DPS makes it harder for immigrants to obtain a driver's license

Starting today anyone who wishes to obtain a Texas driver's license must present proof that they have been residing in the State of Texas for at least 30 days. The 30-day requirement would be waived for anyone surrendering a valid out-of-state driver's license - but they would still have to show proof of residency.

The requirement of a 30-day residency is courtesy of a change to the Texas Administrative Code last April. The change is clearly intended to prevent immigrants from obtaining a Texas driver's license. As many immigrants move in with family members and friends they don't have insurance or utility bills in their names. As many immigrants operate in a cash economy, they don't have bank accounts.

The 30-day requirement only means that there will be more folks out on the roadways who will be breaking the law every time they get behind the wheel to drive to work. It seeks to deprive immigrants of the ability to obtain a valid picture ID.

Instead of creating a group of criminals by fiat, the state should be looking at ways to integrate folks into our society. Regardless of how you feel about illegal immigration, preventing newly arrived immigrants from obtaining a driver's license isn't going to solve any problems. It will just increase the number of people on our roads with a license or insurance.

New website to check driver license status

If you need to check the driver's license status of yourself or a client, here's a new website from the State of Texas that will allow you to make a quick check:

https://txapps.texas.gov/txapp/txdps/dlreinstatement/login.do

The site will give the license status, compliance requirements, other requirements and necessary fees to be paid.

DPS policy now law

A controversial DPS policy is now law thanks to an amendment to the education funding bill added by Rep. Jim Pitts (R-Waxahachie). Back in 2008 the DPS began requiring applicants for driver's licenses to prove they were a citizen or were here legally. The passage of the bill puts to bed legal challenges to DPS' authority to check immigration status.

Beginning on September 1, 2011, everyone applying for, or renewing, a driver's license will be required to show proof of citizenship or legal status. What's so bad about that, you ask.

The implementation of this law will lead to an increase in the number of people driving on Texas roads without valid driver's licenses and insurance. Is that really the best way to safeguard the welfare of the driving public?

The Texas Department of Public Safety is responsible for patrolling the state's highways and for protecting the governor and the capitol - not for being surrogate immigration agents. Whether someone is here legally or not is not the business of law enforcement officials. It is not against the law to be in Texas without the permission of the federal government. If we're going to crack down on folks who have risked their lives to come here and work, leave it up to los federales.

The Constitution makes no distinction between citizens and non-citizens when it comes to our rights under the Bill of Rights. The Equal Protection Clause makes no distinction between those who are here with the blessing of the government and those who aren't. Preventing people from obtaining driver's licenses and insurance because of their immigration status serves no purpose other than to provide Rep. Pitts with an issue he can wave in front of the wingnuts come campaign season.

See also:

"Another knee-jerk reaction," The Defense Rests (Oct. 9, 2008)
"DPS calls for drivers' license checkpoints," The Defense Rests (Nov. 12, 2008)
"Judge shoots down DPS drivers' license plan," The Defense Rests (April 10, 2009)

The scarlet D

Texas State Representative Pete Gallego (D-Alpine) wins the Hester Prynne Award for his proposal to require a special symbol on the driver's license of anyone convicted of driving while intoxicated. And what, pray tell, is the purpose of this, Pete?

Anyone convicted of DWI has already been through a living hell with being arrested, going to jail, missing work and shelling out money to attorneys and the court. Everyone is capable of making a mistake. Let's stop trying to treat these folks like pariahs.

It's easy enough for an officer to run a motorist's driver's license through an in-car computer to check for outstanding warrants and prior convictions. The only thing a special marking will do is guarantee that the officer will be looking for any excuse to hit the motorist with another drunk driving charge.

Maybe we'd be better off if we expended time and money in making treatment programs affordable for folks who have addiction problems. Maybe if we treated DWI's for first-time offenders as a public health issue instead of a criminal matter folks who need help might get it.

Maybe if our representatives were serious about making change instead of being more interested in getting headlines...

Two strikes and you're out

How does a permanent license revocation for a second DWI conviction sound to you?

State Sen. Jane Nelson (R-Flower Mound) has filed SB231 that would revoke a motorist's license permanently upon a second conviction for driving while intoxicated. I guess Ms. Nelson somehow thinks that just because a person doesn't have a driver's license they won't get behind the wheel of a car. I don't know what planet she's from because where I live, the lack of a valid license has never stopped anyone.

