(DWI and "Administrative License Revocation")
Many Texas drivers who are arrested for driving while intoxicated do not realize that a DWI arrest creates two cases. Specifically, a DWI arrest results in both a criminal charge, and initiates a civil proceeding against the arrested motorist's driving privileges called an Administrative License Revocation, or ALR.The ALR Suspension
An ALR suspension is initiated against an arrested driver when he either refuses to submit to breath or blood testing, or alternatively, fails a breath or blood test. The legal authority to impose an ALR suspension against a driver lies in the Texas implied consent statute.
This law states that each person who operates a motor vehicle on Texas roadways has given his implied consent to provide a specimen of breath or blood if arrested for DWI and provided with the applicable consequences of refusing to submit to testing (Texas Transportation Code Chapter 724).
The implied consent statute also applies to operators of watercraft in Texas. In Boating While Intoxicated (BWI) cases, a driver's license may be suspended 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, in all intoxication related offenses, Texas courts have decided that an individual does not have the right to consult with an attorney before making the decision to refuse or provide a requested specimen. Indeed, in cases where an accident which produced serious life threatening injury or the possibility of death has occurred, a citizen can be forced to provide a sample of blood.Notice ALR Suspension
Many police officers, after arresting a citizen, will tell the arrested driver that if he does not agree to take a breath or blood test that his license will be automatically and immediately suspended.
THIS IS INCORRECT. When making an arrest for DWI, peace officers are 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. Further, a request for a hearing to challenge the proposed suspension will delay any ALR sanctions until a hearing takes place.Hearing Request Provisions
WARNING !!! An ALR suspension is AUTOMATIC...UNLESS you request a hearing to challenge the suspension, 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 is not timely requested, the suspension will automatically begin on the forty first (41st) day after notice was received. If a hearing is requested, no action will be taken regarding suspension until after the hearing has taken place, even if the hearing takes place more than forty days after the arrest.
Further, in the event of an ALR appeal, the suspension can be delayed for an additional 90 days. (Call our office immediately for assistance if you think your license is at risk (512) 469 6056).The ALR Hearing
The burden of proof at an ALR hearing is on the Department of Public Safety. 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 the following elements by a preponderance of the evidence at the hearing:
That there was reasonable suspicion to stop or probable cause to arrest the driver;
That probable cause existed that the driver was driving or in actual physical control of a motor vehicle in a public place while intoxicated;
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
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.Suspension Provisions for Drivers
Without any prior alcohol or drug related contacts against the accused driver during the previous 10 year period, the periods of suspension are as follows:
** If there is a Prior alcohol or drug Contact w/in 10 years the suspension period can be up to two years.
NOTE: 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.
NOTE: the term "prior alcohol or drug contact" as used to lengthen the period of suspensions stated above has been defined as a driver's license suspension, disqualification, or prohibition order under the laws of this state or any other state resulting from a conviction for driving while intoxicated, ìa refusal to provide a requested specimen, or providing a specimen showing an alcohol concentration of a level specified in § 49.01 Texas Penal Code (an alcohol concentration of 0.08 or greater).Reinstatement of Drivers License After Suspension
If no suspension is imposed at the hearing, DPS is obligated to return the Texas license to the person arrested. If a suspension is ordered either automatically or after hearing, a driver must submit a reinstatement fee of $125.00 to DPS before the license will be reinstated. I advise my clients to send their fee to DPS 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 DPS computer system.
There is a special DPS 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
In addition to protecting your driving privileges, there is an equally important reason to request an ALR hearing, and that is to better defend you against the DWI charge.
Unfortunately, most drivers, and many lawyers who are unfamiliar with DWI defense, do not realize the "discovery" importance of an ALR proceeding. In fact, the importance of having a hearing to challenge your ALR case is twofold.
First, with the assistance of a knowledgeable and skilled defense attorney, many drivers are able to avoid a suspension of their driving privileges. Second, by challenging your license suspension, you are providing your attorney with an opportunity to use the ALR hearing to learn more about how to best defend your DWI charge.
In this regard, the "discovery" information obtained through the ALR process can be invaluable to your defense, and is often the deciding factor in determining whether the related DWI charges can be successfully defended against.