DWI defense.
What to Expect
Drivers must request hearings within fifteen days. Otherwise, the state automatically suspends their drivers' licenses. Since the wait for a hearing date can be so long, up to 120 days in many cases, the state issues a temporary drivers' license that's good for the duration of the waiting period. ALR hearings are not easy to win. Fortunately, in this context, "winning" can mean more than one thing.
The ALR hearing is a civil proceeding and not a criminal one. So, many of the normal Constitutional protections do not apply. For example, drivers may be forced to testify against themselves, even though that's a violation of the Fifth Amendment.
Moreover, the burden of proof is very low. The prosecutor need only establish probable cause for requesting the chemical sample. Even worse, the same hearing officer often serves as prosecutor, judge, and jury.
How a Lawyer Can Help
There is no precise definition of "probable cause," but it's an evidentiary standard somewhere between reasonable suspicion and beyond a reasonable doubt. To meet this burden, the state usually relies on circumstantial evidence of consumption, like bloodshot eyes and odor of alcohol, and the defendant's performance on the field sobriety tests. If the defendant refuses these tests, probable cause is more difficult to establish.
If the probable cause evidence is weak, the hearing officer might reduce the suspension period. If the ALR hearing was a criminal trial, an attorney might negotiate for an even lower suspension period. But in this context, trials are good.
All misdemeanor cases have very limited discovery. That's especially true if the District Attorney enforces a "closed file" policy with regard to DWI cases. So, the ALR hearing might be a lawyer's best chance, or only chance, to learn about the prosecutor's case. Even better, the ALR hearing gives a lawyer a chance to cross-examine the officer under oath. These depositions usually cost hundreds of dollars.
Pretrial release is an important element of a complete defense. For a free consultation with an experienced criminal defense attorney in Weatherford, contact Herreth Law. We routinely handle cases in Parker County and nearby jurisdictions.