Thinking practically (something our esteemed members of the legislature are not paid to do) about the proposal, how would these folks get back and forth to work? Would they be eligible for a permanently restricted license? Would they have to continue going back to court periodically to renew that license? Or is the legislature planning on funding mass transit programs in every town, city and county in the state so that people can get around in a reasonable manner without relying on their cars?

You know a proposal dealing with drunk driving is nutty when even MADD is against it.

“I don’t think this bill is going anywhere. It’s one of those make-you-feel-good types of bills, but it doesn’t stop drunk driving, People who lose their driver’s license are still going to drive ... they will be more careful after losing their licenses but they are still going to drive.” -- Bill Lewis, MADD public policy liaison

Welcome to the 21st century

The Texas Department of Public Safety has discovered what a wonderful thing the internet can be -- if you know how to use it. For years a motorist could order his driving record online and then wait for weeks for it to be delivered by mail.

Now, with a few clicks of the mouse and a little info, a motorist can download his driving record instantly.

State changes course on driver surcharges

The Texas Department of Public Safety has finally come to the conclusion that hitting motorists with surcharge after surcharge is not working. The Public Safety Board has decided to implement a plan by which those with incomes less than 125% of the poverty level who are in default will have their surcharges reduced to 10% of what's owed up to $250. Once arrangements are made for payment the license suspensions will be lifted and the motorists will not be in danger of picking up additional surcharges and suspensions for driving on an invalid license.

Of course the program doesn't apply to motorists who have been paying their surcharges, nor does it apply to anyone making more than 125% of the federal poverty line (approximately $27,562 for a family of four).

The real solution to the mess is to rescind the Driver Responsibility Program altogether so that motorists don't fall into an endless cycle of surcharges and suspensions.

Four whom the bell tolls

The scene fades in... A lawyer walks into an unnamed courtroom on the 5th floor of the Civil Courthouse. He places his briefcase down on the table and looks down at his watch. It's a couple of minutes before 1pm.

Bailiff: What are you doing here?

Lawyer (looking puzzled): I have a hearing on an occupational license at 1pm.

Bailiff: There are no hearings today. The judge is gone.

Lawyer: At our last hearing she told us to be hear today -- and my client's license expires today.

Bailiff: You might want to go and talk to the clerk. She just left here a couple of minutes ago.

Scene fades out as lawyer leaves courtroom and heads toward the stairs.

The scene fades in...The lawyer is in the County Clerk's Office walking toward the unnamed courtroom's clerks' desks.

Lawyer (as soon as one of the clerks hangs up the phone): We've got a problem. The judge issued my client an occupational license and told us to appear in court at 1pm today. Now I'm being told she isn't here and my client's license expires today. What can we do?

Clerk No. 1 (with "deer in the headlights" look on her face looking toward the other clerk who is getting off the phone): This gentleman has a question for you.

Clerk No. 2: Can I help you?

Lawyer: Yes. The judge told my client and I to be here today so she could update his occupational license that expires today. But there is no judge.

Clerk No. 2: Sorry about that. You can come back next Monday.

Lawyer: Can we come in and see the judge one day this week?

Clerk No. 2: Nope. She only hears occupational licenses on Mondays. You want to come in next Monday?

Lawyer: Why didn't anyone notify me that the afternoon docket was being cancelled? We could have made other arrangements?

Clerk No. 2: You want to come in next Monday?

Scene fades out with lawyer banging his head against the top of the clerk's desk with Supertramp's "The Logical Song" playing as the screen blackens.

Four the love of...

Yesterday I dared to enter the Harris County Civil Courthouse to ask a judge to issue an occupational driver's license to a client of mine. This wasn't my first time to ask a judge to allow a client whose license was suspended to drive -- but it was the first time I had to deal with a judge in civil court. This was because my client's license was suspended by the Texas DPS for an administrative matter, not by a judge following a conviction.

Section 521.248 of the Texas Transportation Code says a judge may grant any petitioner the privilege of driving no more than four hours a day -- but, if the petitioner shows a necessity to be able to drive, a judge may allow him to drive up to 12 hours in a 24-hour period. Over in the criminal courthouse, judges routinely sign orders allowing petitioners to drive 12 hours a day. Generally the only issues involved if the license was suspended as the result of a criminal conviction are whether or not the petitioner has met the Texas DPS' requirements for obtaining an occupational license or whether the petitioner will be required to install an interlock device on his car.

