Theresa Marshall v. Arkansas Department of Finance and Administration, Office of Driver Services - Driver Control

Cite as 2026 Ark. App. 65
ARKANSAS COURT OF APPEALS
DIVISION IV
No. CV-24-736

Opinion Delivered February 4, 2026

THERESA MARSHALL APPEAL FROM THE PULASKI
APPELLANT COUNTY CIRCUIT COURT, SIXTH
DIVISION
[NO. 60CV-24-5865]
V.
ARKANSAS DEPARTMENT OF
FINANCE AND ADMINISTRATION, HONORABLE TIMOTHY DAVIS FOX,
OFFICE OF DRIVER SERVICES - JUDGE
DRIVER CONTROL
APPELLEE AFFIRMED

CASEY R. TUCKER, Judge

Theresa Marshall appeals the Pulaski County Circuit Court’s denial of her petition

for leave to proceed in forma pauperis and its denial of her de novo petition for review. We

affirm.

Marshall’s case began with the surrender of her driver’s license on April 7, 2024, due

to driving while under the influence—alcohol and refusal to submit to a chemical test. She

requested an administrative hearing to contest the suspension of her license and to be

considered for either a restricted driving permit that would allow her to drive for

employment, for educational purposes, for medical reasons, or for alcohol-safety education;

or an interlock restricted license.
At the conclusion of the administrative hearing, the hearing officer sustained the

suspension of Marshall’s driving privileges for six months for a first-offense DUI pursuant to

Ark. Code Ann. §§ 5-65-103 and -104 (Repl. 2024) and the suspension for the same period

due to refusal to submit to a chemical test pursuant to Ark. Code Ann. § 5-65-205 (Repl.

2024). The Office of Driver Services granted Marshall an interlock restricted license as

requested and issued an interlock order. Marshall was informed by letter that she must

furnish the Office of Driver Services a certificate of completion of an approved alcohol-

rehabilitation program, proof of attendance at a victim-impact panel, confirmation of a

mandatory interlock for the amount of time required (six months), and a reinstatement fee

of $150 to have her driver’s license reinstated.

Marshall petitioned the circuit court to proceed in forma pauperis for the purpose of

seeking review of the decision by the Office of Driver Services and attached her petition for

de novo review as is required by Arkansas Rule of Civil Procedure 72. The circuit court

denied her petition on the basis of a failure to state a cause of action upon which relief can

be granted. Marshall then filed a “petition for leave to proceed in forma pauperis

reconsideration” followed by a “second petition for leave to proceed in forma pauperis

reconsideration,” which was followed by a “corrected second petition for leave to proceed in

forma pauperis reconsideration.” The circuit court denied her petitions, and Marshall

appealed.

Arkansas Rule of Civil Procedure 72 sets forth the process by which an indigent

person may petition the court to pursue his or her cause of action in forma pauperis. When

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a court grants a petition to proceed in forma pauperis, the petitioner may then prosecute the

suit without paying filing fees and other fees charged by the clerk. Ark. R. Civ. P. 72(c).

Indigent individuals do not enjoy an absolute right to proceed in forma pauperis. Rule 72(c)

provides, “If satisfied from the facts alleged that the petitioner has a colorable cause of action,

the court may by order allow the petitioner to prosecute the suit in forma pauperis.” Thus,

the right to proceed in forma pauperis in civil matters is conditioned on a
finding of indigency and the circuit court’s satisfaction that the alleged facts
indicate “a colorable cause of action.” Ark. R. Civ. P. 72(c). A colorable cause
of action is a claim that is legitimate and may reasonably be asserted given the
facts presented and the current law or a reasonable and logical extension or
modification of it.

Morgan v. Kelley, 2019 Ark. 189, at 2, 575 S.W.3d 108, 109.

Our standard of review of a decision to grant or deny a petition to proceed in forma

pauperis is abuse of discretion. Morgan, supra. An abuse of discretion occurs when a court

acts arbitrarily or groundlessly. We will not reverse a circuit court’s factual findings

supporting its exercise of discretion unless they are clearly erroneous. Id. “If the underlying

petition clearly fails to state a colorable cause of action, there has been no abuse of discretion,

and this court may affirm the denial of in forma pauperis status.” Id. at 3, 575 S.W.3d at

110.

To determine whether Marshall’s petition for review stated a colorable cause of

action, we begin with the applicable law. Pursuant to Arkansas Code Annotated section 5-

65-402 (Repl. 2024), when an individual is arrested for driving while intoxicated in violation

of section 5-65-103 or for refusing to submit to a chemical test in violation of section 5-65-

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205, “the arrested person shall immediately surrender his or her license, permit, or other

evidence of driving privilege to the arresting law enforcement officer.” Ark. Code Ann. § 5-

65-402(a)(1)(A). The arresting officer then gives the driver a receipt that is recognized as a

license and allows the driver to operate a motor vehicle for a period not to exceed thirty days.

Ark. Code Ann. § 5-65-402(a)(2)(A)(i), (ii). The arresting officer prepares a sworn report of

the arrest and submits the surrendered license (if valid and unexpired), a copy of the receipt

form, and the report to the Office of Driver Services within seven days of the issuance of the

receipt. Ark. Code Ann. § 5-65-402(a)(2)(D)(i).

