The issues that can be discussed at your ALS/ALR hearing are very limited. Typically, the only issues presented at these hearings revolve around: (1) whether or not the police officer had a reasonable cause to believe that you were intoxicated to a degree that you were violating the state law by driving; (2) that you had been placed under arrest and lawfully detained; (3) that you had failed or were unable to complete the blood, breath or urine test that the officer had requested; and (4) whether or not you had been informed of the loss of your license when you refused your test. The standard of proof placed upon the State in administrative (civil) hearings is not nearly as high as at your criminal trial, being only “preponderance of the evidence” rather than “beyond a reasonable doubt.”
An ALS Hearing is a Separate, Limited Civil Proceeding
In some states, challenges by the petitioner (the licensee) have been permitted at these hearings where it was shown that the officer handling the arrest violated the driver’s rights to an independent test, or similar rights under that state’s implied consent laws. Other states are more restrictive of legal challenges that can restore driving privileges.
In most states, the initial burden of proof is on the State, not the motorist. However, a substantial minority of states have shifted that initial burden of proof to the motorist. This is possible to legislate in these matters, and not in criminal matters, due to the CIVIL nature of the proceedings.
The United States Constitution protects against shifting the burden of proof in any criminal case to an accused person facing criminal charges. A sample list of the specific, limited issues that are allowed to be discussed in several states’ individual hearings is set forth in Appendix D.
Is it always a good idea to ask for a DUI ALS hearing before my criminal case begins?
After investigating the facts of your case, the most experienced DUI-DWI attorneys know the pluses and minuses of holding an ALS/ALR hearing in your situation. If a hearing takes place, the attorney will know what evidence (if any) your side should present. Based on his or her years of experience with criminal law and the history of such hearings in your particular region, these DUI-DWI specialists know what can be accomplished (and more importantly), what you may lose by going through a contested administrative hearing.
The sworn hearing process may reveal defenses for your case through the questioning of the police officers involved in your arrest at this hearing. On the other hand, taking the stand to get your license back at the hearing may produce a very short-term gain, and may cause you to lose your criminal case and ultimately have to go to jail.
What are my chances of “winning” my DUI ALS hearing?
Each state conducts these proceedings differently, based on the hearing officers (or judges) who preside over them, the specific jurisdiction where your hearing will be held and how they have been run in the past. Some attorneys report an 80% to 90% (or better) success rate of getting your license (or full driving privileges) back, while in some states, this success rate may be as low as 10% to 15%.
Depending on the laws of your state, the licensee may be saddled with the burden of proof at the administrative license suspension hearing. In other states, the use of pro-prosecution hearing officers (who are often glorified state police officers) and a very restricted set of legal issues that can be raised at ALS/ALR hearings can greatly diminish your chances of winning one of these hearings.
The most important thing is for you and your DUI-DWI specialist to sit down and discuss what is most important to you. It may not be a “win” if you fight to immediately get your license restored only to later lose your criminal case due to disclosures at the ALS/ALR hearing that compromise your criminal case. Some attorneys who claim a high rate of success at administrative hearings may be sacrificing the more important victory on the criminal case.
Further Reading
To learn more about an administrative license suspension after a DUI, read some of our in-depth articles below: