Ignition Interlock Required for Subsequent DWI Release from Jail

Article 17.441 of the Texas Code of Criminal Procedure requires a magistrate to order a defendant being released on DWI 2nd or Felony DWI bond to install an ignition interlock device on any vehicle he owns or has access to.

What’s an ignition interlock device? From the statute:

…a device that uses a deep-lung breath analysis mechanism to make impractical the operation of a motor vehicle if ethyl alcohol is detected in the breath of the operator

The condition will be imposed on anyone arrested for DWI with a prior conviction, whether the defendant is released on personal bond, cash or cash deposit bond, surety or bail bond. In Austin, the judge that orders the condition will require a meeting with the County Pretrial Services office within 24 hours of release. The person is then given 30 days to show proof that the interlock has been installed.

Failure to install the device will result in two consequences. First, the bond will be revoked, which will result in a warrant for the person’s arrest. And second, if DPS does not receive proof of compliance, along with another fee, the person’s license will be suspended until such proof is shown.

(Click for contact information about the 3 companies that Austin DWI defendants can use to install an interlock device on their vehicle.)

3 DWI Bills covered by the Austin American Statesman

David Rauf’s article in today’s Austin American StatesmanLawmakers seek to curb drunken driving; Opponents worry about racial profiling” highlights 3 pieces of DWI legislation now pending:

#1) DWI Roadblocks/Checkpoints

#2) Ignition Interlock for First Time DWI in Texas, and

#3) Creating a Presumption of Guilt for DWI in Texas

The legislators in Austin are presented with multiple bad ideas on the DWI front – and I’ve had to break them up into 3 separate posts.

Presumption of Innocence? Not For Some Texas Legislators...

From today’s Austin American Statesman article about an unsuccessful attempt to reverse the presumption of innocence for DWI cases in Texas:

A third proposal would have simplified the method used for determining a person's blood-alcohol content at the time he or she was driving.

The proposal, House Bill 915, by Rep. Jimmie Don Aycock, R-Killeen, would have specified that if a driver's blood-alcohol content is higher than the legal limit of 0.08 within 90 minutes of being pulled over, the driver would be considered intoxicated.

"Right now, the problem is you have to prove they were intoxicated while driving," Aycock said. [Emphasis Mine]

So it’s a problem that the State has to meet their burden of proving guilt beyond all reasonable doubt? A problem that can be fixed with some legislation?

Fortunately, this bill was voted down by the House Law Enforcement Committee. I’ve written previously about the “Rising BAC defense” that is available to some DWI defendants in Texas. Being over .08 at the time of the breath test does not necessarily mean you were over .08 at the time of driving.

But some lawmakers objected to “forcing” the State to prove their case, so they attempted to create a presumption that any breath test within 90 minutes of driving would automatically do the trick.

David Gonzalez, counsel for TCDLA and also a local Austin DWI lawyer hit the nail on the head when he…

…said the bill would create a presumption of guilt.

"What that really means is, we need to make it easy for convictions, and when science and other things get in the way, let's disregard them," Gonzalez said.

Politicians can’t change the science of breath or blood alcohol testing…and Texans should continue to object to illogical manipulations of DWI statutes.

Ignition Interlock for First Time DWI in Texas

From today’s Austin American Statesman:

House Bill 934 by Rep. Linda Harper-Brown, R-Irving, would require first-time offenders in driving while intoxicated cases to use an ignition interlock device in their vehicles. The driver must blow into the device to have his or her blood alcohol content measured. The car will not start if the driver is legally intoxicated.

Under current Texas law, judges are allowed to use discretion in requiring ignition interlock for first-time offenders.

Opponents of the measure say the bill will strip judges of their discretion.

Fellow Austin DWI Attorney Ken Gibson recently commented on this idea on KXAN’s coverage of this bill:

Gibson said it's the repeat offenders who need ignition interlocks, and requiring them for first-time offenders is a result of aggressive lobbying by the manufacturers.

"Ignition interlock is a multi, multi-million dollar business, and to require everybody to have them in their cars is going to increase their business by a thousand times," Gibson said.

Ken’s right, of course, that the folks that make money installing Ignition Interlocks lobby hard for these types of measures.

And I can add this: most of the people that come to my office after an Austin DWI arrest aren’t alcoholics. Putting aside for now those that aren’t guilty of DWI to start off with, many are primarily my clients for making a one time bad judgment.

And don’t forget that the costs and penalties involved for first time DWI convictions in Texas are already punitive. This pending legislation is a classic example of politicians pandering to knee-jerk reactions, rather than real problems.

