Who needs a sworn report anyway?

Score one for the Department of Public Safety.

Whenever a motorist is arrested for driving while intoxicated in Texas, the arresting officer must file a sworn report with the DPS referred to as a DIC-23. In that form the officer swears to the information regarding the reason for the stop and probable cause to arrest the motorist.

In Texas there are two ways in which the DPS can suspend the driver's license of a motorist arrested for DWI. Refusing a request for a breath test can net a first-time offender a six-month suspension. Blowing over the legal limit of .08 can get a first-timer a 90-day suspension.

Due to the way in which the laws were written regarding these administrative license suspensions, the officer was required to issue a sworn report on a failure case but not on a refusal case.

Back in 2007, Stephen Caruana was stopped and arrested for driving while intoxicated. Mr. Caruana submitted to a breath test and blew a .016 and a .015, both in excess of the legal limit. As a result, the DPS moved to suspend his driver's license for 90 days.

At a hearing to contest the suspension, the arresting officer testified about the stop and admitted that he had not sworn to his report. Mr. Caruana moved to exclude the officer's report from evidence. His motion was denied and the administrative law judge ordered his license suspended. Mr. Caruana appealed the suspension to the county court which reversed the decision of the administrative law judge. The DPS then appealed that decision to the Austin Court of Appeals which upheld the county court's ruling. The DPS then appealed to the Texas Supreme Court.

In Texas Department of Public Safety v. Stephen Caruana, No. 10-0321 (Tex. 2012), the Supreme Court then determined that there was no need to require an officer to swear to his report because if he lied on it he would be subject to prosecution for making a false statement in a government record. It would be too obvious, of course, to point out that fear of prosecution has never deterred a police officer from submitting an offense report that is more akin to a work of fiction.

The judges on the Supreme Court took a twisted path to come to the conclusion that just because the statute required an officer to submit a sworn report, that didn't make an unsworn report inadmissible. We also have the spectacle of a court made up of judges who supposedly practice judicial restraint invalidating part of a statute in order to reach their chosen conclusion.

Now, there was a big problem in Mr. Caruana's case that set the stage for the Supremes to decide the legislature didn't mean what it said. At the license suspension hearing, the arresting officer testified as to what he observed and why he arrested Mr. Caruana. The officer's report wasn't necessary as the administrative law judge had the officer's sworn testimony as to the events of that evening. In other words, the report (sworn or unsworn) was irrelevant. That, in turn, gave those members of the Court who wanted to uphold the suspension little choice other than to make the ruling they did. Had this been a case in which no testimony was offered (a so-called "paper case"), I think the outcome would have been different.

But, now, thanks to the Supreme Court, a process that was already stacked to benefit the DPS, has become even more so.

DPS offers new way to request ALR hearings in Texas

It looks like we have a new method of requesting ALR hearings to contest license suspensions in Texas. The Department of Public Safety has added this link to their page that allows you to request a hearing online.

https://www.txdps.state.tx.us/DriverLicense/customer_service/SendForms/alr.asp

The Notice of Suspension handed to anyone arrested on a DWI does not mention a hearing can be requested online so I wouldn't rely solely on the internet to make a request. I would also be leery of "bugs in the aether" that could intercept the request.

As I already send my requests by fax and certified mail, maybe I'll just save the postage and send my requests by fax and through the DPS website from now on.

A legal fiction

Texas courts like to maintain this legal fiction that license suspensions following a breath test refusal or failure are just civil matters. As a result of that fiction, at a license suspension hearing, the attorney for the Department of Public Safety must only show that the arresting officer had probable cause to believe the driver was driving while intoxicated.

Since it is treated as a civil matter, double jeopardy does not apply. Unless one is found not guilty by a jury, the DPS can still suspend a motorist's license even if the DWI case is dismissed.

Since it is treated as a civil matter, a motorist arrested for DWI does not have the right to consult with an attorney before deciding whether or not to submit to a breath test.

But how does the following statement fit within that legal fiction?

