San Antonio, Texas (210) 826-1122
Bellevue, Washington (425) 296-2919



PAUL PREMACK, JD, CELA*
8031 Broadway
San Antonio, TX 78209
*Licensed in Texas
BENJAMIN PREMACK, JD** 
11900 NE 1st Street
Bellevue, WA  98005
**Licensed in Washington State & Colorado


San Antonio Probate, San Antonio Estate Planning, San Antonio Elder Law

 
Paul Premack, Express-News Banner

San Antonio Express-News MySA.com
Copyright 2012, Paul Premack
December 25, 2009

Driving is a privilege, not a right

Dear Mr. Premack: My uncle is in his mid-80's and I fear for his safety whenever he gets behind the wheel of his car. His reaction time is slow, he can't see well and he gets confused. But he insists that driving is his legal right and refuses to give it up. His license is good for another year. Are there any things that I can do to discourage his driving, or to get him off the road altogether? - K.G.
 
There are several things that you can do. Begin by having a frank discussion about safety, and emphasize two things: 1) if he causes an accident he could injure or kill someone else, and 2) if he does that, he might lose all of his hard-earned savings in a lawsuit. An accident can be grounds for him being held personally liable for damages.
 
Next, talk to his auto insurance agent. Find out how much it would cost to buy additional coverage for all the possible damages he could cause. He must, by law, already have minimum insurance levels. He should, as a matter of responsibility, have extra coverage if he insists of driving. The cost of the extra coverage may be high, and hopefully the extra expense will convince him that continuing to drive is too costly.
 
You could also ask him to take a defensive driving course. If he insists that he is a safe driver, then he should be confident about doing well in the course. He may prove that he is a capable driver, or he might become convinced that he cannot keep up with modern traffic.
 
If he refuses to voluntarily take any of those steps, you might consider some more aggressive moves. If your relationship is trusting enough, he may accept an ultimatum: stop driving or I’ll take away your keys. You must be careful about combative confrontation, because acting on your own you do not have a legal right to interfere with his freedom of choice. But if you are his agent under his durable power of attorney you have an obligation to see that his property is preserved; an auto accident can be very expensive, so taking away his keys may be your duty.
 
If you are not legally empowered to interfere, there are three ways you can get the government involved.
 
1. You can file to become his court appointed guardian. If the court agrees that he is incapacitated, the judge may also rule that he can no longer drive.
 
2. You can contact the Driver Improvement and Compliance Bureau of the Texas Department of Public Safety. Your report must be made in writing; the address for the Bureau is PO Box 4087, Austin, TX 78773. Their field staff will do a preliminary investigation, and records may be reviewed by the Medical Advisor)' Board to accurately determine his medical condition. If DPS determines that he is unable to "exercise reasonable and ordinary care" while driving because of physical or mental disability, his driver's license can be revoked.
 
3. If all else fails, he may be caught by Katie's law, passed by the Texas legislature two years ago. It provides that anyone 79 or older must appear in person to renew his license, and must pass prescribed fitness tests. It also provides that the license of anyone age 85 or older expires on the second birthday-after the date of the license application. For example, if someone gets a license renewal at age 84 then the driver must appear and be tested at age 86. Failure to appear, or failure to pass the exams, means that the driver's license is expired and the person may no longer legally operate a motor vehicle.

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Disclaimer: This column answers a specific legal question asked by an individual in Texas. The answer may or may not match your individual situation. Be careful not to treat this column as specific legal advice, as it may not meet your individual needs. It may give you a solid basis for discussion with your own attorney.  You should consult with your personal attorney before you take any action on this or any legal issue. Also, please be aware that laws change, so  this column is valid only as of the date it was published. This communication does not create an attorney-client relationship between the author and the reader.

 

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