2015 odl presentation - compressed
TRANSCRIPT
7/13/2015
1
Occupational Driver Licenses& Texas Ignition Interlock Requirements
Practical Information for Issuing Orders and Enhancing Public Safety
Tracie Bonham PalmerAttorney at Law
Why is Petitioner Before You?• Some type of drug or alcohol related contact with the law occurred, or
• License status is out of control with traffic citations, failure to pay, failure to maintain insurance
7/13/2015
2
Why Grant an ODL?Up to 75% of offenders with suspended or revoked DLs continue to drive. Source: NHTSA
–Without liability insurance
–Without interlock and other conditions
Determining Eligibility:Basic DPS Terms
Eligible:
Can operate a
motor vehicle
Not Eligible:
Prohibited from operating a
motor vehicle or obtaining a license
Various DPS Enforcement Actions
• Suspension
•Cancellation
•Revocation
7/13/2015
3
2 Types of DPSEnforcement Actions
• Enforcement actions with an end date
• Enforcement actions without an end date
Enforcement Actions WithAn End Date
Have a beginning date
and an end date
Examples:
–ALR suspensions for breath test failure
or refusals
–Mandatory DWLI
suspensions
Enforcement Actions Without An End Date
Petitioner can comply with certain requirements and have license reinstatedExamples:
– Delinquent surcharge account– Failure to take DWI Ed Class– Interlock license required‐ Outstanding out of state ticket
Encourage Petitioners to take action to reinstate license and eliminate the need for ODL.
7/13/2015
4
Correct Petitioner Address with DPS
Petitioners need to update their address with DPS.
Many Petitioners miss important notices and opportunities for DPS hearing requests due to incorrect driver license addresses. Without communication from DPS, Petitioners end up confused about why their license is suspended or unable to renew.
Requirements for an EligibleDriver License Status
• No current suspensions or revocations• No outstanding tickets or failure to appears (including out of state)
• No unpaid or late surcharges• All reinstatement fees paid• No interlock cancellation*
* If only interlock cancellation, can apply for restricted interlock license.
DPS Driver Eligibility Website• https://txapps.texas.gov/txapp/txdps/dleligibility/
• Need:
– TX Driver License Number
– DOB
– Last 4 digits of SSN
• Can view license status, suspensions, and reinstatement fees
• Reinstatement fees can be paid online, but not ODL fee.
7/13/2015
5
DPS Failure to Appear/Failure to Pay
Programwww.texasfailuretoappear.com or 800‐686‐0570
• Texas courts report violations to system. License cannot be renewed.
• Each offense listed along with docket number and court address/phone number.
• Petitioner will need to contact each court to resolve issues.
DPS Driver Responsibility Program
• Surcharges assessed for certain traffic offenses.
• Can be triggered by DWI, no insurance, DWLI, no license, points.
• Surcharges are assessed once a year for 3 years.
• An ODL can be issued if surcharges are owed.
• Payment plan and Indigency/Incentive Reduction Program exists.
DPS Surcharge Information• Surcharges are managed & collected by Municipal Services Bureau.
• If a surcharge payment is late, the driver license is suspended until the surcharge account is current. This may also cause a DWLI suspension, if a ticket is issued during this late period.
• To view individual surcharge account information, make payments, or view information on the Incentive/Indigence Program, visit www.txsurchargeonline.com.
• To contact Municipal Services Bureau about surcharges, Petitioners can call 800‐688‐6882 or email [email protected].
7/13/2015
6
General JurisdictionIn general, court has jurisdiction over petition if filed:
• in the county where petitioner resides, OR
• county or precinct where offense causing suspension occurred.
Jurisdiction ExceptionException: If suspension is due to a criminal conviction, only the convicting court has jurisdiction to grant ODL.
Jurisdiction:No more than 2 ODLs in 10
years
A petitioner cannot have more than 2 ODLs granted within a 10 year period.
7/13/2015
7
Applicants can receive a Texas ODL if they have…
• Held a valid Texas driver license
• Held a valid driver license issued by another state
• Never had a valid license in any state
– Contingent on passing DPS driving test
– May also require education class if under 24
•Medical revocation
• License revoked for delinquent child support
• Commercial driver license
• Certain waiting periods…
An ODL CANNOT Be Granted When:
DPS Revocation for Medical Reasons
• Revocation lasts indefinitely unless reinstatement approved by the Medical Advisory Board
• Not eligible for an occupational license
7/13/2015
8
Administrative License Revocation Program (ALR)
• Civil process separate from criminal proceeding
• Revokes license for failure or refusal of breath/blood test upon arrest for DWI or BWI
• Driver has 15 days to request hearing and stop license suspension until hearing date.
• If no hearing is requested, suspension starts on 40th day from refusal or failure (usually arrest date)
ALR Breath Test Failure
• 1st failure – 90 day suspension period
• 2nd failure w/in 10 years – 1 year suspension period
ALR Breath Test Refusal
• 1st refusal – 180 day suspension period
• 2nd refusal w/in 10 years – 2year suspension period
7/13/2015
9
ALR Suspension w/ CDLFailure or refusal will result in one year disqualification of a commercial driver license (CDL).
An ODL cannot be issued for a CDL.
If suspension is less for Class C license, driver can get rid of CDL and get Class C license after the Class C suspension period ends.
ODL Waiting Periods• ALR suspensions when Petitioner has 2
or more alcohol or drug related suspensions within 5 years
• 2 DWI* convictions when the offense dates are both within 5 years
• Waiting periods for certain alcohol or drug related offenses involving minors
DO NOT GRANT ODL DURING THESE WAITING PERIODS
(*DWI, BWI, FWI, Intoxicated Assault, or Intoxicated Manslaughter conviction)
ALR Suspension ODL Waiting Periods
• 2 alcohol or drug related suspensions within 5 years:– If the previous contact DID NOT result in a DWI* conviction, waiting period is 90 days
– If the previous contact DID result in DWI* conviction, waiting period is 180 days
(*DWI, BWI, FWI, Intoxicated Assault, or Intoxicated Manslaughter conviction)
7/13/2015
10
DWI Conviction Suspension Waiting Period
• 2 or more DWI* convictions with offense dates within 5 years, the waiting period is one year from date of suspension (sometimes called “hard suspension”)
*DWI, BWI, FWI, Intoxicated Assault, or Intoxicated Manslaughter
Ignition Interlock Device Requirements
• Portable alcohol monitoring devices are not a substitute for an ignition interlock device when an ignition interlock is required by law.
• Ignition interlock devices prevent a driver who has consumed alcohol from operating a motor vehicle.
• Portable devices detect alcohol consumption but do NOT prevent the use of a vehicle when the driver has consumed alcohol.
Ignition Interlock Device Required as Probation Condition
• DWI* conviction with BAC 0.15 or higher
• DWI* subsequent convictions or enhanced DWI convictions
(Subsequent offenses ‐ committed within a 10 year period.)
• Interlock has to stay on at least 50% of supervision period.
• Device must be installed w/in 30 days of order.
*DWI, BWI, FWI, Intoxication Assault, Intoxication Manslaughter
7/13/2015
11
Ignition Interlock Device Required for ODL Order
Mandatory: DWI* conviction for subsequent
conviction or enhanced conviction. (Subsequent convictions are for a 10 year period.) Duration is for the entire ODL.
Discretionary: Alcohol/drug related suspension.
*DWI, BWI, FWI, Intoxication Assault, Intoxication Manslaughter
Ignition Interlock Device Required as a Bond Condition
• Ignition interlock required on release of a defendant charged with subsequent or enhanced DWI* offense.
Device must be installed w/in 30 days of release.
*DWI, BWI, FWI, Intoxication Assault, Intoxication Manslaughter
Exception to Mandatory Ignition Interlock Device
• Judge determines “not in the best interest of justice,” and
• Judge makes a finding on the record
7/13/2015
12
INTERLOCK REQUIREMENTS ARE THE RESPONSIBILITY OF THE COURT
• Do not rely on DPS to enforce or add interlock requirements. This is not within the scope of DPS.
• DPS does not ever initiate interlock requirements or interlock orders to add to a driver license. DPS only enters or removes interlock restrictions received from the court.
• INTERLOCK ORDERS MUST BE DONE BY THE COURT!
Company Vehicle ExceptionA person may operate a motor vehicle without the required interlock if:–Required to operate a motor vehicle in course and scope of employment
–Vehicle is owned by employer
–Person who is restricted does not control employer
–Employer is notified of the interlock restriction
–Proof of the notification is with the vehicle
PC 49.09 (h) Interlock Required After License Suspension Period Ends
Defendants must:
• install an ignition interlock device before the end of the license suspension period, and
• keep this device for the entire first year after the end of the license suspension period.
7/13/2015
13
49.09 (h) Components
• Applies to Defendants with 2 or more DWI* convictions with offense dates 5 years apart or less
• Ignition interlock required to be installed before end of suspension
• Ignition interlock for 1 year following end of DL suspension
49.09 (h) Components (continued)
• Interlock to be installed on each vehicle owned or operated by defendant
• Interlock installed at expense of defendant
• Defendant required to provide evidence of installation to court
• Court can order CSCD supervision to monitor compliance
49.09 (h) Does NOT Allow Early Removal
The statute expressly states that 49.09 (h) controls over Transportation Code Section 521.247 which allows for an ignition interlock device removal after completion of 50% of a period of community supervision.
NO EARLY REMOVAL FOR INTERLOCK RESTRICTION UNDER 49.09 (h)!
7/13/2015
14
49.09 (h) Enforcement
Failure to comply with installation/ maintenance is punishable by contempt of court
–Alcohol violations are NOT
49.09 (h) – Tricky To ImplementThe timeline will vary from defendant to defendant:–Defendants may have different suspension periods
–Defendants may or may not be on probation
–If defendants are on probation, probation times vary
Look at all applicable statutes requiring an interlock
You must follow all ignition interlock requirements under the Texas Penal Code, Texas Transportation Code, and the Texas Code of Criminal Procedure.Example: If a Petitioner is on probation for a 0.15 or higher BAC first DWI* conviction, Petitioner must have an ignition interlock under the Penal Code, even though it is discretionary for an ODL under the Transportation Code.
7/13/2015
15
ODL Travel Purposes• Occupation or trade
• Educational facility in which person is enrolled.
• In the performance of essential household duties.
ODL Generator:
Microsoft Access
Data Entry: Part 1• Court
Information
• Petitioner Information
• Suspension Information
• Employment Status
• Counties Allowed
• Time, Hours and Reasons
Components of Order
• Hours of day and days of week (Up to 12 hours in any 24 hour period. Driving log may be required)
• Reasons for operation
• Areas permitted
• Waiver of 4 hour rule, if applicable
7/13/2015
16
Court Order Granting ODL• Serves as a temporary driver license for 30 days. The order is not “the license.”
• Clerk should send notice to DPS promptly.
• If DPS does not issue ODL in this time period, you may grant additional 30 day order(s).
• Petitioner MUST keep court order in the vehicle for the duration of the ODL‐‐ even beyond the 30 days.
DPS Requirements for ODL Issuance
• Court order granting ODL
• Copy of SR‐22• Payment of all reinstatement fees
• Payment of $10 ODL Fee for each year
Financial Responsibility Insurance Certificate (SR‐22)
Petitioner must have an SR‐22 on file with DPS, certifying that Petitioner has minimum liability insurance as required by law.
With SR‐22, if insurance lapses, terminates, or is cancelled, the insurance provider must notify DPS.
Once DPS receives notice,driving privileges are suspended.
7/13/2015
17
PROOF OF SR‐22Petitioner should provide an actual copy of the Form SR‐22 that has been filed with DPS.
An insurance card is not an SR‐22.
A declaration page summary showing the addition of an SR‐22 should not be considered a substitute for an SR‐22.
Required Duration of SR‐22
• Entire period of the occupational driver license
• Two years following a DWI conviction
• Certain other periods for no insurance, etc.
Reinstatement FeesUnlike surcharges, DPS requires payment of reinstatement fees for ODL.
Almost all enforcement actions/suspensions require $100.00 reinstatement fee
Exception: ALR suspension is $125.00
Many Petitioners will owemultiple reinstatement fees for current or past suspensions.
7/13/2015
18
Amended OrderAn amended order can be issued to reflect changes in:
–Suspension dates
–Needs of Petitioner
–Conditions and requirements of ODL
Petitioner should send a copy of the amended order to DPS along with another $10.00 license fee.
Amended Orders Granting an ODL
Duplicate Occupational License
If the occupational license is misplaced or the Petitioner has a change of address, Petitioner should send a written request for a duplicate occupational license and a $10.00 license fee to DPS.
7/13/2015
19
Interlock
Occupational
DPS Driving RecordPetitioner should obtain a Type AR driving record from DPS.Type AR contains all crashes, violations,
and suspensions on the
driving record.
ALR Suspensions on Driving Record
• Time lag exists between ALR suspensions and driving record especially when ALR hearing is requested
• After ALR hearing is requested, driver will continue to show Eligible, but pending suspension dates will show suspension starting on 40th day after arrest (suspension dates if hearing was not requested)
• Can take up to 30 days or more for driver to get notice in mail from DPS about hearing results or website to be updated to reflect Not Eligible and correct suspension dates
• Consider requiring Petitioner to bring a copy of ALR decision or notice from DPS to ODL hearing
7/13/2015
22
Applying Reasonable ODL Conditions
Conditions can include:–Counseling– Ignition Interlock Device–Submit to CSCD Supervision
–Periodic testing for alcohol and controlled substances
–Monthly administration fee
–Substance abuse evaluation and treatmentNote: Supervision can be modified or terminated for good cause before the end of the license suspension period.
Counseling as an ODL Condition
• Discretionary: Counseling can be required at discretion of court
• Required: ALR suspension involving failure or refusal of specimen. Cannot be DWI Education or counseling required under DWI judgment
Ignition Interlock Requirement
When DPS receives an ignition interlock order from the court, the petitioner receives notice and the license is cancelled unless Petitioner applies by mail for a restricted interlock driver license.
7/13/2015
23
Restricted Interlock License Request
• Interlock restricted license cannot be obtained at a local DPS location.
• Send written request to DPS with name, driver license number, and date of birth along with $10.00 license fee. Restricted interlock license will not be issued unless license is clear of all suspensions and unpaid surcharges, citations, etc.
• Mail to:
Texas Department of Public Safety
Enforcement and Compliance Service
P.O. Box 4087
Austin, TX 78773‐0320
Removing Interlock Restriction
To obtain an ignition interlock removal order and remove the restriction from the driver license, Petitioner needs to go back to the court that issued the ignition interlock order.
Class B Misdemeanor Offense to:
• Operate a motor vehicle in violation of an ODL restriction
• Failure to have a copy of the court order in possession
7/13/2015
24
ODL Revocation• A court can revoke an ODL at any time for good cause.
• Issue a “Show Cause”and have a hearing—basic due process.
• The court must send a certified copy of the ODL revocation to DPS.
FUN WITH ODLS #1
• Petitioner is arrested in 2012 for DWI and lost his ALR. His DWI case was dismissed. He is arrested again for DWI in 2013 and again lost his ALR. How long must he wait to obtain an ODL?
90 days
FUN WITH ODLS #2
Petitioner is arrested in 2012 for DWI and lost his ALR. His DWI case was reduced to a Reckless Driving “B”. He is arrested again for DWI in 2013 and again lost his ALR. How long must he wait to obtain an ODL?
90 days
7/13/2015
25
FUN WITH ODLS #3
Petitioner is arrested in 2012 for DWI and lost his ALR. He was convicted of DWI. He is arrested again for DWI in 2013 and again lost his ALR. How long must he wait to obtain an ODL?
180 days
FUN WITH ODLS #4
Petitioner is from Chicago, Illinois where he had a DL that was suspended in Illinois. Pet. moves to Harris County and seeks an ODL to drive in Texas. Can you grant the ODL?
Yes, but remember:
– Petitioner must provide his Birth Certificate to DPS.
– Order should contain Illinois DL number and Texas ID number.
– Best practice: Have Petitioner FIRST obtain a Texas ID Card.
FUN WITH ODLS #5
Petitioner has never had a valid DL. He has a DWLI conviction (due to tickets, surcharge problems). Can you give Petitioner an ODL?
Yes. The Order must include language ordering DPS to allow Petitioner to take the driving test. If Petitioner passes, ODL is granted.