Well, it seems there are some new rules in store for us as well, however, this time, they are coming from the legislature in the form of Transportation Code changes. Before, it was SOAH’s rules changes and subpoena form changes.
In the past I wrote about recent rule changes in the ALR, or License Revocation process. They included mostly changes on how to subpoena the witnesses (officer). That post has been one of my most popular posts. I have gotten a lot of feedback about those changes.
The major change that I have been able to find affecting ALRs, is from Section 524.039. It has to do with allowing what I feel is a fundamental right when the government is taking away a liberty or privilege– Confronting your accuser.
In the past, we could simply request in writing that the BTO (Breath Testing Operator) and TS (Technical Supervisor) be present at the hearing. Now, it seems that we must issue them a subpoena to appear. I’m not that worried about that part. What I am worried about is that an "Administrative Law Judge" is the one that gets the final decision of whether or not to issue the subpoena. The are the only ones that get to determine if there is good cause for you to be able to confront your accuser.
If your request is overturned, your only recourse is an appeal to the county court. Personally, I’ve got my notice of appeal form ready to go.
Additionally, it is going to be difficult to issue these subpoenas considering SOAH, in my opinion, purposely delays giving a proper amount of notice before a hearing takes place. They give you such a short amount of time, it is almost impossible to request a subpoena, get it signed (there is no time limit, the "Administrative Law Judge" can sit on it as long as he/she wants), get it returned, send it to the process server, and serve the witness who often hide and try not to be served.
According to the new rules, these take place on all hearings that are set after Sept 1st.
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Below is the entire text of the bill that I BELIEVE has passed :
ARTICLE 3. ADMINISTRATIVE SUSPENSION OF DRIVER’S LICENSE FOR INTOXICATION OFFENSES
SECTION 3.01. Section 524.039, Transportation Code, is amended to read as follows: Sec. 524.039. APPEARANCE OF TECHNICIANS AT HEARING. (a) Not [Notwithstanding Section 524.038, if not] later than the fifth day before the date of a scheduled hearing, [the department receives from] the person who requested a hearing may apply to the State Office of Administrative Hearings to issue a subpoena for the attendance [written notice, including a facsimile transmission, requesting the presence at the hearing] of the breath test operator who took the specimen of the person’s breath to determine alcohol concentration or the certified breath test technical supervisor responsible for maintaining and directing the operation of the breath test instrument used to analyze the specimen of the person’s breath, or both[, each requested person must appear at the hearing]. The State Office of Administrative Hearings shall issue the subpoena only on a showing of good cause. (b) The department may reschedule a hearing once not less than 48 hours before the hearing if a [the] person subpoenaed [requested to attend] under Subsection (a) is unavailable. The department may also reschedule the hearing on showing good cause that a [the] person subpoenaed [requested] under Subsection (a) is not available at the time of the hearing. SECTION 3.02. The changes in law made by this article by the amendment of Section 524.039, Transportation Code, apply only to a hearing conducted on or after September 1, 2009. A hearing conducted before September 1, 2009, is covered by the law in effect immediately before that date, and the former law is continued in effect for that purpose.