"Minimum Term of Confinement" for First Offense DWI in Texas

Texas Penal Code § 49.04 DWI carries a special penalty provision, which on its face seems to carry a higher penalty than normal for a Class B Misdemeanor:

…an offense under this section is a Class B misdemeanor, with a minimum term of confinement of 72 hours…

Indeed, “regular” Class B misdemeanors have a punishment range of 0 to 180 days, not 72 hours to 180 days. And I often get asked by potential clients, who have done some DWI research online before coming to see me, doesn’t this mean there’s at least some mandatory jail time for a first offense DWI in Texas, even if the defendant is granted probation?

But the answer is still no. The quickest explanation here is that the statute is referring to the minimum amount of time that can be probated by a judge; but as we will see, that is virtually meaningless.

When someone is convicted of any offense in Texas, and then placed on probation, they have a jail sentence “hanging over their head” as a possible penalty in case they violate their probation. (Think of it as the carrot and the stick.)

And in a DWI probation situation, it’s true that the statute requires the judge to sentence the defendant to 72 hours, or 3 days, as a minimum term of the probated sentence.

Now, in theory, a judge could sentence someone to 2 days in jail, but suspend the sentence, and not require it to be served unless the defendant violated the terms and conditions of their probation, for a regular non-DWI Class B offense. But no sane judge would ever do that. Why?

Well, we’re back to the carrot and the stick. If a defendant were sentenced to 2 days in jail probated for any length of time, they would actually have an incentive to violate their probation. Their “penalty” for violating would entail being taken off probation, and sentenced to a maximum of 2 days.

But they would, by statute, be credited with at least one day for the night they were arrested. And, at least in Austin, they would be given 2 for 1 towards their sentence (the Travis County Jail, like most county jails in Texas, gives 2 days credit for every day actually served). In other words, they would be off probation, and given back time for the time they had already served. That’s not exactly a punishment for violating their probation.

The practical truth is this: whether it’s a shoplifting, possession of marijuana, DWI, or any other Class B misdemeanor, a judge is likely to “sentence” the defendant to something on the higher range of the punishment ladder (like 120 to 180 days) when probating a sentence. This is to ensure that the judge actually has a stick, when they grant that carrot of probation.

(One final quick lawyer caveat as I re-read my entry before posting: I am not saying that probation is mandatory in the first place. Simply that folks shouldn’t read the statute to mean that they are definitely going back to jail, if they end up convicted for DWI.)

Life in Prison without any Intent to Commit an Offense

Grits for Breakfast comments on a new bill recently filed in the Texas Legislature that would increase the punishment for Intoxication Manslaughter from a second degree felony to a first degree felony, if the victim was an on duty police officer or firefighter.

In layperson terms, that means the maximum punishment would increase from 20 years in prison, to 99 years or life, again, if the victim was a police officer or firefighter.

The punishment for Intoxication Assault would increase from a third degree felony (max 10 years) to a second degree felony (20 years). Intoxication Assault means committing a DWI and causing serious bodily injury, but not death. Again, the increased penalty is for police and firefighters. From Grits’ piece:

If you think a police officer's life is more important than every other citizen and want to exact maximum vengeance, which is all this bill accomplishes, fine ... say so.

But to claim boosting sentences in these rare cases will reduce drunk driving is a politically motivated lie, plain and simple. It will do no such thing.

Some of the proof is in the bill itself. Why is it limited to on-duty police officers and firefighters? Is their life “worth less” when they take off the uniform?

One of the aggravating factors that can increase murder to a capital offense is the victim being an on duty fireman or police officer, but even that requires an element of intent. From Section 19.03 of the Texas Penal Code:

the person murders a peace officer or fireman who is acting in the lawful discharge of an official duty and who the person knows is a peace officer or fireman;

So “plain” murder becomes capital murder, when it is shown that the Defendant knew the victim was a police officer or fireman.

And that illustrates exactly what is wrong with this new piece of legislation. The Texas DWI statutes in Chapter 49 of the Penal Code specifically do away with the typical requirement in criminal cases that there be any intent. Section 49.11(a):

§ 49.11. Proof of Mental State Unnecessary.

(a) Notwithstanding Section 6.02(b), proof of a culpable mental state is not required for conviction of an offense under this chapter.

So we explicitly acknowledge that DWI and related offenses are crimes without intent...so what is the increased penalty for? The random chance that the victim is an on-duty police officer or fireman.

And how can it logically be argued that increasing the penalty for some categories of victims will reduce the rate of DWI, when there is no underlying intent to commit the crime in the first place?

