About a year ago, I wrote about new rules for ALR (License Suspension).  That post gave you "Everything You need to Know about the New ALR Rules".  Then, we saw New ALR (Transportation Code) Changes come down the pipes. Well, it looks like 2010 is bringing some change too.

Here's the problem.  The SOAH rules of '09 say you need to use the Texas Comptroller Website to calculate mileage.  But according to that website:

As a result of House Bill 605, 81st Legislature, Regular Session, the Comptroller's office no longer publishes the Texas Mileage Guide.

Uh, Oh. . . .

Well, it seems that Automobile Mileage is now 50 cents per mile (as of Jan. 1, 2010) according to the new website.  However, there  is no calculation tool to use.  So I guess we need to go with google maps, or another website to find the mileage.

That's all I know for now, I will report back later as any developments come forward.  I think I am the first one to discover this??

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Well, it seems there are some new rules in store for us as well, however, this time, they are coming from the legislature in the form of Transportation Code changes.  Before, it was SOAH's rules changes and subpoena form changes.

In the past I wrote about recent rule changes in the ALR, or License Revocation process.  They included mostly changes on how to subpoena the witnesses (officer).  That post has been one of my most popular posts.  I have gotten a lot of feedback about those changes.

The major change that I have been able to find affecting ALRs, is from Section 524.039. It has to do with allowing what I feel is a fundamental right when the government is taking away a liberty or privilege-- Confronting your accuser.

In the past, we could simply request in writing that the BTO (Breath Testing Operator) and TS (Technical Supervisor) be present at the hearing.  Now, it seems that we must issue them a subpoena to appear.  I'm not that worried about that part.  What I am worried about is that an "Administrative Law Judge" is the one that gets the final decision of whether or not to issue the subpoena. The are the only ones that get to determine if there is good cause for you to be able to confront your accuser.

If your request is overturned, your only recourse is an appeal to the county court. Personally, I've got my notice of appeal form ready to go.

Additionally, it is going to be difficult to issue these subpoenas considering SOAH, in my opinion, purposely delays giving a proper amount of notice before a hearing takes place.  They give you such a short amount of time, it is almost impossible to request a subpoena, get it signed (there is no time limit, the "Administrative Law Judge" can sit on it as long as he/she wants), get it returned, send it to the process server, and serve the witness who often hide and try not to be served.

According to the new rules, these take place on all hearings that are set after Sept 1st. 

-------------------------------------

Below is the entire text of the bill that I BELIEVE has passed :

 

ARTICLE 3. ADMINISTRATIVE SUSPENSION OF DRIVER'S LICENSE   FOR INTOXICATION OFFENSES

SECTION 3.01.  Section 524.039, Transportation Code, is   amended to read as follows:          Sec. 524.039.  APPEARANCE OF TECHNICIANS AT HEARING. (a)   Not [Notwithstanding Section 524.038, if not] later than the fifth   day before the date of a scheduled hearing, [the department   receives from] the person who requested a hearing may apply to the   State Office of Administrative Hearings to issue a subpoena for the   attendance [written notice, including a facsimile transmission,   requesting the presence at the hearing] of the breath test operator   who took the specimen of the person's breath to determine alcohol   concentration or the certified breath test technical supervisor   responsible for maintaining and directing the operation of the   breath test instrument used to analyze the specimen of the person's   breath, or both[, each requested person must appear at the   hearing]. The State Office of Administrative Hearings shall issue   the subpoena only on a showing of good cause.          (b)  The department may reschedule a hearing once not less   than 48 hours before the hearing if a [the] person subpoenaed   [requested to attend] under Subsection (a) is unavailable. The   department may also reschedule the hearing on showing good cause   that a [the] person subpoenaed [requested] under Subsection (a) is   not available at the time of the hearing.          SECTION 3.02.  The changes in law made by this article by the   amendment of Section 524.039, Transportation Code, apply only to a   hearing conducted on or after September 1, 2009. A hearing   conducted before September 1, 2009, is covered by the law in effect   immediately before that date, and the former law is continued in   effect for that purpose.

 

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I get this question all the time:

Can I keep my license from being suspended in a DWI?  I thought the license suspension was automatic.

The answer is, YES, you can keep your license from being suspended.  I previously explained the ALR process (Administrative License Revocation) in a past post.

I get very frustrated about ALR's, especially because there are a lot of lawyers giving absolutely horrible advice out there.  Many lawyers tell prospective clients that you cannot win ALR  hearings.  This is simply not true.  MOST LAWYERS WHO TELL PEOPLE YOU CANNOT WIN EITHER ARE TOO IGNORANT TO FIGHT FOR THEIR CLIENTS, TOO LAZY TO FIGHT, OR SIMPLY DON'T HAVE THE EXPERTISE TO WIN THESE HEARINGS.