So was it a painless experience? Um, in a word, no. The judge seemed to believe that the only purpose in an occupational license was to get to and from work or school. She was unmoved when petitioners asked for additional time to drop their children off at school or to pick them up after school. I'm sorry, Your Honor, but I believe that falls within the definition of "essential need."

This judge would only allow a person to drive no more than two hours in the morning, two hours in the afternoon and two hours in the evening -- if that. We were made to feel privileged that she was allowing my client to drive for an hour in the morning, an hour in evening and four hours in the middle of the day. She also required everyone to come back in 90 days for a "check up." Apparently she was worried that she might not be re-elected this year and that someone else would take over her bench on January 1, 2011 -- how that would affect any order with her signature on it I still don't understand. As far as I know an order is not voided upon that judge's stepping down from the bench.

In the end it took us over 90 minutes to get the order signed -- about 85 minutes longer than over at 1201 Franklin. And, to top it off, I had a parking ticket on my windshield when I got back to my car -- how was I to know it would take an eternity to obtain 90 days of driving privileges for my client?

Turning drunk driving into a money-making enterprise

A former state district judge from McLennan County, David Hodges, has joined the growing chorus of reasonable minds that believe the costs of the Texas DPS' Driver Responsibility Program are greater than its benefits. Mr. Hodges argues that court dockets are backlogged with DWI cases that are tried, in large measure, because of the steep surcharges assessed by the DPS. He's also upset that some counties are trying to reduce their drunk driving docket by offering pleas to charges such as obstructing a highway and reckless driving (not that I have a problem with it).

Mr. Hodges' theory is that a good number of motorists charged with drunk driving would be more than willing to plead guilty to DWI if it didn't mean staring at a $3,000 charge from the DPS. Now I think the stigma of a criminal conviction plays a large role in this backlog. After all, DWI is the one crime that almost anyone can be charged with (sorry about the dangling participle, but I'll be damned if I can think of a better way to word the sentence). I've often told clients to look around the courtroom and find someone who doesn't belong -- that person's probably charged with drunk driving.

"Our criminal justice system is supposed to be about changing behavior and making our streets safer, but there is no evidence that this program is making our streets safer." -- David Hodges, judicial liaison for the Texas Center for the Judiciary.

The Driver Responsibility Program was sold as a way of providing additional funding to regional trauma centers who, as the story goes, expend a mountain of resources treating people injured as a result of someone's bad driving. Surprisingly enough, the trauma centers have yet to receive the amount of funding they were promised when the program was instituted.

There are currently 1.2 million Texans who haven't paid their surcharges and are risking arrest every time they get behind the wheel . The balance due? Over a billion dollars.

At the same time that the state legislature has restricted the constitutional rights of motorists in Texas, legislators have been working to make DWI prosecutions into a profit-making activity. After all, who wouldn't trade off 4th, 5th and 6th amendment rights for the promise of $3,000 plus reinstatement fees?

Texas taking a second look at surcharges

Today's Houston Chronicle ran an excellent article on the trouble people find themselves in as a result of the Texas Department of Public Safety's Driver Responsibility Program. The program created surcharges for various traffic offenses that drivers must pay in order to prevent their driver's licenses from being suspended.

If you are convicted of driving while intoxicated, in addition to whatever penalties handed out by the court, you will face a $3,000 surcharge payable over three years from the DPS. Should you fail to make your payments, your privilege to drive will be suspended -- regardless of whether your license was suspended as a result of the conviction. Pick up another DWI conviction and the surcharge doubles.

HOW DPS SURCHARGES CAN SNOWBALL

Convicted offenders must pay these fines for three years to keep their driver's licenses:

• DWI first offense: $1,000 annually

• DWI subsequent offense within three years: $1,500 annually

• DWI with alcohol concentration of 0.16 or more: $2,000 annually

• Driving with no car insurance or a suspended driver's license: $250 annually

• Driving without a valid license: $100 annually

Money collected by program

Surcharges imposed, collected by end of November 2009

• Total fines billed: $1,721,383,578.00

• Total revenue paid: $672,150,803.95

• Fines still unpaid: $1,049,232,774.05

Drivers facing surcharges

Convicted offenders hit with surcharges as of April 2009

• Number of drivers billed: 1,641,183

• Drivers who have paid: 543,612

• Drivers who failed to pay: 1,097,571

Add in surcharges for driving without insurance, driving on a suspended license or driving without a valid Texas driver's license and the state is raking in the bucks -- that is, if the motorist can afford the payments.

