What the Right Defense can do for You?
Attorney J. Eric Reed understands the complexities of serious crimes. With twenty plus years of criminal law experience, he is familiar with the strategic and evidentiary demands of the standard of defenses in serious felony cases, including: Self-Defense, Defense of a Third Person, Duress, Mistake, Necessity, Insanity.
In serious crimes cases, having a complete and thorough understanding of the evidence is of the utmost importance. We rely heavily upon independent investigators and forensics experts to help us evaluate the evidence and understand its importance.
Once we have all the necessary information and an understanding of how the evidence works together, we will begin building your defense. As a skilled and experienced trial lawyer, attorney Reed will explore all avenues in order to achieve the best possible results.
We know what a stressful time it is for our clients who have been charged with serious crimes. That is why we are dedicated to the tireless attention to evidence from pre-indictment to trial and sentencing. We have handled capital cases before, and we understand what is at stake in cases involving violent crimes.
Preparing your Case
If you have been charged with a crime, please follow the steps below to start your trial preparation process. Provide Information about the arrest and events leading up to it. What factors influence the outcome of a trial? You can look at it from a lot of perspectives. Perhaps the two biggest questions you should ask yourself are: What conclusion do I want the jurors to draw from the evidence? and What evidence do they need to do it? Here’s an expanded list of some issues that you’ll need to answer as you begin to plan your case:
• What happened?
• How did it happen?
• When did it happen? (The Perpetual Calendar will help with the day of the week.)
• Why did it happen?
• Wwhat happened before this to make this happen?
• Where did it happen?
• What else would necessarily or probably happen after this happened?
• Who did what? To whom or what was it done?
• What do I need to prove?
• How do I use the evidence to prove what I need to prove?
• How do I get the evidence I want in front of the jury?
• How do I persuade the jury that the evidence proves what I want it to prove?
• What evidence will my opponent present to the jury?
• What will my opponent argue based on the evidence?
• How do I counter my opponent’s arguments?
• How do I convince the jury to rule in my favor?. Contact us if you have any questions.
Charged with Financial/White Collar Crime?
Gather all information pertaining to incident. All financial documents, accounting records, tax filings, e-mails, cell phone records, and all other communications. Contact us to schedule an appointment.
Charged with a Felony?
Gather all information pertaining to incident. Document scene if applicable. Interview witnesses and/or participants. Contact us to schedule an appointment.
Charged with DWI?
If you have been charged with a DWI or other alcohol/drug offense, please follow the steps below to start your trial preparation process. Contact us if you have any questions.
Every attorney may regale you with “war stories” of trials that (s)he has won in spite of a less-than-stellar video. Every honest attorney who has any experience will admit that (s)he has also lost at least one case that had a great video. The video does not have to be perfect. We try to rate the video based on our experience and give our clients an analysis of their chances of success based on the video that we express as a numerical score on a scale of from “zero” (“0”), being a very poor video, up to a maximum of “ten” (“10”), which is a perfect video. We have almost never seen a perfect video.
If we see a nearly-perfect video, we may suggest that your video merits a review by an expert toxicologist. This will result in an extra expense, but having this expert witness ready to testify that you do not appear to be intoxicated on your video may provide critical evidence for your case, depending upon the court to which your case may be assigned. In most counties, we may obtain the video by tendering a blank tape to the D.A.’s office and simply making an informal request to have the video copied. In other counties, we may have to make a written request. Sometimes we have to go through a more elongated process, particularly to obtain the “in-car” video, which some police agencies retain in their “evidence locker” until they are compelled to bring it to court.
As soon as possible after we obtain the video, we have one or more attorneys review it and take written notes about the video. We rate the video based upon your initial appearance in the police video room, your balance and whether you appear to be swaying or have “abnormal oscillation”, your performance on field sobriety tests, if any, or your stated reasons for refusing same, your response to the officer’s request to submit a specimen of your breath or blood for testing, and your answers, if any, to the police interview questions.
After we review your video, we will call you in order to schedule an appointment for you to view your video. We normally do not like to be too specific about our assessment of your video until after you see it because our opinion will undoubtedly affect your state of mind in viewing your video. We want you to be as objective as possible in assessing your performance.
