Texas ALR Hearing for Refusal of Blood Test (Boating While Intoxicated)

[TxBUI]

What is the name of your state (only U.S. law)? Texas

I was stopped for a "random" boat inspection on 7/9, refused all tests and was taken in for BUI.

I requested an ALR hearing to contest the suspension of my license. This request was submitted on 7/15, with the request I also requested discovery. On 8/09 I received a letter from DPS attorneys stating that no documentation had been submitted and I have not received any additional letters or information since. I met with attorneys but chose not to hire one until I knew the evidence against me. My hearing date is 8/29 (tomorrow) and I plan on representing myself at this point. Texas statutes say that all evidence has to be provided a minimum of 10 days before the date of the hearing.

My question is: Is it possible that the state does not have any documentation and I may be able to motion for dismissal? What can I expect given these circumstances?

 

[tranquility]

What part of the code are you looking at? To me:

TITLE 1 ADMINISTRATION
PART 7 STATE OFFICE OF ADMINISTRATIVE HEARINGS
CHAPTER 159 RULES OF PROCEDURE FOR ADMINISTRATIVE LICENSE SUSPENSION HEARINGS
SUBCHAPTER D DISCOVERY
RULE §159.151 Prehearing DiscoveryThe scope of prehearing discovery in these proceedings is as follows:
(1) A defendant shall be allowed to review, inspect and obtain copies of any non-privileged documents or records in DPS's ALR file or in the possession of DPS's ALR Division. All requests for discovery must be in writing and shall be served upon DPS as prescribed in 37 TAC §17.16 (relating to Service on the Department of Certain Items Required to be Served on, Mailed to, or Filed with the Department). The request for discovery may not be filed with DPS sooner than the date of the request for hearing and may not be filed sooner than five days from the date of the notice of suspension. Upon a showing of harm by the defendant, and upon a showing of a proper request for discovery, no document in the ALR Division's actual possession will be admissible unless it was provided to the defendant within five business days of the receipt of the request for production. If the ALR Division does not have any or all the documents in its actual possession, it shall respond within five business days of defendant's request, setting out that it does not have the documents in its actual possession. DPS has a duty to supplement all its discovery responses within five business days from the time DPS's ALR Division receives possession of the discoverable documents. If a document is received by the defendant fewer than ten calendar days prior to the scheduled hearing, the judge shall grant a continuance on the request of a party. The judge may grant only one continuance for DPS's production of documents fewer than ten calendar days prior to the scheduled hearing.

(2) If a request for inspection, maintenance and/or repair records for the instrument used to test the defendant's specimen is made by the defendant, and those records are in the actual possession of DPS, DPS shall supply such records to the defendant within five days of receipt of the request, provided however, that the records to be provided shall be for the period covering 30 days prior to the test date and 30 days following the test date. If DPS fails to provide the properly requested records after the defendant has paid reasonable copying charges for the records, evidence of the breath specimen shall not be admitted into evidence.

(3) Depositions, interrogatories, and requests for admission shall not be permitted in ALR proceedings.

(4) Notwithstanding paragraph (1) of this section, if a party believes evidence from a third party is relevant and probative to the case, the party may request issuance of a subpoena duces tecum pursuant to §159.103 of this title (relating to Subpoenas) to have the evidence produced at the hearing. If a person subpoenaed under this section does not appear, the judge may grant a continuance to allow for enforcement of the subpoena.

(5) Notwithstanding anything to the contrary contained in this section, DPS has the right to request non-privileged documents from the defendant. Except in cases where sanctions may be sought for abuse of discovery under §155.157 of this title (relating to Sanctioning Authority), all requests from DPS shall be made under the provisions of this section.

As to the rest, I suspect there will be testimony against you. That's not a document.

 

[sandyclaus]

What is the name of your state (only U.S. law)? Texas

I was stopped for a "random" boat inspection on 7/9, refused all tests and was taken in for BUI.

I requested an ALR hearing to contest the suspension of my license. This request was submitted on 7/15, with the request I also requested discovery. On 8/09 I received a letter from DPS attorneys stating that no documentation had been submitted and I have not received any additional letters or information since. I met with attorneys but chose not to hire one until I knew the evidence against me. My hearing date is 8/29 (tomorrow) and I plan on representing myself at this point. Texas statutes say that all evidence has to be provided a minimum of 10 days before the date of the hearing.