"If you refuse to give the specimen, that refusal may be admissible in a subsequent prosecution. Your license, permit or privilege to operate a motor vehicle will be suspended or denied for not less than 180 days, whether or not your are subsequently prosecuted for this offense." -- DIC-24

A license suspension certainly sounds like a criminal sanction and this nonsense about a refusal being admissible in a criminal prosecution exposes this legal fiction for what it is -- a cheap end run around the 5th and 6th Amendments.

At the point an officer asks a motorist to submit to a breath test, that motorist is already under arrest for drunk driving. At that time the motorist is sat down in front of the breath test machine, he isn't free to leave. No matter his response, the answer is testimonial. That triggers the 5th Amendment. As being asked to submit to a breath test is a significant moment in a DWI investigation, that should trigger the motorist's 6th Amendment right to an attorney.

Would the presence of an attorney gum up the works? Yep. Might allowing a motorist to consult with an attorney before deciding whether or not to blow result in more informed decisions? You bet. Would the presence of an attorney reduce the intimidation factor at the station house? Without a doubt.

It's time to end this legal fiction in Texas. Either eliminate the civil proceeding or be honest and criminalize breath test refusals. But doing that might just expose the legal fiction for what it was.

Is proposal to end ALR system in the works?

Could the Administrative License Revocation system in Texas be coming to an end?

A little bird told me that State Senator Dan Patrick (R-Houston) is planning on introducing legislation this coming session to do away with the ALR system. According to my sources, under Sen. Patrick's proposal, a license suspension would be imposed upon the finding of probable cause by a magistrate.

Currently a motorist accused of a first driving while intoxicated faces a 90-day suspension for failing a breath test and a 180-day suspension for refusing to blow in the state's breath test machine. At the ALR hearing, the DPS must show that the officer either had reasonable suspicion to believe the motorist had committed an offense or probable cause to arrest.

The reasoning behind Sen. Patrick's proposal is that once a magistrate determines probable cause to arrest existed, there is no need for the state to spend any more money trying to prove it up at a ALR hearing. Nevermind the fact that at an ALR hearing the DPS must at least prove their case by a preponderance of the evidence -- at a probable cause hearing a judge must only find that probable cause to arrest exists.

The state would benefit in a couple of other ways, as well. Since the suspension would be imposed automatically upon a finding of probable cause, more motorists would have to pony up $125 reinstatement fees. Axing the program would also eliminate the ability of defense attorneys to depose the officers under oath before prosecutors get hold of them.

A bigger issue, however, is the imposition of criminal sanctions before the state has proven each and every element of its case beyond all reasonable doubt. Supporters can claim all they want that a license suspension is an administrative action separate and apart from the DWI case, but by using a magistrate's probable cause finding as the trigger -- the proposal would tie the two together at the hip. Such a move would violate the separation of powers doctrine and would serve to reduce the state's burden of proof.

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...

Breath test operator under investigation

Last October, Dee Wallace, at the time a technical supervisor for the Texas Department of Public Safety in charge of maintaining breath test machines, was fired after it was disclosed she had filed false maintenance records on the machines under her supervision. Now it's Officer Michael Wick of the Houston Police Department on the hot seat as a result of a case in which he falsely accused a passenger in a vehicle of intoxication manslaughter.

On January 12, 2007, Officer Wick was involved in the investigation of a fatality accident in which he charged a passenger with intoxication manslaughter. That case was dismissed and the actual driver pled guilty last week and was sentenced to three years in state jail (not quite as good as the deal the daughter of a juvenile court judge received for causing the death of her boyfriend).

"I don't think...people are going out of their way to make cases for productivity reasons." -- Gary Blankinship, president, Houston Police Officer's Union

Wick has been with HPD since 1984 and has been involved in hundreds of DWI investigations. As a certified breath test operator, Officer Wick must provide a statutory warning to anyone arrested for driving while intoxicated before he can administer a breath test. His testimony that he provided the warning and that the driver refused the breath test can be used by the state to infer guilt at trial. That same testimony at a license suspension hearing can bring about a 180 day (or longer) suspension based on the driver's decision not to blow into the machine.

