I represented a client at an Administrative License Revocation Hearing (ALR) recently. When people are arrested for Driving While Intoxicated (DWI) and either refuse to take a breath or blood test or take the test and "fail," DPS will move to suspend their license in a separate administrative hearing.

In this case, my client was pulled over for driving too slowly. Actually, he was driving right at the speed limit until the officer who eventually arrested him pulled up next to him at a stop light. My client slowed down, as many of us do when we are driving next to, in front of, behind, or anywhere near a police officer. The officer pulled my client over for impeding traffic and also because he thought my client's slow driving was a sign that he was driving while intoxicated (DWI). He had my client conduct the three "standardized" field sobriety tests given when someone is being investigated for a DWI (the horizontal gaze nystagmus test, the walk-and-turn, and the one-leg-stand) and then arrested my client for DWI.

An officer must have reasonable suspicion before he initiates a stop of someone to investigate a possible crime, including a traffic offense (which in Texas are considered criminal offenses). Turns out, however, that in order to violate Tex. Transp. Code §545.363, the traffic law prohibiting impeding traffic, a person has to actually impede traffic. Slow driving, in and of itself, is not enough. The Court in United States v. Coronado, 480 F.Supp.2d 923 (W.D. Tex. 2007), held that the arresting officer in that case had no reasonable suspicion to stop a vehicle for impeding traffic even when the vehicle was traveling 12 miles under the speed limit in the left lane and at least five vehicles were backed up behind the vehicle. A good handful of other courts have come to similar conclusions. A Texas appellate court has also held that slow driving--in and of itself--does not constitute reasonable suspicion to stop someone and investigate them for DWI.

The arresting officer appeared at the ALR hearing, which ran almost a full hour. I cross-examined the officer extensively about what happened the night of my client's arrest. We all watched portions of the video of my client's arrest and I questioned the officer about what was on the video as well.

The whole experience really reminded me how important ALR hearings are. Because it is an administrative hearing, and not a criminal proceeding, the burden on DPS to show reasonable suspicion to stop and probable cause to arrest is low-- a preponderance of the evidence. As a result, it's not all that common to win an ALR hearing. But, win or lose, it is very important to request and have an ALR hearing, especially where there is a companion DWI case. The hearing is like a mini-trial and offers an excellent opportunity to flesh out important legal issues and to cross-examine the police officers involved in the stop and arrest. What you learn at an ALR hearing can be indispensable in knowing how best to advise your client in their DWI case.

Labels: alr hearings, dwi

posted by Raman Gill   permalink   0 Comments