Occupational Licenses for Justice of the Peace Courts

Transcription

1 Occupational Licenses for Justice of the Peace Courts Presented by G. Cole Spainhour Attorney at Law 1811 North Austin Avenue, Suite 204 Georgetown, TX Phone (512)

2 G. Cole Spainhour In private practice since 2006; Member of Texas Criminal Defense Lawyers Association & Texas Municipal Justice Bar Association; Defense Counsel for the Williamson County DWI/Drug Court since 2009; Assistant Williamson County Attorney from 1999 to 2006 for Eugene Taylor and Jana Duty; Writer/Researcher for the Texas House Research Organization during the 76 th Legislative Session; Graduate of Cornell University in Ithaca, New York and the University of Texas School of Law; Father, Aaron Spainhour, was Justice of the Peace in Bienville Parish, Louisiana in the 1980 s. Now, a semi-retired bail bondsman at 85.

3 What has changed? HB 438 by Dutton / Ellis Effective September 1, 2013 Added 6 words and Removed 8 words. Transportation Code (a) may apply for an occupational license by filing a verified petition with the clerk of a justice, [the] county, [court] or district court with jurisdiction that includes [in] the precinct or county in which: (1) the person resides; or (2) the offense occurred for which the license was suspended. (b) A person may apply for an occupational license by filing a verified petition only with the clerk of the [county court or district] court in which the person was convicted (e) The clerk of the court shall file the petition as in any other [civil] matter.

4 Welcome to the Wonderful World of Occupational [Essential Need] Licenses! Most of law contained in Subchapter L of Transportation Code to Definitions Requirements of Petition Notice to State; Participation by State Hearing and Judicial Discretion Required Counseling Ignition Interlock Requirements

5 Chapter 521 Continued Alcohol/Drug Testing Supervision of License Holders by Probation Department (since 2011) / / / Interlock Rules for DPS Order Requirements Notice to Department; Issuance of LICENSE by DPS Court Order Must by in Operators Possession Waiting Periods License Revocation Criminal Penalty

6 Terminology Drivers License Not Driver s License License For Suspensions, means the ability to drive in Texas. Neither a Texas DL nor a DL at all is required for a suspension. TC (a)(6) Essential need Includes driving to/from work, while working, to/from school, or in the performance of essential household duties. Order The Order signed by the Judge is not a license. It is an order that is only valid as a license for 30 days. TC Suspension DL can be suspended, revoked, restricted, canceled, disqualified,or denied renewal. SEVERAL CAN BE ACTIVE AT ONCE! Money Person can owe reinstatement fees, surcharges, failure to appear tickets (Omnibase), occupational license fees, restricted license fees. Eligible vs. Not Eligible DPS jargon for ability to drive (may still need to renew DL or get a copy of DL).

7 . Commercial DL Disqualifications CDL Disqualification: ONLY prevents a driver from operating a CMV. ODL can never be granted to operate a CMV. However, driver can have BOTH a disqualification and a suspension which means the driver will need an ODL to operate a non-commercial motor vehicle. All other rules are the same for CDL holders

8 Most Important Issue for JP Courts Suspensions can be split into Conviction Based and Non-Conviction Based. DPS calls it automatically suspended or canceled under this chapter for a conviction of an offense under the laws of this state. Essentially, a conviction based suspension must be on the criminal judgment. If the suspension is convicted based, the person must file for the occupational license in the court which convicted the person. TC (b). So, you cannot file for an occupational in a JP Court if your DL was suspended by another Judge. Does this mean someone who you convicted and suspended can only file for an ODL in your Court?

9 So, What s Left? Non-conviction based. ALR Blood/Breath Test Failure Suspensions TC 524 ALR Blood/Breath Test Refusal Suspensions TC 724 Failure to Pay Surcharges TC 708 Habitual Violator TC Administrative/Departmental Suspension/Revocation TC Liability Judgment TC 601 Deny Renewal / Failure to Appear TC 706 Drug Education Program Required TC Alcohol Traffic Safety / Repeat Offender Course Required TC

10 The ALR Process (Administrative License Revocation) DWI arrest begins a criminal case and an administrative case (implied consent); Defendant has 15 days to request a hearing; Notice serves as DL for 40 days (or until hearing is held); Attorney for State at hearing is the DPS attorney; Texas.gov shows eligible with original suspension dates until hearing; Suspension Lengths: 60 days (DUI alone); 90 days (1 st Failure); 180 days (1 st Refusal); 1 year (Failure following failure or refusal within 10 years) 2 years (Refusal following failure or refusal within 10 years)

11 The Petition TC Suspension cannot be for medical reasons (TC ); May be subject to waiting periods or hard suspensions under TC * Must be the Precinct of residence or where offense occurred, BUT CANNOT be conviction based from another court; Only if it is from a conviction in your Court, Petitioner cannot have had more than one other conviction based ODL in last 10 years; Petition must be verified (sworn and notarized); Petitioner must set forth essential need (not restricted to occupation) and request areas and routes of travel and if they want waiver of 4 hour limitation; Petitioner s driving record (Court is required to review by TC ) DPS offers 1 (Address Only), 2 (3 year Record), 2A (Certified 3 Year), 3 (Entire Record), 3A (Certified Entire Record Required in WILCO) Texas.gov record only does not include suspension history.

