Driver's License Suspension
For Most Texans, Not Driving is Not an Option
Due to the lack of adequate convenient public transportation in the Lone Star State, losing a driver's license can have disastrous effects on one's ability to work, take care of essential household duties, and daily life.
Most people arrested for and/or accused of DWI in Texas face two potential suspensions of their "privilege to drive" in Texas - One for refusing or failing a breath/blood/urine test, and another if convicted.
And for people have a license from another state or for Texans driving in other states, a law known as the Interstate Compact on Drivers Licenses, this suspension may be applied regardless of who issued the license or where the person is driving.
The Statutory Regime
The laws, rules, and procedures relating to driver's license suspensions arising from DWI arrests and convictions are located in Chapters 524 and
724 of the Texas Transportation Code and Title I, Chapter
159 and Title 37, Chapter
17 of the Texas Administrative Code.
They can be confusing, particularly if the individual has had prior "enforcement contacts" or convictions within a certain number of years. That is why it is important that anyone arrested for and/or accused of DWI seek experienced and knowledgeable advice to protect their "privilege to drive."
Administrative License Revocation (ALR) for Test Refusal or Failure
Texas has an "implied consent law" which means that drivers have impliedly consented to give a sample of their bodily fluids for analysis if there is an adequate legal basis to believe they have committed the offense of driving while intoxicated. This consent can be revoked by a driver, although there are consequences for doing so. Of course, there are also consequences for "failing that analysis" too.
At or near the time most individuals are arrested for "suspicion of DWI" they will be asked to submit a sample of their breath, blood, or urine for analysis. The arresting officer will typically read them a length form known as a "Statutory Warning" (Form DIC-24) that explains the law and consequences of refusal or failure. If a person submits a sample and "fail" the test, or refuse, they will also be given a "Notice of Suspension and Temporary Driving Permit" (Form
DIC-25). The arrestee will be given copies of these documents which will normally be in their property returned to them upon their release from jail.
An ALR Hearing Must Be Requested Within 14 Days of Arrest
It is critical to hold onto these documents and seek experienced counsel because they provide the information and instructions necessary to request an "ALR Hearing" to contest the suspension, and the DIC-25 is the persons drivers license until any suspension goes into effect. A hearing must be requested within 14 days of the arrest, otherwise the suspension goes into effect 40 days after the arrest. Once a hearing is requested, the DIC-25 is a valid license until the outcome of the hearing.
Most lawyers request the hearing by fax in order to have documented proof of the request. The DPS and the State Office of Administrative Hearings, like all large organizations, occassionally misplace things or don't process them correctly. Having a fax confirmation sheet proves a request was timely made. Lawyers also typically request hearings in person rather than by telephone. This is because the ALR Hearing may be the best opportunity they have to challenge the witnesses - who are also witnesses in any criminal trial - under oath, on the record, and judge their demeanor and credibility.
Fighting DWI Charges and Avoiding License Suspension
The rules governing ALR Hearings are in the Texas Administrative Code and conducted by the State Office of Administrative Hearings. The Department and the Accused have the right to request documents from one another. Typically the DPS will fax the lawyer for the license holder copies of the "ALR Report" which includes the DIC-25, DIC-24, and DIC-23 (otherwise known as the Peace Officers Sworn Report). The DIC-23 often incorporates the longer report the officer created for his or her department and is attached to it. In many counties, this may be the only way the accused or his counsel can obtain a copy of that report.
If there was a test of breath, blood, or urine, the DPS will also produce affidavits of the technical supervisor and results. An accused may request certain maintenance and other records from the agency. If the lawyer intends to offer documentary or video evidence at the hearing, it should be produced in response to the DPS's request which is typically contained on the cover sheet to their document production.
Witnesses may be subpoenaed by the Defendant to the hearing under certain conditions. As a matter of right, the detaining, arresting officer and individual who requested the sample may be subpoenaed. These are usually all the same person or two different people. A showing may also be made to obtain the appearance of the person administrating the test, overseeing the machine, or who conducted the analysis.
Defendants rarely appear at the hearings when they have counsel. There is little benefit to their doing so. The goal of a hearing is to save the license and gain valuable discovery about the government's case. The Defendant's testimony will rarely persuade an ALR judge, in my experience, and merely allows the government an opportunity to cross-examine them. All hearings are recorded and copies of the recordings or transcripts are often requested by both the defense and criminal case prosecutors.
