Collin County DWI - SR-22 Insurance

Collin County DWI cases often involve license suspension issues along with the criminal cases. Should your license be suspended as a result of a criminal conviction, or as part of an administrative suspension (ALR suspension), odds are you are going to want to be driving legally again.

In order to be driving legally, you must obtain an occupational drivers license.  An "ODL" has several requirements before being granted by the judge and by DPS.  One of the most confusing to many has always been the requirement of SR-22 insurance.  For the past 8 years our office has maintained a close relationship with one of the fastest and best SR-22 providers out there, Jay Freeman of Accurate Concept Insurance.

Luckly, Jay wrote an article recently explaining exactly what SR-22 insurance is.  He was kind enough to allow us to post it here:

Five Things You Need to Know About the Texas SR-22 (A Peek Behind the Insurance Curtains)

A Texas SR-22 (or Financial Responsibility Form) is actually an endorsement that is attached to an insurance policy; this is why your client cannot just purchase the form by itself—it is actually part of the policy to which it is attached. The way I usually explain the SR-22 to clients is to describe it as a tool used by the Texas Department of Public Safety (DPS) that transfers responsibility of monitoring the policy status to the insurance company that issued the SR-22.

The State of Texas requires that an SR-22 be filed for many different reasons, such as:

multiple no-insurance tickets,
an occupational or essential needs driver’s license,
an unpaid judgment for a liability claim,
convictions for driving under the influence of alcohol or drug-related offenses,
excessive violations,
just to name a few . . .
When an SR-22 is issued and filed with DPS, this action obligates the insurance company that issued the SR-22 to constantly monitor the status of the policy to which the SR-22 is attached and notify DPS of any changes in that policy’s status. The SR-22 itself has an effective date but no expiration date. It is good until the issuing company notifies DPS that the policy has terminated (however DPS does require that the insuring company submit an updated copy of the SR-22 every two years). When the policy is terminated, the issuing company submits another form called the SR-26, which cancels the SR-22.

(1) Not every insurance company will issue an SR-22

Even though DPS advises people to obtain the SR-22 from their insurance carrier, many insurance companies consider the SR-22 to be “high-risk” and will initially refuse to issue the form. If the client tries to force the issue, this action will usually flag the policy for non-renewal—and seldom results in the client receiving the SR-22 within a timely period. You see, the Texas personal automobile policy contains a provision that allows a company to cancel a policy if the license of a driver is suspended or revoked. Many insurance companies simply delay the SR-22 until the license status shows “suspended” and then cancel the policy. In addition, even the companies that will issue the SR-22 typically move the family’s business into their “high-risk” side of companies upon renewal, and it will normally take several years to earn their way back to better rates.

(2) The SR-22 impacts all drivers and vehicles listed on the policy

Although the problem might lie with the child who got into trouble while away at college, the ramifications of the SR-22 affect all drivers and vehicles listed on the policy. Because a single driver cannot be rated using a different set of underwriting guidelines in a single policy, all drivers and vehicles are forced into the “high-risk” policy. Although it is possible to separate a single driver onto another policy, this is often impractical because it restricts who is covered to drive which family vehicles. In addition, most insurance companies offer generous multi-lines discounts, so a problem with a family’s automobile insurance can also result in large premium increases in other insurance policies like their homeowners insurance.

(3) If your client elects to obtain the SR-22 from an outside source, the SR-22 must be written on a non-owners/operators policy

This is absolutely the most important advice you can give your client regarding their SR-22. In order to avoid the problems listed above, many clients elect to obtain the SR-22 from a secondary source. This is often a very good idea, but without your guidance they could find themselves making a mistake that could be financially devastating. Most people will just go to the first insurance agency they see advertising SR-22s and ask to purchase one as inexpensively as possible. This agency will typically issue a liability-only policy on whatever vehicle your client happens to be driving that day. The problem is that your client has now automatically terminated his current insurance coverage on that vehicle without even knowing it.

The problem lies in the Texas Personal Auto Policy, specifically in the Termination Section of Part F: General Provision. Under this section, Rule C reads as follows:

AUTOMATIC TERMINATION—“If at any time, you obtain other insurance on your insured auto, any similar insurance provided by this policy will terminate as to that auto on the effective date of the other insurance.”

This dilemma can be easily overcome by simply advising your client to obtain the SR-22 by purchasing an operator’s policy (also commonly referred to as a non-owner’s policy). This type of policy solves the problem because it insures only the client as a driver and does not provide duplicate coverage on a specific vehicle. Therefore it completely avoids the automatic termination rule in the Texas Personal Auto Policy.