We realize that most people are not accustomed to seeing themselves as others see them anyway, so most individuals have a problem with being objective about their performance. Assuming that you have a reasonably good video, you may want to schedule a time to have a close personal friend or relative view the video with a view to judging your performance on the video in light of their knowledge of your normal mental and physical faculties.
Who Does “ALR” Apply To?
The Administrative License Revocation (“ALR”) laws apply to persons who are arrested for DWI, intoxication assault, and intoxication manslaughter, who provide a specimen and who score “.08” or higher, and to persons who refuse to submit a specimen.
What Happens if You Do Not Request a Hearing?
The ALR suspension will go into effect on the 40th day after the defendant either received personal notice of the suspension (i.e., generally on the day of the arrest) or (i.e., in the case of a blood test) is presumed to have received mailed notice [emph.] of suspension unless the person requests an ALR hearing within fifteen (15) days following the date that the notice was served (i.e., normally the date of arrest).
Seizure of Your Driver’s License
Following a breath test failure or refusal, the arresting officer (“AO”) will now take possession of the arrested person’s drivers license and issue a temporary permit (i.e., which is the same document as the Notice of Suspension, Form DIC-25). The temporary permit will expire by its own terms on the 41st day after issuance unless a hearing is demanded. If a hearing is requested, then the temporary permit will continue in effect until the final decision of the Administrative Law Judge (“ALJ”).
Length of Suspension
1. Suspension Periods for “Failure” ALRs: The suspension period for a first failure has been increased to 90 days. TRANS. CODE §524.022(a)(1)(effective 9/1/01). If the person has one or more prior enforcement contacts (i.e., suspensions for either ALR or DWI) within the previous ten years, the suspension period has been increased to one year, regardless of whether the enforcement contact is for an ALR suspension or for a previous DWI suspension arising from a conviction. TRANS. CODE §524.022 (a)(2) (effective 9/1/01).
2. Suspension Periods for “Refusal” ALRs: The suspension period for first refusal has been increased to 180 days. TRANS. CODE §724.035(a)(1)(effective 9/1/01). A refusal enhanced by a prior enforcement contact for either an ALR or DWI suspension will increase the period of suspension to two years, if the prior enforcement contact occurred within the previous ten years. TRANS. CODE §724.035 (b) (effective 9/1/01).
Notice of Suspension (Currently Form DIC-25) from Arresting Officer to Defendant
Must state the reason and statutory grounds for suspension, the “effective date” of the suspension, the driver’s right to a hearing, how to request a hearing, and the time limit within which a request for a hearing must be made. A Notice of Suspension will be served as follows:
1. Personal service: by a peace officer at time of arrest, if refusal, or by arresting officer [emph.], in case of failure, where test results are immediately available (i.e., a breath test failure. If the Notice of Suspension was personally served on you at the jail, you have 15 days in which to request an ALR hearing. You should immediately count the 15 days in your calendar.
Be particularly wary of this “Time Bomb” when you are in your “due diligence” phase prior to hiring a lawyer. By the time you read this, it may already be the “15th day” following your arrest. Establish the date of the arrest, figure out the 15-day deadline. If it’s already too late, then call DPS immediately at 1(800) 394-9913 and request an “in-person” ALR hearing. If it’s still not too late, then call us immediately.
2. Mail Notice (Beware that this is a potential trap for the procrastinating client): If the arresting officer did not serve the notice personally, DPS will serve the notice by regular first-class U.S. (i.e., “snail”) mail to the person’s address as shown in DPS records or any different address given in the officer’s report [emph.]. Mailed notice is presumed received on the fifth day after it is mailed (!) [emph.]. Always keep your envelopes from DPS to show the discrepancy between the date on the letter and the date of the postmark, which is sometimes widely-disparate. Where a blood test is involved, you will want to be “on the alert” for this notice and notify your attorney that day or the next business day or you will possibly lose your right to the ALR hearing entirely.
3. Update your address with DPS immediately following a DWI arrest: I strongly advise you to look at the address on your drivers license. Is it your current residence address where you actually stay? If that is no longer your address, which is quite common, immediately go to the nearest DPS substation and update the address on your drivers license. Do not mislead the DPS personnel as to what happened to your license, but DPS has no obligation to send any correspondence to any address other than the address that is on your license. It is not enough to file a change-of address form with the post office.
