If DPS gets their way, yes.. all License Suspension Hearing will be by phone. So the Administrative Law Judge will never be able to look you, the lawyers, or the officer in the eyes.
Thanks to Grits for Breakfast for posting on Criminal Justice Agencies Under Review, and discussing the Sunset process, which reviews some of the criminal justice agencies. DPS’s report is here.
Although not pointed out yet in Grits’ post, of utmost importance in the DWI world, is their review of the ALR, or License Suspension process.
The Sunset review has made very disturbing recommendations:
4.1 – Require hearings to be held by telephone, and allow witnesses to testify by
telephone, unless the judge finds that an in-person hearing or appearance is
necessary for the fair administration of justice.
First of all, this is problematic, because it is nearly impossible to judge the credibility of a witness over the phone. Why do you think in criminal trials, the witnesses must appear live? We all know that in every case, and administrative judge will never find that an "in-person hearing" is necessary. How would they even know in advance of the hearing without knowing any of the facts yet. Adding in that provision is simply a farce that the authors know will never take place — but an attempt to make it look like a fair rule.
4.2 – Require affidavits of the breath test operators or breath test supervisors to
be admissible without the witness’s appearance unless the judge finds that
justice requires their presence.
Again, how about the right to confront your accuser? And again, how would the judge know, in advance of the hearing, if justice requires their presence? If the judge does know the facts of the case in advance, then obviously there is something very unfair going on. How does one cross examine an affidavit?
4.3 – Require the defense to request breath test operators and breath test
supervisors by subpoena.
Why? Just so the judge can deny the request? The defense is not who initiated these proceedings… it is DPS who is attempting to take away someone’s license. Should they have the burden of proof and need to bring the BTO’s and technical supervisors? The State knows that it cost a lot money to get a subpoena issued and served, and that is why they came up with this rule. Also, what happens if the judge denies the request for subpoena?
The bottom line is, having your license taken away is absolutely devastating to many people. I would bet that 99.9% of people reading this — heck, making the decisions on this commission, drive every single day. If you are going to take away something so fundamentally important as someone’s right to drive, the least you can do is give that person some due process, and let them confront their accusers.