Harris County prosecutors were notified on January 28, 2009 that there may be Brady material (evidence in the state's possession that might tend to cast doubt on the citizen accused's guilt). Donna Hawkins of the Harris County District Attorney's Office said that the material would be turned over to any defense attorney or citizen accused upon request (another reason to file those discovery motions and get rulings prior to trial).

Just how out of control is the state's breath testing program? Are these just "isolated incidents" or are they just the tip of the iceberg?

DWI v. DUI

In Texas you commit the offense of driving while intoxicated if, while operating a motor vehicle in a public place, you have either: (1) lost the normal use of your mental faculties, (2) lost the normal use of your physical faculties or (3) have a blood alcohol concentration of .08 or higher.

However, if you are under the age of 21 and operating a motor vehicle in a public place with any detectable amount of alcohol, you have committed the offense of driving under the influence. Any detectable amount means that all an officer has to do is smell the odor of an alcoholic beverage on your breath to arrest you.  Should you subsequently fail a breath test, you could be arrested for DWI.

While driving while intoxicated is a Class B misdemeanor and carries a sentence ranging from three days to six months in the county jail and a fine of up to $2,000.00, driving under the influence is a Class C misdemeanor and carries a maximum fine of no more than $500.00.

However, even if you are stopped for driving under the influence, you still face the possibility of a driver's license suspension of up to twelve months on a first offense.  In addition, you will have only fifteen (15) days to appeal the administrative suspension of your license or you could lose it for six months just because you were arrested.

Ten things you need to know about DWI

1.    You have the right to refuse to perform 
roadside sobriety tests.

2.    You have the right to refuse the breath test.

3.    You have the right to an independent blood 
test within 2 hours of taking a breath test.

4.    You have the right not to answer any 
questions.

5.    If you are arrested for DWI, you have 15 days 
to appeal the suspension of your Texas 
Driver's License.

6.    If the roadside sobriety tests are not 
administered in strict compliance with NHTSA 
guidelines, the validity of the test results is 
compromised.

7.    The police officer administering the breath test 
has no knowledge of the (pseudo)scientific 
principles behind the breath test machine.

8.    It may take up to 2 hours for the alcohol you 
consumed to make its way into your 
bloodstream.

9.    If the police didn't have a valid reason to stop 
you, all evidence gathered after the stop may 
be inadmissible in court.

10.  You need an experienced DWI attorney who 
knows the law and who knows the tests, to 
represent you.

Just say no to the intoxi-liar

In Texas, the implied consent laws found in the Transportation Code, state that if a driver is asked to provide a breath or blood specimen, provided the officer has probable cause to arrest him for DWI, his refusal to do so may be used against him in a criminal proceeding and he may be subject to a license suspension of 60-180 days. Nowhere in the Code, or in the statutory warning given by the officer, does it state that a driver MUST provide a specimen.

To listen to Harris County prosecutors you would think that by exercising a right not to blow, a citizen is automatically guilty of driving while intoxicated. The drivel that comes out of their mouths usually amounts to telling the jury that the defendant had the opportunity to prove his innocence but that, by refusing, he is admitting he is intoxicated.

Nothing could be further from the truth.

A citizen accused is under no obligation to prove anything at all. He is presumed innocent unless the state can prove beyond a reasonable doubt that he is guilty of a criminal offense. The burden is on the state to produce the evidence to support its claim. That argument is an improper comment on the defendant's exercise of his right to remain silent based on the instruction the judge will give to the jury to stop any discussion of why the defendant did not take the stand. The only reason the prosecutor can get away with his assertion is because the Legislature and the Judiciary don't have the guts to stand up for the rights of the citizenry of Texas.

Furthermore, if the citizen accused has arrived at the point where he is asked to blow into the state's little black box, it means that the only thing his prior cooperation with the officer netted him is an arrest.

Finally, never forget that a jury is free to accept in whole or in part, or reject in whole or in part, any evidence or testimony presented to them.

The advice, as always, is DON'T, under any circumstances, blow into the little black box -- don't make the prosecutor's job any easier.