12 Insurance (Financial Responsibility) Insurance Requirements TC says Judge may require compliance with TC 601. TC requires certified proof of insurance for any vehicle during a period of suspension. Texas Administrative Code (State Version of CFR) Establishes SR-22 Title 37, Part 1, Chapter 25, Rule 25.6 SR-22 Safety Responsibility Form 22 requires insurance company to certify coverage to DPS and notify DPS when coverage is cancelled. SR-22 is required for 2 years from date of conviction/crash/judgment (not suspension). Some people may only be suspended because they don t have SR-22! Big market for SR-22 s. Debate over whether owner vs. non-owner policy is better/ cheaper.

13 Discretionary Requirements Proof of Employment / Letter from Employer (Required in Wilco) Proof of School Enrollment (Required in Wilco under TC ) Letter of Suspension from DPS (Required by CCL2 in Wilco) Can be useful with confusing DL history. Court can review driving record TC Maps / addresses to home and business (Required in Wilco under TC ) TC lists all the evidence that can be considered, but gives Court broad discretion to determine essential need.

14 Required Counseling TC For ALR Refusals / Failures, Court shall require alcohol counseling. For DWI probation, an alcohol traffic safety course / repeat offender course is already required. DL gets an additional suspension if these courses are not completed or waived on the record. Statute says these courses do not satisfy TC Every Williamson County order requires counseling under this section. In practice, I do not know if this is ever done.

15 Ignition Interlock Device Machines which test breath for alcohol before car can be started, periodically while car is operating, and/or on a random schedule. Can be equipped with camera. Required by statute for DWI +0.15, DWI 2 nd, Felony DWI, DWI under 21 bonds, probation, and final convictions. Can require proof of compliance if interlock is required for Defendant on bond. TC says Court SHALL require interlock if DL is suspended for 2 nd or more DWI convictions or enhanced DWI conviction. [SHOULD NEVER APPLY IN JP] TC says Court MAY require periodic testing for alcohol or controlled substances if the DL has been suspended for refusal/failure or DWI conviction. Court should not require certain provider without legal consultation. TC allows Community Supervision Department to create an Interlock caseload for anyone required to have Interlock. Wilco has not instituted yet.

16 Approved device and service center list located at: Best advice to avoid false positives is: Keep mouth clear of any food or drink for 15 minutes before blowing; Do not use alcohol based mouthwash or food with alcohol; Blow at least three more times (15 min., 30 min., 45 min.) after every WARNING or VIOLATION!

17 Who Else Can Be at the Hearing? Lawyer is not required for Petitioner. TC Non-lawyer cannot represent petitioner. TC says Clerk shall notify the attorney for the State (prosecutor) if suspension is convicted based (drugs or alcohol). Wilco has Petitioner notify State and get State s approval. TC also says anyone notified under TC may attend the hearing and present evidence. Most attorneys present a copy of petition to State and get their signature in all cases. DPS is never given a copy of the petition upfront.

18 The Hearing? TC does not require a formal hearing. Some WILCO Judges require Defendant to appear and testify as to essential need. Unless notice to the state is required by TC (b), hearing may be ex parte.

19 The Order TC says the order must specify: Hours and days of the week when person may drive; Reasons for which person may drive (limited by statute); Areas or routes person may drive; Whether interlock is required; Whether the person is subject to alcohol/drug testing. TC says the Order remains valid until the end of the suspension, but many orders are incorrectly written to be limited to 1 year. Wilco Courts routinely include that Order is automatically revoked upon issuance or conviction of any moving violation or other new offense. Petitioner is required to notify the Court and DPS of any new moving violation. Court may revoke ODL at any time for good cause. TC License is automatically revoked if Petitioner is arrested for Class B violation of ODL. TC

20 Hours Rule Hours Rule (Hours of Actual Driving Not Time Range of Driving): 4 Hours per day maximum is standard; 4 to 12 Hours per day maximum may be granted; 12 Hours is the maximum per day. 24 Hour ODL is possible, but cannot drive more than 12 hours per day. WILCO puts in order that driver must have written work authorization after hours. Driving Log requirement is the standard way to enforce time/distance limitations. Log usually includes departure and arrival date/time/location/purpose. No set form or filing requirements. Officer will request to see it if driver is stopped.

