Recently, SOAH posted new procedures for requesting subpoenas for arresting officers, intox operators and technical supervisors.  My law partner, Hunter Biederman, recently wrote an article outlining the new subpoena procedure.

Here is the entire article about subpoena requests:

Everything You Need to Know About the New ALR Rules

by Hunter Biederman

I have been getting a lot of questions, regarding the New SOAH rules.

Of the 3 major issues that we thought might happen, none of them did. Hearings are still in person, no subpoena is needed for BTO’s or Tech Super, and they are still required to be there if we request. The new rules can be found here:

http://www.soah.state.tx.us/AboutUs/ALR_Rules_Bikmkd_n_Linked_eff_20090120.pdf

The major changes that are presented are in the subpoena arena. If there are other major changes, I haven’t noticed them yet. 

In the past, in order to subpoena an officer, we would need to create a subpoena and subpoena request and send it to SOAH for their approval and signature. This often created a delay because they will sign them at their own leisure. Or nit-pick the subpoena, reject it, disallowing enough time to generate a new one that was approved.

Now, attorneys can issue their own subpoenas if they are authorized to practice law in Texas. (Sect. 159.103). We may issue up to two subpoenas for witnesses – the peace officer who was primarily responsible for the defendant’s stop or detention, and the peace officer who was primarily responsible for finding probable cause to arrest the defendant. If the same officer did both, you may only subpoena one.

To issue the subpoenas yourself: 

1)       Use their form found here: http://www.soah.state.tx.us/AboutUs/ALR_Subpoena_Form_Dec_2008_2a.pdf -- You can even type it out online and print it.

2)       Send in a check for $10 plus mileage over 25 miles to SOAH, along with the return of service at least 3 calendar days before the hearing.

3)       Serve the subpoena within FIVE calendar days before the hearing.

4)       Serve DPS a copy of the subpoena the same date it is issued.

5)       Serve DPS a copy of the subpoena return not later than 3 calendar days before the hearing.

If for some reason the hearing is reset, you must notify them of the new hearing date. In the past, local SOAH has provided that this should be done by cert. mail, return receipt.

PLANO issues:

This one is still a work in progress. We were recently informed by a 3CDLA member that Plano was no longer going to “accept” subpoenas that are not signed by judges. I took this to mean that we could not use the previously negotiated Subpoena Coordinator (If you recall, it took us months to get Plano to agree to do this instead of us hunting down officers.)  This is because they have no choice but to “accept” this subpoena.  My first response was, “so what,” I’ll just continue to get subpoenas from the judges like we always did.

WRONG: The Dallas SOAH Judge today informed me that she or the other judges will no longer be signing any subpoenas unless they are one of the 3 enumerated by the rules (2+ cops, civilian witnesses, for pro se people). Therefore, doing what we used to do is not going to work. 

I have contacted Plano and am told that they will be issuing a new directive on how to handle this. My guess is that they were worried that we were going to start issuing our own subpoenas, dropping them off the night before, and screwing the officers. I let them know that there is already a 5-day time period in the new rules. In fact, I said that a 7 day period was even reasonable for them to request. I will disseminate what ends up happening with this. Of course if Plano does not accept this new form of subpoena through a coordinator, we are going to have to go back to the practice we had 6 months ago or tracking down the officers on duty, off duty, at home, etc. I’m hoping this doesn’t have to go back to that.

So there you go. That’s all you need to know about the new rules (until I hear more about Plano’s subpoena coordinator). Please tip your waitstaff.

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The first thing that you must do after you are arrested for DWI is to request an ALR Hearing.  An ALR hearing is an administrative process in which your continued ability to drive will be determined.  You have 15 days from the day of your arrest to request an ALR hearing.  If you fail to request an ALR hearing your license will automatically be suspended 40 days after your arrest.  For more information about the ALR process, read the article below written by my law partner Hunter Biederman.

By Hunter Biederman

The ALR Process 
Administrative License Revocation Program

I am often asked about the process that occurs after your license is confiscated subsequent to a DWI arrest.

As mentioned on several other pages of this site, there are actually two different processes working against you at the same time. The Criminal Case and the ALR / License Suspension process.

