administrative driver’s license …the alr hearing ... administrative driver’s license...

ADMINISTRATIVE DRIVER’S LICENSE REVOCATION HEARINGS

KIMBERLY GRIFFIN TUCKER The Law Office of Kimberly Griffin Tucker, P.C.

6500 International Parkway, Suite 1700 Plano, TX 75093

Office: (972) 492-ATTY (2889) www.kgtlaw.com

State Bar of Texas 40TH ANNUAL

ADVANCED CRIMINAL LAW COURSE July 21-24, 2014

Houston

CHAPTER 53

Kimberly Griffin Tucker received her undergraduate degree from the University of Texas – Dallas, where she graduated with the honor of summa cum laude. She then went on to Southern Methodist University’s School of Law, where she was honored at graduation with The Order of the Barristers. After prosecuting in Grayson and Denton County, she opened her own law practice in 1999. Throughout the years, Kimberly has successfully defended many cases, including numerous DWI trials. She attributes her success to the many DWI training programs and classes she has attended, especially Lance Platt’s courses on SFST certification (practitioner and instructor), Intoxilyzer 5000 overview course, and many great CLEs. Kimberly is also a member of the College of the State Bar of Texas, the National Association of Criminal Defense Lawyers, the Texas Criminal Defense Lawyers Association, and the Denton County Defense Lawyers Association. She can be contacted at: The Law Office of Kimberly Griffin Tucker, P.C. 6500 International Parkway, Suite 1700 Plano, TX 75093 Office: (972) 492-ATTY (2889) www.kgtlaw.com

Administrative Driver’s License Revocation Hearings Chapter 53

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TABLE OF CONTENTS

I. WHAT IS AN ADMINISTRATIVE LICENSE REVOCATION HEARING? .................................. 1 A. A Brief Overview ....................................................................................................................................... 1 B. Why ALR Hearings Are Important ............................................................................................................ 1

i. A Discovery Goldmine and More ...................................................................................................... 1 ii. Keeping Up With ALR Rules and Procedures ................................................................................... 1

C. Educating Your Client About the ALR Hearing ........................................................................................ 2 i. The DIC-24: Check for a Proper Warning ......................................................................................... 2 ii. The DIC-25 ........................................................................................................................................ 2 iii. The DIC-25 and Blood Tests .............................................................................................................. 2

II. REQUESTING THE ALR HEARING .............................................................................................................. 3 A. Making the Request .................................................................................................................................... 3

i. Dealing With Unknown Information .................................................................................................. 4 ii. Making the Request by Mail .............................................................................................................. 4 iii. Making the Request by Fax ................................................................................................................ 4 iv. Deadline for Requesting the ALR Hearing ........................................................................................ 5

B. Location Hearings ...................................................................................................................................... 5

III. RESETTING THE ALR HEARING ................................................................................................................. 5 A. The "5-Day" Resets .................................................................................................................................... 5 B. Defense Motion for Continuance ............................................................................................................... 6 C. DPS Motion for Continuance ..................................................................................................................... 6 D. Defense Failure to Appear at the ALR Hearing ......................................................................................... 7

IV. VENUE OPTIONS ............................................................................................................................................ 7 A. Live or Telephonic ..................................................................................................................................... 7

i. Pros and Cons to Consider When Choosing Venue ........................................................................... 7 B. Changing Venue ......................................................................................................................................... 8

i. Venue Change With a 5-Day Reset .................................................................................................... 8 ii. Motion to Transfer Venue .................................................................................................................. 8

V. OBTAINING DISCOVERY FOR THE HEARING ......................................................................................... 9 A. What to Request & How to Get It .............................................................................................................. 9 B. DPS's Response to Discovery Request..................................................................................................... 10

VI. OBTAINING WITNESSES FOR THE HEARING ........................................................................................ 10 A. A Subpoena Is Necessary ......................................................................................................................... 10

i. Witnesses You Should Subpoena ..................................................................................................... 10 ii. Know the Subpoena Procedure ........................................................................................................ 11

B. Attorney Issued Subpoenas ...................................................................................................................... 11 i. For the Officer(s) Who Stopped and Arrested Your Client .............................................................. 11 ii. Serving the Subpoena ....................................................................................................................... 11 iii. Return of Service .............................................................................................................................. 11

C. SOAH-Issued Subpoenas ......................................................................................................................... 11 i. For Civilian Witnesses and Additional Peace Officers .................................................................... 11 ii. Necessary to Show Good Cause ....................................................................................................... 12 iii. Return of Service .............................................................................................................................. 13

D. Service and Appearance Problems ........................................................................................................... 13 i. What If You Can't Get Your Witness Served? ................................................................................. 13 ii. What If the Witness Was Personally Served But Does Not Appear? .............................................. 13

VII. THE ALR HEARING ...................................................................................................................................... 14 A. The Elements DPS Must Prove to Suspend Your Client's License .......................................................... 14

i. Notice of Hearing Is DPS's Pleading ................................................................................................ 14 ii. ALR Hearings are Paperwork Hearings ........................................................................................... 14

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iii. The Refusal Case .............................................................................................................................. 14 iv. The Failure Case ............................................................................................................................... 15

B. Attacking the Elements ............................................................................................................................ 15 i. Begin with Stop and Arrest .............................................................................................................. 15 ii. Was Your Client Arrested? .............................................................................................................. 16 iii. The Refusal Element ........................................................................................................................ 17 iv. The Failure Element ......................................................................................................................... 17 v. The Blood Test Case ........................................................................................................................ 17

C. Winning the ALR Hearing on a Technicality .......................................................................................... 18 D. Using the ALR Hearing for Discovery .................................................................................................... 19

i. Take Advantage of the Officers' Lack of Preparation ...................................................................... 19 ii. Obtaining the Hearing Transcript for Use in Court .......................................................................... 19

VIII. AFTER THE ALR HEARING - THE CONSEQUENCES OF GRANT OR DENIAL OF SUSPENSION .. 20 A. Grant of Suspension ................................................................................................................................. 20

i. Suspension Periods ........................................................................................................................... 20 ii. Adult Suspension Periods ................................................................................................................. 20 iii. DUI & DWI/Minor Suspension Periods ........................................................................................... 21 iv. Enhanced Suspension Periods .......................................................................................................... 21

B. Denial of Suspension ................................................................................................................................ 21

IX. APPEALING THE ALJ’S DECISION ............................................................................................................ 21 A. The Petition for Appeal ............................................................................................................................ 21 B. When, Where & How to File the Appeal ................................................................................................. 22 C. Transcript for Appeal ............................................................................................................................... 22 D. Standard of Review .................................................................................................................................. 22 E. Stay of Suspension ................................................................................................................................... 22 F. Appeal by DPS ......................................................................................................................................... 23

X. EXPUNGING ALR REFERENCES ON DRIVING RECORDS ................................................................... 23

XI. FORMS ............................................................................................................................................................ 23 1. ALR Hearing Request 2. ALR Hearing and Discovery Request 3. 5-Day Reset Request 4. Motion for Continuance 5. 5-Day Continuance and Venue Transfer Request 6. Motion to Transfer Venue 7. Desk Subpoena 8. Witness Fee Letter 9. Subpoena Duces Tecum 10. Petition for Appeal of Administrative Decision

I. What Is an Administrative License Revocation Hearing?

A. A Brief Overview

The laws that govern administrative license revocation (ALR) hearings that occur after a DWI offense are found in Title 1, Part 7 of the Texas Administrative Code §159.251 and the Texas Transportation Code (TTC) §§524 and 724.

Title 1, Part 7 of the Texas Administrative Code (TAC) §159.251 outlines the rules of proce-

dure for ALR hearings. This is the section to check when you have questions about how to ob-tain witnesses and discovery, hearing notice requirements and types of hearings you may re-quest.

TTC §524 outlines the rules that apply to a “failure case”, that is a case where your client has

submitted to chemical testing and the results of that chemical testing yielded results of over the legal limit of .08. TTC §724 outlines the rules that apply to a “refusal” case.