The statement that you cannot win, so don't try usually comes from some attorney who gains most of his income from bailing people out of jail at 4:00 AM.  Yes, there are some attorneys who do this who are great attorneys, but many simply need the business because a of lack of referrals or repeat business.

I am often asked about how often we win.  This past weekend I spent time going through all of our past results on ALR cases.

In 2007, the Sunset Commission did a study on ALR hearings.  DPS issued 100.472 notices of suspensions.  Of those, only 6,980 were able to keep their driving privileges.  This means, Statewide, only 6.9% of people keep their driving privledges.

Our firm, since 2006, kept accurate records on every DWI case we handled an ALR hearing.  Of those cases, 51.6% of our clients kept their driving privledges. 

So is it possible to win these hearings and keep your driving privileges?  Yes!  But remember, you only have 15 days to request a hearing on your license suspension.  If you miss that window, the license suspension will be automatic.

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I have been getting a lot of questions, regarding the New SOAH rules.

Of the 3 major issues that we thought might happen, none of them did. Hearings are still in person, no subpoena is needed for BTO’s or Tech Super, and they are still required to be there if we request. The new rules can be found here.

The major changes that are presented are in the subpoena arena. If there are other major changes, I haven’t noticed them yet. 

In the past, in order to subpoena an officer, we would need to create a subpoena and subpoena request and send it to SOAH for their approval and signature. This often created a delay because they will sign them at their own leisure. Or nit-pick the subpoena, reject it, disallowing enough time to generate a new one that was approved.

Now, attorneys can issue their own subpoenas if they are authorized to practice law in Texas. (Sect. 159.103). We may issue up to two subpoenas for witnesses – the peace officer who was primarily responsible for the defendant’s stop or detention, and the peace officer who was primarily responsible for finding probable cause to arrest the defendant. If the same officer did both, you may only subpoena one.

To issue the subpoenas yourself: 

1)       Use their form. You can even type it out online and print it.

2)       Send in a check for $10 plus mileage over 25 miles to SOAH, along with the return of service at least 3 calendar days before the hearing.

3)       Serve the subpoena within FIVE calendar days before the hearing.

4)       Serve DPS a copy of the subpoena the same date it is issued.

5)       Serve DPS a copy of the subpoena return not later than 3 calendar days before the hearing.

If for some reason the hearing is reset, you must notify them of the new hearing date. In the past, local SOAH has provided that this should be done by cert. mail, return receipt.

PLANO issues:

This one is still a work in progress. We were recently informed by a 3CDLA member that Plano was no longer going to “accept” subpoenas that are not signed by judges. I took this to mean that we could not use the previously negotiated Subpoena Coordinator (If you recall, it took us months to get Plano to agree to do this instead of us hunting down officers.)  This is because they have no choice but to “accept” this subpoena.  My first response was, “so what,” I’ll just continue to get subpoenas from the judges like we always did.

WRONG: The Dallas SOAH Judge today informed me that she or the other judges will no longer be signing any subpoenas unless they are one of the 3 enumerated by the rules (2+ cops, civilian witnesses, for pro se people). Therefore, doing what we used to do is not going to work. 

I have contacted Plano and am told that they will be issuing a new directive on how to handle this. My guess is that they were worried that we were going to start issuing our own subpoenas, dropping them off the night before, and screwing the officers. I let them know that there is already a 5-day time period in the new rules. In fact, I said that a 7 day period was even reasonable for them to request. I will disseminate what ends up happening with this. Of course if Plano does not accept this new form of subpoena through a coordinator, we are going to have to go back to the practice we had 6 months ago or tracking down the officers on duty, off duty, at home, etc. I’m hoping this doesn’t have to go back to that.

So there you go. That’s all you need to know about the new rules (until I hear more about Plano’s subpoena coordinator). Please tip your waitstaff.

 

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Ok, so I haven't blogged in approximately .. forever.  But I am determined to get back in the game.

In playing around online today (alright, you caught me, I was googling my name), I came across the Sunshine Report's new issue of what looks to me like passed resolutions.  If someone else out there knows how to interpret this paper better, let me know. My understanding is that the Sunshine Commission makes recommendation to the legislature on what they should do.

If you take a close look, myself and Larry Boyd seem to be the only ones that showed any opposition to the strongarm tactics of the State and DPS. (At least, we are the only ones listed).

If you look close, at the bottom, the Commission "adopted 4.2, and 4.3."  4.2 is requiring affadavits of breath test operators & tech supervisors to be admissible, "unless the judge finds justice requires their presence."  This of course, is BS, because the chicken administrative judges will never find it is in the interest of justice.  They work for the State too.