My question is: Is it possible that the state does not have any documentation and I may be able to motion for dismissal? What can I expect given these circumstances?

Sure, it's entirely possible that the state doesn't have documentation. It's also possible that in the days following the letter you received, they saw that you were going to ask for documentation and collected it for their case against you. Since you never did a follow-up after the initial request up to that 10-day prior to the hearing mark, you won't know until you get there.

Unfortunately, the law is clear that if you are suspected of drinking while boating (or driving) and refuse to submit to tests on the scene, then you get an automatic license suspension. The best way to prove that you were not drinking or impaired at the time of that incident was to submit to testing, or at least get thee to a doctor's office immediately thereafter to have them draw blood to test.

The absence of proof to the contrary can be used against you. If you weren't drinking, then why would you take issue with being tested?

You really should hire an attorney to represent you.

 

[Zigner]

Leaving yourself only a few working hours to find an attorney is just plain silly. You should have hired one long ago...before botching things.

 

[TxBUI]

Thank you everyone for taking the time to respond. Tranquility - I'm looking at the below section of the statute:

DPS has a duty to supplement all its discovery responses within five business days from the time DPS's ALR Division receives possession of the discoverable documents. If a document is received by the defendant fewer than ten calendar days prior to the scheduled hearing, the judge shall grant a continuance on the request of a party. The judge may grant only one continuance for DPS's production of documents fewer than ten calendar days prior to the scheduled hearing.

The situation was this: I had been drinking through the day but had not had any alcohol for about an hour. I did not feel impaired in any way. We were pulled over for a "random" safety inspection. There was drinking on the boat and the game warden asked if I had been drinking which I did not answer. The officer took me to his boat and I took some of the Marine FST. When the officer continually pulled his light far out of my field of vision during the nystagmus test, I refused all further testing. Unfortunately, this was a "no refusal" holiday so the officer requested a warrant to have my blood drawn. While he was filling out the paperwork, I was seated in his truck next to him reading the paperwork as he filled it out. The only impairment he noted was that I was "walking slowly" which in my opinion was the right thing to do since I was walking first on boats, then boat docks, then in handcuffs. I don't know how he got a warrant based on only this (attorneys I met with said they just "rubber stamp" them) feeble information but he did and I had to take the blood test anyway.

When meeting with the attorneys, we did some math and everyone seems to agree that the blood test will be close either way depending on how strong some mixed drinks were. They also said that the results were not likely to come back for 3 or more months so I do not think that evidence will be present in this case.

The way I see the situation right now is this: Best case scenario is the DPS has no documentation and the case is dismissed. Likely, the scenario will be that the DPS will show up with documentation, the case will be rescheduled and I will hire one of the attorneys I met with to handle to the case.

Is this accurate or am I missing something?

 

[tranquility]

You're missing what this is about. They are not going to try to prove you were under the influence, they will try to prove you refused the test. All they need is the testimony of an officer. In any event, why would they "dismiss" it?

 

[TxBUI]

Is it common practice for the DPS to have no documentation but subpoena an officer for testimony?

I understand what you're saying and don't feel like I have any misconceptions of what this is about. I'm trying to get an idea of what I'm walking into. They have to prove that the officer had probable cause to request the test in the first place. I do not believe they had probable cause and attorneys I've explained my case to believe I have an argument. My reason for requesting the evidence before hiring an attorney was to make a decision on whether the expertise of an expensive attorney was necessary or if I could get by with someone who is more moderately priced for my case. Now, the DPS has failed to provide any documentation so I'm really wondering what options I'm going to have with this hearing. I've never been through one before.

My only thoughts on why the case may be dismissed and my license not revoked in the current situation would be due to a lack of evidence. Innocence until proven guilty.

Edit - upon re-reading this post I feel like I implied that I would be going through the hearing. I do not intend to represent myself in the hearing unless the DPS has no evidence or witnesses. I'm assuming the case will have to be delayed because I was not provided any evidence. I'm trying to find out your thoughts on the situation. Is this likely or unlikely, etc.