For the Department of Public Safety (DPS) to subject a driver to an ALR suspension as the

result of a DWI arrest, your client must receive both a proper DIC-24 and DIC-25. The DIC-24, or statutory warning, outlines your client's options of failing or refusing a chemical specimen and the consequences of those choices. The DIC-25 serves as your client's temporary driving permit and will be given to your client if he or she refused or failed the breath test. It is your client's re-ceipt of the DIC-25 that triggers the 15-day deadline to request a hearing on the driver's license suspension. [failure TTC§524.011; refusal TTC §724.032]

Every ALR hearing is presided over by an administrative law judge (ALJ). [TTC §§524.033(a) & 724.041(d).] The ALJ's role is to rule on the admissibility of evidence based on the Texas Rules of Evidence and determine whether or not DPS has met its burden of proof in its effort to suspend your client's driving privileges. If DPS carries its burden, the ALJ will issue a written decision giving DPS the authority to suspend the driver's license. If DPS fails, the ALJ will deny the suspension. [TAC§159.251.]

B. Why ALR Hearings Are Important

i. A Discovery Goldmine and More

A properly prepared and utilized ALR hearing where the arresting officer is subpoenaed for cross-examination can be a discovery gold mine. It can also help you prepare for a pre-trial hearing and trial of your client's DWI case. Never overlook the endless opportunities of what an ALR hearing can teach you about your client's DWI case.

ii. Keeping Up With ALR Rules and Procedures

Every few years, changes are proposed to the ALR rules. The best way to stay on top of these changes is to attend DWI CLEs and network with other DWI attorneys, especially those who are deeply involved with the ALR process. You can also check the SOAH website at http://www.soah.state.tx.us/index.htm.

Administrative Driver's License Revocation Hearings_________________________________________________________________________________________________________Chapter 53

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C. Educating Your Client About the ALR Hearing Preparation for the ALR hearing should start at your first meeting with your new DWI client.

Whenever possible, this first meeting should take place in the 15-day window of time after your cli-ent receives the DIC-25. If this timetable proves unworkable, help your client request the ALR pro se so that this ALR opportunity is not lost.

When you meet with your client, be sure you get a copy of the DIC-24 and DIC-25. Both should be copied and placed in your client's file because these documents will contain all the information you will need to properly request an ALR hearing.

i. The DIC-24: Check for a Proper Warning

The DIC-24 is the statutory warning that informs your client of the right to refuse or submit to the taking of a specimen and the consequences of those choices. [TTC §724.015.]

Initially, do a quick review of the DIC-24 to see if it is a proper warning. For example, in Sep-

tember 2011, TTC §724.015 was amended to include a new warning to suspects who refuse a breath test specifying that if they choose to refuse to submit to the taking of a specimen, the of-ficer may apply for a warrant that will authorize a blood draw, despite the refusal. All post-September 1, 2011 DIC-24s must contain this language. If the DIC-24 does not, DPS should not be allowed to suspend the license because your client was not given a proper statutory warning.

If your client refused chemical testing, be sure the DIC-24 makes this clear. TTC §§724.031

and 724.032(b) say that the DIC-24 must state that your client refused chemical testing in one of two ways:

• The client signed the DIC-24 indicating a refusal; or • The officer checked that the client refused chemical testing and further refused to sign

the DIC-24.

However, be aware that some ALJs have held that this requirement is directory, not mandatory. Also, be aware that DPS can prove a proper refusal with other documents or live testimony; in other words, their proof is not limited to just what is contained on the DIC-24. [Texas Dep't of Public Safety v. Davis, 2011 WL 285833 (Tex.App.—San Antonio 2011, no pet.).]

ii. The DIC-25

The DIC-25 is your client's temporary driving permit and will be given to your client if they re-fused or failed the breath test. Your client's receipt of the DIC-25 triggers the 15-day deadline to request a hearing on the driver's license suspension. Make sure your client understands the im-portance of carrying the DIC-25 whenever they’re driving; it is their driver's license -- at least for now.

iii. The DIC-25 and Blood Tests

If your client voluntarily gave a blood specimen, the officer should not serve a DIC-25 or take the client's driver's license. However, not all officers understand this, and some mistakenly pro-vide a DIC-25 on a voluntary blood case. This is an error on the officer's part. A DIC-25 cannot and should not be issued unless the driver refuses a specimen or provides a specimen that is .08 or greater. When a driver voluntarily gives blood, it must be sent for analysis to discover whether the alcohol concentration is .08 or greater. Since these results are unknown at the time of arrest, the officer should not issue a DIC-25 or take the suspect's driver's license until the blood results are received and are in fact .08 or greater.


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If the results of the blood specimen later reveal a blood alcohol level of .08 or more, TTC

§724.033 requires DPS to mail notice of suspension or denial, by first class mail, to the address of the person shown by the records of the department or to the address given in the peace of-ficer's report, if different from the address on the driver's license. This notice of suspension letter will state:

1. The reason and statutory grounds for the action; 2. The effective date of the suspension or denial; 3. The right of the person to a hearing; 4. How to request a hearing; and 5. The period in which a request for a hearing must be received by the department.

[TTC§724.034.] ________________________________________________________________________________

PRACTICE TIP … Check the postmark

If DPS mails the Notice of Suspension, as opposed to personally serving it on your client, receipt is

presumed on the fifth day after it was mailed. [TTC §524.013(b).] Check the date of the postmark on

the DPS' envelope to confirm the date the notice letter was sent so that you can be sure to timely

request the ALR hearing. Your client will have 20 days from the post mark date to request an ALR

hearing if the blood results are .08 or greater.

Because of these timelines and deadlines, be sure that DPS has your client's current, correct ad-

dress on file. If DPS has the wrong address on file, your client may not receive important DPS cor-

respondence, such as this. Also, failure to update an address with DPS within 30 days of moving

is a class C misdemeanor. [TTC §521.054.] If your client fails to correct his or her address with

DPS and so fails to receive the letter from DPS about the blood results, the client may not receive

notice of suspension and, therefore, may lose the opportunity to request an ALR hearing.

_______________________________________________________________________________

II. Requesting the ALR Hearing

A. Making The Request

The request for the ALR hearing must be made in writing or by phone. [TTC §524.031.] DPS must receive this request no later than 15 days after your client receives notice of suspension or is presumed to have received a notice of suspension. [TTC §524.013 (b) or TTC §724.033 (b).]

To request this hearing, you must have the following information: • Full legal name of client. • Client's date of birth. • Driver's license number and state that issued the DL. • Client's current mailing address & telephone number. • Date of arrest & county of arrest. • Name of the arresting agency & arresting officer. • Alleged breath or blood failure or refusal made pursuant to a DWI arrest. • Type of hearing requested—live or by phone. [See TTC §524.031 or §724.041.]


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i. Dealing With Unknown Information

The DIC-25 document that acts as the official notice of the suspension should provide all the information you need to request an ALR hearing. However, if you don't have a DIC-25 or some of the information listed above is unknown, you should advise DPS that the information is "un-known" and leave nothing blank in your written request for this hearing. If you leave anything out of this hearing request, DPS may reject the request all together.

If DPS rejects your hearing request, they must provide written notice of rejection. [37 TAC

§17.8(5).] In response, you may supplement or correct any information so long as the correction is received by DPS within the same deadline for filing the request. [37 TAC§17.8(4).]

ii. Making the Request by Mail

If you choose to mail your request for an ALR hearing, the address is TX DPS/Driver Im-provement Bureau, P.O. Box 4040, Austin, Texas, 78765-4040. (As with anything you mail, send it certified mail, return receipt requested.)

iii. Making the Request by Fax

To request your ALR by fax, the number is (512) 424-2650. Faxing is the easiest and most cost-effective way to request the ALR hearing, but be sure to get and keep a fax confir-mation sheet. In the unlikely event your hearing request is lost, you can attach your request and confirmation sheet to prove that you made a proper and timely request. DPS will usually honor a lost ALR request when presented with such written proof.

