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Board Certified - Criminal Law - Texas Board of Legal Specialization

Criminal Law Blog

March 27, 2009

I had an ALR hearing this week, and as I usually do, after it was over I called my client to give him my prediction of the outcome. 

“Start getting your insurance card copied and get a copy of your driving record, because I don’t think we won this battle.”

My client knew the odds (DPS does, after all, win about 75% of the time) and accepted my prediction. 

To my surprise, the Administrative Law Judge ruled in my client’s favor.  I wasn’t surprised because I thought my client was intoxicated.  I don’t – and never have – thought that.  I was surprised because the Department’s burden of proof in a breath test refusal case is so darn low. 

All DPS has to prove when the driver refuses to blow or give blood is that the officer had probable cause to arrest the driver.  Probable cause is the lowest burden of proof there is.  DPS only has to prove that the officer had that (lowest burden of proof) by the next lowest burden of proof – by a preponderance of the evidence, which means that it is a little more likely than not that the officer had probable cause. 

Much of the time, proving that is like falling off a log.  That’s no knock on the DPS lawyers.  It’s just how the legislature wrote the statute governing suspension of licenses. 

As my client put it, his “faith in the justice system is being restored.” It was one of the best moments I had that day. 

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