The Implied Consent Fallacy in Texas DWI Cases

Chapter 724 of the Texas Transportation Code is entitled “Implied Consent” and this law covers the rules regarding driver’s license suspension hearings for Texas DWI breath test refusal cases.

The basic legal premise justifying a DL suspension in refusal cases is that every person that has a Texas driver’s license already agreed to submit to a breath (or blood) test by virtue of applying for the license itself.

724.011 “Consent to Taking of a Specimen” reads in part:

If a person is arrested for …[DWI]… the person is deemed to have consented… to submit to the taking of one or more specimens of the person's breath or blood for analysis to determine the alcohol concentration or the presence in the person's body of a controlled substance, drug, dangerous drug, or other substance.

Since, therefore, you already agreed to take a breath test if you were arrested for DWI, the law says that if you refuse, they can suspend your driver’s license. For 180 days.

It’s one of those things that sounds good, but let’s examine it further.

Google defines “logical fallacy” as: “a misconception resulting from incorrect reasoning”, and that sounds good to me. Why then do I call the concept known as “implied consent” a logical fallacy?

“…the person is deemed to have consented…” [emphasis added]

If a person actually, intentionally and knowingly consents to submitting a breath or blood specimen on demand at the time of applying for a Texas driver’s license, then it would logically follow that they have forfeited their 24/7 driving privileges if they subsequently refuse to follow through on that promise.

But that’s not what happens. No one knows that this law exists. Nor is anyone told this when they apply for a license. In fact, most Texans know that it is not a crime to refuse to take a breath test (as it is in some states).

The law merely states that everybody is “deemed” to have consented…which is just legal mumbo jumbo for saying “we presume you have consented, even though you didn’t know you did…”

It might make sense to suspend a privilege such as the right to drive, if a person refused to live up to their end of their bargain; that is, what they knowingly agreed to do when they asked for the license. 

But pretending that everyone knowingly agreed to give a sample of breath, and punishing them for breaking a promise they didn't know they made...well, that's why it's called "Implied" not "Actual Consent".

Four types of Felony DWI in Texas

There are 4 basic types of felony DWI in the Texas Penal Code.

The most common of these is probably DWI third, that is, a new DWI charge with two prior convictions. It used to be the law in Texas that if ten years passed from the date of the last DWI conviction, that the new charge was “only” a Class B Misdemeanor, and treated like a DWI first. Then the legislature made it 10 years from the date the person was released from confinement, or probation or parole. More recently, the ten year requirement was abolished, and any prior DWIs are usable for enhancement. This includes out of state DWIs.

The newest type of felony DWI charge is listed in the DWI Chapter of the Penal Code at Section 49.045, DWI with Child Passenger. This statute elevates even a first DWI charge to the level of State Jail Felony, if there is a child under 15 years old in the car. Very often, the State has the same problems proving intoxication that they would in a “regular” DWI charge. However, there are rarely substantive issues regarding the age of the passenger. No prior convictions are required for this to be indicted as a felony.

A third type of Felony DWI in Texas is Intoxication Assault. Section 49.07 is essentially a DWI, with the additional element that the defendant “by accident or mistake…and by reason of …intoxication causes serious bodily injury to another”. There are three basic defenses here: (1) the Defendant was not intoxicated, (2) the injury does not fall into the legal category of “serious bodily injury”, and (3) the intoxication did not cause the injury or accident. No prior convictions are required.

The fourth and final type of Felony DWI is Intoxication Manslaughter. Section 49.08 covers DWI is similar to 49.07, except that the intoxication causes death instead of serious bodily injury. Fortunately, this is the probably the least common type of DWI charge. Both Intoxication Assault and Manslaughter cases usually involve forced blood draws, and are therefore more difficult to defend than other cases. (Blood tests over .08, while not unassailable, are more reliable than breath tests from the intoxilyzer, at least in my opinion.)

Texas Open Container Law

Chapter 49 of the Texas Penal Code, known mostly for the Texas DWI statutes, includes the Texas “Open Container” law. When most folks talk about the Open Container law, they are referring to whether or not it is legal to have an open alcoholic beverage (beer, wine, or liquor) in the passenger area of a car.

I usually see two areas of confusion regarding the public’s awareness of this particular charge. These are covered in Section 49.031, Possession of Alcoholic Beverage in Motor Vehicle.

Many people seem to believe that there is a front seat/back seat distinction, but there’s not. Also, drivers and passengers are included. With few exceptions, it’s not legal to have an open container of beer or other alcohol in your car in Texas.

The exceptions? (1) passengers in taxis, buses, limos and (2) motor homes and RVs.