DPS put a “do not forward” directive on their envelopes. You do not have to actually receive these notices from DPS. Do not become a “sitting duck” for this policy. You must change your license address whenever you move. It is critical to you to make sure that DPS has your current address.
Licensee’s Hearing demand
Must be received by DPS by 5:00 p.m. on the 15th day after either personal notice was given or mailed notice was presumed to have been received (i.e., normally this will require that DPS must receive your request for a hearing on or prior to the 15th day following your arrest). If you wait until the actual 15th day, then you must be aware of DPS’s requirement that they must receive your hearing demand prior to 5:00 p.m. on the 15th day.
This means that DPS must actually receive your demand for a hearing on or prior to the 15th day after you were arrested, if you received personal notice from the AO, or on the 20th day following the date on DPS’ mail notice to you.
1. Telephone or Facsimile Hearing Demand: A hearing may be requested by calling DPS at the number designated in the Notice of Suspension or Request for Hearing Form [currently #1 (800) 394-9913]. You may also FAX a request for an ALR hearing to ALR Division at #1 (512) 424-2650. Always keep your FAX “Confirmation Sheet” or “Transmission Verification Report” or DPS may deny having received it.
We have heard of situations when other lawyers have failed to retain these records and then DPS rejected their hearing demands. Generally, our rule is that you need not bother communicating with DPS if you cannot later prove that you did so. If you correspond with DPS by “snail mail”, then you should only do so by means of certified mail with return receipt requested.
2. Required contents for a Written Hearing Demand: DPS’ ALR division says that it will not honor a hearing request that does not contain all of the following information:
- Licensee’s name
- Licensee’s Date of Birth
- Licensee’s Drivers License Number
- Licensee’s Current Mailing Address
- Licensee’s Daytime telephone number/Licensee’s Home telephone number
- Date of arrest/County of Arrest
- Arresting agency
- Arresting officer
- whether the case involves an alleged breath or blood test refusal or failure.
3. DPS’s Rejection of Licensee’s Hearing Demand: If DPS rejects your written demand for a hearing, then they must provide written notice of the rejection. DPS has sometimes allowed the licensee to “cure” the reason for the rejection but only if the licensee provides the additional requested information within the original 15 days, so do not procrastinate.
Some of the most common items of preparation would include the following:
Visiting the Scene
The Attorney may find it useful to make a preliminary visit to the scene with client. It may be helpful if the client brings the same vehicle that was being driven when the client was stopped by the police in order to make some helpful photographs. However, it may be necessary (for an additional expense) to have an Investigator make the photographs in order to have an individual who can “authenticate” (i.e., “prove-up) the contents of those photographs, since you cannot count on law enforcement personnel to “prove-up” photographs that may be helpful to your case.
Police are trained to testify and part of that training may involve the officer saying that he does not recognize a photograph, sometimes because the officer is actually engaging in a ruse in order to throw you off (e.g., he stopped you at night but the photo appears to have been taken during daylight) and sometimes because (s)he really does not recognize the photograph (e.g., because the scene depicted in the photograph has changed considerably or because your photographs do not contain sufficient landmarks in order to distinguish the scene being depicted from any other street). The client may also consider bringing along a third party who can take photos and if need be, testify re photos at no additional expense to the client.
GENERAL RULE: If the police video will become available very shortly, which is usually the case in Dallas, it may prove to be more useful to wait until we may review the police video and/or the arrest report prior to viewing and/or photographing the scene, since some of our clients are a little insecure about exactly where the events took place. It will be a terrible waste of time and money if we make expensive photographs in the wrong location.
However, when we are dealing with a jurisdiction where the video may not become available for several weeks or even months, we may not have the luxury of waiting for the police video to become available.
a. By the time the police video becomes available, details of the locale that do not clearly appear on the police video – and therefore, require this photographic documentation – may have changed.
b. Pot holes may have been repaired; road construction may have started, or ended; street surfaces may have been repaved; lane divider striping may have been repainted; temporary seasonal foliage may have changed; skid marks may have been washed away by rain storms; debris from an accident may have been removed, etc.
c. The police video recorder may have malfunctioned, the videotape may turn out to be poor quality, or it may be lost.
