Who needs a sworn report anyway?

Score one for the Department of Public Safety.

Whenever a motorist is arrested for driving while intoxicated in Texas, the arresting officer must file a sworn report with the DPS referred to as a DIC-23. In that form the officer swears to the information regarding the reason for the stop and probable cause to arrest the motorist.

In Texas there are two ways in which the DPS can suspend the driver's license of a motorist arrested for DWI. Refusing a request for a breath test can net a first-time offender a six-month suspension. Blowing over the legal limit of .08 can get a first-timer a 90-day suspension.

Due to the way in which the laws were written regarding these administrative license suspensions, the officer was required to issue a sworn report on a failure case but not on a refusal case.

Back in 2007, Stephen Caruana was stopped and arrested for driving while intoxicated. Mr. Caruana submitted to a breath test and blew a .016 and a .015, both in excess of the legal limit. As a result, the DPS moved to suspend his driver's license for 90 days.

At a hearing to contest the suspension, the arresting officer testified about the stop and admitted that he had not sworn to his report. Mr. Caruana moved to exclude the officer's report from evidence. His motion was denied and the administrative law judge ordered his license suspended. Mr. Caruana appealed the suspension to the county court which reversed the decision of the administrative law judge. The DPS then appealed that decision to the Austin Court of Appeals which upheld the county court's ruling. The DPS then appealed to the Texas Supreme Court.

In Texas Department of Public Safety v. Stephen Caruana, No. 10-0321 (Tex. 2012), the Supreme Court then determined that there was no need to require an officer to swear to his report because if he lied on it he would be subject to prosecution for making a false statement in a government record. It would be too obvious, of course, to point out that fear of prosecution has never deterred a police officer from submitting an offense report that is more akin to a work of fiction.

The judges on the Supreme Court took a twisted path to come to the conclusion that just because the statute required an officer to submit a sworn report, that didn't make an unsworn report inadmissible. We also have the spectacle of a court made up of judges who supposedly practice judicial restraint invalidating part of a statute in order to reach their chosen conclusion.

Now, there was a big problem in Mr. Caruana's case that set the stage for the Supremes to decide the legislature didn't mean what it said. At the license suspension hearing, the arresting officer testified as to what he observed and why he arrested Mr. Caruana. The officer's report wasn't necessary as the administrative law judge had the officer's sworn testimony as to the events of that evening. In other words, the report (sworn or unsworn) was irrelevant. That, in turn, gave those members of the Court who wanted to uphold the suspension little choice other than to make the ruling they did. Had this been a case in which no testimony was offered (a so-called "paper case"), I think the outcome would have been different.

But, now, thanks to the Supreme Court, a process that was already stacked to benefit the DPS, has become even more so.

DPS offers new way to request ALR hearings in Texas

It looks like we have a new method of requesting ALR hearings to contest license suspensions in Texas. The Department of Public Safety has added this link to their page that allows you to request a hearing online.

https://www.txdps.state.tx.us/DriverLicense/customer_service/SendForms/alr.asp

The Notice of Suspension handed to anyone arrested on a DWI does not mention a hearing can be requested online so I wouldn't rely solely on the internet to make a request. I would also be leery of "bugs in the aether" that could intercept the request.

As I already send my requests by fax and certified mail, maybe I'll just save the postage and send my requests by fax and through the DPS website from now on.

Is proposal to end ALR system in the works?

Could the Administrative License Revocation system in Texas be coming to an end?

A little bird told me that State Senator Dan Patrick (R-Houston) is planning on introducing legislation this coming session to do away with the ALR system. According to my sources, under Sen. Patrick's proposal, a license suspension would be imposed upon the finding of probable cause by a magistrate.

Currently a motorist accused of a first driving while intoxicated faces a 90-day suspension for failing a breath test and a 180-day suspension for refusing to blow in the state's breath test machine. At the ALR hearing, the DPS must show that the officer either had reasonable suspicion to believe the motorist had committed an offense or probable cause to arrest.

The reasoning behind Sen. Patrick's proposal is that once a magistrate determines probable cause to arrest existed, there is no need for the state to spend any more money trying to prove it up at a ALR hearing. Nevermind the fact that at an ALR hearing the DPS must at least prove their case by a preponderance of the evidence -- at a probable cause hearing a judge must only find that probable cause to arrest exists.

The state would benefit in a couple of other ways, as well. Since the suspension would be imposed automatically upon a finding of probable cause, more motorists would have to pony up $125 reinstatement fees. Axing the program would also eliminate the ability of defense attorneys to depose the officers under oath before prosecutors get hold of them.

A bigger issue, however, is the imposition of criminal sanctions before the state has proven each and every element of its case beyond all reasonable doubt. Supporters can claim all they want that a license suspension is an administrative action separate and apart from the DWI case, but by using a magistrate's probable cause finding as the trigger -- the proposal would tie the two together at the hip. Such a move would violate the separation of powers doctrine and would serve to reduce the state's burden of proof.

A new wrinkle in ALR practice?

I spent part of my morning at the State Office of Administrative Hearings on an ALR hearing for a DWI client. While observing some of the other hearings I noticed something I'd never seen before -- administrative law judges admitting documents even though an officer failed to appear after being subpoenaed.

Rule 159.211(c)(2) of the Texas Administrative Code states:

An officer's sworn report of relevant information shall be admissible as a public record. However, the defendant shall have the right to subpoena the officer in accordance with §159.103 of this title (relating to Subpoenas). If the defendant timely subpoenas an officer and the officer fails to appear without good cause, information obtained from that officer shall not be admissible. 

In each of these cases the officer who prepared the documents failed to appear after being subpoenaed by the defense. In each instance the attorney for the DPS sought to admit the documents as an offer of proof. The defense attorneys all objected on the grounds that the officer failed to appear after being subpoenaed. And, in each case, the administrative law judge admitted the documents but stated that any information provided by the officer who failed to appear would be disregarded.

In no case did the attorney for the DPS try to show that there was good cause for the officer's failure to appear. In no case did she raise any objection to the subpoena or its proof of service.

The old practice was for the DPS attorney to move for dismissal for the officer's failure to appear. Is this new practice designed to preserve evidence on the record in case the DPS chooses to appeal the finding of the administrative law judge? Is it being done so that the DPS can later raise the issue of sufficiency of service or show good cause for the officer's absence? Or is it yet another example of an administrative law judge who doesn't know the law?