As a general rule, when you hire me, you need to do nothing regarding this process. I take care of filing all motions, requests, and appearing at the hearing. You do not need to do or attend anything. Despite my taking care of everything, it is nice to know what is going on. I always keep my clients updated as to where they are in the process.

Request a Hearing

This is the first step in the process. You must request a hearing within 15 days in order to preserve your right to fight the suspension. In general, this is the first step I take on behalf of my clients. Even if you tried to call in yourself, or sent something in that you cut and paste from another website, I always resend this on my own. That way, I can be sure that it is on the proper forms, and I ALWAYS keep the fax confirmation to prove that we filed on time. I always request a hearing in person, and never by phone.

Request for Discovery

As part of the administrative rules, we are entitled to receive certain documents from the prosecuting attorney (from DPS). I always request these from the department. These documents may include:

• Peace Officer's Sworn Report / Probable Cause Affidavit
• DWI Statutory Warning
• Notice of Suspension
• Breath / Blood Test Results
• Breath Test Technical Supervisor's Affidavit
• Toxicology Report
• Specimen Routing Report
• Criminal Complaint
• Spanish Translation Affidavit
• Driving Record

Subpoenaing of Witnesses

It is the responsibility of the requestor of the hearing (you, through me) to subpoena any witnesses that we need. This includes the arresting officer. I request a subpoena from SOAH (the State office of Administrative Hearings), and have the subpoena served on the arresting officer by a process server of mine.

If you submitted to a breath test, we will also request that the Breath Test Operator, and the Technical Supervisor to be present. If properly subpoenaed / requested, and they do not show, the department may either move to continue the case, dismiss the case, or proceed (and usually lose).

Requests for Continuances

Occasionally, I will have a court date, or another ALR hearing on the date of your hearing. If this happens, I will either request a continuance on your case, or have another attorney handle the hearing for me. I usually handle the hearings myself, but occasionally find myself in a situation where I am unable to cover the hearing.

When I do have another attorney to handle your hearing, I always work with them in advance to make sure they understand the issues that we need to focus on. In fact, The attorney that I usually use, used to be a DPS attorney, and is really good at what they do!

Live Hearing

I handle the actual hearing in front of the Administrative Law Judge. Any witnesses requested to be there, must be there. In a breath test case, the department must prove that:

• Reasonable suspicion to stop or probable cause to arrest the person existed; and
• the person had an alcohol concentration of 0.08 or greater while operating a motor vehicle in a public place

In a case where you refused a breath test, the department must prove that:

• Reasonable suspicion to stop or probable cause to arrest the person existed; and
• probable cause existed to believe that the person was operating a motor vehicle in a public place while intoxicated or operating a watercraft powered with an engine having a manufacturer's rating of 50 horsepower or more while intoxicated; and
• the person was placed under arrest by the officer and was requested to submit to the taking of a specimen; and
• the person refused to submit to the taking of a specimen on request of the officer.

Filing for an ODL

If I am not sucessful in keeping your licence from being suspeneded, I will file an occupational drivers license for your on your behalf. This is sometimes referred to as a "hardship license." That license will allow you to drive to and from work, school, or anywhere else important that you need to know.

In general, if you are reasonable about the amount of time you are requesting to drive, the judge in your case will be reasonable too. Depending on if your license was suspended in the past, or you have a prior DWI, there may be a waiting period to file for your occupational drivers license.

Other general information

In the past, DPS allowed us time to let our clients know that their license was about to be suspended. Now, your license is suspended when the Administrative Law Judge signs the judgment. Therefore, I always let you know when the hearing is coming up, so you know that the possibility exists that your license is going to be suspended on or around that date.

How long does the ALR process take?

It has been taking longer and longer lately to even get a hearing date on your license suspension hearing. Lately, I have been getting a hearing date no earlier than 90 days from the date of arrest. In some cases it is meeting or exceeding six months to have the hearing.

These long dates can be good and bad. They are good in that your license is not suspended for the entire time, and you can continue to drive as normal. However, if the trial court is moving faster, it would be better to have your ALR hearing before your court case is heard. This would give us an opportunity to cross-examine the police officer and help determine the strengths and weaknesses of your case.

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