4.3 recommends that defense be required "to request breath test operators and breath test
supervisors by subpoena."  Oh yeah, dont forget it is these same judges that decide if you get the subpoena or not!  Guess who's not getting their subpoenas granted?  The citizen accused!

Here is the pdf. of the report. : http://www.sunset.state.tx.us/81streports/dps/issue4.pdf

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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.

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In an ALR hearing, it is the job of the Respondent (Defendant) to serve a subpoena on a police officer if they want them to appear.  I do this in almost all of my cases.

In order to serve a subpoena, one must first request it from the judge.  You then deliver the subpoena to a process server who must find the officer and give it to them.

Many officers purposely "hide" or "duck" service, in order to not have to show up to the hearings.  I will let you decide for yourself if you think that is ethical.  Or part of the makings of a good officer you want on the street.

I had an opportunity to discuss the problems with subpoena service with the SOAH judge today.  Somehow I became the lead official for defense attorneys and process servers.  I'm not really sure how that happened.

This all arose because of judges telling us that personal service was needed, even if the department allows service on a subpoena coordinator to sign for the subpoenas.

As a general premise, a department having a subpoena coordinator is a great idea for both sides.  The police benefit from not being bothered off duty, or on duty for that matter, while they are trying to work.  Process servers benefit from time saved trying to hunt someone down.

In the recent past, one of the judges told me that, if we had a letter on file from the department, saying they have a policy of allowing service to a coordinator, they would accept the the subpoena if served on a subpoena coordinator.

So I wrote out a nice form letter, and presented it to several agencies. None would sign. They thought it was a "defense attorney trick," I guess. We explained that if they sign this, we will not need to hunt down officers on duty or on their days off. Apparently they did not care.

So then comes today. Before the hearings, I asked to speak with the judge and the Department (DPS attorney) regarding what is needed for service to be accepted as valid.

My question today was this -- To the Judge -- "Flat out, if we do not have a letter from the department saying they will accept service through a subpoena coordinator, you are telling me that I need to have personal service." Answer: "Yes."

"And you realize the result of this will be process servers tracking down officers on their days off, on duty while working, at home, picking up their kids, etc... this is what will happen, right?" Answer: "Unless we have something in writing, we will not accept the subpoena as served. The departments will have to change their mind about signing a letter of their policy if they don't like that"

Question to the DPS (prosecutor) - "And you are telling me that if we do not have a letter from the department on file saying we they will accept service by a subpoena coordinator -- even if you know this is their policy -- and we subpoena the officer and it is signed by a subpoena coordinator, you will not dismiss the case?" Answer: "Yes, that is correct."

I was told on several occasions that some defense attorneys will lie, and so will process servers.  SEVERAL times.  Yet, I was not included, nor my process servers, so I don't really see how that matters.

So the result is this. If you subpoena an officer in Collin County or Dallas County, and you want DPS or SOAH to recognize it as served, IT MUST BE SERVED THROUGH PERSONAL SERVICE.

PS. If anyone wants to become a judge, the position is open -- http://www.soah.state.tx.us/HumanResources/employment_opportunities.htm -- 66K/year.

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I am often asked the question,

"What is SR-22 Insurance?"

SR-22 insurance policy is a note held on file by the DPS. It is an extra charge you pay for your insurance carrier to communicate directly with DPS. DPS will hold your proof of insurance in their system, and whenever there is a lapse of insurance your carrier will contact DPS, possibly resulting in another suspended license.

When is SR-22 required?

SR-22 Insurance is usually required after a DWI conviction for a set amount of time, and it usually runs approximately $25-$50 per month on top of your normal rate. SR-22 insurance is also often needed if you obtain an occupational drivers’ license as a result of a suspension (Either ALR or conviction suspension).  Depending on the court and the judge, you may have to obtain SR-22 insurance even before you request an occupational drivers license.  SR-22 does not mean full coverage or necessarily expensive as some people believe, you may still purchase your state's minimum liability automobile insurance coverage, just with a SR-22 policy added.

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"I was just arrested for DWI 2nd... what will this do to my license?"

The answer to this question in Texas is complex, and depends on many factors that are not known based on the question. I would need to know if you refused to submit to a breath test, and how recently you had "ALR Contact" and how recently your prior DWI Conviction was.

ALR Suspension

If you refused a breath test, and had prior ALR contact within 10 years, your license will be suspended for 2 years.

If you failed a breath test, and had prior ALR contact within 10 years, your license will be suspended for 1 year.

DWI 2nd Conviction

If you are convicted for DWI 2nd, and you last conviction was within 5 years, your license may be suspended for up to two years.

Occupational Drivers License - Waiting periods

One of the major pitfalls to a DWI 2nd conviction or ALR suspension is the Occupational Drivers License mandated waiting period. What this means, is that your must wait until your attorney can even file for an Occupational Drivers License (Hardship License) on your behalf.