Also, it is legal to keep it in a locked glove compartment or trunk. If the car has no trunk, it may be stored in the area behind the last upright seat.

Assuming that the Open Container violation is the only offense that the officer witnesses, it is one of the few Class C crimes in Texas that the police must issue a citation for, rather than being given the discretion to arrest. (As opposed to seatbelt and most other traffic violations, which are arrestable offenses.)

Finally, this is not to be confused with the DWI with Open Container provision, contained in 49.04, the main Texas DWI statute, which raises the minimum term of confinement for DWI convictions from 72 hours to six days.

No Deferred Adjudication for DWI in Texas

The Texas statute covering deferred adjudication probation allows a defendant to plead no contest (or even guilty) to certain charges and be placed on a type of probation that, if successfully completed, leaves the defendant without a conviction. Most offenses under Texas law can then be sealed, through the fairly new Motion for Non-Disclosure process.

Unfortunately, this type of probation is completely unavailable for DWI in Texas, even a first time DWI, no collision, no injury, “just a misdemeanor”, and yes, even if the accused “never had a speeding ticket before”.

But wait, there’s more. In Texas, you can receive deferred adjudication probation for offenses as serious as murder – but not first offense Class B misdemeanor DWI. “For murder?”, I hear you ask…

Well, yes, you can. It’s not likely, but I can pose a hypothetical where a person might receive probation for murder…Suppose a 92 year old great grandfather “pulled the plug” so to speak on his 90 year old wife, and all the evidence showed that he did it because he loved her dearly, and couldn’t bear to see her suffer the indignities that old age had heaped upon her.

Now technically, he intentionally took a human life, which is the basic definition of murder, so he could be prosecuted for that. But a felony prosecutor might (I repeat might) consider a plea bargain for deferred probation, figuring that the defendant was not a danger to society, no benefit would come from incarceration, etc. etc.

And while that might be a stretch, my point here is that deferred adjudication probation is available as a potential option in a murder case. But not for plain-jane first offense DWI.

Why is that? Well, the forces behind the ever increasing penalties for “just” a DWI are very powerful, and legislators don’t like to offend certain lobbying groups. There has been no deferred adjudication in Texas for DWI since 1984, and I certainly don’t see things changing on that front any time soon.

Chapter 106 Provisions Relating to Age - Texas Alcoholic Beverage Code (Includes DUI)

Driving Under the Influence of Alcohol by Minor (Texas DUI) - Section 106.041 Alcoholic Beverage Code

Section 106.041. Driving Under the Influence of Alcohol by Minor

(a) A minor commits an offense if the minor operates a motor vehicle in a public place while having any detectable amount of alcohol in the minor's system.

(b) Except as provided by Subsection (c), an offense under this section is a Class C misdemeanor.

(c) If it is shown at the trial of the defendant that the defendant is a minor who is not a child and who has been previously convicted at least twice of an offense under this section, the offense is punishable by:

(1) a fine of not less than $500 or more than $2,000;

(2) confinement in jail for a term not to exceed 180 days; or

(3) both the fine and confinement.

(d) In addition to any fine and any order issued under Section 106.115, the court shall order a minor convicted of an offense under this section to perform community service for:

(1) not less than 20 or more than 40 hours, if the minor has not been previously convicted of an offense under this section; or

(2) not less than 40 or more than 60 hours, if the minor has been previously convicted of an offense under this section.

(e) Community service ordered under this section must be related to education about or prevention of misuse of alcohol.

(f) A minor who commits an offense under this section and who has been previously convicted twice or more of offenses under this section is not eligible for deferred disposition or deferred adjudication.

(g) An offense under this section is not a lesser included offense under Section 49.04, Penal Code.

(h) For the purpose of determining whether a minor has been previously convicted of an offense under this section:

(1) an adjudication under Title 3, Family Code, that the minor engaged in conduct described by this section is considered a conviction under this section; and

(2) an order of deferred disposition for an offense alleged under this section is considered a conviction of an offense under this section.

(i) A peace officer who is charging a minor with committing an offense under this section is not required to take the minor into custody but may issue a citation to the minor that contains written notice of the time and place the minor must appear before a magistrate, the name and address of the minor charged, and the offense charged.

(j) In this section:

(1) "Child" has the meaning assigned by Section 51.02, Family Code.

(2) "Motor vehicle" has the meaning assigned by Section 32.34(a), Penal Code.

(3) "Public place" has the meaning assigned by Section 1.07, Penal Code.

Texas Penal Code Chapter 49 - Intoxication and Alcoholic Beverage Offenses (DWI, PI, Open Container)

Chapter 49 Definitions (DWI Alcohol Concentration and Intoxicated) - Texas Penal Code Section 49.01

§ 49.01. Definitions. 

