Implied Consent And
Driver's License Suspensions
In almost every case where a driver is arrested for
driving while intoxicated (DWI) in Texas, regardless of which state
issued the driver's license, the driver will have two
cases to contend with. The DWI arrest obviously results in criminal
charges, but what many drivers do not realize is that the arrest
for DWI has also initiated a second case against the driver, that
being a civil proceeding to suspend driving privileges. This second
case is called an Administrative License Revocation (ALR)
proceeding, and it is initiated by either a driver's refusal to
submit to breath or blood testing, or alternatively, by a driver's
alleged failure of a breath or blood test.
When a driver either fails or refuses to submit to a breath/blood
test, the resulting suspension of driving privileges becomes
effective forty (40) days after the driver was asked to provide a
breath or blood specimen. If the accused driver wishes to challenge
the legality of the proposed license suspension, Texas law provides
that the driver may request a hearing, but must do so in writing,
within fifteen (15) days of his or her arrest. Failure to request a hearing within the fifteen day
deadline will result in an automatic suspension 40
days after the test request. Thus, the suspension for failing or
refusing a breath or blood test is only "automatic" so long as the
driver fails to properly request a hearing to challenge it within
fifteen days of being arrested.
The legal basis for the initiation of the suspension
proceeding against a driver charged with DWI is found in the Texas
Implied Consent Statute (Texas Transportation Code §724). This law
basically states that each person who operates a motor vehicle on
Texas roadways has impliedly agreed that he or she will provide a
breath or blood specimen upon a proper request by a police officer
if the driver is arrested for DWI and informed of the
legal consequences of refusing or failing a breath or blood test.
The implied consent statute also applies to operators of watercraft
in Texas. The Texas Implied Consent Statute includes
Boating While Intoxicated (BWI) cases. DPS now has the
authority to suspend a driver's license for refusing, but not for
failing, to submit to the taking of a specimen a breath or blood
test if a person is arrested for an offense involving the operation
of a watercraft powered with an engine having a manufacturer's
rating of 50 horsepower or above . Further, Texas Courts have
determined that a driver arrested for DWI does NOT have the right
to consult with an attorney before deciding whether to submit to a
breath or blood test. In most cases where there has been an
accident with a fatality or life-threatening injuries, there is
simply no choice because in such situations, a driver arrested for
DWI can be forced to provide a blood specimen to law enforcement
officers.
Despite the fact that a driver arrested for DWI can challenge the
imposition of an ALR suspension, many police officers, upon
arresting a citizen and requesting a breath specimen, will tell the
suspected driver that if he or she does not agree to take a breath
or blood test that his or her driver's license will automatically
be suspended. This misinformation is typically offered
because some officers are simply unaware of what the citizen's true
rights are, or in some cases, to coerce the citizen into providing
a specimen of breath or blood when they are otherwise unwilling to
do so.
Peace officers are now required to take possession of any Texas
license issued by this state and held by the person arrested and
issue the person a temporary driving permit that expires on the
41st day after the date of issuance. Note, however, that a
request for hearing will stay the suspension and DPS is required to
provide the person arrested with documentation to prove in the
event they are stopped by a peace officer that their license is not
suspended until after the hearing, if at all. If no
suspension is imposed at the hearing, DPS is obligated to return
the Texas license to the person arrested.
Once a driver or his attorney has made a timely request for an ALR
hearing, no suspension may be imposed against the
driver until the Department of Public Safety proves by a
preponderance (majority) of the evidence at the hearing,
that:
1) That there was reasonable suspicion to stop or probable
cause to arrest the driver;
2) That probable cause
existed that the driver was driving or in actual physical control
of a motor vehicle in a public place while intoxicated;
3) That the driver was
placed under arrest and was offered an opportunity to give a
specimen of breath or blood after being notified both orally and in
writing of the consequences of either refusing or failing a breath
or blood test; and,
4) That the driver
refused to give a specimen on request of the officer, OR, that the
driver failed a breath or blood test by registering an alcohol
concentration of .08 or greater per 100ml of blood or 210 liters of
breath.
In addition to protecting one's
driving privilege there exists yet a greater reason to request an
ALR hearing, and that is to better defend against the DWI charge.
Unfortunately, most drivers do not realize the "discovery"
importance of the ALR proceeding to their criminal charges, and do
not consult with an attorney or request a live hearing to challenge
the suspension within the fifteen-day period.
The importance of having a hearing to challenge
the ALR case is twofold:
First, contrary to what the Texas
Department of Public Safety would like all drivers to believe, with
the assistance of a knowledgeable and skilled defense attorney,
many drivers are able to legally avoid a suspension after
being arrested.
Second and more importantly, by
challenging the license suspension you are providing your
attorney with an opportunity to subpoena the arresting
officer(s) to the ALR hearing (which takes place in a different
courthouse than the criminal case, with a different prosecutor and
a different judge) and the ability to question the officers or
other witnesses under oath and at length about specific details
surrounding the arrest. This "discovery" information obtained
through the ALR process can be invaluable to a citizen's defense,
and is often the deciding factor in determining whether the related
DWI charges will be taken to trial or will be won at trial.
If a driver fails
to challenge an ALR suspension, or is unsuccessful after a hearing,
the results are :
Test Failure Case [Trans. Code §524.022 (a)
(1-2)]
90 days, if there has been no
alcohol or drug related "enforcement contacts" listed on the
driving record within ten years prior to date of the
offense.
One year with 1 or more alcohol or drug related "enforcement
contacts" listed on driving record prior to date of offense within
ten years of date of the offense. Again, it no longer matters
whether the enforcement contact is due to a previous ALR suspension
or an alcohol/drug related conviction.
Test Refusal Case [Trans. Code §724.035
(a-b)]
180 days if there has
been no alcohol or drug related "enforcement contacts" listed
on the driving record within ten years prior to date of the
offense.
Two years if there has been one or more alcohol or drug related
"enforcement contacts" listed on the driving record prior to date
of offense within ten years of date of the offense. Again, it no
longer matters whether the enforcement contact is due to a previous
ALR suspension or an alcohol/drug related conviction.
If the person who refuses is a resident without a license, an order
will be issued denying the issuance of a license to the person for
180 days.
A driver who suffers an ALR suspension, either automatically or
after a hearing, must submit a reinstatement fee of $125.00 to the
Texas Department of Public Safety along with a special DPS form
before driving privileges will be reinstated, regardless of when
the suspension period is scheduled to terminate or the license will
not be reinstated. The DPS will maintain a driver's
suspension indefinitely until the $125.00 reinstatement fee has
been received and posted to the DPS computer system.
Accordingly, because driving is not
only an important privilege but usually a necessity of
financial livlihood, an arrested driver should always request
an ALR hearing and retain the services of a skilled lawyer to
protect his or her license.