 

[sandyclaus]

You're missing what this is about. They are not going to try to prove you were under the influence, they will try to prove you refused the test. All they need is the testimony of an officer. In any event, why would they "dismiss" it?

Precisely.

There are TWO separate proceedings that determine your fate after a DWI/BWI charge.

One of the proceedings is the criminal hearing regarding the actual charges of BWI/DWI. That's where you prove whether or not a crime was committed.

The OTHER is the administrative hearing set by the licensing authority solely because of your refusal to complete testing. Just refusing to submit to the testing is grounds for the suspension. It doesn't matter to them whether or not you were BWI/DWI, only that you refused the testing.

You refused to complete the testing. Unless you can provide a good enough reason for not doing that, you don't have much to hang your 10-gallon hat on.

 

[tranquility]

They have to prove that the officer had probable cause to request the test in the first place. I do not believe they had probable cause and attorneys I've explained my case to believe I have an argument. My reason for requesting the evidence before hiring an attorney was to make a decision on whether the expertise of an expensive attorney was necessary or if I could get by with someone who is more moderately priced for my case. Now, the DPS has failed to provide any documentation so I'm really wondering what options I'm going to have with this hearing. I've never been through one before.

They can bring in the officer who will state why a random check is allowed under the law. Then, he will say the suspect (you) were in control of the vehicle because he saw you at the wheel. On initial contact, he noted the odor of an alcoholic beverage emitting from your breath and person and saw alcoholic beverages on your boat. When asked if you were drinking, you refused to answer. The officer noted your gait was slow and uncertain which, in his training and experience, is indicative of a person under the influence. When marine fst were given, you took the nystagmus test and it indicated that you had consumed alcoholic beverages. While giving the test, he saw you had bloodshot and watery eyes. Then, you refused any further testing. At that point he formed the opinion you were under the influence of alcoholic beverages and asked you to take a chemical test to confirm his suspicion. You refused.

Partner, while that may not be enough to convict you beyond a reasonable doubt, it will be far more then probable cause. What did your attorney say as to why he felt there was not probable cause?

 

[TxBUI]

I received a call @ 10am today letting me know they needed to re-schedule the hearing. Thanks for your responses.

 

[TigerD]

I received a call @ 10am today letting me know they needed to re-schedule the hearing. Thanks for your responses.

Why do thy need to reschedule? Is it in your interest to agree to rescheduling?

You need an attorney.

DC

 

[CavemanLawyer]

The law is very clear that boating compliance officers can stop any boat randomly for a safety inspection. There is no requirement for reasonable suspicion. Once on board they would need reasonable suspicion to conduct a BWI investigation and yes they would need probable cause to request that you submit a specimen of your breath.

ALR hearings fall into two categories, refusals and non-refusals where the person's BAC was over the legal limit. When there is a refusal all that needs needs to be proved is obviously that the test was refused, and also that there was probable cause to request the specimen.

You did not go into much detail about what probable cause there might have been but there does not need to be much. About as far as the cases go on this issue is to say that the odor of alcohol alone is insufficient. If you have just that odor plus just about anything else that can be sufficient. You stated there was alcohol on the boat. The fact that you refused the field sobriety tests is also some evidence as well. There may be more things that the officer picked up on that you aren't even aware of. Yes you certainly have a shot at convincing the judge not to suspend your license, and you may have a shot at having the case dismissed following a motion to suppress. But it is impossible to know without looking at the evidence.

As for what evidence may exist... first the ALR hearing is only concerned with the arrest and the circumstances of the blood sample. So off the top of my head the things that absolutely must exist are an offense report, DIC forms for the DL suspension and refusal, the probable cause affidavit for the arrest, and the warrant and affidavit for the blood draw. Other possible evidence that could exist and be relevant are photos (you'd have seen them take them), witness statements (you know who was on your boat), a possible video of the blood draw (you'd have seen them recording you), physical property seized like beer cans, receipts, etc.. (you'd have seen them seize it) and finally I suppose its possible the officer had an "in-boat" dash camcorder but I have never seen that before. The other possible evidence relevant to the ALR would be calibration and test logs for the time period prior to your blood being analyzed. I can guarantee that DPS is not going to provide these to you without a very specific discovery request and I can guarantee that your actual blood has not been tested yet.