In this chapter:

(1) "Alcohol concentration" means the number of grams of alcohol per:

   (A) 210 liters of breath;

   (B) 100 milliliters of blood; or

   (C) 67 milliliters of urine.

(2) "Intoxicated" means:

   (A) not having the normal use of mental or physical faculties by reason of the introduction of alcohol, a controlled substance, a drug, a dangerous drug, a combination of two or more of those substances, or any other substance into the body; or

   (B) having an alcohol concentration of 0.08 or more.

(3) "Motor vehicle" has the meaning assigned by Section 32.34(a).

(4) "Watercraft" means a vessel, one or more water skis, an aquaplane, or another device used for transporting or carrying a person on water, other than a device propelled only by the current of water.

(5) "Amusement ride" has the meaning assigned by Section 2151.002, Occupations Code.

(6) "Mobile amusement ride" has the meaning assigned by Section 2151.002, Occupations Code.

Definition of Public Intoxication - Texas Penal Code Section 49.02

§ 49.02. Public Intoxication.

(a) A person commits an offense if the person appears in a public place while intoxicated to the degree that the person may endanger the person or another.

(b) It is a defense to prosecution under this section that the alcohol or other substance was administered for therapeutic purposes and as a part of the person's professional medical treatment by a licensed physician.

(c) Except as provided by Subsection (e), an offense under this section is a Class C misdemeanor.

(d) An offense under this section is not a lesser included offense under Section 49.04.

Open Container Law - Texas Penal Code Section 49.031

§ 49.031. Possession of Alcoholic Beverage in Motor Vehicle.

(a) In this section:

  (1) "Open container" means a bottle, can, or other receptacle that contains any amount of alcoholic beverage and that is open, that has been opened, that has a broken seal, or the contents of which are partially removed.

   (2) "Passenger area of a motor vehicle" means the area of a motor vehicle designed for the seating of the operator and passengers of the vehicle. The term does not include:

       (A) a glove compartment or similar storage container that is locked;

       (B) the trunk of a vehicle; or

       (C) the area behind the last upright seat of the vehicle, if the vehicle does not have a trunk.

  (3) "Public highway" means the entire width between and immediately adjacent to the boundary lines of any public road, street, highway, interstate, or other publicly maintained way if any part is open for public use for the purpose of motor vehicle travel. The term includes the right-of-way of a public highway.

(b) A person commits an offense if the person knowingly possesses an open container in a passenger area of a motor vehicle that is located on a public highway, regardless of whether the vehicle is being operated or is stopped or parked. Possession by a person of one or more open containers in a single criminal episode is a single offense.

(c) It is an exception to the application of Subsection (b) that at the time of the offense the defendant was a passenger in:

   (1) the passenger area of a motor vehicle designed, maintained, or used primarily for the transportation of persons for compensation, including a bus, taxicab, or limousine; or

   (2) the living quarters of a motorized house coach or motorized house trailer, including a self-contained camper, a motor home, or a recreational vehicle.

(d) An offense under this section is a Class C misdemeanor.

(e) A peace officer charging a person with an offense under this section, instead of taking the person before a magistrate, shall issue to the person a written citation and notice to appear that contains the time and place the person must appear before a magistrate, the name and address of the person charged, and the offense charged. If the person makes a written promise to appear before the magistrate by signing in duplicate the citation and notice to appear issued by the officer, the officer shall release the person.

Definition of Driving While Intoxicated (DWI) - Texas Penal Code Section 49.04

§ 49.04. Driving While Intoxicated. 

(a) A person commits an offense if the person is intoxicated while operating a motor vehicle in a public place.

(b) Except as provided by Subsection (c) and Section 49.09, an offense under this section is a Class B misdemeanor, with a minimum term of confinement of 72 hours.

(c) If it is shown on the trial of an offense under this section that at the time of the offense the person operating the motor vehicle had an open container of alcohol in the person's immediate possession, the offense is a Class B misdemeanor, with a minimum term of confinement of six days.

Definition of Driving While Intoxicated (DWI) with Child Passenger - Texas Penal Code Section 49.045

§ 49.045. Driving While Intoxicated with Child Passenger.

(a) A person commits an offense if:

   (1) the person is intoxicated while operating a motor vehicle in a public place; and

   (2) the vehicle being operated by the person is occupied by a passenger who is younger than 15 years of age.

(b) An offense under this section is a state jail felony.

Definition of Flying While Intoxicated - Texas Penal Code Section 49.05

§ 49.05. Flying While Intoxicated.