_________________________________________________________________________

PRACTICE TIP … Request ALR Hearing On-line

You can also request the ALR hearing online at:

http://www.txdps.state.tx.us/DriverLicense/customer_service/alr.aspx

_______________________________________________________________________________

FORMS: Form 1 is a simple, one-page request that you or your client can use to request the hearing on-ly. It is not a discovery request. This form is best used to assist potential clients in securing their ALR hearing so that the ALR hearing opportunity is not lost.

Form 2 is also a one-page request that you can use as both a hearing request and a discovery request. This form can be used whether your client refused or failed the breath or blood test.

PRACTICE TIP … A v o i d r e q u e s t s b y p h o n e , g e t i t i n w r i t i n g

Making the ALR hearing request by telephone is the least preferred method because, if the request

is lost, it is nearly impossible to make DPS honor the request. (In my experience, the only time DPS

has honored an ALR request where the initial telephone request was made but lost and the 15 days

had expired was when the client could remember what date she called and to whom she spoke.)

_______________________________________________________________________________


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iv. Deadline for Requesting the ALR Hearing

Drivers are entitled to a hearing on the suspension of their license after a DWI arrest, provid-ed they request a hearing on the matter within 15 days of their receipt of the DIC-25. [failure case TTC §524.031; refusal case TTC §724.041.] If the ALR hearing is not requested within the above time period, the client's license is automatically suspended 40 days after the DIC-25 is received or is presumed to have been received. [TTC §524.021]

_______________________________________________________________________________

PRACTICE TIP … Calculating deadline

When calculating the 15-day deadline, count the day that the DIC-25 was given as the first

day of the 15-day deadline, not the day after.

______________________________________________________________________________

B. Location of Hearings ALR hearings are usually held at the local State Office of Administrative Hearings (SOAH),

although they may be held in a room at the local courthouse. The notice of hearing letter will specify the place, date, and time. You should receive this letter from DPS upon a timely request for your client's ALR hearing. [TTC §524.034.]

III. Resetting the ALR Hearing

A. The "5-Day" Reset

When you receive the first ALR setting, you may be unavailable on the date they assign or you may need more time to prepare the case. If this happens, there are mechanisms that allow you to change that date. The easiest reset is called a "5-day" and is explained in TTC §524.032(b):

A hearing shall be rescheduled if, before the fifth day before the date scheduled for the hearing, the

department receives a request for a continuance from the person who requested the hearing. Unless

both parties agree otherwise, the hearing shall be rescheduled for a date not earlier than the fifth day

after the date the department receives the request for the continuance.

A 5-day reset may be used only once but it is easily accomplished by faxing or emailing a reset request at least five days before the first scheduled ALR setting. Although the rules say that you need only direct your 5-day to DPS, it is a good practice to send a copy to the local SOAH office as well so that the ALR hearing can be removed from their docket. When your 5-day is received and processed by the local DPS attorney, he or she will usually send an email acknowledging receipt of your 5-day request.

FORM: See Form 3, 5-Day Reset Request ________________________________________________________________________

PRACTICE TIP .. Amended hearing notice

Always confirm that DPS received your 5-day. Your 5-day should cause an Amended Notice of

Hearing to be sent to you in the mail. If a few weeks pass and you still have not received an

Amended Notice of Hearing, you can search the ALR docket using the docket number from your

original Notice of Hearing. You may also check on the status of your 5-day or look up a hearing date

by going to the SOAH website at:

http://www.soah.state.tx.us/Docket/ALRDocketbyDocketNumber.asp


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_______________________________________________________________________________

PRACTICE TIP… Selecting reset dates

If we file a 5-day, we calendar the deadline date to send this in; but before drafting our request, we

call the local DPS/ALR office handling the case and ask about the docket availability for a 5-day

(i.e., to what month and days the 5-days are being reset so that we request days that are likely to be

chosen). This is important because some counties hold their ALR dockets at "remote sites." These

remote sites do not operate every day of the week, so you must know which day of the week the

remote site operates and adhere to its schedule when selecting your reset dates.

From this information, determine at least three dates of availability and include these in the 5-day.

You should also mention any dates that you will not be available. This is important because, in the

event that DPS sets your client's ALR hearing on a date that you had listed as "UNAVAILABLE," you

can use a copy of your 5-day request as an exhibit to file a formal motion for continuance (MFC) and

move the ALR hearing to a better date for you. This type of MFC is always more successful if the

parties were on notice regarding your unavailability when they set the case.

________________________________________________________________________________

B. Defense Motion for Continuance

Once your 5-day has been used to reset the ALR hearing, any future resets must be made by a motion for continuance (MFC). This MFC must be a formal written motion, and you must conference with the DPS prosecutor and include a certificate of conference and service. This motion should include three proposed hearing dates. [TAC §159.207.]

FORM: See Form 4, Motion for Continuance. ____________________________________________________________________________________

PRACTICE TIP … Know your ALJ

Although TTC §524.032(c) says this MFC can only be granted for a medical condition that prevents

a person's attendance at the hearing, many DPS prosecutors and ALJs will allow defense MFCs in

the right circumstances. So, it is important to know your ALJ when filing this type of continuance. If

you don't know your ALJ or are unsure how the ALJ may rule in this situation, talk to other attorneys

in your local jurisdiction who participate in ALR hearings.

_______________________________________________________________________________

C. DPS Motion for Continuance

DPS may request a MFC in writing more than 48 hours before the hearing and is subject to the same rules as above. However, DPS may also orally request a continuance on the day of the hearing if a requested or subpoenaed witness is unavailable and good cause can be shown for this unavailability, such as if the witness is ill or was dispatched to an emergency. As a gen-eral rule, most ALJs will grant DPS a MFC for "good cause."


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_________________________________________________________________________________

PRACTICE TIP. Downside of opposing DPS's MFC

If you oppose DPS's MFC and the ALJ grants the MFC anyway, you may lose the ability to suggest

reset dates. This means that if you end up with a problem reset date, you might be forced to file a MFC

and DPS may oppose your MFC. This can put you at the mercy of the ALJ for granting your MFC. On

the other hand, if you do not oppose the MFC, you should ask the DPS attorney to include your sug-

gested reset dates.

_________________________________________________________________________________

D. Defense Failure to Appear at the ALR Hearing

If you fail to appear at a hearing without just cause, you waive the right to that hearing and the ALJ will issue a default order. [TTC §524.036.]

If the default order was entered in error or you can show just cause for the failure to appear,

there is relief available and the procedure is clearly stated in TAC §159.213(b):

Within ten days of the default, the defendant may file a written motion with SOAH and DPS requesting that the default order be vacated because the defendant had good cause for failing to appear. In the motion, the defendant must state whether DPS op-poses the motion, and if DPS does not oppose the motion, list dates and times for a hearing on the motion that is agreeable to both parties. Whether or not DPS opposes the motion, the judge may rule on the motion without setting a hearing or may set a hearing to consider the motion. A hearing on a motion to vacate a default order may be held by telephone conference call. If a judge finds good cause for the defendant's failure to appear, the judge shall vacate the order and reset the case for a hearing.

IV. Venue Options

A. Live or Telephonic In addition to requesting the hearing, you will need to decide what choice of venue is best.

ALR hearings may be conducted with a live hearing or by conference call with the consent of both parties. [TTC §§524.034, 724.041(e).] This choice of venue request must be made when you send in your initial request for the ALR hearing.

i. Pros and Cons to Consider When Choosing Venue

Deciding what venue best fits your client's case will usually depend on your own personal style, as well as, what you hope to learn from the ALR hearing.

A live hearing is advantageous because. . .

If your goal is to gain evidence for the DWI trial, a live hearing is usually your best bet be-cause a live hearing will allow you to:

• Observe the officer's body language and style of testimony, which can be very helpful if you are dealing with a police officer you have never met.

• Review the documents with the officer while he or she is testifying. • Show the officer the videotape from the car or the Intoxilyzer room. • Ask the officer to draw maps or sign exhibits for you that you may want to later use at

trial.


