LEGAL GUIDE
Written by attorney Patrick Mahaney | May 6, 2010

"Welch Hearings" - Obtaining an Alabama Driver License/ Out of State Revocation Order

The Code of Alabama provides certain legislatively enacted requirements the Department of Public Safety must follow in the administration of the driver license system. For example, under the Code of Alabama, section 32-6-7 (3), the Director of Public Safety is not authorized to issue a driver license to "any person whose driving right or privilege is revoked."

In any number of instances, a person will re-locate to Alabama while suspended or revoked under another state's licensing system. In the case of Ex parte Welch, 519 So. 2d 517 (Ala. 1987), the Alabama Supreme Court established the rule that an out-of-state driver license sanction, such as permanent license revocation imposed on an individual as penalty for a prior offense, would not be enforced by the Alabama driver license authorities if the individual sought to be licensed in Alabama. Rather, the Alabama driver licensing authorities must apply the relevant Alabama standard in reviewing a driver license application.

The primary questions under the Ex parte Welch decision were: 1) was the Department of Public Safety required to afford a due process hearing to a license applicant who has been suspended or revoked as a result of holding a driver license in another state and suspended or revoked under the laws of the issuing state, and then moves to Alabama and makes application to be licensed in Alabama, and 2) what standard must be applied? The short answers to both questions is that a due process hearing must be afforded the applicant, as is the case for any person denied a driver license, and that the new Alabama resident cannot be held to a higher standard than he would be held if the same act or violation took place in Alabama. In other words, the Alabama license authorities must apply Alabama standards to a new resident and may not impose the out-of-state sanctions upon the individual seeking an Alabama driver license.

Can a potential resident request a Welch hearing prior to establishing residency? In the opinion of the legal staff of the Department of Public Safety, an out-of state applicant has no legal right to request a Welch hearing. Residency must be established prior to making an official application for a license. It is public policy of this state not to license non-residents, and no person, other than a bona fide resident, may make written application for an Alabama driver license. Therefore, in the opinion of the Department of Public Safety, residency must be established before a license application can be made, and it therefore follows that a Welch hearing cannot be held until the application is submitted to the department.

Under the Code of Alabama, 1975, section 32-6-1(a), every new resident must apply for an Alabama driver license within 30 days of establishing residency. A license application can be submitted any time "within" 30 days of establishing residency; the new resident does not have to wait until 30 days had expired. Once an applicant establishes residency in Alabama, the applicant can then apply for a Welch hearing upon submission of application for the Alabama license. The department will accept a petition for a Welch hearing at the same time the application was made, but not before. This is because a "file number" must be established on all driver license applicants, whether the applicant is successful in obtaining the license or not. The license application must include the current Alabama address, social security number, and a listing of all previously held driver licenses. All statements made on the application are made under oath and upon penalty of perjury. See, Code of Alabama, 32-6-18(b).

Under the common law of Alabama, the term "to reside" or have a "residence" has been interpreted to mean a place of permanent or semi-permanent dwelling. It must be a fixed location. Although there is no hard and fast rule as to what constitutes a "resident" or "residency," it has been judicially decided through a series of cases that there are indicators or "incidences" of residency, which include:

·Physical location where one habitually lives as established by U.S. mail delivery, delivery of utility services and payment of utility bills, telephone listing, registration with the city and county government for payment of taxes, or other indicators

of a permanent location

  • A place of employment in Alabama (full or part-time employment)
  • Membership in local community organizations, such as civic club or church
  • Possession of any official license issued by the state (such as a hunting and/or fishing license; boat operators license)
  • A bank account with an Alabama established bank or credit union or other financial institution
  • Obtaining a state certificate or state-issued professional license
  • Ownership or lease of land in Alabama; holding a mortgage or title to land in Alabama
  • Vehicle ownership and having the title and certificate of vehicle registration in Alabama
  • Paying taxes to any governmental agency, such as local property tax or state income tax
  • Registering to vote in Alabama
  • Establishing a business and paying business taxes; incorporation under Alabama state laws

This list of indicators of residency is not all inclusive, but illustrative. The more indicators of residency, the more likely a court will find the applicant to be a bona fide resident and not a temporary transient. The issue here is that the department will only issue an Alabama driver license to an Alabama "resident" and not to a visitor or person living here on a temporary basis.

The first question to be determined in a Welch hearing is whether or not the applicant is actually an Alabama resident before going to the second question of whether or not the applicant poses a risk to the public if he or she were to be licensed. In cases where the newly established resident is applying for an Alabama driver license after an out-of-state revocation due to second or subsequent DUI conviction, the question then becomes whether the individual has curtailed or stopped alcohol use and is no longer a risk, or does the individual still require treatment and rehabilitation? The latter question may require substance abuse reports and a clinical diagnosis before the Department will approve the new resident's application for license. Under Code section 32-6-7 (4), the Department will not issue a driver license to "an habitual abuser of alcohol or drugs." The Department is authorized to conduct an investigation into the applicant's background and status in the community, to include a check of neighbors, work associates, and others in making the determination.

In order to assist the Director in his decision to authorize a driver license, the Department of Public Safety has a well-established process to facilitate a Welch hearing. Written evidence, court records, and testimony will be taken by the hearing officer and an independent evaluation will be made to authorize or deny a driver license. The hearing recommendation then goes the Chief Hearing Officer and a final decision is made. A written report will be sent to the applicant in either event.

If the administrative hearing results in adverse decision, the applicant has the right to file an appeal to the Circuit Court in 30 days after receiving notice; otherwise the applicant forfeits an opportunity for judicial review. See, Code of Alabama, 32-5A-195 (q). Ordinarily, this court review would be held in the county of residence. In the case of a non-resident, the hearing would be held in Montgomery County, where the main office of the Department is located.

In cases of persons suspended or revoked under the laws of another state, but eligible to hold an Alabama driver license under the laws of this state, the issue comes down to this: if the applicant wishes to obtain an Alabama driver license and is currently suspended or revoked in the licensee's original state, the applicant must undergo the Welch hearing process and investigation by the Department of Public Safety. However, the applicant cannot apply for an Alabama driver license until first establishing residency in Alabama. Once residency is established, the applicant is then entitled to the legal process outlined in Code of Alabama, 1975, section 32-5A-195 (q) concerning driver license appeals.

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