2. At the scene, you the client, will need to be present in order to point out to the investigator:
a. The location where you first perceived the officer’s overhead light display. We may have to employ a professional photographer or investigator at an extra expense to the client in order to make appropriate photographs or a video that would document pertinent road conditions and the existence of any temporary conditions that might change before your case could come to trial (i.e. skid marks, road repairs, barricades, potholes, etc.).
b. In some cases, we should establish the route from the place where the drinking occurred to the place of the stop. In certain cases, we may have to consider employing a professional photographer at an extra expense to the client to videotape the driving of that route from the front seat of the client’s moving vehicle.
c. It is quite common to want to photograph the exact location of a client’s vehicle where it was stopped. We have frequently encountered locations where, e.g., the visit to the scene demonstrated the reason that the client did not want to stop immediately (e.g., because it was the first safe location at which (s)he could have stopped without endangering either himself or the officer).
d. The location of the police vehicle.
e. The location where each of the field sobriety tests was performed, showing the direction that the client was facing for each and, particularly for the “eye test”, the background that the client was facing (i.e, to show that the client was exposed to heavy traffic and/or flashing lights that may have actually caused the client’s eyes to jerk).
f. When inspecting the scene where the field sobriety tests were performed, we will be looking for the following types of features: – Problems with surface: Not level; not smooth; the presence of debris (e.g., rocks, gravel, or broken glass); cracks in pavement, etc.; – Problems with lighting: Bright light in client’s eyes, distractions from moving vehicles; – Problems with distracting proximity of noise and wind blasts from moving traffic, particularly the “slip-streams” from 18-wheelers on highways.
g. We may also want to look for and photograph:
– An area nearby that does not present these unfair conditions;
– Have “relocation” videos on hand for trial.
h. Collision cases present special problems. We may suggest that you will need an accident reconstruction specialist at extra expense in order to help us by consulting with us on the investigation and/or, possibly, to testify at your trial.
These experts are not inexpensive but they may prove to be invaluable, particularly when the State is trying to make your supposed negligence into an issue in your trial, whether merely to prove that you were intoxicated or to “enhance” your case up to a felony (e.g., intoxication assault or intoxication manslaughter). Since debris and skid marks may disappear immediately, we must be prepared to:
– Photograph the area of impact (including any contributing causes);
– Get photos of each damaged vehicle;
– Get the Accident Report, which may be purchased by you at the police agency in the city in which you were arrested for a minimal cost;
– Obtain data re frequency of accidents at that particular location.
3. Conducting the On-Scene Investigation After Viewing the Video: When the police video, particularly the “in-car” video, is ultimately obtained, we may have to review our preliminary on-scene investigation and do any required on-scene follow-up. Following the ALR hearing, we have frequently been prompted to conduct such “follow-up” investigations. In one particular case, an officer said that our client had weaved across the painted center-line on the street; however, on our return trip, we found that the lanes were actually separated by a concrete barrier. The photographs proved to create quite an embarrassing situation for the arresting officer when he could not explain to the jury how the defendant managed to “fly” over the barrier in his automobile.
In certain cases, the weather may prove to have been a factor in the case. Whether the extreme cold may have prevented you from doing your best on the field sobriety tests or the gusty wind may have caused your vehicle to weave, we may have to prove that those particular weather conditions existed. If you think that this may create an issue in your case, records may be ordered in order to prove the existence of those conditions, possibly requiring the employment of an investigator at an extra expense to the client.
Radio Dispatch Recordings and “911” Tapes
One of our most common investigative techniques involves the making of an Open Records Act request for “911” recordings and radio transmissions. Not every case requires this step, however. This technique may be particularly useful in situations where a “citizen-informant” (“CI”) called the police on a “cell phone” in order to report “erratic driving” on your part or where an accident may have occurred. Our general rule is: if the “CI’s” identity appears to have been unknown to law enforcement, then we should leave it unknown; however, if the identity of the “CI” is already known to the police, then the “911” tape may help us in cross-examining the “CI” at your trial.