(4) Your client’s primary carrier will not necessarily discover the SR-22 or any subsequent conviction

Your client has absolutely no requirement or obligation to notify their insurance company of any changes to their driving record or the need for an SR-22 filing. It is the responsibility of the insurance company to determine if there are any factors that might impact the premium, and as a matter of business, many insurance companies do not normally perform an in-depth underwriting review prior to offering to renew a client’s policy. Due to the substantial cost of performing these reviews (consider that a driving record costs a company around $10 per insured, then multiply that by the number of people insured by any given company and one can imagine the expense), many insurance companies rely on a client’s claims history to determine premium changes. It often occurs that many convictions are never discovered.

(5) Advise your client to avoid obtaining the SR-22 thru the Texas Automobile Insurance Plan Association

Because of a lack of experience in dealing with the Texas SR-22, some insurance agents will attempt to provide the form by selling your client a non-owners policy written thru the Texas Automobile Insurance Plan Association (TAIPA)—commonly referred to as the “state pool.” This path creates its own set of problems for both you and your client. First, an SR-22 is not issued by the agent. An application with a request for the SR-22 is submitted to TAIPA in Austin. TAIPA issues an SR-22, which is sent directly to DPS and the policy is assigned to a company admitted to write automobile insurance in Texas. Once that company receives the assignment, they are charged with producing the policy documents (including the SR-22) and mailing those documents to the client. As you can imagine, it might be weeks if not months before your client actually receives the SR-22.

I’m sure you can foresee the problems this can cause in providing an occupational driver’s license (ODL). Additionally, it is important to keep in mind that this is not a voluntary relationship as far as the assigned company is concerned. They are being forced to provide this coverage for your client. Therefore, many of these companies are actively looking for a reason to cancel your client’s policy, which can easily be found in your client’s license status. Even though your client has a valid ODL, his driver’s license status at DPS will show as suspended. Since the assigned company is not required to provide insurance for a driver with a suspended license, they can simply cancel the policy and remove themselves from the risk. This can launch the client into a vicious circle of continuously replacing the SR-22 in order to keep the ODL in force.

In closing, thank you for allowing me the opportunity to share, and I hope you will find this information helpful while assisting your clients in solving their driving privilege problems.

 

How About Some Mold With Your Probation?

We are constantly informing our clients about the potential horrors of being on probation (also called community supervision).  Often, getting probation doesn't necessarily mean you aren't going to jail.  Sometimes, it just means you are not going to jail "yet."

Lots can go wrong while you are on probation.  Court costs add up fast.  Want to travel with family or for work? There's no app for that, you'll have to ask permission first.  Hopefully your probation officer, the overworked and underpaid one, will allow it or return your call in time. Late to a meeting can mean a long trip to the pokey.

On top of all this, it seems you have a new pitfall to deal with.  The building housing the probation office (adult and juvenile!) is infected with mold.  So far the county has spent over $200,000 on fixing it.  Estimates are going as high as half a million dollars to fix it!

Kind of makes a trial or even a short jail sentence feel like a better option, doesn't it!

Editors Note: That's not a picture of actual mold in the Collin County building -- it is just a gross picture of mold to disgust and horrify our readers . . .

Do Collin County's Blood Testing Labs Get Paid Per Conviction?

Do Collin County's Blood Testing Labs Get Paid Per Conviction?

It's a valid question.  If the answer were "yes," would it spark outrage? 

A new study shows that State Crime labs, are in fact paid per conviction.  In a new paper written in the  Criminal Justice Ethics journal, they found just that.  What they showed is that State Sponsored crime labs get paid through court-assessed fees.

In Collin County, most DWI blood test cases are tested by a DPS crime lab.  Yes, this is the same DPS that issues your drivers licenses, which immediately gives pause to most intelligent citizens as to the accuracy of who is testing your blood.  It is a state agency, not an independent laboratory.

As part of any plea of guilty, or conviction after trial, the court assess certain terms and conditions.  Fines, probation, classes, and court costs.  One of the conditions being assessed in the county now is "restitution" to the DPS crime lab for their testing of the blood.  Its usually in the $60-$80 range.  If a case is dismissed or citizen found "not guilty," then no fee is assessed. 

Admittedly I do not know how much of the labs operating budget is funded by these fees, but I suspect it is significant.  Although, it probably doesn't matter that much when the same agency that can arrest you (DPS troopers), employ the same agency (DPS) that supposedly determines your guilt through their blood testing.

