ADMINISTRATIVE DRIVER S LICENSE REVOCATION HEARINGS

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1 ADMINISTRATIVE DRIVER S LICENSE REVOCATION HEARINGS KIMBERLY GRIFFIN TUCKER The Law Office of Kimberly Griffin Tucker, P.C International Parkway, Suite 1700 Plano, TX Office: (972) 492-ATTY (2889) State Bar of Texas 40 TH ANNUAL ADVANCED CRIMINAL LAW COURSE July 21-24, 2014 Houston CHAPTER 53

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3 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 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 International Parkway, Suite 1700 Plano, TX Office: (972) 492-ATTY (2889)

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5 Driver s License Revocation Hearings 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 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 VI. OBTAINING WITNESSES FOR THE HEARING A. A Subpoena Is Necessary i. Witnesses You Should Subpoena ii. Know the Subpoena Procedure B. Attorney Issued Subpoenas i. For the Officer(s) Who Stopped and Arrested Your Client ii. Serving the Subpoena iii. Return of Service C. SOAH-Issued Subpoenas i. For Civilian Witnesses and Additional Peace Officers ii. Necessary to Show Good Cause iii. Return of Service D. Service and Appearance Problems i. What If You Can't Get Your Witness Served? ii. What If the Witness Was Personally Served But Does Not Appear? VII. THE ALR HEARING A. The Elements DPS Must Prove to Suspend Your Client's License i. Notice of Hearing Is DPS's Pleading ii. ALR Hearings are Paperwork Hearings i

6 Driver s License Revocation Hearings iii. The Refusal Case iv. The Failure Case B. Attacking the Elements i. Begin with Stop and Arrest ii. Was Your Client Arrested? iii. The Refusal Element iv. The Failure Element v. The Blood Test Case C. Winning the ALR Hearing on a Technicality D. Using the ALR Hearing for Discovery i. Take Advantage of the Officers' Lack of Preparation ii. Obtaining the Hearing Transcript for Use in Court VIII. AFTER THE ALR HEARING - THE CONSEQUENCES OF GRANT OR DENIAL OF SUSPENSION.. 20 A. Grant of Suspension i. Suspension Periods ii. Adult Suspension Periods iii. DUI & DWI/Minor Suspension Periods iv. Enhanced Suspension Periods B. Denial of Suspension IX. APPEALING THE ALJ S DECISION A. The Petition for Appeal B. When, Where & How to File the Appeal C. Transcript for Appeal D. Standard of Review E. Stay of Suspension F. Appeal by DPS X. EXPUNGING ALR REFERENCES ON DRIVING RECORDS XI. FORMS 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 Decision ii

7 I. What Is an 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 Code and the Texas Transportation Code (TTC) 524 and 724. Title 1, Part 7 of the Texas Code (TAC) outlines the rules of procedure for ALR hearings. This is the section to check when you have questions about how to obtain witnesses and discovery, hearing notice requirements and types of hearings you may request. 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 receipt of the DIC-25 that triggers the 15-day deadline to request a hearing on the driver's license suspension. [failure TTC ; refusal TTC ] Every ALR hearing is presided over by an administrative law judge (ALJ). [TTC (a) & (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 ] 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 1

8 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 client 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 ] Initially, do a quick review of the DIC-24 to see if it is a proper warning. For example, in September 2011, TTC 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 officer may apply for a warrant that will authorize a blood draw, despite the refusal. All postseptember 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 and (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 (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 refused 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 importance 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 provide 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. 2

9 If the results of the blood specimen later reveal a blood alcohol level of.08 or more, TTC 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 officer'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 ] 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 (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 address on file. If DPS has the wrong address on file, your client may not receive important DPS correspondence, such as this. Also, failure to update an address with DPS within 30 days of moving is a class C misdemeanor. [TTC ] 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 ] 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 (b) or TTC (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 or ] 3

10 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 "unknown" 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 Improvement Bureau, P.O. Box 4040, Austin, Texas, (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) Faxing is the easiest and most cost-effective way to request the ALR hearing, but be sure to get and keep a fax confirmation 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: FORMS: Form 1 is a simple, one-page request that you or your client can use to request the hearing only. 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.) 4

11 iv. Deadline for Requesting the ALR Hearing Drivers are entitled to a hearing on the suspension of their license after a DWI arrest, provided they request a hearing on the matter within 15 days of their receipt of the DIC-25. [failure case TTC ; refusal case TTC ] 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 ] 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 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 ] 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 (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 ing 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 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: 5

12 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 ] FORM: See Form 4, Motion for Continuance. PRACTICE TIP Know your ALJ Although TTC (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 general rule, most ALJs will grant DPS a MFC for "good cause." 6

13 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 suggested 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 ] 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 (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 opposes 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 , (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 because 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. 7

14 This does not mean that you cannot get some of this same information at a telephonic hearing, 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 telephonic 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 business days prior to the hearing, unless otherwise agreed to by both parties. [TAC (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 client'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 Hearings (SOAH) because a change of venue can result from a case going from one SOAH office to another. 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 request 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 asking to be moved to a live docket or include the telephone number you want to use if you are changing to a telephone docket. 8

15 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 (a)]; or By agreement of the parties with and with the consent of the ALJ. [TAC (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 continuing duty to supplement discovery. [TAC ] 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 current 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 ] 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) This is the fax number for the DPS/ALR office 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. 9

16 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 supplement 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 (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 (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 notify 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 filing a written request. This is no longer true. Now all witnesses must be subpoenaed and personally 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 example, 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. 10

17 ii. Know the Subpoena Procedure Knowing whom to subpoena and how to get these witnesses to the ALR hearing is paramount, 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 (i).] B. Attorney Issued Subpoenas i. For the Officer(s) Who Stopped and Arrested Your Client TAC (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 subpoena, 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 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 (f)(2)], and service must be personal, unless the particular agency has established accepted alternative methods. [TAC (f)(1).] iii. Return of Service After the subpoena is served, you must notify the local DPS office and fax the local SOAH office 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 (g)(3) & (f)(3).] You must also mail a check for the witness fee with that return to SOAH. [TAC (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 August 31, 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 11

18 specific to the facts of your case that requires the particular witness's presence, such as the witness 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 (c). Fax these requests to (512) 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 ] 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 error 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. ii. 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 hearing to preserve error 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. 12

19 iii. 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 (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 (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 prosecutor 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. ii. 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 (c)(2) provides that: If the defendant timely subpoenas an officer and the officer fails to appear without good cause, information obtained from that officer shall not be admissible. DPS may move for a continuance in this situation. However, for such a last-minute DPS continuance to be granted, DPS must show "good cause" for the witness's failure to appear. TTC 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. 13

20 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 hearing 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 accordingly. 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 (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 pleading. 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 (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 ] iii. The Refusal Case The elements for a refusal case are found in TTC : Reasonable suspicion to stop the defendant or probable cause to arrest or take the defendant into custody existed; 14

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