We have occasionally received “911” tapes that revealed the “CI’s” motivation for the call to “911” in a most unflattering light, exposing them as nothing more than “cranks” or vigilantes. Although the police report portrayed them as being “in fear for their lives”, the “911” tape then showed them to be laughing and “having the time of their lives”. Other “911” tapes have convinced us that plea bargaining was in our client’s best interest.
This requires that we must both act quickly and “hold the law enforcement agency’s feet to the fire” in order to prevent our request from either becoming moot or from being ignored. We employ an experienced private investigator regularly to perform these services for us at a very reasonable price for the client.
Our investigator makes a formal written request pursuant to the Texas Open Records Act that this evidence be preserved. He then follows up by monitoring the agency’s time to respond and by either retrieving the released records or by requesting an intervention by the Texas Attorney General’s Office.
If a written preservation request is not timely made, most police departments have about a 30-day supply of these “911” tapes, which they must re-use every 30 days, so this potentially-valuable evidence will be lost if it is not requested within 30 days. “Call sheets” and other “Mobile Data Transmissions”, which are somewhat akin to “E-Mails”, are sometimes available for longer periods.
After several cases involving prominent local figures turned up some “trash-talk” amongst the police officers who were involved in these individuals’ arrests, many officers began to utilize their own private “cell phones” in order to engage in their more candid conversations with fellow officers regarding their arrests.
All Records of Contemporaneous Client Activities
1. Cellular phone calls;
2. Credit Card Receipts;
3. Gasoline Charge Receipts;
4. ATM Transaction Receipts;
5. Convenience Store Security Videotapes;
6. Jail Surveillance Tapes;
7. Records of visit to jail nurse or to a hospital. In the case of jail medical records,
we must determine the procedure of the local jail infirmary (best “under-the-radar” approach, if permitted, may be for the client to simply request these records directly);
8. Booking Photo If favorable, offer into evidence. If not, object because no indication of when taken during time of incarceration.
Open Records Inquiry to Obtain Personnel and Training Reports Regarding Officer(s) and State’s Expert Witnesses
Over the years of our practices, we have become familiar with many of the law enforcement officers who regularly make DWI arrests. Most of them are fine officers. However, every bunch of apples may contain one rotten one. We have been known to collect transcripts from previous trials in which that witness has provided different testimony in response to similar questioning.
In isolated cases, personnel files, college transcripts, and prior inconsistent testimony, particularly from ALR hearings, have all served to portray government witnesses in a most unflattering light. If your case appears to involve one of these rare, unscrupulous individuals, we will give you the advantage of our collective years of experience by alerting you to the opportunity to take advantage of these types of investigative techniques.
All of Client’s Pertinent Medical-Behavioral Records and Client’s Learning-Disability Records from School
Recent changes in the laws pertaining to your right to privacy in your own medical records have created significant impediments to our obtaining your medical records on your behalf. Further, we have frequently encountered significant “foot-dragging”, whether intentional or otherwise, by the individuals who are responsible for furnishing these records from your provider.
It is never too soon to start working on the process of obtaining medical records and records from your schools, since this is at least a two-step process: 1) first, we must obtain and review those records; and, 2) then, we must prepare a medical records affidavit in the manner required by the rules of evidence, have the “medical records custodian” at your doctor’s office sign the required affidavit, and file the completed instrument with the trial court at least fourteen (14) days prior to trial, providing notice at that time to the Assistant District Attorney.
Physician’s Desk Reference
In the 21st Century, we are constantly encountering clients who are being medicated with anti-depressants, mood elevators, anti-anxiety medications, and other prescription medications. Let us make one thing perfectly clear: the fact that you had a prescription to take any particular drug is not a defense to DWI. You may be convicted of DWI based upon the ingestion of a prescription drug alone without any consumption of alcohol whatsoever.
I have never heard of a doctor who told a patient directly that taking a prescription drug could be hazardous to his or her patient’s criminal record. Many of these drugs may also interact with alcohol in a synergistic manner, which means that they may multiply, as compared with merely enhancing, the effects of alcohol. If you did not tell law enforcement personnel that you had also consumed a drug or controlled substance on the night of your arrest, please remain secure that you may communicate this information to your attorney without fear of disclosure due to the attorney-client privilege.