Most motorists are shocked to find out about the surcharge program. There's no indication on a traffic citation that you'll get hit with a surcharge for the any offense and the prosecutor conveniently fails to mention it to unrepresented defendants. Hire an attorney without any experience in traffic court or handling DWIs and you're not going to find out either.

The program creates a cycle that some folks just can't find their way out of -- incurring a surcharge for one offense can lead to a suspension and a subsequent surcharge for driving on a suspended license.

“We can't point to anything that says that law has caused a decline in alcohol-related fatalities. We're not going to go nuts if the Legislature decides they want to repeal it.” -- Bill Lewis, MADD

The DPS is taking a hint from Virginia, who repealed their surcharge program after only a year, and may reduce surcharges for motorists whose income falls less than 120% over the poverty line.

Proposed indigence rule

The rule, if approved, would:

• Reduce fines for convicted motorists earning equal to or less than 125 percent of the poverty level

• Allow 90 days to pay the reduced fees in full and provide proof of insurance

• Allow electronic application online or by phone

• Require applicants to submit supporting documents to prove indigency

• Require DPS to mail a letter of approval or denial to any applicant

State Representatives Rodney Ellis (D-Houston) and John Carona (R-Dallas) want to end the program but it's hard for the government to cut off a revenue stream.

Implied consent: a one-act drama

Somewhere in Texas at a Department of Public Safety driver's license office...

CLERK: Next.

APPLICANT: I'm here to get a driver's license.

CLERK: Let me see the paperwork.

APPLICANT: Here you go (handing application to the clerk).

CLERK: Now I need you to stand perfectly still while I wave this pen in front of your face. Just a second while I turn on the camera.

APPLICANT: (looks puzzled)

CLERK: Hold that head perfectly still. Here we go (waving a pen back and forth in front of applicant's face). Okay, that was good. Now I need for you to stand on one leg with your arms at your side. Whatever you do, don't put your foot down.

APPLICANT: (looks very puzzled while she struggles to keep from falling over). Can I ask you what this is all about?

CLERK: You can ask, but I can't answer that question just yet. Now I need for you to walk heel-to-toe up and back along that black line with your arms at your side. Take nine steps each way, please.

APPLICANT: You've got to be kidding.

CLERK: Do I look like I'm kidding (glaring at applicant in that way only a civil servant can)? Walk up and back along that line. Now!

APPLICANT: (with resignation) Fine. Here I go.

After the applicant finishes walking along the line she walks back up to the counter.

CLERK: Now you need to pay the fee and sign this form and then you'll be a legally licensed driver in Texas.

APPLICANT: (looking at a blank piece of paper with a signature blank) There's nothing on this paper. What am I signing?

CLERK: Do you want your license or not? You need to pay the fee and sign that piece of paper. We haven't got all day.

APPLICANT: (looking down at her watch stops herself from commenting) Here's your money. Do you have a pen?

CLERK: (looking incredibly put upon) Here.

The applicant signs the blank paper and hands it back, along with the pen, to the clerk.

APPLICANT: What was that paper all about? Was that just for my signature on my license?

CLERK: No. That paper was a waiver of your constitutional rights to remain silent and or speak to an attorney. You also waived your protection from self-incrimination and unreasonable search and seizure. Finally, and most importantly, you are now guilty until proven innocent. Have a good day. Next!

APPLICANT: (looking very disturbed) Wait just a minute. What are you talking about? What do you mean I waived my constitutional rights and protections?

CLERK: Well, anytime a police officer gets it into his head that you might be driving while intoxicated - you know, smells alcohol on your breath, for instance, you agree to blow into the state's breath test machine - but don't ask anyone how it works. If you ignore your obligation to provide evidence against yourself then we'll take your license away from you for 6 months and make you beg a judge to let you drive your car. Oh, and if the officer decides to arrest you and you, if you didn't blow into the machine, that's an indication that you were driving while intoxicated. Here's your license. Next!

APPLICANT: (looking down at her license in complete disbelief) What the...?

A neverending circle

I came across an interesting e-mail today about the surcharges the Texas Department of Public Safety impose upon Texas motorists. The author spoke of the hole a client of his was in due to over $11,000 in surcharges: surcharges for DWI, no insurance tickets and tickets for driving on a suspended license.

The client couldn't pay the surcharges because he couldn't get a job because the DPS would not renew his license because of the excessive surcharges owed. In his case, the only thing the DPS has accomplished is guaranteeing he will be breaking the law everyday.