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This does not mean that you cannot get some of this same information at a telephonic hear-ing, but a telephonic hearing does not allow you to look the officer in the eyes or observe his body language, and it can limit your ability to introduce your own evidence. For example, if you decide during the hearing that you want to present your client's DWI video as an exhibit to show that the DIC-24 was not properly provided to your client or that the 15-minute waiting period was violated before your client's breath specimen was taken, this cannot done at a phone hearing unless you’ve sent it in to DPS and SOAH.

A telephonic hearing is advantageous because. . .

Telephone hearings can be convenient for busy trial lawyers because there is no need to drive to court and wait your turn. At a live hearing, an ALJ may allow your officer up to 30 minutes after the time of the hearing to arrive before dismissing your client's ALR. At a telephon-ic hearing, the officer does not have a grace period; the officer must be available when the judge calls or the case is dismissed.

Also, at a telephone hearing, all exhibits must be pre-marked and filed with SOAH, two busi-ness days prior to the hearing, unless otherwise agreed to by both parties. [TAC §159.209(d).] DPS's failure to pre-file and timely provide these documents will preclude their admission upon a proper objection by you. If you are able to exclude these documents from evidence, your cli-ent's license will not be suspended.

B. Changing Venue

If you requested one venue (live or telephonic hearing) and now want the other, you must request a change of venue. These must be sent to the State Office of Administrative Hearings (SOAH) because a change of venue can result from a case going from one SOAH office to an-other. Of course, you should always copy the appropriate DPS office too.

i. Venue Change With a 5-Day Reset

A change of venue can done with a 5-Day reset if you are more than five days before the scheduled ALR hearing and you have not yet used your 5-Day reset. This is true whether you are changing from a telephone hearing to a live hearing or vice versa. Simply include your re-quest for the transfer of venue when you send in your written 5-day reset. If time allows for you to change venue in this manner, you will not need DPS's consent.

FORM: See Form 5, 5-Day Continuance and Venue Transfer Request

ii. Motion to Transfer Venue

If you are less than five days from the ALR hearing or have already used your 5-day or the case has already been reset in some other manner, you must file a formal written Motion to Transfer Venue (MTV). To ensure the relief you seek on your MTV, call the local DPS attorney assigned to the case and ask for his or her agreement so that it may be included in your MTV. If the attorney agrees, include a certificate of conference and service in your MTV.

When requesting an MTV in this manner, you must also include good cause for the venue

transfer, such as, you have moved from the area or the initial request for venue was made in error. You should also include your availability for future reset dates in this MTV if you are ask-ing to be moved to a live docket or include the telephone number you want to use if you are changing to a telephone docket.


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When all this is done, fax the MTV to the attention of the ALJ at the SOAH office listed in the notice of hearing letter. The ALJ will send the decision in an order to you via facsimile. (This is usually a form order that SOAH uses, so you will not need to draft an order for the ALJ.)

FORM: See Form 6, Motion to Transfer Venue ________________________________________________________________________________________

PRACTICE NOTE …telephone to live venue change

A telephonic hearing may be moved to a live docket in one of two ways:

• By an agreed motion for continuance [TAC §159.207(a)]; or

• By agreement of the parties with and with the consent of the ALJ. [TAC §159.201(c).]

___________________________________________________________________________________

V. Obtaining Discovery for the Hearing

A. What to Request & How to Get It

Once the initial ALR hearing request has been made, you must request discovery. You may ask for all non-privileged documents or records that are in the possession of DPS, or you may ask for specific documents. Once a proper request for discovery is made, DPS is under a con-tinuing duty to supplement discovery. [TAC §159.151.]

There is no need to request your client's driver's license record. DPS will provide this if it

wants to seek an enhanced driver's license suspension. To succeed in obtaining an enhanced ALR suspension, DPS must timely provide and produce at the ALR hearing a certified copy of your client's driving record as part of its discovery or bring the custodian of records to testify. Always review the driving record to see if the prior suspension can be used to enhance the cur-rent suspension. Remember that the driving record should always and only be introduced for the limited purpose of enhancement in the event of a suspension,

All requests for discovery must be made in writing to DPS Austin. [TAC §17.16.] Again, it is

easiest and advisable to request the ALR discovery by fax, but you must send your request to a different fax number from the one you used to send your initial ALR hearing request. The fax number for discovery requests is (512) 424 -7171. This is the fax number for the DPS/ALR of-fice in Austin, which serves as headquarters for all the ALR offices.

PRACTICE TIP …C o m b i n i n g h e a r i n g a n d d i s c o v e r y r e q u e s t s

You may combine your hearing request with your discovery request, but only if you send them to the

proper fax numbers. If you do not fax to the correct fax numbers, DPS will not be obligated to honor

your discovery request. Form 3-2 will help you with this.

To ensure receipt of the discovery you seek, you should also fax a copy of this discovery request to

the local DPS and SOAH offices.

_______________________________________________________________________________


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B. DPS's Response to Discovery Request

Upon receipt of a proper discovery request, DPS must respond by providing its documents within 5 days. If they do not have discovery when your request is received, they must provide a written response within five days of your discovery request stating that there are "no documents at this time."

Once a proper discovery request is made and received, DPS has an ongoing duty to sup-

plement in a timely manner. If DPS fails to provide discovery at least 10 calendar days before your client's scheduled hearing, the ALJ must grant a continuance upon the written request of a party. Such a continuance may be granted once only. [TAC §159.151(1).]

If DPS fails to timely provide discovery a second time, the documents should be inadmissible

upon your objection and a showing of harm and a proper discovery request. [TAC §159.151(1).] Of course, the remedy for DPS to still meet its burden is to simply present live testimony.

PRACTICE TIP … W h e n D P S f a i l s t o p r o v i d e t i m e l y d i s c o v e r y

If DPS fails to meet the discovery request deadlines, your options are as follows:

• If it is more than five days before the first scheduled hearing, file a 5-day [see §3:50] and no-

tify the DPS prosecutor of DPS's failure to provide discovery.

• If you have already had a 5-day or it is less than five days before the hearing, you may:

File a written MFC; or

Appear at the hearing, and when DPS offers its evidence, object, but be prepared for

DPS to move for a MFC.

________________________________________________________________________________

VI. Obtaining Witnesses for the Hearing

A. A Subpoena Is Necessary

A few years ago, there were statutory witnesses that you could bring to the hearing just by fil-ing a written request. This is no longer true. Now all witnesses must be subpoenaed and per-sonally served if you want them to appear to testify at the ALR hearing.

i. Witnesses You Should Subpoena

Determining what witnesses you want depends on the goal of the ALR and the DWI. For ex-ample, if you review the written discovery and find technicalities, such as conclusory reasons for the stop (failure to maintain a single lane or speeding), this could result in a win for your client because such a conclusory statement may not prove reasonable suspicion to stop your client.

Depending on your goal for the ALR hearing, you may do one of two things with a conclusory

statement: • If your goal is to win the ALR, proceed on the paperwork alone and do not subpoena the

arresting officer. But be aware that DPS may route the officer and attempt to fix this problem with live testimony. In anticipation of this, be prepared for that possibility and take advantage of this free deposition opportunity.

• If your goal is to win the DWI, perhaps because the stop is truly without merit and it is obvious from your review of the officer's in-car video, subpoena the arresting officer and question him or her about the underlying facts of the stop. The ALR is the perfect chance to set up this type of suppression issue.


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ii. Know the Subpoena Procedure

Knowing whom to subpoena and how to get these witnesses to the ALR hearing is para-mount, especially if you are using the ALR to get discovery from the State's witnesses. To avail yourself of this opportunity, you must know the subpoena procedure and the timetables involved because failure to follow the proper subpoena procedure will usually cause DPS to file a motion to quash your subpoena. [TAC §159.103(i).]

B. Attorney Issued Subpoenas

i. For the Officer(s) Who Stopped and Arrested Your Client

TAC §159.103(b) allows the attorney for the licensee to issue up to two subpoenas. This type of subpoena does not require prior approval from the ALJ. When preparing this subpoe-na, determine whether you need a subpoena to secure a witness' presence or whether you need a subpoena duces tecum (a subpoena that requires the desired witness to attend and bring certain documents or items, such as the client’s video).