However, if you “confessed” to the police that you were taking a drug, whether prescription or otherwise, further research must be done in order to determine whether that medication would cause an individual to become intoxicated, whether alone or in combination with alcohol. An expert witness may have to be retained for consultation and/or for use at trial at significant additional expense to the client.
Conducting a “Replicate” Test in a Breath Test Case
In a very few of our breath test cases, we have the opportunity to perform an out-of-court “experiment” in which the client brings his or her witnesses to the drinking scenario to our offices, exactly repeats the drinking and eating scenario, and then we have one of our expert witnesses test the client on one or both of our intoxilyzer instruments to see whether the client ever reaches the prohibited “0.08” alcohol concentration.
One or more blood draws may also be helpful, which involves the necessity of hiring a nurse to come draw the client’s blood. This involves considerable additional expense to the client and will only be worth it if the client has highly-credible witnesses, receipts for the drinks and food, and a tremendous personal desire to show the real truth. We have witnessed truly remarkable results. In one case, we watched an individual consume a large pizza together with an entire bottle of wine.
When we tested him every fifteen minutes thereafter until he reached a level of essentially “zero”, he had never exceeded a “0.060” alcohol concentration, indicating that the government breath test was reading high. A 170-lb. male should be able to consume the equivalent of a beer per hour without becoming intoxicated. The presence of food is probably the single most important factor affecting your likelihood of becoming intoxicated from the ingestion of alcoholic beverages.
We believe that the ALR hearing is an integral part of our representation in a DWI case. A potential client should definitely ask a prospective attorney what he or she intends to do with regard to the ALR hearing. We have heard tales that some lawyers tell their potential clients not to bother with the ALR hearing, since they never “win” anyway. Of course, if you never request an ALR hearing, you will never “win” an ALR hearing.
However, one excellent lawyer with whom we often work, has said that he has “never lost an ALR hearing”? He did not mean that he had never had an ALR hearing wherein the State was not allowed to suspend his client’s drivers license. He meant that he always received some valuable benefit from the ALR proceedings. A lawyer could not have very many ALR hearings without losing his share.
One prominent attorney wrote in the Texas Bar Journal words to the effect that DPS wins ALR hearings at “an astonishing rate”. However, the benefit to an ALR hearing may not be just that you might prevent a suspension.
Obtaining Records Through the ALR Hearing Process
We find it extremely helpful that, by requesting the documents that DPS intends to offer at the ALR hearing, we can cause DPS to FAX the arrest report to our office in the early stages of the investigation; sometimes the complete arrest report and sometimes an abbreviated report that has been purposely written in order to prevent the defense from deriving any meaningful information. However, these latter types of reports are often too sketchy to rate a suspension by the judges who hear ALR matters.
Client’s Priorities — The “Battle” vs. the “War”
We need your input into your primary motivations for the ALR hearing. It may be that you feel that your primary motivation is to save your license. It may be that you want the arresting officer to have to explain his decision to arrest you at the earliest possible opportunity, which is generally at the ALR hearing. You may have a rare “ALR Defense”, such as the fact that you did not “refuse” to provide a breath specimen but, rather, could not provide a specimen due to some lung condition, such as asthma.
You may have received improper warnings, or no warnings, from the arresting officer related to the breath test. In some cases, the arresting officer may have had no valid reason for the stop (i.e., an illegal seizure based upon less than reasonable suspicion or probable cause); if so, we may want to “lock him down” on his or her reasons for this bad stop at the ALR hearing before an unscrupulous prosecutor may attempt to cause that officer to “shade” his testimony.
Conducting an ALR Hearing Based Upon DPS’s Documentary Evidence
If your only goal is to “save your license”, then DPS’s paper-work is often far from perfect. However, the fact that a lawyer can mount a good argument that the client should be entitled to keep his or her license due to these perceived imperfections does not mean that the Administrative Law Judge (“ALJ”) will agree. The appellate courts have been astonishingly lenient in permitting suspensions based upon incomplete or conclusory documentary evidence.
