Why the Administrative License Revocation (ALR) Hearing is Important in DWI cases…

If you have been charged with Driving While Intoxicated (DWI) in Texas, an ALR Hearing is important to your future driving privileges. You have 15 days from the day of your DWI arrest to request an ALR hearing. If you fail to request a hearing within 15 days, or if you do not properly request a hearing, your driver’s license will automatically be suspended 40 days after your arrest.

ALR hearings are important because it gives the defense an opportunity to challenge the suspension of your driver’s license. There are various ways to defend your driving privileges at an ALR hearing including, but not limited to, finding flaws in the State’s paperwork, subpoenaing witnesses and cross-examining the arresting officers and/or technical supervisors about your case. A flaw in the State’s paperwork, an absence of a subpoenaed witness or a proper cross-examination of a witness may defeat the State’s ALR case against you and prevent the suspension of your driving rights.

In addition, an ALR hearing may provide the defense a chance to win the criminal case. For example, recently, I had an ALR hearing where the officer showed up. His testimony was so bad the ALR judge found that the stop of my client was unlawful. Baased on this officer’s poor ALR performance, I was able to get the criminal case dismissed.

How are Texas criminal cases resolved?

A Texas criminal case can be resolved in one of four ways:

1. Plea Bargaining (Agreed Plea)

Plea bargaining occurs through an agreement between the prosecutor and the defendant. In exchange for a guilty or no contest plea and waiver of the right to trial by jury, the prosecutor recommends a punishment that the judge presiding can accept or reject. Statistically, most criminal cases are resolved by plea bargaining.

2. Non-negotiated Guilty Plea (Open Plea)

A defendant may enter a guilty or no contest plea without an agreement from the prosecutor regarding punishment. The judge then has the responsibility to determine the punishment applicable unless the defendant requests a jury to assess the punishment. The defendant retains his right to appeal.

3. Trial

Any person accused of a crime is guaranteed the right to trial by jury by the Texas Constitution. This right may be waived in favor of a trial to the court (judge) except in capital felony cases where the prosecution is seeking the death penalty.

4. Dismissal

Prosecutors may, with the judge’s consent, dismiss a criminal case for any of the following reasons, from insufficient evidence to “other.”

What documents are necessary to charge State cases

Class C misdemeanors prosecutions begin with the filing of a complaint, a written affidavit made by a credible person charging the defendant with an offense. These are under the jurisdiction of the municipal or justice of the peace courts.

Class A and B misdemeanors are in the County Courts at Law. An information, or written statement presented by the State, charges the defendant with committing a crime. A complaint must be filed with the information.

Felonies are prosecuted in district courts and an indictment is required (unless waived by the defendant). The indictment is the written statement of a grand jury presented to the court accusing the defendant of the crime.

Sometimes, the charging instrument, such as the complaint or indictment, has a flaw. A good criminal lawyer trained to recognize these flaws can file a motion to have the charge thrown out. The prosecutor can then either correct the charge or, hopefully for the criminal defendant, not pursue the charge any further.

A defendant’s rights in a Texas criminal case

In a criminal case, be it in Harris County or elsewhere in Texas, you have certain rights as a defendant:

• If there is even the possibility you could be put in jail upon conviction of the offense, you have a right to be represented by an attorney and to have an attorney appointed by the court if you can show that you are unable to hire an attorney.
• You have a right to have the state prove any charge against you “beyond a reasonable doubt.” The “beyond a reasonable doubt’ standard is the highest standard of proof that exists in the American justice system.
• You have a right to a jury trial (a jury consists of six persons in misdemeanor cases and twelve persons in felony cases). You have a right to have the jury decide your guilt and innocence, and, if it finds you guilty, you have a right to have the jury decide your sentence.
• If there is a trial, you have a right to testify at the trial. On the other hand, you cannot be forced to testify and, if you chose not to testify, that fact cannot be used against you.
• You have a right to use subpoenas to make witnesses come to court and testify on your behalf at any trial.
• You have a right, if there is a trial, to have your lawyer cross examine the state’s witnesses.
• If you lose at trial (and in some cases if you plead guilty), you have a right to appeal your case and, if you cannot afford a lawyer, you have a right to an appointed lawyer on appeal.