Pursuant to Arkansas Code Annotated section 5-65-402(a)(4)(A)(iii), “[t]he Office of

Driver Services or its designated official shall suspend, revoke, or disqualify the driving

privilege of an arrested person . . . when it receives a sworn report from the arresting law

enforcement officer that he or she had reasonable grounds to believe the arrested person”

had been operating a motor vehicle while intoxicated, in violation of section 5-65-103, and

that report is accompanied by the chemical test report or the officer’s sworn report that the

arrested person refused to submit to a chemical test. Ark. Code Ann. § 5-65-

402(a)(4)(A)(iii)(a), (b). A person who has his or her license revoked in accordance with this

provision may request a hearing. Id. § 5-65-402(a)(7)(A).

Pursuant to the statute, the hearing is not recorded. The burden of proof is on the

State and is based on a preponderance of the evidence. Id. § 5-65-402(a)(8)(B), (C). Pursuant

to section 5-65-402 and as pertinent to the case before us, the issues at the hearing include

whether the arresting officer had reasonable grounds to believe that the person was operating

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a car while intoxicated and whether the person “refused to submit to a chemical test of the

breath, saliva, or urine for the purpose of determining the alcohol concentration.” Id. § 5-

65-402(a)(8)(D). When the revocation or suspension of a license is based upon the refusal

of the driver to submit to a chemical test, the scope of the hearing also includes whether the

driver was informed that refusal would result in having her license suspended. Id. § 5-65-

402(a)(8)(F)(ii)(b).

After the hearing, the Office of Driver Services orders the suspension rescinded or

sustained and informs the driver that he or she may request a restricted permit if the

suspension is sustained. Id. § 5-65-402(b). Any person whose driving privilege has been

suspended pursuant to this section must furnish proof of attendance at and completion of

the alcoholism-treatment program, alcohol-education program, or alcohol- and driving-

education program and, if applicable, attendance at a victim-impact panel, before

reinstatement of her suspended driving privilege. The person must also pay a fee for

reinstatement. Id. § 5-65-402(g). A person adversely affected by the disposition order may

file a de novo petition for review in the circuit court of the county in which the offense took

place and must do so within thirty days. Id. § 5-65-402(c).

Applying the statutory requirements to the present case, it is clear that the Office of

Driver Services acted in accordance with the applicable statutes. Marshall requested a

hearing, and the Office of Driver Services granted her request. At the conclusion of the

hearing, the hearing officer sustained the suspension of Marshall’s license but granted her

an interlock-restricted license as she requested. The hearing officer concluded that in order

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to have her regular driver’s license reinstated, Marshall would have to attend a victim-impact

panel, use the interlock device for the remaining 184 days, pay a $150 reinstatement fee, and

attend alcohol education. These requirements come directly from the statute.

In her petition for review, Marshall complained that the hearing officer stated that

the hearing was uncontested. This could well be due to the fact that Marshall checked the

blank on the hearing-request form that stated the hearing was requested to be considered for

a restricted driving permit. At any rate, whether or not the matter was considered contested,

it was inconsequential to the outcome.

Marshall also complained that she did not waive an attorney as indicated on the

hearing summary but had not yet retained one. She asserted that this was a criminal

proceeding, and an attorney should have been provided for her. However, she is wrong on

this point. Administrative suspension of a driver’s license constitutes a remedial civil

sanction rather than a criminal penalty. Pyron v. State, 330 Ark. 88, 953 S.W.2d 874 (1997).

There is no absolute right to appointment of counsel in civil matters. See, e.g., Virgin v.

Lockhart, 288 Ark. 92, 702 S.W.2d 9 (1986).

In her petition, Marshall also asserted that she was not guilty of the DWI charges.

However, she did not contest the fact that she refused to submit to a chemical test. Pursuant

to Arkansas Code Annotated section 5-65-402(a)(4)(A)(iii), “[t]he Office of Driver Services

or its designated official shall suspend, revoke, or disqualify the driving privilege of an

arrested person . . . when it receives a sworn report from the arresting law enforcement officer

that he or she had reasonable grounds to believe the arrested person” had been operating a

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motor vehicle while intoxicated in violation of section 5-65-103, and that report is

accompanied by the chemical test report or the officer’s sworn report that the arrested person

refused to submit to a chemical test. Ark. Code Ann. § 5-65-402(a)(4)(A)(iii)(a), (b). The

hearing officer followed this provision.

Marshall also asserted in her petition that the hearing officer did not tell her she

would have to pay $150, attend a victim-impact panel, and attend a state-approved alcohol-

rehabilitation program. Again, these requirements are specifically mandated by the

applicable statutory provision. See Ark. Code Ann. § 5-65-402(g)(1)(A).

Marshall complained in her petition that the hearing officer granted her a restricted

driving permit to use an interlock device. This was a privilege given at Marshall’s request,

not a mandate. Marshall cannot make a valid complaint to the circuit court that the hearing

officer granted her something that she requested. This would amount to invited error, and

it is well settled under the invited-error doctrine that a party cannot complain of an action

that it induced. Hamaker v. Hamaker, 2025 Ark. App. 156, 708 S.W.3d 839; Shrable v.

Shrable, 2025 Ark. App. 454, 724 S.W.3d 605.

Because it is clear that Marshall’s petition for review did not raise any viable basis for

reversal of the decision by the Office of Driver Services, the circuit court did not abuse its

discretion in denying her petition to proceed in forma pauperis. See Morgan, 2019 Ark. 189,

at 2, 575 S.W.3d at 109. Since the court did not grant the petition to proceed in forma

pauperis, the petition for review was not truly before it other than to determine whether it

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presented a colorable cause of action. The court correctly determined it did not. Thus, we

affirm.

Affirmed.

HARRISON and THYER, JJ., agree.

Theresa Marshall, pro se appellant.

One brief only.

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