FORM: See Form 7, Desk Subpoena & at www.soah.state.tx.us.

ii. Serving the Subpoena

Once your subpoena is ready to serve, you must fax your notice of subpoena to your local DPS office on the date that you sign it. (Although the rules do not require you to fax a copy of the subpoena to SOAH, it is a good practice to fax the local SOAH office as well.)

Next, you must actually serve the desired witness. It is important that your process server

knows the ALR rules of service and the timelines for service. For example, your subpoena must be served at least five business (seven calendar) days before the hearing date [TAC §159.103(f)(2)], and service must be personal, unless the particular agency has established ac-cepted alternative methods. [TAC §159.103(f)(1).]

iii. Return of Service

After the subpoena is served, you must notify the local DPS office and fax the local SOAH of-fice that the subpoena has been served. This return of service notice must be sent at least three business (five calendar) days before the hearing. This return of service will be faxed to the same numbers that you faxed the notice of subpoena. [TAC §159.103(g)(3) & (f)(3).]

You must also mail a check for the witness fee with that return to SOAH. [TAC §159.103(f)(3).] The amount of the check is $10.00 unless the officer's round trip is over 25 miles. If the officer's round trip travel to the ALR hearing site is over 25 miles, the witness fee is $10.00 plus an additional fee per mile for any mileage over 25 miles in accordance with the State of Texas mileage guide (http://ecpa.cpa.state.tx.us/mileage/Mileage.jsp). ALR mileage rate for subpoena fees is 56 cents per mile for hearings scheduled from January 1, 2014, to Au-gust 31, 2014. Be sure to multiply by 2 for roundtrip.

FORM: See Form 8, Witness Fee Letter

C. SOAH-Issued Subpoenas

i. For Civilian Witnesses and Additional Peace Officers

You may want to bring witnesses other than the officer who stopped or arrested your client. To get these witnesses to the ALR hearing, you must obtain a SOAH-issued subpoena. In your request for this subpoena, you must show good cause, i.e., demonstrate that there is something


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http://ecpa.cpa.state.tx.us/mileage/Mileage.jsp

specific to the facts of your case that requires the particular witness's presence, such as the wit-ness knows there was a violation of the 15-minute waiting period or that there were insufficient facts for reasonable suspicion to stop, or the officer claims your client refused the breath test when in fact he or she did not and this witness can provide that evidence.

This subpoena request must be filed with the ALJ at least 10 days prior to the hearing for

approval, and it must include an affidavit from you that sets forth your "good cause". [TAC §159.103(c). Fax these requests to (512) 424-7171.

In a Breath Test Failure ALR case, you may be able to secure the appearance of the breath

test operator and the technical supervisor by requesting a SOAH-issued subpoena if you can show “good cause” for their appearance. [TTC §524.039]

The issue of "good cause" when seeking a SOAH subpoena was dealt with in Balkum v.

Texas Dep't of Public Safety, 33 S.W.3d 263 (Tex.App.—El Paso 2000, no pet.). The Balkum court said that to prove "good cause" you must explain how the desired witness' appearance can show a lack of probable cause to stop, detain, or arrest your client, or some other essential element of DPS's case. Form: See Form 9 – Subpoena Duces Tecum

_________________________________________________________________________________

PRACTICE TIP… if your SOAH subpoena is denied

If your SOAH-issued subpoena request is denied, re-urge your request at the hearing to preserve er-

ror and follow that with an oral request for a continuance. [Texas Dep't of Public Safety v. Sanchez, 82

S.W.3d 506 (Tex.App.—San Antonio 2002, no pet.).]

Likewise, if your SOAH-issued subpoena for either of the breath test witnesses is denied, you should

consider objecting to the admission any BAC evidence offered at the ALR hearing by arguing that you

were denied the opportunity to cross examine these witnesses as guaranteed to your client under the

Sixth Amendment and Fourteenth to the United States Constitution. __________________________________________________________________________

Necessary to Show Good Cause

The issue of "good cause" when seeking a SOAH subpoena was dealt with in Balkum v. Texas Dep't of Public Safety, 33 S.W.3d 263 (Tex.App.—El Paso 2000, no pet.). The Balkum court said that to prove "good cause" you must explain how the desired witness' appearance can show a lack of probable cause to stop, detain, or arrest your client, or some other essential element of DPS’s case.

If the SOAH-issued subpoena request is denied, you must re-urge your request at the hear-

ing to preserve error and follow that with an oral request for a continuance. [Texas Dep't of Pub-lic Safety v. Sanchez, 82 S.W.3d 506 (Tex.App.—San Antonio 2002, no pet.).]

Likewise, if your SOAH-issued subpoena for either of the breath test witnesses is denied,

you should consider objecting to the admission any BAC evidence offered at the ALR hearing by arguing that you were denied the opportunity to cross examine these witnesses as guaran-teed to your client under the Sixth Amendment and Fourteenth to the United States Constitution.


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Return of Service

If the SOAH subpoena is granted, you must serve it. Once it is served, you must notify the local DPS office that the subpoena has been served via fax to the same numbers that you faxed the notice of subpoena. [TAC §159.103(g)(3) & (f)(3).]. This return of service notice must be sent at least three business (up to five calendar) days before the hearing. You must also send a check for the appropriate witness fee with that return to SOAH. [TAC §159.103(f)(3) & (g).]

D. Service and Appearance Problems

i. What If You Can't Get Your Witness Served?

If you cannot get the witness served, your options are as follows: • If it is more than five days before the hearing, use your "5-day" reset. [See §3:50.] Once

you get the new date, have your process server change the date on the subpoena, and try to serve the subpoena again.

• If it is less than five days before the hearing or you have used your 5-day reset, move for

a continuance. [See §3:51.] In this situation, be prepared to show that your process server used his or her best efforts to serve the subpoena. You may accomplish this by preparing an affidavit for the process server's signature that details the process server's efforts to serve the witness. Then attach the affidavit as an exhibit to your written MFC.

• If you are open to a telephonic hearing as opposed to a live hearing, ask the DPS prose-

cutor to see if the witness will agree to appear by telephone and request a reset and change of venue.

• If none of the above works, you may also appear at the hearing and make an oral MFC.

If you proceed in this manner, either have an affidavit from your process server about the efforts to serve the subpoena or have the process server appear at the hearing and explain the efforts to serve the witness. Then argue that the MFC should be granted or ask the ALJ to exclude or give no weight to the missing witnesses' documents.

What If the Witness Was Personally Served But Does Not Appear?

If you can show proper service on the witness at the ALR hearing and there is no offer of

"good cause" by DPS regarding the officer's failure to appear, the witness's affidavit or other paperwork should not be admitted over proper objection. TAC §159.211(c)(2) provides that:

If the defendant timely subpoenas an officer and the officer fails to appear without good cause, infor-

mation obtained from that officer shall not be admissible.

DPS may move for a continuance in this situation. However, for such a last-minute DPS contin-uance to be granted, DPS must show "good cause" for the witness's failure to appear. TTC §524.039 specifically addresses this:

(b) The department may reschedule a hearing once not less than 48 hours before the hearing if the

person requested to attend under Subsection (a) is unavailable. The department may also reschedule

the hearing on showing good cause that the person requested under Subsection (a) is not available at

the time of the hearing.


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It is within the ALJ's discretion to grant or deny this type of MFC for “good cause”. Usually, before ruling on this type of last minute MFC, the ALJ will ask you to respond to it. So, you must decide whether to argue against the MFC or agree to it. This decision will be driven by your goal on the ALR and DWI. For example, if you want the testimony for trial, agree to the continuance and ask the ALJ to make DPS responsible for securing the witness' attendance at the next hear-ing date. If winning the ALR is the goal, argue against the MFC and take into account everything regarding the witness' alleged "good cause" for not appearing and make your arguments ac-cordingly. Some things to consider and argue include:

• Why is the witness not appearing? • When was the witness served? • When did the witness notify DPS of the conflict, etc.? • Has this happened before? • If so, was it the same excuse for non-appearance as the last time?

