The July 4, 2008 issue of the Texas Register included revised rules for ALR. Included in the proposition is a provision giving subpoena power over both the officer initiating a traffic stop and the affiant of the DIC-23 to the Defendant's attorney. The way the proposition is structured, the burden would shift to DPS to quash on a showing of good cause rather than the requirement that good cause be shown by the Defendant upon application to the court for a subpoena. If implemented, the Defendant would receive two free subpoenas in every case, increasing the burden on law enforcement agencies. Additionally, under current law, it is virtually impossible for the Defendant to obtain a subpoena for the appearance of an officer who is not the DIC-23 affiant. With the new rule, the Defendant would get the opportunity to question the officer who is not the DIC-23 affiant and who would otherwise be uncompelled to appear.

The public comment deadline is August 1st.

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I propose:

1. Eliminate ALR completely.
2. Mandatory breath or blood for all suspected of dwi.

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OK, you may want ALR repealed, but don't expect to see that happen. Please, prosecutors and officers need to comment on these proposed rules. About two years ago SOAH proposed revised ALR rules (they ultimately withdrew them) and held a hearing for interested parties to comment. I promise you, most of of the people that showed up and spoke were defense attorneys. I'm afraid that old saying, "the squeaky wheel gets the grease," seems to hold true in rule-making. Request a hearing and show up, send written comments to SOAH on why you agree or disagree with the rule, etc. When I went through ALR training when I joined DPS nearly 14 years ago, the expectation of everyone including SOAH was that the hearings would be short (under 30 minutes) and mainly conducted on documents. Now many run hours--even when the defendant is a total refusal--with the defendant's attorney asking for the presence of multiple witnesses, some of which don't really have relevant knowledge. I once had an attorney issue a subpoena for tow-truck driver who didn't even get to the scene until after the suspect was cuffed and stuffed.

Janette A

[moved from duplicate thread on topic:]

SOAH has published its proposed changes for the rules governing ALR hearings in the most recent Texas register (see post on civil forum). Prosecutors and officers--please take the time to either mail detailed comments on these rules or request a hearing and come to it. SOAH held a comment hearing on the proposed rule revisions it published two years ago (they were withdrawn), and nearly all the commenters that showed up at the hearing were defense attorney. Almost no officers or prosecutors came.

Janette A

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Public Comments regarding the proposed SOAH ALR Rules may be mailed to:

Debra A. Anderson, Paralegal, State Office of Administrative Hearings, PO Box 13025, Austin, Texas 78711-3025

or by email to: debra.anderson@soah.state.tx.us

or by facsimile to: (512) 463-1576.

The comment deadline is August 1, 2008.

I hereby request that law enforcement STOP enforcing the ALR requirements in Williamson County. I also hereby request that DPS take absolutely no action to take a DL from a driver in Williamson County. Any suspensions will now occur from this point forward only after a conviction occurs.

I encourage all offices across Texas to take this same approach.

Hey what about that $300 the clerk will miss out on for occupational license fee?

Just yesterday I spent upwards of 45 minutes in legal argument defending an absent officer's (active duty military abroad) hard work to ensure that a repeat offender would lose his license for two years. We routinely litigate to same issues as prosecutors with regard of reasonable suspicion, statutory interpretation, and pc to arrest for DWI in a refusal or the elements of DWI in our failure cases both before SOAH and on appeal in County Court. We often spend upwards of an hour defending DPS's right to suspend the license of individuals arrested for DWI before County Court Judges on appeal, ensuring that mixed questions of law and fact, such as r/s for a stop, are kept within the jurisdiction of the ALJ and not perfected for further appeal to modify appellate interpretation of the transportation code under an arguably inapplicable standard of review. I make it a personal mission to protect officers from abusive defense tactics and to preserve a narrow record sufficient for the purpose of suspension.

We are simply asking that those amongst the criminal law enforcement and prosecution community who are willing to assist us by ensuring that the Transportation Code and APA are correctly interpreted by the agency vested by the legislature with the jurisdiction to authorize DPS to suspend, revoke, or disqualify licenses of individuals arrested for DWI, BWI, and DUI do so by submitting public comment or public testimony before the new rules are formally adopted. If the proper nature of the rules is not established at this point, it will take a declaratory judgment suit in Travis County District Court to change or repeal them. (Ch. 2001/APA/TX Gov't Code).

Essentially, the proposed rules would give criminal defense attorneys civil subpoena power in an adminstrative hearing dealing with civil (civil burden and civil rules applicable to extent they are not in CONFLICT with CH 159 of TAC), criminal, and quasi-criminal subject matter.

