ADMINISTRATIVE DRIVER’S LICENSE REVOCATION …

1 ADMINISTRATIVE DRIVER'S LICENSE . REVOCATION HEARINGS. KIMBERLY GRIFFIN TUCKER. The Law Office of Kimberly Griffin Tucker, 6500 International Parkway, Suite 1700. Plano, TX 75093. Office: (972) 492-ATTY (2889). 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.

2 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, 6500 International Parkway, Suite 1700. Plano, TX 75093. Office: (972) 492-ATTY (2889). ADMINISTRATIVE Driver's LICENSE REVOCATION Hearings Chapter 53. TABLE OF CONTENTS. I. WHAT IS AN ADMINISTRATIVE LICENSE REVOCATION HEARING?

3 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 2. II. REQUESTING THE ALR HEARING .. 3. A. Making the 3. i. Dealing With Unknown 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.

4 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 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 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.

5 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. i ADMINISTRATIVE Driver's LICENSE REVOCATION Hearings Chapter 53. 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.

6 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 21. iv. Enhanced Suspension Periods .. 21. B. Denial of 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.

7 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 ii ADMINISTRATIVE _____. Driver's LICENSE REVOCATION Hearings Chapter 53. 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 and the Texas Transportation Code (TTC) 524 and 724. Title 1, Part 7 of the Texas ADMINISTRATIVE Code (TAC) outlines the rules of proce- dure for ALR hearings.

8 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.

9 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 ; 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.

10 [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. ADMINISTRATIVE _____.