Those courts have frequently blamed the defendants for not requesting a subpoena for the police officer, if that defendant really had an issue with the officer’s report, in order to “clear things up”. Of course, this does not seem to be fair because the burden of proof is on the DPS. DPS often apparently feels queasy about their documentary evidence, because they frequently “route” arresting officers to these ALR hearings in order to compensate for a vague or plainly inadequate report. It is for these reasons that a decision to conduct a “paper” ALR hearing may not prove to be successful in saving the client’s license after careful consideration.
An attorney may have a winning case upon the documentary evidence against the client and unexpectedly encounter the arresting officer. We have repeatedly seen defense attorneys who were not prepared to cross-examine an arresting officer in such situations. A well-prepared defense attorney should never squander your best opportunity to acquire a detailed knowledge of the facts of your case or to test the knowledge and qualifications of the arresting officer.
Conducting a “Live” ALR Hearing with Witnesses
1. Requesting the Presence of the Breath Test Operator and/or Technical Supervisor: In breath test cases, the defense attorney may compel the presence of the Breath Test Operator and the Breath Testing Program Technical Supervisor without a subpoena. The presence of these witnesses ensures a certain degree of fairness at the ALR hearing. I have occasionally “won” ALR hearings because something turned out to be problematic with the breath test. Further, the non-appearance of either one or both of these witnesses has frequently caused DPS to be forced to dismiss the ALR proceeding and reinstate the defendant’s driver’s license.
2. The Decision to Subpoena the Arresting Officer (Conducting a “Live” ALR Hearing): If you timely subpoena the arresting officer and (s)he does not appear at the scheduled hearing, then his or her affidavit (i.e., the DIC-23) shall not be admissible. Non-appearance of witnesses has proven to be one of the most frequent reasons for the dismissal of ALR cases and the reinstatement of our clients’ driving privileges. However, the key to winning is in what you do with the witness who appears at the ALR hearing. Careful preparation and experience are the indispensable ingredients.
Cross-examination of the arresting officer is the key to winning the ALR hearing and the DWI case. Many officers are highly-vulnerable to cross-examination regarding the so-called “Standardized Field Sobriety Tests“, which must be performed exactly according to the procedures in a manual published by the National Highway Traffic Safety Administration (“NHTSA”). A defense attorney must be familiar with this manual and must have a copy of it in order to effectively cross-examine the arresting officer. ALR hearings provide an excellent opportunity to determine the precise reasons for the stop, which may not even be recorded on the officer’s “in-car” video due to the fact that the officer does not normally activate the camera until after the completion of the traffic offense, if any, when the officer activates the emergency lights on the patrol vehicle.
An effective ALR cross-examination should at least always cover the officer’s reasons for the initial stop, the initial observations that led him to conduct the field sobriety tests, and his exact procedures in conducting those Standardized Field Sobriety Tests, as well as any non-standardized tests. Of course, this ALR cross-examination may later turn out to be an irreplaceable basis for our cross-examination of the police officer at the trial of your DWI case. Since the ALR case is conducted “on-the-record” by means of a tape recording, we can obtain a copy of this tape recording, which may later be transcribed at a slight additional cost to the client.
We want you to listen to the tape recording of your ALR hearing and provide us with your feedback. Combined with the Police Video, the ALR hearing tape is the most critical single other item that you will need to review in making your decision to have a trial in your case or accept a plea bargain.
Clients have occasionally had a “brain-storm” following their review of the ALR hearing tape that provided the basis for their ultimate acquittal in the DWI case, such as one client who took detailed photographs and a video of the scene where the field sobriety tests were conducted that revealed the fractured, broken pavement (really rubble) where he was unfairly forced to “walk-and-turn”. The pictures were worth a thousand words.
3. Advantages of ALR Cross
a. Officers Tend to Take a more “Laid Back” Approach to ALR hearings: Unlike the later DWI trial, the officer will not likely have reviewed his or her police video prior to the ALR hearing. This factor may cause the arresting officer to actually contradict the plain facts on the video. By way of example, the police video will occasionally show the client drifting to the outside of his lane with his vehicle touching, but not going over, the lane divider. This is an important distinction.