Let the outrage begin . . . . or not.

Gas Chromatography Lecture

I'm pleased to report that I have been selected to speak at this years, "Gideon's Trumpet" seminar in Wichita Falls.  

My topic this year will be DWI Blood Testing: A Simplified Overview of Gas Chromatography.  Or more appropriately titled, "Gas Chromatography for Dummies Lawyers."

Learn to:

- Fight DWI Blood Test
- Pronounce Chromatography
- Impress Your Friends

Here is this year's agenda, and registration information.

The program is put on by TCDLA.  Hope to see you there!

Deputy Suspended for Illegal Stop and Arrest

Not too long ago I posted comments about my clients illegal stop and arrest.  Now it seems that the Deputy has been sanctioned by the Sheriff's department.  Below is the the video with comments from me on WFAA Channel 8. 

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Attorney comments on the Illegal Stop and Arrest of DFW Memorial Day Biker

Last night, WFAA's David Schechter ran a story featuring myself and my client after an obviously illegal stop and illegal arrest.

 

In order for the police to stop and detain someone, they must have "Reasonable Suspicion" that a crime has occurred.  This can, of course, include traffic offenses.

But in this case, it is quite clear there was no reasonable suspicion that a traffic offense was committed by my client.  The video shows as much.  This is confirmed by the police officer, who, in response to my client asking why he was pulled over, states:

The reason you're being pulled over is because I'm gonna take your camera and we're gonna use it as evidence of the crimes that have been committed by other bikers.

Obviously stopping someone because of crimes committed by others is not legal.  If everyone that took video of others were a crime, everyone at our local news stations would already be in jail.

The other major issue here, is the obvious "creation" of a crime: the obstructed license plate charge.

Texas law states that you may not have "a coating, covering, protective substance, or other material... that [distorts or alters] the plate."

     

Here, the video clearly shows that no coating, covering or protective substance is covering his license plate.  So even if this were the reason he was stopped (which the officer clearly denies in the video), he was not committing a traffic offense.

This story has been commented on, and a question that came up often has been on the issue of arresting someone for a minor traffic offense.

An officer does have the option to arrest or issue a citation on pretty much any charge, this included.  So if this were a valid charge, he would be allowed to arrest. But that of course is only if the charge is valid.

Since the video aired, the Sheriff's office has release video from a different officer, showing different bikers committing traffic offenses.  I'm still not quite sure what this has to do with our case.  

What this video show us, is that:

1. They already had video evidence of other people committing crimes, thus lowering the need to illegally stop and arrest Mr. Moore. And;

2. The Dallas Sheriff's Office should be arresting the other bikers they already knew were committing crimes.

The video release by the sheriff's office simply furthers our point -- Mr. Moore should never have been pulled over, much less roughed up and arrested.

Mr. Moore would like to thank everyone involved with helping to bring this case to light, and the outpouring we have received thus far.

 Hunter Biederman is a DWI / Criminal Defense Attorney in Collin County. He publishes his blog (www.friscodwilawyer.com) which focuses on the Collin County and Texas legal system. He can be reached at friscolaw@gmail.com or (469) 333-3333.

Collin County 2012 Litigator of the Year Award

Each year, the Collin County Bench Bar Association awards a Litigator of the Year Award.  This year I was honored to receive the 2012 Litigator of the Year award which was presented at the Bench / Bar Conference.

Two categories of the award are given, County Court Litigator of the Year, and District Court Litigator of the Year.  Each of the local bar association nominates an attorney for the both the District and County awards.  The associations are the Plano Bar Association, Collin County Bar Association, Frisco Bar Association, and Collin County Young Lawyers.

At the conference, when the awards were announced, I was honored to hear that I was the only attorney nominated by each of the four bar associations for County Court Litigator of the Year. 

The award is a great honor and and reminds me how lucky I am to practice law surrounded by such great attorneys and judges.

A special thank you to the Bench / Bar Foundation for putting on such great programming and conferences each year. 

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DWI Blood Tests - Gas Chromatography School

Next week I'm headed to Gas Chromatography school held at Axion Chromatography Labs in Chicago, IL.  It is an extremely intensive course with less than 70 graduates thus far across the country.

So why am I spending a fortune on this course and wasting a week in Chicago in a freezing cold lab?

