Thursday, October 1, 2009

What part of no probable cause doesn't she get?

Probable cause is the level of proof needed to support an arrest decision. It is more than reasonable suspicion, but far less than a preponderance of the evidence. It is all the proof the Texas Department of Public Safety needs to suspend your driver's license if you were arrested for driving while intoxicated.

Recently I appealed an ALR suspension and got a reversal. In the order reversing the administrative license suspension, the court found that "the evidence was insufficient to establish that probable cause existed to believe that the petitioner had lost the normal use of his mental and physical faculties due to alcohol intoxication at the time of his arrest."

In other words, there wasn't probable cause to arrest my client for driving while intoxicated.

The order went on to reverse the suspension and remanded the case "for further proceedings consistent with this judgment." (Emphasis added.)

In order to suspend a driver's license when the driver declines to take a breath test, the DPS must show:

1. that reasonable suspicion to stop or probable cause to arrest the driver existed;
2. that probable cause existed that the driver was driving while intoxicated;
3. that the driver was placed under arrest and asked to submit to a breath test; and
4. that the driver declined the breath test.

The attorney for the DPS apparently had a hard time figuring out what probable cause was as she refused to dismiss the case and insisted on a rehearing - still claiming that the suspension should be upheld because the traffic stop was good. Of course the administrative law "judge" didn't seem to grasp the concept of probable cause either as he denied my motion to dismiss based on the county court's order reversing the suspension.

The deck is already stacked against citizens accused of driving while intoxicated fighting a license suspension. The problem is only compounded when the attorneys for the DPS and the administrative law "judges" can't figure out what probable cause is.

The saga continues...

1 comment:

Anonymous said...

Everybody's wrong but the defense attorney. Let's see how that goes on appeal.