(a) A person commits an offense if the person is intoxicated while operating an aircraft.

(b) Except as provided by Section 49.09, an offense under this section is a Class B misdemeanor, with a minimum term of confinement of 72 hours.

Definition of Boating While Intoxicated - Texas Penal Code Section 49.06

§ 49.06. Boating While Intoxicated. 

(a) A person commits an offense if the person is intoxicated while operating a watercraft.

(b) Except as provided by Section 49.09, an offense under this section is a Class B misdemeanor, with a minimum term of confinement of 72 hours.

Assembling or Operating an Amusement Ride While Intoxicated - Texas Penal Code Section 49.065

§ 49.065. Assembling or Operating an Amusement Ride While Intoxicated. 

(a) A person commits an offense if the person is intoxicated while operating an amusement ride or while assembling a mobile amusement ride.

(b) Except as provided by Subsection (c) and Section 49.09, an offense under this section is a Class B misdemeanor with a minimum term of confinement of 72 hours.

(c) If it is shown on the trial of an offense under this section that at the time of the offense the person operating the amusement ride or assembling the mobile amusement ride had an open container of alcohol in the person's immediate possession, the offense is a Class B misdemeanor with a minimum term of confinement of six days.

Definition of Intoxication Assault - Texas Penal Code Section 49.07

§ 49.07 Intoxication Assault.

(a) A person commits an offense if the person, by accident or mistake:

   (1) while operating an aircraft, watercraft, or amusement ride while intoxicated, or while operating a motor vehicle in a public place while intoxicated, by reason of that intoxication causes serious bodily injury to another; or

   (2) as a result of assembling a mobile amusement ride while intoxicated causes serious bodily injury to another.

(b) In this section, "serious bodily injury" means injury that creates a substantial risk of death or that causes serious permanent disfigurement or protracted loss or impairment of the function of any bodily member or organ.

(c) An offense under this section is a felony of the third degree.

Definition of Intoxication Manslaughter - Texas Penal Code Section 49.08

§ 49.08. Intoxication Manslaughter.

(a) A person commits an offense if the person:

   (1) operates a motor vehicle in a public place, operates an aircraft, a watercraft, or an amusement ride, or assembles a mobile amusement ride; and

   (2) is intoxicated and by reason of that intoxication causes the death of another by accident or mistake.

(b) An offense under this section is a felony of the second degree.

Enhanced Penalties for Repeat DWI (Second, Third, and Beyond) - Texas Penal Code Section 49.09

§ 49.09. Enhanced Offenses and Penalties. 

(a) Except as provided by Subsection (b), an offense under Section 49.04, 49.05, 49.06, or 49.065 is a Class A misdemeanor, with a minimum term of confinement of 30 days, if it is shown on the trial of the offense that the person has previously been convicted one time of an offense relating to the operating of a motor vehicle while intoxicated, an offense of operating an aircraft while intoxicated, an offense of operating a watercraft while intoxicated, or an offense of operating or assembling an amusement ride while intoxicated.

(b) An offense under Section 49.04, 49.05, 49.06, or 49.065 is a felony of the third degree if it is shown on the trial of the offense that the person has previously been convicted:

(1) one time of an offense under Section 49.08 or an offense under the laws of another state if the offense contains elements that are substantially similar to the elements of an offense under Section 49.08; or

(2) two times of any other offense relating to the operating of a motor vehicle while intoxicated, operating an aircraft while intoxicated, operating a watercraft while intoxicated, or operating or assembling an amusement ride while intoxicated.

(c) For the purposes of this section:

(1) "Offense relating to the operating of a motor vehicle while intoxicated" means:

(A) an offense under Section 49.04 or 49.045;

(B) an offense under Section 49.07 or 49.08, if the vehicle operated was a motor vehicle;

(C) an offense under Article 6701l-1, Revised Statutes, as that law existed before September 1, 1994;

(D) an offense under Article 6701l-2, Revised Statutes, as that law existed before January 1, 1984;

(E) an offense under Section 19.05(a)(2), as that law existed before September 1, 1994, if the vehicle operated was a motor vehicle; or

(F) an offense under the laws of another state that prohibit the operation of a motor vehicle while intoxicated.

(2) "Offense of operating an aircraft while intoxicated" means:

(A) an offense under Section 49.05;

(B) an offense under Section 49.07 or 49.08, if the vehicle operated was an aircraft;

(C) an offense under Section 1, Chapter 46, Acts of the 58th Legislature, Regular Session, 1963 (Article 46f-3, Vernon's Texas Civil Statutes), as that law existed before September 1, 1994;

(D) an offense under Section 19.05(a)(2), as that law existed before September 1, 1994, if the vehicle operated was an aircraft; or

(E) an offense under the laws of another state that prohibit the operation of an aircraft while intoxicated.

