Driving While Intoxicated in Texas: The Request for ALR Hearing and Pre-Hearing Discovery

   In Texas, a person arrested for Driving While Intoxicated will normally have his driver’s license taken away from him by the arresting officer. This will normally happen because he either refused to provide a breath or blood specimen, or because he consented to give the specimen, and the test determined that he had a blood alcohol concentration of 0.08 or more. In place of his normal driver’s license, the arrested person will get a piece of paper (probably yellow in color) that will say “Notice of Suspension Temporary Driving Permit”. (DIC-25) This notice will tell him that his license will be suspended or denied effective 40 days after the date he received the DIC-25 (normally the day he was arrested). At the bottom of the DIC -25, it will tell him that he can request a hearing (known as an “Administrative License Revocation Hearing” –“ALR hearing”) to contest the suspension, and will give him an 800 number, a fax number, and a PO BOX address to send the request for hearing. (Currently, the fax number is 512-424-2650, but consult the DIC-25 or call DPS to make sure this information is still correct.) Normally, it is best to send a fax, then follow up with a phone call to make sure they got it. If you don’t have a fax machine, go to a Kinkos or a UPS store and have them send a fax, which will give you a successful transmission receipt to prove that you sent it. The bottom of the DIC-25 will also set forth what information needs to be included in the fax requesting the hearing. (This includes: Full name, date of birth, driver’s license number and state, current mailing address, home and daytime phone number, date and county of arrest, arresting agency, arresting officer, and whether test was failed or refused or not requested. If you want a live hearing, explicitly request it. You can also request a telephone hearing. (See Tex. Transp. Code § 524.034 and Tex. Transp. Code § 724.041). The request for hearing must be received by the Texas DPS no later than 15 days after receiving the notice (which normally means 15 days after being arrested for DUI). The request for a live ALR hearing might look something like this:

Texas Department of Public Safety, Driver Improvement Bureau

FAX: 512-424-2650

{date}

RE: Notice of Request for Live (in person) ALR Hearing

This is my notice of request for a live, in person, ALR hearing regarding the suspension of my driver’s license. Here is the relevant information:

Full Name: {put down your full name}

Date of Birth: {put down your date of birth}

Driver’s License Number and State: {put down your driver’s license number –see DIC-25}

Current Mailing Address: {put down your mailing address}

Home and daytime Telephone numbers: {put down your home and daytime telephone number}

Date of Arrest: {date of arrest –see DIC-25}

County of Arrest: {put down county of arrest –see DIC-25}

Arresting Agency: {agency that arresting officer worked for –see DIC-25}

Arresting Officer: {officer’s name and badge number on DIC-25}

Test Failure or Refusal: {put down: “purported refusal” or “purported failure”}

{your signature}

   After sending the notice, DPS will mail you notice of the hearing date. The DIC-25 also says that if a hearing is requested, the temporary permit to drive will remain in effect until the administrative law judge makes a final decision in the case at the requested ALR hearing. (Keep in mind that the administrative license revocation process is a completely separate matter from the underlying criminal case for driving while intoxicated, which has its own procedures and hearings.)

   Most of what has been said so far can be understood simply by reading the DIC-25 carefully. Another fairly easy step that should normally be taken is to request pre-hearing discovery. The Texas Administrative Code sets forth the right to pre-hearing discovery. (See 1 Texas Admin. Code § 159.13. However, unlike the request for ALR hearing, which should be done as soon as possible after you are arrested, you should wait a little while before filing the request for pre-hearing discovery. 1 Texas Administrative Code § 159.13(1) says: “…The request for discovery may not be filed with the department sooner than the date of the request for hearing, and may not be filed sooner than five days from the date of the notice of suspension…” This means that since notice of suspension (the DIC-25) is normally received on the date of arrest, you must normally wait until 5 days after the date of arrest to request pre-hearing discovery. Furthermore, you must not send the notice of pre-hearing discovery before the DPS has received your notice of hearing. Where should the request for pre-hearing discovery be sent? 1 Texas Administrative Code § 159.13(1) also says: “…All requests for discovery must be in writing and shall be served upon the department as prescribed in 37 TAC § 17.16 …”. 37 Texas Administrative Code Sec. 17.16 currently says that the fax number is: (512) 424-7171, and that the fax should be “…to the attention of the Director of Hearings, ALR Program…”. The fax for pre-hearing discovery, in a “refusal” case, could look something like this, in some instances:

Director of Hearings,

ALR Program

PO BOX 15327

Austin, Texas 78761-5327

Fax No: 512-424-7171

ATTENTION: DIRECTOR OF HEARINGS, ALR PROGRAM

Re: Discovery Request for "Refusal" Hearing

{your driver’s license number}; {your full name}

{SOAH Docket No. – put “Unassigned” if you haven’t received a notice of ALR hearing date yet}

{date you send request}

I hereby request all of the following items to be furnished to me forthwith pursuant to 1 Tex. Admin. Code § 159.13(a), Tex. Gov't Code § 2001.091, and the Texas Open Records Act, Tex. Gov't Code § 552:

1) a copy of the form DIC-23;

2) a copy of the Form DIC-24;

3) a copy of the DIC-25; and

4) a copy of my driving record, if it is to be offered for enhancement purposes.

If there are copying charges associated with this request, please notify me promptly so that payment arrangements can be made.

Sincerely,

{your signature}

You probably already have a copy of the DIC-24 and DIC-25, but you should ask for them again. The DIC-23 is the peace officer's sworn report or probable cause affidavit. (See 37 Tex. Admin. Code § 17.4(1)(B).

Personal Jurisdiction and You

    I recently had to deal with an interesting legal issue. The relevant facts of the situation were these: a client was sued in a Federal District Court in another state. The client didn’t live in that state. The client didn’t do business in that state. The plaintiff had clearly chosen to sue in that state because they happened to be in that state, even though it seemed like the wrong court to me. What was wrong with where the plaintiff had chosen to file suit? The court in this other state lacked (among other things), personal jurisdiction over the defendant.

    Personal jurisdiction is the idea that a defendant must have a proper connection with the court in which he is sued before that court may enter an “in personam” judgment against him. An “in personam” judgment is the type of judgment that requires a defendant to pay money or to obey some sort of injunction issued by the court. An “in personam” judgment is normally contrasted with a judgment “in rem”, which is a judgment regarding some particular piece of property within the state where the court sits. An “in rem” judgment, in contrast to an “in personam” judgment doesn’t impose any legal obligations on the part of anybody to pay money or to obey an injunction, it simply disposes of the legal rights of individuals with regard to some specific piece of property in the state. If a court may lack personal jurisdiction over an individual, he should consider challenging that court’s legal power over him regarding that issue.

    Federal Rule of Civil Procedure 12 should be consulted when one desires to challenge personal jurisdiction in Federal Court. One important thing to note about this rule is the requirement that certain defenses be pled at or before one serves an answer. If the defendant fails to raise these defenses at the proper time, then he waives them. Personal jurisdiction is a defense that should normally be challenged, by means of a pre-answer motion, made before an answer is served in order to avoid any possibility of waiver.

    The case law concerning personal jurisdiction is complex, and often vague. When studying this area of law, one will hear buzzwords like “minimum contacts”, “due process”, and “International Shoe”. It is an example of when hiring someone who has experience in law is usually a good idea. It is also an example of why a defendant should hire a lawyer as soon as possible, since a motion challenging personal jurisdiction will normally need to be served on the opposing party within 20 days after the defendant was served with the summons and complaint. (It may seem like a long time, but 20 days goes by very fast when you’ve been sued.)

Good Personal Finance Article

I think that this article makes a lot of good points regarding personal finance and bankruptcy for those with a lot of unsecured debt.