If you have an Administrative Suspension (For refusal or failure), and a prior DWI within 5 years, the waiting period is 180 days. If you receive a DWI 2nd conviction, and your prior conviction is within 5 years of this case, THERE IS A 1 YEAR WAITING PERIOD!

..All the more reason to fight your DWI case.
Continue Reading...

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The ALR Process
Administrative License Revocation Program

I am often asked about the process that occurs after your license is confiscated subsequent to a DWI arrest.

As mentioned on several other pages of this site, there are actually two different processes working against you at the same time. The Criminal Case and the ALR / License Suspension process.

As a general rule, when you hire me, you need to do nothing regarding this process. I take care of filing all motions, requests, and appearing at the hearing. You do not need to do or attend anything. Despite my taking care of everything, it is nice to know what is going on. I always keep my clients updated as to where they are in the process.

Request a Hearing

This is the first step in the process. You must request a hearing within 15 days in order to preserve your right to fight the suspension. In general, this is the first step I take on behalf of my clients. Even if you tried to call in yourself, or sent something in that you cut and paste from another website, I always resend this on my own. That way, I can be sure that it is on the proper forms, and I ALWAYS keep the fax confirmation to prove that we filed on time. I always request a hearing in person, and never by phone.

Request for Discovery

As part of the administrative rules, we are entitled to receive certain documents from the prosecuting attorney (from DPS). I always request these from the department. These documents may include:

• Peace Officer's Sworn Report / Probable Cause Affidavit
• DWI Statutory Warning
• Notice of Suspension
• Breath / Blood Test Results
• Breath Test Technical Supervisor's Affidavit
• Toxicology Report
• Specimen Routing Report
• Criminal Complaint
• Spanish Translation Affidavit
• Driving Record

Subpoenaing of Witnesses

It is the responsibility of the requestor of the hearing (you, through me) to subpoena any witnesses that we need. This includes the arresting officer. I request a subpoena from SOAH (the State office of Administrative Hearings), and have the subpoena served on the arresting officer by a process server of mine.

If you submitted to a breath test, we will also request that the Breath Test Operator, and the Technical Supervisor to be present. If properly subpoenaed / requested, and they do not show, the department may either move to continue the case, dismiss the case, or proceed (and usually lose).

Requests for Continuances

Occasionally, I will have a court date, or another ALR hearing on the date of your hearing. If this happens, I will either request a continuance on your case, or have another attorney handle the hearing for me. I usually handle the hearings myself, but occasionally find myself in a situation where I am unable to cover the hearing.

When I do have another attorney to handle your hearing, I always work with them in advance to make sure they understand the issues that we need to focus on. In fact, The attorney that I usually use, used to be a DPS attorney, and is really good at what they do!

Live Hearing

I handle the actual hearing in front of the Administrative Law Judge. Any witnesses requested to be there, must be there. In a breath test case, the department must prove that:

• Reasonable suspicion to stop or probable cause to arrest the person existed; and
• the person had an alcohol concentration of 0.08 or greater while operating a motor vehicle in a public place

In a case where you refused a breath test, the department must prove that:

• Reasonable suspicion to stop or probable cause to arrest the person existed; and
• probable cause existed to believe that the person was operating a motor vehicle in a public place while intoxicated or operating a watercraft powered with an engine having a manufacturer's rating of 50 horsepower or more while intoxicated; and
• the person was placed under arrest by the officer and was requested to submit to the taking of a specimen; and
• the person refused to submit to the taking of a specimen on request of the officer.

Filing for an ODL

If I am not sucessful in keeping your licence from being suspeneded, I will file an occupational drivers license for your on your behalf. This is sometimes referred to as a "hardship license." That license will allow you to drive to and from work, school, or anywhere else important that you need to know.

In general, if you are reasonable about the amount of time you are requesting to drive, the judge in your case will be reasonable too. Depending on if your license was suspended in the past, or you have a prior DWI, there may be a waiting period to file for your occupational drivers license.

Other general information

In the past, DPS allowed us time to let our clients know that their license was about to be suspended. Now, your license is suspended when the Administrative Law Judge signs the judgment. Therefore, I always let you know when the hearing is coming up, so you know that the possibility exists that your license is going to be suspended on or around that date.

How long does the ALR process take?

It has been taking longer and longer lately to even get a hearing date on your license suspension hearing. Lately, I have been getting a hearing date no earlier than 90 days from the date of arrest. In some cases it is meeting or exceeding six months to have the hearing.

These long dates can be good and bad. They are good in that your license is not suspended for the entire time, and you can continue to drive as normal. However, if the trial court is moving faster, it would be better to have your ALR hearing before your court case is heard. This would give us an opportunity to cross-examine the police officer and help determine the strengths and weaknesses of your case.

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