I defend DWI cases more than anything else and, as part of the package, I also try to keep someone's driver's license from being suspended. Here are the basic rules: If you get arrested for DWI and refuse to provide a sample of your breath, you can have your license suspended for 180 days. If you provide a sample and that sample is .08 or greater, you can receive a suspension of up to 90 days. But the suspension is not automatic. I always request a hearing on the driver's license suspension which is why I'm always going to Fort Worth (where the administrative hearings are held.) It normally occurs weeks before the criminal DWI case is filed here in Decatur. The rules at the hearing are silly. I don't get a jury, but only a judge. And not an elected judge, an "Administrative Judge" who is appointed to the job. The State's lawyer are from DPS and actually drive up to the hearings in a DPS car. And the hearings are held in an office building on Camp Bowie Boulevard. It's a glamourous life. Oh, it gets better: The State doesn't even have to call any witnesses in order to win. All they have to do is offer the police report into evidence - assuming it has been properly notarized. I suspect in those cases that DPS has a victory rate of 98% because, as I always say, "it ain't a fair fight." But a defendant does have a slight chance in one of two ways: (1) Once in a blue moon the police report will be screwed up in which case the DPS lawyer will ask the officer to show up to testify live to correct the paperwork error. If he doesn't show, the driver wins; OR (2) The driver can ask for a subpoena of the officer and, if you can get the officer served, the cop's failing to appear at the hearing will result in a driver victory. Side note: The whole process drives real prosecutors crazy. (And by "real prosecutors" I'm talking about the guys in charge of handling the criminal DWI case.) Why? Because a defense lawyer can force an officer to show up by subpoena and, if he does, he gets to ask that officer questions about the case under oath. It's like a mini deposition. So the defense lawyer is down there talking to the cop about all aspects of the DWI arrest and the prosecutor in charge of the DWI case isn't even there. Moreover, if the officer does show up and a suspension is ordered, the law allows for the driver to get an occupational license. The whole process is viewed by even the most right wing prosecutor in the State as a complete waste of time and money and has advocated junking the entire system. With all that behind us, here's what happened yesterday: In my case, the affidavit on the offense report was screwed up. Because of that, it wasn't admissible so there wasn't any need to subpoena the trooper. The DPS lawyer would either miss the error and I'd win, or she would have seen the problem and asked the trooper to appear live. When I got there the DPS lawyer told me she "had an officer coming" which I interpreted to mean that she had discovered the error. I've seen that before. No biggee. I looked around for the trooper (the one who had screwed up the affidavit and who was supposed to be there) but didn't see him. That's not totally unheard of because even those guys realize what a silly system it is. So if he's not going to be there, how long do I have to wait around? There is an arbitrary rule imposed by the judges that says if the officer is 30 minutes late then the case will be dismissed. I've been through that a lot of times before and the DPS lawyers are pretty accommodating with me because I'm not a jerk. But I kept sitting. And sitting. And sitting. I got to watch about five boring hearings which were neither educational nor entertaining. Finally it is my turn after two hours of waiting. But wait! The DPS lawyer tells the judge that there are three subpoenaed officers in another case that have been sitting in the hallway for over two hours but the defense lawyer hasn't shown up. So the judge calls them in and excuses them on the record and takes a default judgment again the driver. I was thinking about what a waste of resources that was. (Defense lawyer to blame on that one - no question.) Edit: I meant to point out that I was looking at five people being paid by you, the taxpayer: a judge, a DPS lawyer, and three officers - all of whom were sitting in a an office rented, again, by you. So now it is time for my case, and I expect the DPS lawyer to tell the judge the case is being dismissed due to the trooper not being here. Nope. In walks an officer from Boyd. Ok, this is crazy since I really didn't think DPS needed her to be down there in the first place (she made the initial stop but called in the trooper to do the DWI investigation.) But she testifies anyway (also after waiting two hours.). So then it comes time for the DPS lawyer to introduce the trooper's report with the bad affidavit. Yep, you guessed it. She hadn't caught the error. So I make my objection and the judge agrees. There won't be a driver's license suspension. But as I walked out I thought what a waste of time the whole process was and how I felt sorry for the Boyd officer who drove all the way down to Fort Worth, sat around for two hours, and then still didn't have the satisfaction of seeing a driver's license suspension. Something needs to done with that system. I have an idea: How about a driver's license suspension if there is a conviction in the criminal case? Trying to suspend the license before the DWI criminal case gets fired up seems a little silly in the first place.
at 1:53 PM