You may take note of the recent Sunset Commission suggested revisions to ALR. Many of the provisions would approve efficieny of its operation and decrease the burden placed on law enforcement, and in turn, criminal prosecution. DPS submitted staff comments supporting the recommendations. www.sunset.state.tx.us (DPS Staff Report). Though not offerred to comply with the provisions of the Sunset Commission recommendations, the new rules, with an absolute certainty, WILL become part of 1TAC159 if we, those who are responsible for public safety either by legislative delegation or constitutional appointment, do not present coherent commentary on the proposed rules, their effect on law enforcement, and the substantive nature of the rules in light of the APA and the Tex. Transp. Code Ch 524 and 724 provisions.

The defense bar is organized at this point to publicly support most of the provisions. And you can be assurred that they will turn out in force to support the majority of the new rule provisions. It only makes sense that the State of Texas through its law enforcement agencies and prosecutors be present either by written or spoken word to ensure that the rules, in whichever form, are adopted pursuant to the law as it was intended by our legislature.

Gary

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I remember when ALR first became law in 1995. The original purpose was to create incentive for persons to comply with the Implied Consent law. It was a good idea back then. Refuse to take the breath/blood test, your DL gets suspended.

Then it was amended to allow suspensions if the person takes the breath/blood test and fails it. So, defense attorneys discover that they can trump the ALR suspension by applying for and receiving occupational licenses for their clients.

Then defense attorneys started making these short hearings into full blown trials for the purpose of discovery. I've heard defense attorneys say that they're not concerned with the outcome of the ALR hearing. They just want to get a transcript of all of the witnesses testimony.

And now that the cops have caught on to this charade and are not showing up for these hearings, defense attorneys want subpoenas to compel them to come and testify.

I can't tell you how many people I've arrested or issued a no DL ticket to in the 15 years I was a cop. Let's face it folks. You don't need a DL to drive a car. All you need is the keys.

You've got it right.

What started out as a good idea is basically a disaster. ALR was originally "sold" as a no cost process.....yea right!! Lets ask the various PD's how much they spend on overtime to have multiple officers waiting for sometimes 2 and 3 hours every day at the hearings.

Now lets look at what is accomplished at the hearings. A DL gets suspended, but Mr. Defendant still drives.....this is hardly a new revelation to anyone who has been around for more than a few year....

And John has it right about the transcripts. I've spoken with many defense attorneys, and Johns comments are correct: they don't care about the outcome of the ALR hearing itself, what is wanted is a transcript for the real DWI trial.

I'd like to hear from all you prosecutors out there....have you ever had to reduce or dismiss a case after reading the ALR transcript of an officer? Have you ever had a case go south during trial due to an ALR transcript? And on the flip side (out of fairness) how many cases have you WON because of the ALR transcipt?

We need to look at the big picture: What good is ALR if it lowers the conviction rates for criminal trial? ALR certainly cannot be used for enhancement when Mr. Defendant gets DWI 3 or 4, but those DWI convictions can.....

I am glad that a dialogue has started about ALR. Some of the concerns expressed, either in support or opposition, are the types of comments that need to be presented before the rulemaking process is final.

With the legislature considering the Sunset recommendation, you will be guaranteed that the record from this coincidental SOAH rulemaking process will be within the scope of review next session.

I know that there are people on both sides of the topic who are passionate. But, one reality remains: unless a public hearing is requested or written comments are submitted, the defense bar will control the floor.

Whether a proponent or opponent of the program, I dont think that anyone wants that to occur.

As a business owner I come here from time to time so that I can stay informed on issues relating to all the vehicles we operate and employees we manage. With respect to the ALR/License confiscation issue I want to tell a brief story of some of the unintended complications that arise from taking someones drivers license on the spot.

A friend of mine not long ago (well off with four children) had pre-paid for a vacation for his entire family including his in-laws. Two days prior to leaving his oldest son (18) was arrested for DWI and had his license taken from him. The family had to cancel(no refund on 8 tickets) because the young man had no ID to board the plane.I have no sympathy for the young man however it appears to me that it patently unjust to take anyones drivers license as it is not simply a license but also many peoples` only form of identification for not only boarding a flight but cashing a check and any number of other reasons. I`m curious if the solution might not be to flag the license number as ineligible to drive yet allow the person to retain the actual license so that he can function in society. Many retail stores routinely require ID to purchase anything with a credit card. I can imagine people being unable to purchase mandatory medications due to a lack of proper ID.
As i mentioned I am a business owner and am certainly not an attorney however from reading the posts above this ALR deal seems not to be a "profit" center for you fine folks. Thoreau said "simplify,simplify,simplify" and I am a firm believer in this. For what it`s worth I on occasion fly LEOs around on business in my plane and am happy to help. Sorry to intrude if I`m not welcome but I have found solutions to problems many times in my business career in areas far removed from my daily routine.

quote:

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Originally posted by ACE:
A friend of mine not long ago (well off with four children) had pre-paid for a vacation for his entire family including his in-laws. Two days prior to leaving his oldest son (18) was arrested for DWI and had his license taken from him. The family had to cancel(no refund on 8 tickets) because the young man had no ID to board the plane.