The Issues and Results of an ALR Hearing
The issues to be determined at the hearing are set forth in the Notice of Hearing which is usually mailed weeks after the arrest to the Defendant's attorney and faxed with the other documents. In most cases, the issues at the hearing are whether:
- There was a legal basis for the initial detention (reasonable suspicion for the traffic stop),
- There was probable cause for the DWI arrest, and
- The person was offered a test,
- The person refused,
- Or analysis indicates legal intoxication.
For cases involving a driver under 21 years of age or a mandatory blood draw (child passenger, certain repeat offenders, serious bodily injury or death), the issues may be different.
After the hearing, the Administrative Law Judge will mail or fax his ruling to the license holder or their attorney. An affirmative finding on the issues results in suspension, a negative finding in a denial of suspension. Often, if a police officer witness necessary to one of the issues is properly subpoenaed and fails to appear, then a negative finding results.
The results of the hearing may be appealed to a County Court at Law and then higher courts, however the licenses suspension is almost never stayed during that appeal.
If one wins an ALR hearing, the finding of no reasonable suspicion or probable cause will not stop the criminal prosecution. However, if the person is acquitted of the criminal offense, an ALR suspension will be canceled when the DPS receives a copy of the verdict, even if the ALR hearing was lost. Note - It must be a "not guilty." A dismissal doesn't get rid of the ALR suspension.
Length of Suspension & Occupational Licenses
For people over twenty-one years of age who have not been convicted of DWI previously nor had prior enforcement contacts (ALR proceedings), the periods of suspension are 90 days for a failure and 180 days for a refusal. Different periods of suspension apply for people with prior contacts or convictions.
A person whose license is suspended may file a sworn petition for an "Occupational License" (court order allowing them to drive) in the County Court at Law in the county where they were arrested or reside. Each county and judges within each county may have their own rules about when they will allow a person to drive, where, and conditions placed upon a license, if granted. There are filing fees associated with the petition due to the clerk's office. A person may also have to pay for a type of drug and alcohol evaluation (SALCE).
For DPS to process and issue the Occupational License (which they carry with the Court Order), a reinstatement fee of over a hundred dollars must be paid, a small occupational license fee, and an SR-22 must be obtained and on file with the department. As a practical matter, many judges will want to see the receipt for the reinstatement fee and SR-22 before approving an occupational license.
For repeat offenders, the effective date of an occupational license from an ALR suspension may be delayed depending on the extent of prior "contacts."
Driver's License Suspension From Conviction for DWI
Separate and on top of the ALR suspension, a person convicted of DWI for the first time may have his license suspended for a period of 90 days - 1 year. A few important notes about this suspension:
- If the person receives probation, the suspension is probated, but if they are revoked it goes into effect
- Fine only or jail Sentences, even "time served," result in an active suspension
- They may get credit against this for the time the ALR suspension has already run
- Most judges will automatically suspend the license for a year. The better practice is to make a written request that it be less and then make sure there is a notation on the judgment of the length or any credit received for the ALR suspension
- Only the convicting court has jurisdiction to issue an occupational license for a suspension from a conviction
For repeat offenders, the periods of suspension are longer and may be "hard." For example, a person arrested and convicted of a second DWI within five years of finishing his sentence on his first will have his license suspended for two years without being eligible for an occupational license during the first year. Also, some individuals who are required to take a DWI education course who have taken one in the past ten years may fall into a similar trap.
As you may have gathered, these complicated effects on driver's licenses may affect how you decide to handle the criminal DWI case. Probation may not make sense for some repeat offenders or people who have lost their ALR hearing. Or one who has won their ALR hearing may be more inclined to go to trial on their criminal case, or other decisions. This is why it is vital to seek experienced and knowledgeable counsel for your DWI Case.
Houston DWI & License Suspension Lawyer
My name is Tate Williams and I have experience defending DWI cases and challenging and avoiding license suspensions and helping people obtain occupational licenses. If you have been arrested for DWI or are facing a driver's license suspension, contact me for a free consultation.
View our firm's profile at FindaDUIAttorney.com.
Contact a Houston Criminal Defense Lawyer
at my law firm if you are facing DWI charges for an honest assessment of your case and proven representation.