(3) "Offense of operating a watercraft while intoxicated" means:

(A) an offense under Section 49.06;

(B) an offense under Section 49.07 or 49.08, if the vehicle operated was a watercraft;

(C) an offense under Section 31.097, Parks and Wildlife Code, as that law existed before September 1, 1994;

(D) an offense under Section 19.05(a)(2), as that law existed before September 1, 1994, if the vehicle operated was a watercraft; or

(E) an offense under the laws of another state that prohibit the operation of a watercraft while intoxicated.

(4) "Offense of operating or assembling an amusement ride while intoxicated" means:

(A) an offense under Section 49.065;

(B) an offense under Section 49.07 or 49.08, if the offense involved the operation or assembly of an amusement ride; or

(C) an offense under the law of another state that prohibits the operation of an amusement ride while intoxicated or the assembly of a mobile amusement ride while intoxicated.

(d) For the purposes of this section, a conviction for an offense under Section 49.04, 49.045, 49.05, 49.06, 49.065, 49.07, or 49.08 that occurs on or after September 1, 1994, is a final conviction, whether the sentence for the conviction is imposed or probated.

(e) Repealed by Acts 2005, 79th Leg., ch. 996, Sec. 3.

(f) Repealed by Acts 2005, 79th Leg., ch. 996, Sec. 3.

(g) A conviction may be used for purposes of enhancement under this section or enhancement under Subchapter D, Chapter 12, but not under both this section and Subchapter D.

(h) This subsection applies only to a person convicted of a second or subsequent offense relating to the operating of a motor vehicle while intoxicated committed within five years of the date on which the most recent preceding offense was committed. The court shall enter an order that requires the defendant to have a device installed, on each motor vehicle owned or operated by the defendant, that uses a deep-lung breath analysis mechanism to make impractical the operation of the motor vehicle if ethyl alcohol is detected in the breath of the operator, and that requires that before the first anniversary of the ending date of the period of license suspension under Section 521.344, Transportation Code, the defendant not operate any motor vehicle that is not equipped with that device. The court shall require the defendant to obtain the device at the defendant's own cost on or before that ending date, require the defendant to provide evidence to the court on or before that ending date that the device has been installed on each appropriate vehicle, and order the device to remain installed on each vehicle until the first anniversary of that ending date. If the court determines the offender is unable to pay for the device, the court may impose a reasonable payment schedule not to extend beyond the first anniversary of the date of installation. The Department of Public Safety shall approve devices for use under this subsection. Section 521.247, Transportation Code, applies to the approval of a device under this subsection and the consequences of that approval. Failure to comply with an order entered under this subsection is punishable by contempt. For the purpose of enforcing this subsection, the court that enters an order under this subsection retains jurisdiction over the defendant until the date on which the device is no longer required to remain installed. To the extent of a conflict between this subsection and Section 13(i), Article 42.12, Code of Criminal Procedure, this subsection controls.

Prescription for Use of Drug No Defense to DWI - Texas Penal Code Section 49.10

§  49.10. No Defense.

In a prosecution under Section 49.03, 49.04, 49.045, 49.05, 49.06, 49.065, 49.07, or 49.08, the fact that the defendant is or has been entitled to use the alcohol, controlled substance, drug, dangerous drug, or other substance is not a defense.

Proof of Mental State Unnecessary (for DWI) - Texas Penal Code Section 49.11

§ 49.11. Proof of Mental State Unnecessary.

(a) Notwithstanding Section 6.02(b), proof of a culpable mental state is not required for conviction of an offense under this chapter.

(b) Subsection (a) does not apply to an offense under Section 49.031.

Applicability to Certain Conduct - Texas Penal Code Section 49.12

§ 49.12. Applicability to Certain Conduct.

Sections 49.07 and 49.08 do not apply to injury to or the death of an unborn child if the conduct charged is conduct committed by the mother of the unborn child.