At the ALR hearing, officers are more likely to admit that every incident of “weaving” was of a similar nature. It is a sad reflection of our criminal justice system that the more-formal criminal courtroom that in many ways resembles a “theater”, combined with the jury that seems like an “audience”, brings out the “actor” in some officers. In the courtroom, some individual officers succumb to the temptation to overact or “play to win”, rather than to seek the truth and see that justice is done.
At the ALR hearing, the officer will be in a small, bare room, without anyone to “play” to, creating inherently different dynamics. This has frequently resulted in dramatically-different testimony from the same officer regarding the same subject matter, which is you.
b. The ALR Hearing Occurs at a (Sometimes much) Earlier Stage of Your Case: At the ALR hearing the facts of your case should actually be fresher in the officer’s mind, since the ALR hearing comes at an earlier stage in most cases. Over a period of time, even the best officer’s memory may become “confabulated”, or mixed up, with the facts of other cases.
Rather than admit that they really don’t remember your case, and risk losing, officers tend to take the unrealistic, and often untenable, position that the facts of your case are still indelibly etched into their memories. This will generally result in several conflicts between their ALR testimony and their trial testimony, which reveals their trial testimony in its proper light: a vague memory of a “garden-variety” arrest that has none of the “fireworks” that some jurors come expecting to hear.
However, some unscrupulous officers have revealed a greater value of the ALR hearing. Some unscrupulous officers view your case as just an opportunity to “win”. They write sketchy reports that give them an opportunity to “improvise” at your trial like a jazz musician. They may even “embroider” the facts of your case with “riffs from DWI’s Greatest Hits”, such as the client allegedly having admitted that he was intoxicated during the ride to the jail or the client having urinated on himself. Such craven individuals will invariably respond to questioning as to why such details are not in the arrest report with a disingenuous response, such as, “I only put things in my report that I will have a hard time remembering.
I will never forget that as long as I live!” In the days prior to ALR, the only thing that defense attorney’s could do would be to attempt to browbeat the officer with the fact that he nevertheless did not put that “detail” into the report, a technique that sometimes worked and sometimes did not. After the ALR program began, officers of that ilk were forced to either avoid the ALR hearing, drop that “bombshell” at the ALR hearing when the defense attorney might be in a position to perform a little additional investigation to disprove such folderol, or drop that type of tactic from their repertoire. Several officers actually tried to play “DWI’s Greatest Hits” for a jury after appearing at an ALR hearing, to their regret.
c. ALR Hearings Tell Us What Areas are Fruitful Areas of Cross-Examination: When we have determined that an officer really does know the jargon surrounding the “Standardized Field Sobriety Tests”, we may avoid a long, grueling cross-examination about those matters at trial. However, in our experience, we have found that a great chasm may exist between the officer’s knowledge of those tests and how he actually may perform them in the field.
Many honest officers have admitted at the ALR hearing that the manner in which he or she conducted those tests rendered them “invalid”. Many other officers have conceded that they did not perform them under Fair conditions or that they did not perform them as they were trained to perform them. At any rate, our cross-examination need not proceed down any “blind alleys” or Dead-end streets” after the ALR hearing. This is to everyone’s advantage in the criminal justice system. A bad case should probably be pled, except in unique circumstances.
d. The ALR Hearing Can Give the Questioning Client His or Her “One Day in Court”: It is an unfortunate aspect of our criminal justice system that many defendants feel pressured to plea guilty without ever having an opportunity to confront and cross-examine their accuser. It seems as if everyone in the courthouse just wants to get you to “throw in the towel” so they can get on to something more fun, like playing golf. However, ALR cases do not get “pled out”.
Since you cannot receive probation for an ALR suspension, you have absolutely no incentive to waive this right to a hearing. You may just want to hear the arresting officer’s version of the facts to know for yourself that you are justified in making one of the most important decisions of your life in a gravely important matter by accepting a plea bargain. However, it is one of the biggest shortcomings of the criminal justice system that defendants so frequently feel forced to make such a decision without really knowing, or comprehending, just what it was that landed them there in the first place.
Merely hearing the facts may commence a therapeutic process that will prevent the truly guilt