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Why didn't the rest of them go on the trip and have the 18-year-old alone miss it? There was no reason to punish the rest of the family for the 18-year-old's mistake.

The issue is, losing your driver's license is supposed to be a punishment. It's already very little of one because of occupational licenses, and people are trying to remove every other hardship due to the loss. If we're going to suspend licenses for failure to blow, then we need to actually DO it and make people pay the consequences for their actions. Until then, it's largely a useless gesture.

The family , due to the arrest, decided not to go. I was not trying to ellicit sympathy for them. I was trying to draw attention to possible damages to other parties that had done nothing against the law. Many times ,in my business, we go "inside" to cut costs,rectify problems and improve our overall operations. I spend a large amount of time with our elected officials on many issues from property tax reform to workmans comp to now this issue today. All I`m saying is that if something doesn`t work why do we keep doing it? This type of error seems to invade all parts of our society and it is VERY VERY expensive for all of us. Poor policies are the root cause of inflation in many areas and personally,at my age, I`m on a mission to eradicate inflation at every level. There is a concept in tax policy know as the "cost of collection" which is an analysis of the true revenue collected. The analogy here for this issue is correct. Your "cost of collection" it appears is simply to high. The DWI offender is surely punished but is the punishment enhanced by the ALR debacle? I doubt it. So my question is why spend the time,money and effort if in fact you get no return on your investment. It appears to me that a prudent investor would not choose this path.

I remember sitting in a classroom and listening to our technical supervisor tell us about the change that allowed us to confiscate the subject's DL. I also remember the laughter from all of the intox operators (myself included) when he told us we would then give the defendant a receipt that was a temporary driving permit for 45 days.

Taking someone's DL away from them and still allowing them to drive is not a deterrent or punishment. It's a way for DPS to get the DL because so many folks won't mail it in after they receive notice of the suspension.

http://www.sos.state.tx.us/texreg/archive/July42008/index.html
The link will take you to the SOS TX Register website containing the proposed rule.

For comparison, the current rules may be found in 1 Texas Administrative Code Section 159 http://info.sos.state.tx.us/pls/pub/readtac$ext.ViewTAC?tac_view=4&ti=1&pt=7&ch=159&rl=Y

The Sunset Commission Report and Hearing Materials are at http://www.sunset.state.tx.us/81.htm#dps

The Administrative Procedure Act, Tex Gov't Code Ann Chapter 2001, is located at http://tlo2.tlc.state.tx.us/statutes/docs/GV/content/htm/gv.010.00.002001.00.htm
The APA is the minimum standard for agency conduct/rulemaking.

Gary

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1) for many of my defendants, their DL is their only form of photo ID. When required to attend the victim impact panel as a consequence of DWI probation...they have no ID. Cashing checks, travel - even for business - obtaining collegiate ID - all these become nearly impossible. I'm not condoning the crime, but these consequences were, I believe, unintended, and can be unreasonably harsh. Pity the person who has to fly for their employment and who loses their government issued photo ID. As more federal laws are passed and contemplated requiring ID, the consequences of having it confiscated grow ever more serious.

2) The ALR judge in our area is tossing cases for next to nothing, and, given the local political climate, costing me cases.

3) Suspending driving privilege for back child support, a wide assortment of non-driving criminal offenses, OR DWI has done nothing to cut back on driving - especially in those parts of the state without mass transit!

Lisa L. Peterson
Nolan County Attorney

Is there some reason that a drunk driver who has lost his TDL can't go down to the DPS office and get an ID card? While there might be good arguments to doing away with ALR, I'm just not sure "no ID" is one of them.

Last I checked, the time it takes to get a hard copy ID is about the length of many of the suspensions...

Lisa L. Peterson
Nolan County Attorney

As a matter of fact, it normally takes 7-10 working days to get the hard copy Texas ID card (called a certificate for some reason). At the moment, due to the summer rush, it is taking a little longer--14 to 16 days. Driver Issuance Bureau is working overtime to meet the demand and get the response time back to normal.

Lots of people have both a DL and an ID.

Janette A

Hey, here's a novel idea. If the guy didn't want to lose his DL, he should have blown. Then he could have bonded out and still have gone on his trip!