But just because you have these rights does not mean they are automatically asserted.  A criminal defense lawyer’s job is to protect your rights.  You should never waive any right without beforehand fully consulting with an experienced, knowledgeable, and qualified criminal attorney.

Rights and responsibilities of the consumer and bondsman

Entering into a bonding agreement with a bondsman creates certain rights and responsibilities between him and the consumer.

The consumer is agreeing to:

• Pay the bond premiums charged by the bail bond company.
• Provide required information and collateral when necessary.
• Pay actual, necessary and reasonable expenses incurred by the bondsman in connection with the transaction. These may include:
  • Reimbursement for long distance phone calls
  • Excess travel expenses
  • Posting fees
  • Recovery expenses
  • Payment of the bond amount for the defendant in the event the defendant fails to appear in court
  • Attorney fees and court costs
• Keep the bondsman advised of address/employment changes of the defendant or other parties to the agreement.
• Aid the bondsman in locating the defendant (where someone other than the defendant has secured the bond).

The consumer should read all agreements thoroughly, asking questions until all items and obligations are understood.

The bondsman’s job is to secure the defendant’s release from custody until the criminal matter is resolved.

The bondsman will provide the following:

• Receipts and copies of all signed documents.
• Information regarding the status of the bond and changes in assigned court dates.
• The status of any costs due, as imposed by the court.
• Assistance in locating the defendant should a forfeiture occur.
• Appearance before the court regarding the bail bond when such appearances are necessary (sometimes requiring the hiring of legal counsel).
• The timely return of collateral upon exoneration of the bond

The bail bond is in affect until there is disposition in the bonded case. However, the agreement may provide for the payment of premium at inception, and upon “renewal” on an annual basis where applicable. I have seen bondsman in small counties require payment upon annual renewal of the bond. Watch out for this, as it will require you to repeatedly post a bond until the final disposition of the case, which could take years.

How to post a surety bond in Texas courts

To post a surety bond:

• Locate an honest bonding company.
• The bonding company will then post the bond for you.
• The bonding company will charge you a fee for this service.

It is very important that you pick your bonding company carefully. In Harris County, Texas, both Burns Bail Bonds and Access Bonding have been around a long time, enjoy good reputations, and are easy to work with.

How to post a cash bond in Harris Count, Texas

In my last post, I discussed the different types of bonds. In the next few posts, I will discuss how to post the different bonds. For cash bonds

• Cash bonds may be posted at the bonding window located on the first floor of the 49 North San Jacinto Building.
• You may post a cash bond by paying the full amount of the bond in cash, cashier’s check (upon verification), or money order.
• You must have proper identification consisting of a valid state, or federal ID card or driver’s license. All identification must bear depositor’s photograph.
• If a defendant appears in court as scheduled, and the case is disposed of, the court will issue a refund order. All cash refunds are processed through the Harris County Auditor’s Office at 713-755-6504.
• The Harris County Sheriff’s Office will accept all nationally recognized money orders and cashier’s checks (upon verification) for the payment of fines and the posting of bonds. Cashier’s checks and money orders must be made payable to the “Harris County Sheriff’s Office”.
• Out-of-County cash bonds may be posted for another county’s charges. You will need money order, cashier’s check or traveler’s check for the full amount of the bond. The Harris County Sheriff’s Office, Bonding Section, will instruct you on who to make the money order payable to at the time the bond is posted.
• No personal checks are accepted.
• Only exact dollar amounts are accepted.
• No change can be given when posting a bond or paying a fine.

The different types of bonds in Texas courts

A bond is a security that the defendant gives to assure the court that he will appear to answer the charges at trial.

Three bonds exist in Texas:

• Cash
• Surety
• Personal recognizance

“Cash Bonds” are the full amount of the bond posted in cash, cashier’s check or money order. All cashier’s checks or money orders should be made payable to the “Sheriff of Harris County”. The advantage of posting bail in this manner is that, once the trial is finished and the accused has appeared in court as required, the entire amount of the bond will be returned to the person who deposited it, usually within 6-10 weeks. Several potential disadvantages result from paying a cash bond:

1. A large cash bond, even if paid with legal proceeds, may bring undesired attention from law enforcement authorities.
2. Money used for a cash bond, if cash is in short supply to the defendant, could have been better used to hire a good lawyer,
3. If the case is going to go on for a long period of time, the use of a cash bond may cost a significant amount in lost interest.