PRACTICE TIP … N o t i f y w i t n e s s o f n e w h e a r i n g d a t e

If you need or cause an ALR hearing to be reset or continued after a subpoena is served, you will be

responsible for notifying the witness of the new hearing date. [TAC §159.103(h).] This is best done

by mailing a letter to the subpoenaed witness via certified mail, with return receipt requested.

If DPS is the cause of the reset or continuance, they are responsible for notifying the witness of the

new date.

_______________________________________________________________________________

VII. The ALR Hearing

A. The Elements DPS Must Prove to Suspend Your Client's License

i. Notice of Hearing Is DPS's Pleading

The elements DPS must prove to suspend your client's driving privileges will be set forth in the notice of hearing letter. In other words, DPS's notice of hearing letter also acts as its plead-ing. So, when you receive your notice of hearing, review it to be sure your client's case was pled properly. For example, if your client's case is a refusal, but DPS pleaded it as a failure, DPS cannot prove what it has pled. In such a case, it may make a trial amendment, but it must be made in writing 10 days before the scheduled hearing date. [TAC §155.301(b).] If the ALJ allows the trial amendment, you may move for a continuance and it should be granted.

ii. ALR Hearings are Paperwork Hearings

DPS is not required to produce any witnesses to prove its case because it may prove its case through the admission of its written documents. However, its evidence must prove all the requisite facts to the ALJ, and the ALJ must find that each element exists by a preponderance of the evidence or the suspension cannot be authorized. [TAC §159.251.]

iii. The Refusal Case

The elements for a refusal case are found in TTC §724.02: • Reasonable suspicion to stop the defendant or probable cause to arrest or take the de-

fendant into custody existed;


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• Probable cause existed that the defendant was operating a motor vehicle in a public place while intoxicated or operating a watercraft powered with an engine having a manu-facturer's rating of 50 horsepower or above while intoxicated;

• The defendant was placed under arrest and was offered an opportunity to provide a specimen of breath or blood; and

• Defendant refused to provide a specimen on request of the officer.

iv. The Failure Case

The elements for a failure case are found in TTC §524.035: • Reasonable suspicion to stop the defendant or probable cause to arrest or take the de-

fendant into custody existed; and • The defendant had an alcohol concentration of a level specified in Tex. Pen. Code

§49.01 while operating a motor vehicle in a public place or operating a watercraft pow-ered with an engine having a manufacturer's rating of 50 horsepower or above.

As you can see, the same rules of refusals are relevant in failure cases, but a failure case

brings an additional issue that must be examined carefully – that is whether the test result re-ceived is valid. One such issue that arise regarding this validity of a test is whether the consent to take that test was voluntary. A person arrested for DWI must be given statutory warnings be-fore a chemical test is administered. [See TTC §724.015 (person arrested for DWI must be warned of consequences of refusal to submit to test, including that evidence of refusal will be admissible against person in court and person's driver's license will be suspended for not less than 180 days).] Any statements, other than the statutory warnings, made by law enforcement officers to suspects must be analyzed under the totality of the circumstances to determine whether the defendant's consent was voluntary or coerced. Moreover, the State has the burden to prove voluntary consent by clear and convincing evidence. Erdman v. State, 861 S.W.2d 890 (Tex.Crim.App. 1993). Of course, law enforcement officers may never use physical or mental compulsion to obtain consent.

_____________________________________________________________________________

PRACTICE TIP … About blood cases

The mere existence of a blood specimen does not mean the ALR hearing is a failure case. It is

the manner in which the blood is taken that counts:

• If your client refused but the officer was able to obtain the blood anyway—through a

search warrant or as a result of a mandatory draw—DPS must prove the elements of a

refusal.

• If your client volunteered to give blood and the BAC results are .08 or greater, it is a

failure and DPS must prove the elements of a failure case.

_____________________________________________________________________________

B. Attacking the Elements

i. Begin With Stop and Arrest

Every ALR hearing, whether it is a refusal or a failure, should start with determining whether the officer had a right to stop, detain, and ultimately arrest your client. That means this initial de-termination will require the same research that the DWI will require in terms of how the law may affect your client's case on these issues.


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Since DWIs are very fact-driven cases, you should always research the case law to deter-mine what precedent will be applicable to your client's case and whether the officer had a right to interact with your client at all. Start with whether the officer made a traffic stop or the contact was a result of an investigation or call to the scene of an accident or the like. Check the Trans-portation Code to see if the officer can prove the elements of the traffic code violation he alleges your client committed. For all non-traffic stop cases, consider the legality of this initial contact and subsequent detention.

Terry v. Ohio is still the go-to case on the issue of whether an officer has a right to stop and

investigate a person. [Terry v. Ohio, 392 U.S. 1 (1968).] A Terry stop allows an officer to briefly detain a suspect to identify him or her or investigate the suspect's alleged suspicious behavior. A Terry stop is not the same as an encounter. An encounter occurs when there is an exchange of information, and it remains an encounter so long as the encounter is consensual and the suspect citizen is not delayed or detained.

PRACTICE TIP …B e w a r e t h e " r e a s o n a b l e s u s p i c i o n o f D W I " s t o p

It is the sure-fire cure all for all bad stops now. Read the Curtis and Derichsweiler cases. [Curtis v.

State, 238 S.W.3d 376 (Tex.Crim.App. 2007) and Derichsweiler v. State, 348 S.W.3d 906

(Tex.Crim.App. 2011).] To avoid this Band-Aid answer, use the ALR hearing to lock the officer down

on his answers about why he stopped your client and any testimony he may want to give later at trial

alleging a possibly intoxicated driver.

_______________________________________________________________________________

ii. Was Your Client Arrested?

The first words of the DIC-24 are "You are under arrest," so DPS must prove that an arrest occurred to invoke the implied consent laws. In other words, if there is no arrest, there can be no driver's license suspension for ALR purposes because the implied consent laws are not trig-gered unless there is an arrest. Of course, proving whether the officer had probable cause to arrest your client for DWI at the ALR hearing is usually accomplished by the officer's recitation of the "signs of intoxication" allegedly observed. Still, the issue of whether or not there was an arrest can arise and complicate the hearing if your client was taken to the hospital for treatment and so was never formally arrested.

So the first question you must ask is—was your client arrested? To answer this, you must be

familiar with Tex. Code Crim. Proc. Article 15.22, which states:

A person is arrested when he has been actually placed under restraint or taken into custody by an of-

ficer or person executing a warrant of arrest, or by an officer or person arresting without a warrant.

When determining whether there has been an "arrest" for ALR purposes, consider these questions:

1. Was your client told he or she was under arrest (i.e., the officer read the DIC-24)? 2. Did your client objectively submit and/or yield to the officer's show of authority by agreeing or refusing a specimen according to the police report or video?

However, as with all things ALR and DWI, research the case law to know how the courts

have ruled on your client's specific fact scenario.


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PRACTICE TIP ... I n t o x i c a t i o n s i g n s m u s t b e p r e - a r r e s t

Remember, at an ALR hearing, indicators of intoxication that led to an arrest must occur pre-arrest.

Object to any signs of intoxication that occurred after your client was arrested. The same is true for

any statements or other events that may indicate intoxication post-arrest.

