Today I won an ALR based on a hearsay objection over a properly subpoenaed HPD Officer who ignored his subpoena and failed to show up at the hearing. There was a heated battle between the DPS Prosecutor and the Administrative Law Judge over whether or not the officer that did show up in response to his subpoena, the DIC 23 swearing officer, should be able to state what he heard from the non-showing officer. After about 15 minutes the ALJ held fast and allowed the DIC 23 into evidence because the 23 officer was present but he ruled that he would not consider any of the Reasonable Suspicion evidence since that officer was subpoenaed but failed to show. DPS argued that there were actually two Reasonable Suspicion officers and that Defense, us, only subpoenaed one of those officers. DPS logic was that the DIC 23 officer should still be allowed to state the information he learned about the driving from the non-subpoenaed Reasonable Suspicion officer. I argued in response that there must be some legal remedy for the failure to appear of the subpoenaed officer and allowing the hearsay into evidence about the Reasonable Suspicion from the other officer would be an end-run attempt to get the evidence in and it would unfairly allow DPS to meet their burden suspending my client’s license. The ALJ ruled, in my opinion, extremely fairly and ruled in the interest of justice and kept the hearsay out.
The ALJ directed the DPS prosecutor to please give the attending officer his witness fee check we had produced and she went to go get him. As he was being brought in I overheard him responding to what the DPS prosecutor had just told him the outcome of the hearing was. His words exactly were, “Well, smoke and mirrors wins again!” I confronted him and said, did you just say…and repeated it. He agreed that he did and I asked, somewhat shocked at his candor if that is the way he perceives us, defense lawyers, and he changed his tune and smirked and said “Noooooo,” rather unconvincingly.
I fought diligently for my client, as I always do and the judge made a proper legal ruling that allowed us to prevail at the hearing and save my client’s license from being suspended. In the eyes of the Arresting Officer…it’s all “smoke and mirrors.”