I'm still pondering the answer, but it seems like necessary training in this DWI blood test world.  Gas Chromatography is the technique used to test DWI blood for alcohol concentration.  In the past attorneys focused on the "science" (and I use that term lightly) of breath testing machines and standardized field sobriety tests.  Personally I am already a certified Instructor in Field Sobriety Testing -- I can teach the course that certifies the police officers.  But when it comes to blood testing, I have no certification. . .  Yet.

Studying blood testing methods is the next obvious step.

Part of the reason I want to go is because of the obvious anomalies I've seen in our existing DWI cases.  We have had cases where it was obvious that there was a problem with the blood testing.  And juries have agreed.  One case in particular I can remember, the client was almost three times the legal limit.  Yet she was walking fine, talking fine, and asking normal questions.  Clearly there was a problem with that test.

High error rates have been discovered for Austin PD blood tests in DWIs already. Houston's crime lab has come under criticism as well

The class gives hands on training to attorneys and other professionals experience working on chromatography instruments such as the modern Agilent 6890 instruments with capillary columns and the latest Agilent Chemstation data systems (whatever the heck that is). Admittedly I cut and pasted that last portion from the registration materials.

The Class is taught in part by Harold M. McNair, author of Basic Gas Chromatography the best selling Gas Chromatography book in the world (translated into many different languages. Other instructors include Dr. Lee N. Polite, B.A., M.B.A., Ph.D. (pictured), Lew Fox, Justin J. McShane, Esq, and Josh D. Lee, Esq.

I've been to tons of blood test seminars.  But hearing a Ph.D or attorney drone on about testing procedures can be quite boring.  I think the only true way to learn this information is hands on in a lab setting such as this.  At the very least I should get some cool photos of me in a lab coat.

Our office already has 2 Intoxilyzer 5000 machines.  Maybe next we'll need to invest in our own GC instruments...

The Race for the 401st District Court of Collin County

This year's republican judicial primary had a recent "surprise twist." One of the candidates, James Mosser, switched races from the 380th (with a crowded field) to the 401st.  The 401st District Court was not an open bench, but rather it is presided over by Judge Mark Rusch.  This years election will be held during the May 29, 2012 Republican Primary.

The 401st District Court is a general jurisdiction court.  It hears Family Law matters (divorces, child custody cases), Felony criminal matters, and civil matters.  The court was created in 2000 at which time Judge Mark Rusch was appointed.  He has presided as the sitting judge since then.  He has been re-elected twice, although I do not believe either time was contested.

MARK RUSCH 

Mark Rusch began his 12 year tenure with the Collin County District Attorney's office in the summer of 1984, rising to the level of chief felony prosecutor. In 1989 he became Board Certified in Criminal Law by the Texas Board of Legal Specialization. During his time as a prosecutor, he tried cases ranging from traffic violations to capital murder.

Judge Rusch ran for judge of the newly created County Court at Law #4 bench and won the election in 1996. He presided over misdemeanor criminal cases, civil and mental health matters. He was appointed by then Governor George W. Bush to the newly created 401st District Court and took that office on September 1, 2000.  He has presided over the court since that time.

"I believe a judge's role is to interpret the law, not to make the law. In 15+ years of service on the bench, I have never wavered from this position and I never will. I respectfully ask for your support in the May 29, 2012 Republican Primary Election."

More about Judge Mark Rusch can be found on his campaign website at www.markrusch.org

 

JAMES MOSSER

James Mosser has practiced law in private practice for 18 years. During that time he has handled complex civil litigation, family law, and criminal defense.

Mr. Mosser is a self described " Navy brat" and attended more than 17 different schools before graduating from high school. He began college in Japan, before transferring to the University of Texas in Austin. At UT he participated in Navy ROTC, and upon graduation he was commissioned as an Ensign in the United States Navy.

James flew many combat missions in Vietnam, and he is qualified on both fixed-wing and rotary aircraft.  After flying several fixed wing aircraft, and carrier qualifying, he completed helicopter transition and obtained my Wings of Gold.  During his service he spent a year in Vietnam as an aviator and member of the elite Navy Seawolf Squadron (HAL-3). Flying nearly a combat mission a day that year in Light Attack Helicopters mostly supporting SEAL teams, and Riverine Patrol Boat Operations on the Cambodian-Viet Nam Border.

After his honorable discharge in 1973, James embarked on a  series of careers ranging from financial analyst to restaurant management to aircraft sales and leasing. All leading up to his eventual ownership of his own law firm.

"I realize I may be a little late into this race. I have lived my life and conducted my career with the expectations to prepare myself to one day serve the courts like many great men and women I have known over the years."