____________________________________________________________________________

iii. The Refusal Element

For a refusal case, your client must be read the DIC-24 in its entirety and provided a copy to follow along. The officer is required to read the DIC-24 and provide a copy for your client to read along as per the language in the DIC-24 itself. However, you should know that, if for some rea-son this cannot be accomplished with the DIC-24 alone, DPS can also prove a proper refusal with other documents from the officer (provided they were given in a timely manner) or live tes-timony from the officer. [Texas Dep't of Public Safety v. Davis, 2011 WL 285833 (Tex.App.—San Antonio 2011, no pet.).]

iv. The Failure Element

Breath test cases—For a breath test failure case, DPS must provide a breath test affidavit (DIC-56) and a breath test slip that shows a BAC result of .08 or greater. Always check the breath test slip and confirm that both results are both over a .08. If one is under .08, DPS should dismiss the ALR because it cannot prove a failure. If DPS will not dismiss, object to the breath test slip when it is offered and point out that it does not prove a failure. When the ALJ rules in your favor, DPS will most likely dismiss. If it will not, proceed with the hearing, get your discov-ery, and, when it is time for closing, argue that DPS has failed to prove the element of .08 or greater.

Another great source of ALR wins—with the added bonus of pre-trial discovery—is the 15-minute waiting period (WP). In a breath test case, never assume that the officer followed the WP. Always check! If the WP was not followed, object to all the breath test results. If your goal is discovery, don't take the witness on voir dire. Instead, try to save this as your last cross-examination point and get the witness to admit that the Texas Breath Alcohol Testing Program regulations were not followed.

If all else fails, object to the results and take the witness on voir dire. If you are successful on

your voir dire and prove that the WP was not followed, the ALJ should sustain your objection and you should win.

v. The Blood Test Case

For a failure case where your client voluntarily gave blood and the results were .08 or great-er, DPS must provide proof of a proper chain of custody for the blood results via a sworn affida-vit, called the DIC-23A. The DIC-23A form will include the chain of custody and the date, time, place, and name of person who drew the blood sample from your client. When you receive DPS's discovery, check the blood affidavit to be certain it complies with the predicate for admis-sion of the blood results mentioned above, including whether the person who drew the blood is a qualified technician.


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Once source of ALR wins in many voluntary blood test cases can be DPS's inability to prove that a "qualified technician" drew the blood. TTC §724.017 says:

(a) Only a physician, qualified technician, chemist, registered professional nurse, or licensed voca-

tional nurse may take a blood specimen at the request or order of a peace officer under this chapter.

The blood specimen must be taken in a sanitary place.

…..

(c) In this section, "qualified technician" does not include emergency medical services personnel.

If the DIC-23A does not prove a qualified technician took your client's blood, object when this document is offered. Cavasos v. State, 969 S.W.2d 454 (Tex.App. 1998, pet. ref'd) If, on the other hand, the DIC-23A does show that a qualified technician drew your client's blood, consider requesting a SOAH-issued subpoena for that person. If the blood witness does not appear, you can object when DPS tries to enter the affidavit.

C. Winning the ALR Hearing on a Technicality

ALR hearings are really paperwork cases. They only become a live hearing if you subpoena witnesses; but, depending on the goal you and your client have set forth for the ALR and the DWI, you may want to win the ALR hearing rather than get discovery. To secure a "paperwork" win, scour the ALR documents to find defects in the paperwork that could secure a win and prevent the loss of your client's driving privileges.

Common mistakes in the ALR documents that could result in a "win" for the defense on the basis of the documents alone are:

• Missing DIC-24. If there is no DIC-24, DPS cannot prove with paperwork that your client

was properly asked for a specimen. However, DPS can always prove that the DIC-24 was provided in other ways, such as producing a copy of your client's tape to show that he or she was read the warning or calling the officer to testify. (Also, a missing DIC-24 should make the DIC-23 inadmissible since the language of the DIC-23 incorporates the DIC-24.)

• Current DIC-24. In September 2011, Texas Transportation Code §724.015 was amend-ed and now the DIC-24 must include a new warning to suspects who refuse a breath test that says if they choose to refuse to submit to the taking of a specimen, the officer may apply for a warrant that will authorize law enforcement to draw blood, despite the refusal. Check your DWI cases in which the client was arrested on or after September 1, 2011, and confirm that the client was read the correct warning. If your client was read the wrong DIC-24, object to this at the hearing as an improper warning.

• Missing DIC-23A. In a voluntary blood case, if there is no DIC-23A, the blood results cannot be admitted over objection that the proper predicate has not been laid.

• Deficient DIC-23A. Read the DIC23A and be sure it proves that the blood was drawn by a "qualified technician" that the code recognizes.

• Conclusory statements. Watch out for conclusory statements that are not supported by facts, such as "failure to maintain single lane" or "speeding" or “driving under the speed limit”. Without more information, these statements are conclusory and do not establish reasonable suspicion to stop your client. Do not object to these—the proper remedy in this case is to allow the DIC-24 into evidence and then argue that there was not reason-able suspicion to stop your client because DPS failed to prove that a traffic code offense occurred.


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• Boating while intoxicated (BWI) horsepower allegation. DPS must prove that the horsepower of the boat is 50 or greater. [Tex. Penal Code §49.06.] If DPS' documents fail to allege the horsepower component, DPS cannot meet that "element" of the case. Do not object to this error; instead, argue it in closing to the ALJ.

• Missing DIC-56. Without a DIC-56, the breath test results are inadmissible upon a prop-er objection of no predicate laid. However, DPS can bring the technical supervisor to tes-tify and supply this missing information. Still, if neither is present, object to the breath test slip when it is offered.

_______________________________________________________________________

PRACTICE NOTE … documents need NOT be sworn

There is no requirement that the arrest report be sworn in either a refusal or failure case. Texas De-

partment of Public Safety v. Caruana, 363 S.W.3d 558 (Supreme Court of Texas, 2012)

______________________________________________________________________________

D. Using the ALR Hearing for Discovery

Preparing your client's DWI case for trial is by far the biggest advantage of the ALR hearing, and you should take the time to prepare for your client's ALR hearing just like you would pre-pare for a DWI trial. In fact, if you do this, it will save you a lot of time and trouble when it is time to get that DWI ready for trial.

i. Take Advantage of the Officers' Lack of Preparation

Officers are more honest and open at ALR hearings than trials because the environment is more relaxed and they are simply not as prepared for the ALR hearing as they are for a trial. They have also not yet had an assistant district attorney preparing them prior to testifying. This makes the ALR hearing is the perfect opportunity to:

• Ask questions you know and don't know the answer to. • Clarify those items you are unsure of. • Nail down any suppression issues that you suspect—whether it is for the stop, the ar-

rest, or the admission of statements or BAC results. While it is true that you can do the latter during a motion to suppress at a later date, you can

rest assured that a seasoned ADA will alert the officer to your potential issues, and together they will find a way to fix them and convince the judge that the case is good enough to go for-ward to a jury. But if you already got the truth from the officer at the ALR hearing on these same issues, it is you and your client who will have the advantage at the hearing when you produce a copy of the officer's sworn ALR hearing testimony. (Remember the Band-Aid answer "Reasona-ble suspicion of DWI"? It is the cure all for any bad stop or arrest. A well thought-out and well prepared ALR hearing can often prevent this phrase from killing your client's case later on.)

ii. Obtaining the Hearing Transcript for Use in Court

After the ALR hearing, if you want to use the testimony you obtained for a pre-trial hearing or at the DWI trial, you will need to turn that sworn testimony into something you can use at trial. TTC §524.033(b) mandates that SOAH must provide a stenographic or electronic record-ing of the hearing. However, these ALR recordings are only kept by SOAH for 60 days after the hearing. So, it is best to request a copy of the ALR hearing tape as soon as is practical after the hearing is complete whether you think you will be transcribing it or not. To get this recording, you may call or write to your local SOAH.


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PRACTICE TIP …G e t t i n g a t r a n s c r i p t

My offices e-mail the clerk of our local SOAH office a request for the hearing transcript, and the clerk

then e-mails us a .wav file. We first check the .wav file to be sure it is our client's and then forward

that to our court reporter. I accomplish my transcripts in this manner because it ensures me that no

one other than my office will get a copy of our transcript. This is in contrast to requesting the hearing

transcript be accomplished in the manner set forth in TTC §524.044, where the DA’s office could

end up with a transcript of your trial preparation.

