Dallas DWI/DUI Administrative Law – Driver’s License Suspension

Texas is one of many states to have an implied consent law. This law states that each person who has applied for and been granted a license to operate a motor vehicle on a public roadway has impliedly consented to providing a specimen of breath or blood if arrested for DWI and provided with the applicable consequences of refusal to submit to testing (Texas Transportation Code §724). Texas appellate courts have also held that an individual does not have the right to consult with an attorney before making the decision to refuse or provide a requested specimen. If there was an accident which produced serious life-threatening injury or possibility of death, a citizen can be compelled to provide the requested sample.

Substantial and significant changes in how suspensions under implied consent violations went into effect January 1, 1995. Each year the Texas Legislature meets, the topic of DWI is addressed in some fashion. Significant changes in this law removed jurisdiction from Justice of the Peace Courts (J.P.) And established a new bureaucracy called the State Office of Administrative Hearings (SOAH). This bureaucracy is staffed by “pseudo-employees” of the Texas Department of Public Safety (TDPS) and given the direct objective to increase the number of license suspensions for persons refusing to provide the requested sample of breath or blood. This new law also added suspension for providing a specimen upon request that indicated an alcohol concentration above the legal limit (0.08 gm/210 l – breath or 0.08 gm/100 ml – blood). Another major change in the prior law withheld from the SOAH Administrative judge, the authority to “probate” or “suspend” any period of license suspension that was ordered. As a result, the TDPS objective of suspending more licenses has been achieved.

The burden of proof at the ALR hearing is on the Department of Public Safety. The following elements must be proven only by a preponderance of the evidence and not beyond a reasonable doubt as in criminal matters:

1.Refusal to Provide Specimen.

2.That reasonable suspicion to stop or probable cause to arrest the Defendant existed.

3.That probable cause existed that the Defendant was driving or in actual physical control of a motor vehicle in a public place while intoxicated.

4.That the Defendant was placed under arrest and was offered an opportunity to give a specimen of breath or blood under the provisions of Texas Transportation Code Chapter 724 AND…

5…that the Defendant refused to give a specimen on request of the officer.

It is important to note that “refusal” for purposes of suspension is any failure to provide the requested specimen for any reason. Examples of what courts have deemed refusal are: requesting an attorney, insufficient sample as measured by the machine, failure to make decision in a timely manner, etc.

Providing a Specimen of 0.08 or Greater

As stated earlier, providing any sample that yields an alcohol concentration of 0.08 or greater can also result in the suspension of driving privileges under the current Texas law. The issues to be proven at a failure hearing are:

1.That reasonable suspicion to stop the Defendant or probable cause to arrest the Defendant existed AND…

2…that the Defendant had an alcohol concentration of a level specified in §49.01 of the Texas Penal Code while driving or in actual physical control of a motor vehicle in a public place.

Without any prior alcohol or drug related contacts occurring after January 1, 1995
the periods of suspension are:

 

Age of Driver Refusal Penalty Failure Penalty
21 or Older   180 days   90 days  
Prior Contact
w/in 5 years  
180 days-1 year   120-180 days  
Minor(<21 at arrest)   120 days   60 days  
Prior Contact
w/in 5 years.  
180 days-1year   120-180 days  

 

NOTE:”Prior alcohol/drug related enforcement contact” used to lengthen the period of suspensions state above is defined as ” a driver’s license suspension, disqualification, or prohibition order under the laws of this state or any other state resulting from:

1…a conviction of driving while intoxicated or…”

2…a refusal to proved a requested specimen or…”

3…providing a specimen showing an alcohol concentration of a level specified in §49.01 Texas Penal Code ( alcohol concentration > 0.08)…”

Because of an agreement with the Texas Legislature and DPS, for purposes of “prior alcohol/drug related contacts” occurring before January 1, 1995 cannot be used to lengthen the period of suspension.

Hearing Request Provisions

WARNING !! The ALR suspension is AUTOMATIC…UNLESS you request a hearing on the issue, in writing, WITHIN FIFTEEN (15) DAYS after receiving notice of suspension from the arresting agency on a Department of Public Safety approved form (generally received on the day of arrest). If a hearing has not been timely requested, the suspension will automatically begin on the fortieth (40th) day after notice was received. If a hearing is requested, no action will be taken regarding suspension until after the hearing and all appeals have occurred. (Call our office immediately for assistance if you think your license is at risk- 888-220-5720)

Reinstatement of Drivers License After Suspension

If a suspension is ordered either automatically or after hearing, a driver must submit a reinstatement fee of $100.00 to TDPS before the license will be reinstated. I advise my clients to send their fee to TDPS as soon as they learn that a suspension has been ordered. Again, because of the huge bureaucracy that has been created under the new law, waiting until the 60th or 90th day to submit your reinstatement fee will prolong reinstatement of your license until the fee has been both received and entered on the TDPS computer system.

There is a special TDPS form that must be submitted to reinstate your driving privileges. This form together with the reinstatement fee must be paid by money order, cashier’s check or personal check and sent by certified mail, return receipt requested for proper documentation of payment and receipt to:

Driver Improvement and Control Texas Department of Public Safety P.O. Box 15999 Austin, Texas 78761-5999

NOTE: Driving privileges will be suspended INDEFINITELY until the Reinstatement fee has been received and posted on the TDPS computer.