Obtaining an ALR Hearing
Effective in 1995, significant laws were implemented so that theoretically every DWI arrest would result in a license suspension, whether the person was convicted of DWI or not.
Who Does “ALR” Apply To?
The Administrative License Revocation (“ALR”) laws apply to persons who are arrested for DWI, intoxication assault, and intoxication manslaughter, who provide a specimen and who score “.08” or higher, and to persons who refuse to submit a specimen.
What Happens if You Do Not Request a Hearing?
The ALR suspension will go into effect on the 40th day after the defendant either received personal notice of the suspension (i.e., generally on the day of the arrest) or (i.e., in the case of a blood test) is presumed to have received mailed notice [emph.] of suspension unless the person requests an ALR hearing within fifteen (15) days following the date that the notice was served (i.e., normally the date of arrest).
Seizure of Your Driver’s License
Following a breath test failure or refusal, the arresting officer (“AO”) will now take possession of the arrested person’s drivers license and issue a temporary permit (i.e., which is the same document as the Notice of Suspension, Form DIC-25). The temporary permit will expire by its own terms on the 41st day after issuance unless a hearing is demanded. If a hearing is requested, then the temporary permit will continue in effect until the final decision of the Administrative Law Judge (“ALJ”).
Length of Suspension
1. Suspension Periods for “Failure” ALRs: The suspension period for a first failure has been increased to 90 days. TRANS. CODE §524.022(a)(1)(effective 9/1/01). If the person has one or more prior enforcement contacts (i.e., suspensions for either ALR or DWI) within the previous ten years, the suspension period has been increased to one year, regardless of whether the enforcement contact is for an ALR suspension or for a previous DWI suspension arising from a conviction. TRANS. CODE §524.022 (a)(2) (effective 9/1/01).
2. Suspension Periods for “Refusal” ALRs: The suspension period for first refusal has been increased to 180 days. TRANS. CODE §724.035(a)(1)(effective 9/1/01). A refusal enhanced by a prior enforcement contact for either an ALR or DWI suspension will increase the period of suspension to two years, if the prior enforcement contact occurred within the previous ten years. TRANS. CODE §724.035 (b) (effective 9/1/01).
Notice of Suspension (Currently Form DIC-25) from Arresting Officer to Defendant
Must state the reason and statutory grounds for suspension, the “effective date” of the suspension, the driver’s right to a hearing, how to request a hearing, and the time limit within which a request for a hearing must be made. A Notice of Suspension will be served as follows:
1. Personal service: by a peace officer at time of arrest, if refusal, or by arresting officer [emph.], in case of failure, where test results are immediately available (i.e., a breath test failure. If the Notice of Suspension was personally served on you at the jail, you have 15 days in which to request an ALR hearing. You should immediately count the 15 days in your calendar.
Be particularly wary of this “Time Bomb” when you are in your “due diligence” phase prior to hiring a lawyer. By the time you read this, it may already be the “15th day” following your arrest. Establish the date of the arrest, figure out the 15-day deadline. If it’s already too late, then call DPS immediately at 1(800) 394-9913 and request an “in-person” ALR hearing. If it’s still not too late, then call us immediately.
2. Mail Notice (Beware that this is a potential trap for the procrastinating client): If the arresting officer did not serve the notice personally, DPS will serve the notice by regular first-class U.S. (i.e., “snail”) mail to the person’s address as shown in DPS records or any different address given in the officer’s report [emph.]. Mailed notice is presumed received on the fifth day after it is mailed (!) [emph.]. Always keep your envelopes from DPS to show the discrepancy between the date on the letter and the date of the postmark, which is sometimes widely-disparate. Where a blood test is involved, you will want to be “on the alert” for this notice and notify your attorney that day or the next business day or you will possibly lose your right to the ALR hearing entirely.
3. Update your address with DPS immediately following a DWI arrest: I strongly advise you to look at the address on your drivers license. Is it your current residence address where you actually stay? If that is no longer your address, which is quite common, immediately go to the nearest DPS substation and update the address on your drivers license. Do not mislead the DPS personnel as to what happened to your license, but DPS has no obligation to send any correspondence to any address other than the address that is on your license. It is not enough to file a change-of address form with the post office.
DPS put a “do not forward” directive on their envelopes. You do not have to actually receive these notices from DPS. Do not become a “sitting duck” for this policy. You must change your license address whenever you move. It is critical to you to make sure that DPS has your current address.
Licensee’s Hearing demand
Must be received by DPS by 5:00 p.m. on the 15th day after either personal notice was given or mailed notice was presumed to have been received (i.e., normally this will require that DPS must receive your request for a hearing on or prior to the 15th day following your arrest). If you wait until the actual 15th day, then you must be aware of DPS’s requirement that they must receive your hearing demand prior to 5:00 p.m. on the 15th day.
This means that DPS must actually receive your demand for a hearing on or prior to the 15th day after you were arrested, if you received personal notice from the AO, or on the 20th day following the date on DPS’ mail notice to you.
1. Telephone or Facsimile Hearing Demand: A hearing may be requested by calling DPS at the number designated in the Notice of Suspension or Request for Hearing Form [currently #1 (800) 394-9913]. You may also FAX a request for an ALR hearing to ALR Division at #1 (512) 424-2650. Always keep your FAX “Confirmation Sheet” or “Transmission Verification Report” or DPS may deny having received it.
We have heard of situations when other lawyers have failed to retain these records and then DPS rejected their hearing demands. Generally, our rule is that you need not bother communicating with DPS if you cannot later prove that you did so. If you correspond with DPS by “snail mail”, then you should only do so by means of certified mail with return receipt requested.
2. Required contents for a Written Hearing Demand: DPS’ ALR division says that it will not honor a hearing request that does not contain all of the following information:
1. Licensee’s name
2. Licensee’s Date of Birth
3. Licensee’s Drivers License Number
4. Licensee’s Current Mailing Address
5. Licensee’s Daytime telephone number/Licensee’s Home telephone number
6. Date of arrest/County of Arrest
7. Arresting agency
8. Arresting officer
9. whether the case involves an alleged breath or blood test refusal or failure.
3. DPS’s Rejection of Licensee’s Hearing Demand: If DPS rejects your written demand for a hearing, then they must provide written notice of the rejection. DPS has sometimes allowed the licensee to “cure” the reason for the rejection but only if the licensee provides the additional requested information within the original 15 days, so do not procrastinate.
Next Preparing the Case for the ALR Hearing or DWI Trial