_______________________________________________________________________________

VIII. After the ALR Hearing—the Consequences of Grant or Denial of Suspension

A. Grant of Suspension

If the ALJ grants DPS's request for suspension, an order of suspension will be issued. ALR suspensions may not be probated. [TTC §524.021(b).]

i. Suspension Periods The officer is required to read a DIC-24 to your client. The DIC-24 advises the client of the

periods of suspensions. For adult offenders, the suspensions are as follows: • For a refusal where the suspect is 21 years of age or older, the suspension period is 180

days. [TTC §724.015 (2).] • For a failure where the suspect is 21 years of age or older, the suspension is 90 days.

[TTC §724.015 (3).] ii. Adult Suspension Periods If your adult client's driver's license has been suspended previously as the result of a DWI

conviction or previous ALR suspension, he or she could be subject to an enhancement of these normal suspension periods.

For a refusal, TTC §724.035(b) increases the suspension period to two years if the driving

record shows one or more alcohol- or drug-related contacts within the 10-year period preceding the current arrest.

For a failure, TTC Code §524.022(a)(2) increases the suspension period to one year if the driving record shows one or more alcohol- or drug-related contacts within the 10-year period preceding the current arrest.

An "alcohol related enforcement contact" is defined in TTC §524.001(3) as:

[A] driver's license suspension, disqualification, or prohibition order under the laws of Texas or another state resulting from: (A) a conviction of an offense prohibiting the operation of a motor vehicle or water-craft while:

(i) intoxicated; (ii) under the influence of alcohol; or (iii) under the influence of a controlled substance.


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(B) a refusal to submit to the taking of a breath or blood specimen following an arrest for an offense prohibiting the operation of a motor vehicle or an offense prohibiting the operation of a watercraft, if the watercraft was powered with an engine having a manufacturer's rating of 50 horsepower or more, while:

(i) intoxicated; (ii) under the influence of alcohol; or (iii) under the influence of a controlled substance; or

(C) An analysis of a breath or blood specimen showing an alcohol concentration of a level specified by Texas Penal Code §49.01, following an arrest for an offense pro-hibiting the operation of a motor vehicle or water craft while intoxicated.

iii. DUI & DWI/Minor Suspension Periods The suspension periods for persons who are under 21 years of age (minors) are different

from those applicable to adult offenders (persons who are over 21 years of age). If your client is a minor and either gave a specimen or was not asked to give one, the ALR suspension is 60 days—so long as your minor client has not been previously convicted of an offense under Texas Alcoholic Beverage Code §106.041, or Texas Penal Code §§49.04, 49.07 or 49.08. [TTC §524.022(b)(1).]

The only exception to these suspension periods occurs when your minor client refuses to

give a specimen. In this case, the suspension period is 180 days for the initial suspension. In this instance, all refusals have the same suspension period. [TTC §724.035(a).]

iv. Enhanced Suspension Periods The suspension period is enhanced to 120 days if your minor client has a previous conviction

under Alcohol Beverage Code §106.041, or Penal Code §§49.04, 49.07, or 49.08. The suspen-sion period is further enhanced to 180 days if the minor has been previously convicted twice or more of an offense listed under any of these same provisions. [TTC §524.022(b)(2).]

B. Denial of Suspension

If the ALJ denies DPS' request for suspension, DPS should: 1. Return your client's driver's license to him or her, if the license was taken by a peace of-

ficer under TTC §524.011(b); 2. Reinstate the driver's license; and 3. Rescind an order prohibiting the issuance of a driver's license to the client.

[TTC §524.035(c).]

IX. Appealing the ALJ's Decision

A. The Petition for Appeal TAC §159.255 outlines what must be included to file an appeal. Once the appeal is ready, it

must be filed with the appropriate court and a certified copy of the file stamped petition must be mailed to DPS at:

Director of Hearings, ALR Program P.O. Box 15327 Austin, TX 78761-5327

FORM: See Form 10, Petition for Appeal of Administrative Decision


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B. When, Where & How to File the Appeal

An ALR appeal must be filed within 30 days of the final ALR decision (that is, the date it is is-sued and signed). You need not request a motion for rehearing. [§TTC 524.041(a), 724.047.]

The appeal must be filed in a county court at law in the county in which the person was ar-

rested (not the person's residence) or, if there is not a county court at law in that county, in the county court. If the county judge is not a licensed attorney, the county judge must transfer the case to a district court for the county on the motion of either party or of the judge. [TTC §524.041(b).]

You must send a certified copy of the file-stamped appeal petition to DPS, as well as, a certi-

fied copy of the file-stamped petition to SOAH at their headquarters in Austin.

C. Transcript for Appeal

As the appellant, you must apply to SOAH to get a copy of the ALR transcript within 10 days of filing the appeal and then pay for the applicable costs of the transcription. [TAC §159.255(b).] After you pay for the record, the burden is on SOAH to send the transcript directly to you, the court, and DPS. However, you must offer the SOAH record into evidence at the appeal hearing; failure to do so will cause the ALR decision to be affirmed.

D. Standard of Review The decision of the ALJ is final when issued and signed, unless the decision is appealed in

the manner set forth in TTC §524.041. There is no right to a jury trial in an ALR appeal. [TTC §524.043(c).] If an ALR decision is appealed, review is limited to SOAH's certified record and appellate review is made on the "substantial evidence rule," not on a trial de novo basis. [Tex. Gov't Code §2001.174.] However, you may ask for leave to present additional evidence if you can prove that the evidence is material and there were good reasons for not presenting this evi-dence at the ALR hearing. [TTC §524.043(b).]

E. Stay of Suspension

A driver's license suspension under the ALR chapter is stayed on appeal only if: • Your client's driver's license has not been suspended as a result of an alcohol-related or

drug-related enforcement contact during the five years preceding the date of his or her arrest; and

• Your client has not been convicted during the 10 years preceding the date of your cli-ent's arrest of an offense under: • Article 6701l-1, Revised Statutes, as that law existed before September 1, 1994; • Section 19.05(a)(2), Penal Code, as that law existed before September 1, 1994; • Section 49.04, Penal Code; • Section 49.07 or 49.08, Penal Code, if the offense involved the operation of a motor

vehicle; or • Section 106.041, Alcoholic Beverage Code.

[TTC §524.042.] A stay under this section is effective for not more than 90 days after the date the appeal peti-

tion is filed. On the expiration of the stay, DPS must impose the suspension. No one has the authority to extend the stay beyond the 90-day period. [TTC §524.042.]


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______________________________________________________________________________

PRACTICE TIP … Get client copy of appeal

If you file an appeal, be sure your client receives a certified copy of the appeal to keep in their vehi-

cle because it can take DPS a week or two to update its records to reflect a stay of suspension.

_______________________________________________________________________________

F. Appeal by DPS

DPS's right to appeal is limited to issues of law. A district or county attorney may represent the department in an appeal. [TTC §524.041 (d) & (e).]

X. Expunging ALR References on Driving Records Whether you won or lost the ALR hearing, only an acquittal (defined as a not guilty verdict) of

the criminal charge that gave rise to the ALR suspension is the only time your client has the right to have that ALR suspension reference taken off his or her driving record. A decline, dis-missal of the charge or a reduction in charge is not an acquittal as defined above and will not allow you to remove that ALR reference from the driving record. [See 37 TAC §17.13(c).]

PRACTICE TIP ...A c q u i t t a l w h i l e s u s p e n s i o n i n e f f e c t

If the acquittal is received while the suspension is ongoing, send notice of the verdict to DPS so that

it will rescind that suspension and remove all references of the ALR suspension from your client's

driving record. If the acquittal comes after the ALR suspension is over, DPS must remove the sus-

pension reference for the driving record upon notice of the not guilty verdict.

_______________________________________________________________________________

XI. FORMS

1. ALR Hearing Request 2. ALR Hearing and Discovery Request 3. 5-Day Reset Request 4. Motion for Continuance 5. 5-Day Continuance and Venue Transfer Request 6. Motion to Transfer Venue 7. Desk Subpoena 8. Witness Fee Letter 9. Subpoena Duces Tecum 10. Petition for Appeal of Administrative Decision


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