Your DUI lawyer can take your place at the administrative license suspension
Many of our clients ask us, “Do I have to attend my DUI ALS?” If there is an ALS or ALR hearing, due to the limited issues the proceeding must answer, the judge does not usually have any questions to ask you. In most states, the hearing is held whether or not you are there, so your attendance may be waived.
In most states, unless you request such a hearing, your license suspension is automatic. Those states that give you a temporary license allow you to have this document until it expires, and you are then without authority to operate a motor vehicle.
If you do request a hearing for whatever reason, because most questions will be posed to other witnesses, your presence is not typically required unless your drunk driving lawyer feels it important for you to be present. You may have to refute an alleged refusal to submit to testing. Alternatively, your presence may assist your attorney with questions to factual matters that arise in the hearing, when your attorney is allowed to cross-examine the State’s witnesses.
If I do go to the ALS hearing, will I have to testify?
It may be very useful to your criminal case to put your arresting law enforcement officer on the stand in the ALS/ALR hearing and “lock in” the officer’s testimony on key issues. If you take the stand, or you have your experts testify on your behalf at the ALS/ALR hearing, the prosecution may be able to do the same to you. This may be detrimental to your criminal case later.
If you have good defenses to your DUI-DWI charges, giving the prosecutor knowledge of these issues allows him or her more time to try to refute them. Unless getting your license back immediately is critical to your life, and you have rock-solid defenses in your criminal case, taking the stand is seldom a wise move. Many states have a mandatory suspension of your license if you are convicted, so giving the prosecution any useful information at this administrative hearing may win a battle but lose the war. The ultimate objective is to avoid a DUI-DWI conviction.
Will my attorney try to negotiate with the prosecutor at this hearing?
Any time you can get your attorney and the prosecutor in the same room, with the facts of the case before both of them, a chance always exists for negotiation. Both sides have likely seen similar cases many times. Both know the courts, the judges and the local laws. If the prosecutor from the criminal case does not have to attend your hearing, then the facts of the case are also before the state attorney who is assigned to assist the police officers to present their case facts.
The best DUI-DWI specialists have worked with these people for years, with hundreds, if not thousands, of similar cases to provide a basis for anticipating how the judge may rule. He or she knows how to negotiate with either the presiding officer or the state attorney to obtain your best chance at getting your license back. For some clients, being able to continue driving may be of greater importance then trying to win the DUI-DWI criminal case. If this is your situation, speak to your attorney about this to see what options you may have.
In some states, the same prosecutor who will be trying your criminal case will also be handling the administrative license suspension or revocation hearing. In other states this is not true. In a few states, no attorney acts as a representative for the police officers, leaving them to litigate their own cases.
If it is the same prosecutor in both situations, then this may be all the more reason not to bring forth any of your “best” evidence because while you might get your license back sooner, you may ultimately lose your criminal DUI-DWI case. However, any time you get the prosecutor in the same room with your attorney, with the evidence in front of both of them and the testimony of your arresting officer now having been presented and recorded, this may be an excellent opportunity for negotiation regarding the criminal charges against you.
Why does my DUI lawyer recommend a court reporter be present?
Not every court or hearing has a court reporter or stenographer (someone sitting at the front of the courtroom or just off to the side), who is taking down a word-by-word transcript of the proceeding as it happens. Your attorney is listening to every word, but cannot write down everything. To have one of these people at an ALS/ALR hearing will cost you some money.
However, because you may have the chance for your attorney to question the testing officer if your attorney can require them to attend, locking in their side of the story, a transcript of this testimony can be worth its weight in gold to your case. This is far better than simply having the proceeding tape-recorded, because having the testimony written in a transcript gives your attorney a better chance to prepare more thoroughly.
Plus, a typed, certified transcript can be used in the criminal case to impeach the witness if he or she changes their story about your arrest or test. This testimony may also confirm defenses available to you, or may show your attorney which ones might require another expert witness to testify to refute the officer.
Can my attorney get a copy of my arrest video and breath test results at this hearing?
In spite of the limited issues which must be proven in an ALS/ALR hearing, the best proof for your side in either this hearing or for your criminal trial may be the video tape of your arrest or the admission of your breath test. A picture may be worth a thousand words, but a video recording may mean the difference between acquittal and a criminal conviction.
Of greater importance is the likelihood that your attorney can argue your side from only this video evidence and use of your expert witnesses. This means you do not have to take the witness stand in your defense. Taking the stand allows the prosecutor to also ask you questions, which can be very damaging at your criminal case. Thus, whether for the administrative hearing or for your criminal case, obtaining any videotape of your arrest or the administration of your breath test is very important.
If your license can be returned to you based on these video recordings, your attorney may require them to be produced and shown to the judge or hearing officer at your ALS/ALR hearing. More often than not, however, the videotapes are needed for purposes of trying to win the criminal case.
The administrative hearing may serve this additional important function. In states with limited discovery, this could also be the first time your attorney has access to these video recordings, something critical to the presentation of your defense in your criminal case. Thus, obtaining these videos by use of a subpoena can be the main reason to go through an ALS/ALR hearing. A DUI-DWI specialist knows the laws of your state and has experience with the courts and these type hearings, to know exactly the best path for you to take.
Further Reading
To learn more about an administrative license suspension after a DUI, read some of our in-depth articles below: