RESTRICTED…. OCCUPATIONAL…. ESSENTIAL NEED… DRIVERS LICENSES

HB 438

JURISDICTION • Amends Section 521.242 TN

• Criminal Offense In Justice Court Requiring DL Suspension Or Cancellation

• Any Administrative Suspension Unless Statute Provides Otherwise

H.B. 438

•Applies To Petitions Filed On Or After September 1, 2013

•Venue: Precinct Of Residence

Or

•Where The Offense Occurred

JURISDICTION

The person has not been issued, in the 10 years preceding the date of the filing of the petition

• More than 1 ODL after a conviction under the laws of this state *

* Really !!!

EXCEPTION TO JURISDICTION

Request for ODL following ALR revocation and petitioner has already pled guilty to the related DWI.

521.243 NOTICE TO STATE

• Clerk of the court shall send by certified mail to prosecutor copy of petition & notice of hearing

• If Person is under 21 at the time of the offense

521.243 NOTICE TO STATE

• The offense is under Alc Bev Code other than 106.071 (punishment provision)

• Involving manufacture, possession, delivery, transportation or use alcoholic beverage

521.243 NOTICE TO STATE

• Offense under controlled substance

act that does not require a suspension

• BUT: None of above seem to apply to offenses in justice court

521.243 NOTICE TO STATE

JP clerk probably doesn’t have to notify State

Provision in 521.244 allows hearing to be ex parte.

***Check With The Training Ctr***

521.244 HEARING CHECKLIST

• Notice To State

• Jurisdiction

–Right Court

– Suspension in Effect

• Eligibility

–Holds a driver’s license issued by Texas or another state or country.

– The license is not revoked, cancelled, or under suspension.

– Timeliness

HEARING CHECKLIST

• *Evidence From Prosecutor?

• Driving Record of Petitioner

• Proof of Financial Responsibility

• Conditions

–Counseling

–Testing for alcohol

HEARING CHECKLIST

• Essential Need

–In the performance of; or going to and from occupation or trade

–Transportation to and from an educational facility in which person is enrolled.

–In the performance of essential household duties.

521.245 REQUIRED COUNSELING • If suspension is for failing or refusing a breath or

blood test under Chap 524, or 724 TN

• Judge shall require Petitioner to attend program approved by the court designed to provide counseling and rehab services to persons for alcohol dependence

• Condition shall be stated in the license order

• Court may revoke license for non attendance

HEARING CHECKLIST

Ignition Interlock § 521.246 TN

Inapplicable

ORDER REQUIREMENTS

• Reasons for operation

• Counseling

• Areas or routes

• Hours of day and days of Week

– Max 4 hrs within 24 hr period

– Showing of necessity permits up to 12 hrs within 24 hr period.

HEARING CHECKLIST EFFECTIVE DATE OF ORDER

A.L.R. 5 YR RULE FROM DATE OF ARREST

IMMEDIATE IF

No prior suspension based on alcohol or drug-related enforcement contact

HEARING CHECKLIST EFFECTIVE DATE OF ORDER

A.L.R. 5 YR RULE FROM DATE OF ARREST

91st DAY AFTER SUSPENSION IF

1 prior suspension based on alcohol or drug-related enforcement contact

HEARING CHECKLIST EFFECTIVE DATE OF ORDER

A.L.R. 5 YR RULE FROM DATE OF ARREST

181st DAY AFTER SUSPENSION IF

1 prior suspension based on conviction for DWI, IA, or IM

HEARING CHECKLIST EFFECTIVE DATE OF ORDER

A.L.R. 5 YR RULE FROM DATE OF ARREST

1 YEAR AFTER SUSPENSION IF

1 prior suspension resulting from a 2nd or subsequent conviction for DWI, IA, or IM

COMMERCIAL LICENSE PROVISIONS

If a person’s CDL is disqualified for a DWI committed in a non-CMV, the person is eligible to receive an ODL to operate a non-CMV.

37 TAC §16.97

SURRENDER OF D.L.

• On final conviction, the court has discretion to require surrender of the D.L.

• If the Court takes the D.L. it must send the license and record of conviction to D.P.S. within 10 days of surrender.

§521.347(a) TN

• If permitted to keep the D.L. it may be used for identification purposes only.

37 TAC §15.88(d)

“Conviction” means “Final Conviction”

A conviction is a final conviction regardless of whether any portion of the sentence for the

conviction was suspended or probated.

§521.347(c) TN

• All DWI convictions are “final convictions.

• Deferred Adjudication is not applicable to DWI, But…Pretrial Intervention is.

§76.011 GV