Judge shoots down DPS driver's license plan

Over the last few months, the Texas Department of Public Safety has been working on implementing a plan by which only people who could prove they were citizens or here legally could acquire a Texas driver's license. In addition, the department sought to issue a different license to non-citizens. The DPS also proposed setting up driver's license checkpoints around the state.

On Thursday, Travis County District Judge Orlinda L. Naranjo shot down the DPS plan when she ruled the department had exceeded its authority in forcing applicants to prove they were in the country legally.

"DPS has created havoc by attempting to inject its political agenda into the lawmaking process and improperly giving second-class to individuals who in every way have complied with the laws of the land regarding their presence in the United States and Texas." -- David Hinojosa, MALDEF

Gov. Rick Perry and the department had boasted that the new policy would help protect the United States and Texas from foreign threats. Far from "protecting" Texas, the proposed policy would only guarantee more drivers on Texas roads without state-required liability insurance.

The plan to issue non-citizens a different license could have subjected holders to racial-profiling, suggested Mr. Hinojosa. It could certainly have led to disparate treatment on traffic violations for citizens and non-citizens.

In issuing a temporary injunction, Judge Naranjo said: "This case is not about illegal immigrants obtaining driver licenses, it is about legal residents who have been denied or have been threatened a denial of a driver license."

DWI v. DUI

In Texas you commit the offense of driving while intoxicated if, while operating a motor vehicle in a public place, you have either: (1) lost the normal use of your mental faculties, (2) lost the normal use of your physical faculties or (3) have a blood alcohol concentration of .08 or higher.

However, if you are under the age of 21 and operating a motor vehicle in a public place with any detectable amount of alcohol, you have committed the offense of driving under the influence. Any detectable amount means that all an officer has to do is smell the odor of an alcoholic beverage on your breath to arrest you.  Should you subsequently fail a breath test, you could be arrested for DWI.

While driving while intoxicated is a Class B misdemeanor and carries a sentence ranging from three days to six months in the county jail and a fine of up to $2,000.00, driving under the influence is a Class C misdemeanor and carries a maximum fine of no more than $500.00.

However, even if you are stopped for driving under the influence, you still face the possibility of a driver's license suspension of up to twelve months on a first offense.  In addition, you will have only fifteen (15) days to appeal the administrative suspension of your license or you could lose it for six months just because you were arrested.

Update on DPS' call for driver's license checkpoints

On Friday, under pressure from state legislators, the DPS withdrew its request for an Attorney General's opinion on the legality of setting up checkpoints to check for valid driver's licenses, registration and insurance. According to the DPS, the checkpoints were never intended to serve as a check for illegal immigrants.

DPS calls for driver's license checkpoints

Last month I wrote about the DPS' new policy of not renewing or issuing new Texas drivers' licenses to anyone who can't prove they are in the United States legally.

Now, according to the Houston Chronicle, comes word that the DPS has asked Greg Abbott, the Texas Attorney General, for permission to set up drivers' license checkpoints across the state. According to the request, the checkpoints would be set up to check for valid drivers' licenses, registration and insurance.

State Sen. Leticia Van de Putte of San Antonio and 14 other legislators have sent Mr. Abbott a letter asking him to ignore the DPS' request for a legal opinion.

The last time I checked, being in the United States without permission was a federal issue, not a state issue.  There is no provision in the Texas penal code making it a crime to be in this county illegally.  There is also no need for state or local police agencies to enforce federal law.

The DPS has enough to worry about with rogue technical supervisors faking maintenance records on the intoxilyzers used to carry out the state's breath alcohol testing program without worrying about whether a driver is here legally or not not.

Another knee-jerk reaction

According to the Houston Chronicle, the Texas Department of Public Safety has decided that, as of October 1, 2008, an applicant for a Texas driver's license must show they are in the United States legally before they can obtain or renew their license.  Gov. Rick Perry applauded the new directive:

"Texas is a great place to live and work, and while we welcome legally documented individuals to the Lone Star State, we must ensure that this privilege is not abused by those seeking to enter our country illegally."

However, Jim Harrington of the Texas Civil Rights Project, pointed out the obvious flaw:

"People have to drive to get to work.  You want people to get (auto) insurance.  They can't get insurance if they don't have a driver's license."

Requiring proof of citizenship is not going to discourage people entering the United States illegally, it will just increase the number of drivers on Texas highways without driver's licenses and insurance.