21 Waiting Periods / Hard Suspensions TC sets waiting periods before a person can get an ODL order in DWI Conviction and ALR breath/blood refusal/failure cases. Hard suspension only applies to these waiting periods and means you have to wait to get an ODL. Only applies to DWI Conviction/ALR suspensions. To determine waiting period, you must know BOTH current reason for suspension and prior suspension history. You must also understand suspensions can be conviction or non-conviction based. You must also know prior ALR s or convictions do not always result in convictions. Three levels of waiting periods: 90 days, 180 days, 365 days. DPS does not have a database entry for whether waiting periods apply. DPS will notify the Petitioner at the time the plastic ODL card is requested if they are withholding the ODL.

22 Waiting Periods Summary Three levels of waiting periods: 90 days, 180 days, 365 days. 90 days Prior ALR Suspension Within 5 years Before Arrest plus Current ALR or Conviction Suspension 180 days Prior Conviction Suspension Within 5 years Before Arrest plus Current ALR or Conviction Suspension 365 Current 2 nd or More Conviction Suspension where Prior was within 5 years of Offense Date (WON T BE IN JP COURT) No Wait Everything else.

23 What Happens After Order? Petitioner can drive on the ORDER for 30 days. TC TC says the Court must send a copy of the ORDER to DPS, but I am not aware of any Court or Clerk that sends copies. DPS website directs Petitioner to mail the petition/order and fees to DPS. In practice, the Petitioner sends a CERTIFIED copy of the PETITION and ORDER to DPS. You CANNOT deliver anything in person to DPS. Petitioner mails PETITION and ORDER along with $10 (one year) or $20 (two year) fee by check to Texas DPS, P.O. Box 15999, Austin, TX Petitioner (or his insurer) files SR-22 directly with DPS. [Mailing can cause delay] Petitioner pays any reinstatement fees directly online through Texas.gov. [Mailing can cause delay]. DPS issues paper temporary permit and plastic ODL card within days.

24 How does Petitioner use ODL? Petitioner must carry these items at all times when driving: Certified Copy of Court Order - TC ; Plastic ODL card issued by DPS - TC ; SR-22 TC (c)(2); Driving log (if required Court under TC ). Petitioner does not need to carry copy of Petition (2 vs. 1 ½ copies). If Petitioner is suspended for more than one year, Petitioner must renew ODL after two years (if paid $20) or every year (if paid $10). ODL does not protect Petitioner from open warrants. Technically, ODL only applies to suspensions included in the petition / order. Case law has said that failure to pay reinstatement fee / surcharges does not allow DPS to deny the ODL, but Allen v. State, 11 S.W.3d 474 (Tex. App. Houston [1 st. Dist.] 2000), aff d, 48 S.W.3d 775 (Tex. Crim. App. 2001) Wood v. Texas DPS, 331 S.W.3d 78 (Tex. App. Forth Worth 2010, no pet.)

25 Price Difference in JP/County/District District Court - $255 plus $4 certified copy of order County Court - $225 plus cost of certified copies JP Court - $41 plus cost of certified copies Changes in the statute only say Clerk shall file the petition as in any other matter.

26 Online World of Suspensions ALL OF THESE WEBSITES ARE FREE AND AVAILABLE 24/7 Driver Eligibility, Current Suspension, and Conviction History through DPS txapps.texas.gov/txapp/txdps/dleligibility/ Need DL #, DOB, Last four of Social Surcharges through MSB ( Municipal Services Bureau ) Need DL #, DOB, Last Name, Zip Code on DL Failure to Appear through DPS Need DL # & DOB DPS Am I Eligible to Drive? Need DL & DOB

27 Other Websites Request Certified Copy of Drivers History from DPS Need DL #, DOB, Last four of Social, DPS Audit Number & Credit Card To Change Address on DL When Suspended: Need to print out, complete, and mail in to DPS. MOST IMPORTANT THING TO DO WHEN DEALING WITH SUSPENSIONS IS TO KEEP ADDRESS CURRENT WITH DPS!!!

28 Surcharge Indigence / Incentive Programs Short explanation of surcharges: Each one is for three years; Each surcharge has a separate account number; DWI s $1,000 / $1,500 / $2,000; DWLI/FTMFR $250; No DL $100 Points $100 for 6, $25 for each additional Drivers who owe surcharges can apply for the indigence and incentive programs through the MSB website ( If accepted, indigence program cuts surcharges by 90% while incentive program cuts surcharges by 50%. Indigence Examples $14, (one person) to $29, (four persons). Incentive Examples $34, (one person) to $70, (four persons). Payment plans available for surcharges.

29 Thanks and Questions???