More about James Mosser can be found on his campaign website at www.mosserforjudge.com.

 Hunter Biederman is a DWI / Criminal Defense Attorney in Collin County. He publishes his blog (www.friscodwilawyer.com) which focuses on the Collin County and Texas legal system. He can be reached at friscolaw@gmail.com or (469) 333-3333.

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Dallas is Jealous of Collin County's Shenanigans

Looks like Dallas is jealous of Collin County's Shenanigans.  We all know that Collin's DA indicted and convicted a judge here.  Now Dallas wants to get in on the action.  Below is the article of the Dallas DA trying to charge a Dallas Judge.

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Dallas County DA seeks to indict judge for official oppression

By JENNIFER EMILY
JENNIFER EMILY The Dallas Morning News

The Dallas County district attorney’s office is seeking an official-oppression indictment against a sitting judge after a prosecutor was held in contempt and detained in a courtroom for several hours.

Prosecutors contend in a letter to Criminal Court Judge Julia Hayes that she broke the law. But her attorney said the district attorney’s office is retaliating against the judge.

“The real official oppression here is the DA’s office trying to intimidate this judge by issuing her a subpoena, trying to get her to testify in front of a grand jury,” said J. Michael Price II, who represents Hayes. “This whole thing is a circus.”

District Attorney Craig Watkins said Tuesday that he would not talk about whether there is an investigation and called it “unfortunate that an officer of the court would characterize anything that we do with this administration, in this office, as retaliation.”

Both Watkins and Hayes are Democrats. Hayes is in her first term as a misdemeanor court judge and Watkins is in his second as district attorney.

The escalating legal feud follows Hayes’ ruling Thursday that a prosecutor was in contempt of court for disregarding her order to conduct a criminal background check on police officers who were to testify in a domestic case in her court. The district attorney’s office believes such searches are illegal, insisting that federal law prohibits giving the information to defense attorneys.

Hayes said she wanted to inspect the records to determine if the defense was legally entitled to any information. Prosecutors are required to give the defense any evidence that could help the defendant. A criminal record of a police officer involved in the case could fall into that category.

Hayes a short time later on Thursday suspended the contempt order against prosecutor Keena Miller after meeting with Watkins. She set a hearing for the next day. Lawyers held in contempt are entitled to a hearing within 24 hours before another judge.

But early in the morning, representatives of the district attorney’s office served her a subpoena and ordered her to appear before the grand jury at 10 a.m. Hayes was given a letter from Watkins saying she was a target of an investigation.

“Please be advised that there is now pending before the Dallas County Grand Jury an investigation of Official Oppression, where you are the person accused of the crime,” Watkins wrote on the district attorney’s office letterhead.

“This letter is to advise you that it would be in your best interest to retain the services of an attorney,” it states. “If you do retain the services of an attorney, he or she may contact our office to discuss the allegations with the Dallas County District Attorney, Honorable Craig Watkins or his designee. We will not discuss the facts of the case with you over the telephone.”

The letter also tells Hayes: “You have the right to remain silent.”

Hayes said in an interview that the timing of the investigation was questionable.

“I find it peculiar that I was served with a subpoena at 9:40 a.m. ordering me to appear before the grand jury at 10 when I was scheduled to rule on my contempt consideration at 11” the same day, Hayes said.

The subpoena of Hayes was quashed by state District Judge Carter Thompson, a felony court judge, after Price objected, citing that his client needed time to prepare for an appearance, that the district attorney’s office is supposed to represent her on legal matters and has a conflict, and that the “subpoena appears to be in retaliation for rulings made in court.”

The district attorney’s office has asked Thompson to reconsider his decision. A hearing has been scheduled for later this week in Thompson’s chambers. That hearing is not expected to be public.

The district attorney’s office, meanwhile, has appealed Hayes’ order to do the criminal background checks, and there is no timeline for the appellate court to rule.

The district attorney’s office has asked that all records of the proceedings in Thompson’s court be sealed from public view because they relate to grand jury proceedings, which are typically secret.

The Texas Penal Code defines official oppression, in part, as public servants using their offices to “intentionally subject another to mistreatment or to arrest, detention.” It is a Class A misdemeanor, punishable by up to one year in the county jail and a $4,000 fine.

Because official oppression is a misdemeanor, prosecutors are not required to present the case to a grand jury. They could just charge Hayes.

“Because I am being investigated for a criminal act, I fear that I could be arrested at any time,” Hayes said. “Judges shouldn’t have to live in fear when we’re just doing our jobs.”
 

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