“Surety Bonds” are bonds posted through bonding companies that charge a fee, usually ten percent or so of the total bond, for their services. Once bail is posted, the defendant will receive a future court date and be released from jail. Surety bonds are the most common in Harris County.

“Personal recognizance bonds” occur when the defendant is released from custody on his promise to appear in court on the scheduled date. The defendant pays nothing; his promise to appear is his bond. Personal recognizance bonds are the least common in Harris County, given that judges are reluctant to grant them. In 2007, for example, the last year information had been completely compiled as of December 2009, less than one half of one percent of Harris County defendants in district court received a personal recognizance bond, while about eight percent of defendants in county court received a personal recognizance bond.

How a Harris County criminal case proceeds immediately after arrest

In Harris County, Texas, the police officer typically will have called the prosecutors in the “intake division” who will have accepted charges, resulting in the defendant’s arrest. Unlike other counties, Harris County prosecutors determine whether charges will be filed for jailable offenses. This allows these prosecutors, at least theoretically, to be gatekeepers to exclude unsupportable charges. In reality, the effectiveness of this gatekeeper role depends on the particular prosecutor working intake. Some prosecutors are simply more rigorous than others in screening charges.

The officer then types up a summary of the offense for the prosecutor. This summary is a brief version of what the officer writes in his police report. Based on this summary, an intake prosecutor types the charge and requests a bond or, in extenuating circumstances, asks for a “high bond” or “no bond.” The defendant then:

1. Will be taken to a police station, jail, or other detention facility.
2. Will be given the opportunity to contact a family member, friend, or lawyer upon arrival at the jail or shortly thereafter.
3. Will be advised generally of the charges against him.
4. May be interrogated, in which case he should decline to answer any questions and ask for a lawyer.
5. May be asked to consent to a search, in which case he should refuse and ask for a lawyer.
6. May be required, whether he consents or not, to:
   • Participate in a lineup
   • Prepare a sample of your handwriting (otherwise called a “handwriting exemplar”)
   • Speak phrases associated with the crime with which he is charged (otherwise known as a “voice exemplar”)
   • Wear certain clothes, and/or give a sample of his hair, etc.
7. May be required, whether he consents or not, to be fingerprinted and photographed.
8. Will be “magistrated” shortly after arrest via close-circuit television. During this process, a “probable cause court” judge reads all the defendants their Miranda rights. This “magistratizing” must occur within 48 hours of the suspect’s arrest. In addition, in Harris County, the prosecutor then reads to the magistrate the probable cause for arrest. Almost always, the judge finds probable cause. The judge officially sets a bond according the “bond schedule” that the District Court judges, with input from the District Attorney’s Office, has established. (The United States Supreme Court held that a suspect arrested before indictment and without an arrest warrant has a right to have a magistrate, generally within 48 hours, determine if probable cause existed for his arrest. In Harris County, this probable cause determination is supposed to be made for all arrestees at this “magistrate” hearing via close-circuit television).
9. Will appear for arraignment within 48 hours or less, excluding weekends and holidays, in the court in which the case is assigned. This court is different than the “probable cause court” and has an elected judge. Sometimes, the court at these arraignments will also want to hear and determine probable cause, even though probable cause was found at the probable cause court.

Learning whether an arrest warrant exists

The easiest way for a person to determine if an arrest warrant exists is to call a reputable bondsman or the jail. If the defendant has an outstanding arrest warrant, he is always better off arranging for a bond, either through the bondsman or posting a cash bond (which I will discuss in a later post), and surrendering himself than being arrested on the street.

What if an arrest warrant exists but the bond is unreasonably high? In Harris County, prosecutors and judges generally have a policy that they will not discuss bond until the defendant is in custody. That means, if the accused is wanted, has not yet been arrested, and wants to try to lower his bond, he has to turn himself in first.

In certain circumstances, an arrest warrant may exist but be hidden from the public, including the bondsman. Of dubious legality, this is called a “pocket warrant.” Prosecutors obtain pocket warrants from a magistrate but the warrants are not made available to the public, including bonding companies, until after the arrest occurs. Pocket warrants are rare. The rationale for them is not to tip the defendant off that he has an outstanding warrant. In Harris County, the “Special Crimes” Division, which handles a myriad of large and serious cases, most often uses pocket warrants.