Texas Transportation Code Chapter 524 - Administrative Suspension of Driver's License for Failure to Pass Test for Intoxication (Breath Test ALR Statute)

Chapter 524 - Administrative Suspension of Driver’s License for Failure to Pass Test for Intoxication

Subchapter A. GENERAL PROVISIONS

Section 524.001. Definitions

Section 524.002. Rules; Application of Administrative Procedure Act

Subchapter B. SUSPENSION DETERMINATION AND NOTICE

Section 524.011. Officer’s Duties for Driver’s License Suspension

Section 524.012. Department’s Determination for Driver’s License Suspension

Section 524.013. Notice of Department’s Determination

Section 524.014. Notice of Suspension

Section 524.015. Effect of Disposition of Criminal Charge on Driver’s License Suspension

Subchapter C. SUSPENSION PROVISIONS

Section 524.021. Suspension Effective Date

Section 524.022. Period of Suspension

Section 524.023. Application of Suspension under Other Laws

Subchapter D. HEARING AND APPEAL

Section 524.031. Hearing Request

Section 524.032. Hearing Date; Rescheduling

Section 524.033. State Office of Administrative Hearings

Section 524.034. Hearing Location

Section 524.035. Hearing

Section 524.036. Failure to Appear

Section 524.037. Continuance

Section 524.038. Instrument Reliability and Analysis Validity

Section 524.039. Appearance of Technicians at the Hearing

Section 524.040. Notice Requirements

Section 524.041. Appeal from Administrative Hearing

Section 524.042. Stay of Suspension on Appeal

Section 524.043. Review; Additional Evidence

Section 524.044. Transcript of Administrative Hearing

Subchapter E. REINSTATEMENT AND REISSUANCE OF DRIVER'S LICENSE

Section 524.051. Reinstatement and Reissuance

ALR Definitions - Texas Transportation Code Section 524.001

Section 524.001. Definitions

In this chapter:

(1) "Adult" means an individual 21 years of age or older.

(2) "Alcohol concentration" has the meaning assigned by Section 49.01, Penal Code.

(3) "Alcohol-related or drug-related enforcement contact" means a driver's license suspension, disqualification, or prohibition order under the laws of this state or another state resulting from:

(A) a conviction of an offense prohibiting the operation of a motor vehicle while:

(i) intoxicated;

(ii) under the influence of alcohol; or

(iii) under the influence of a controlled substance;

(B) a refusal to submit to the taking of a breath or blood specimen following an arrest for an offense prohibiting the operation of a motor vehicle while:

(i) intoxicated;

(ii) under the influence of alcohol; or

(iii) under the influence of a controlled substance; or

(C) an analysis of a breath or blood specimen showing an alcohol concentration of a level specified by Section 49.01, Penal Code, following an arrest for an offense prohibiting the operation of a motor vehicle while intoxicated.

(4) "Arrest" includes the taking into custody of a child, as defined by Section 51.02, Family Code.

(5) "Conviction" includes an adjudication under Title 3, Family Code.

(6) "Criminal charge" includes a charge that may result in a proceeding under Title 3, Family Code.

(7) "Criminal prosecution" includes a proceeding under Title 3, Family Code.

(8) "Department" means the Department of Public Safety.

(9) "Director" means the public safety director of the department.

(10) "Driver's license" has the meaning assigned by Section 521.001. The term includes a commercial driver's license or a commercial driver learner's permit issued under Chapter 522.

(11) "Minor" means an individual under 21 years of age.

(12) "Public place" has the meaning assigned by Section 1.07(a), Penal Code.

Rules; Application of Administrative Procedure Act (ALR) - Texas Transportation Code Section 524.002

Section 524.002. Rules; Application of Administrative Procedure Act

(a) The department and the State Office of Administrative Hearings shall adopt rules to administer this chapter.

(b) Chapter 2001, Government Code, applies to a proceeding under this chapter to the extent consistent with this chapter.

(c) The State Office of Administrative Hearings may adopt a rule that conflicts with Chapter 2001, Government Code, if a conflict is necessary to expedite the hearings process within the time required by this chapter and applicable federal funding guidelines.

Officer's Duties for Driver's License Suspension (ALR) - Texas Transportation Code Section 524.011

Section 524.011. Officer’s Duties for Driver’s License Suspension

(a) An officer arresting a person shall comply with Subsection (b) if:

(1) the person is arrested for an offense under Section 49.04, Penal Code, or an offense under Section 49.07 or 49.08 of that code involving the operation of a motor vehicle, submits to the taking of a specimen of breath or blood and an analysis of the specimen shows the person had an alcohol concentration of a level specified by Section 49.01(2)(B), Penal Code; or

(2) the person is a minor arrested for an offense under Section 106.041, Alcoholic Beverage Code, or Section 49.04, Penal Code, or an offense under Section 49.07 or 49.08, Penal Code, involving the operation of a motor vehicle and:

(A) the minor is not requested to submit to the taking of a specimen; or

(B) the minor submits to the taking of a specimen and an analysis of the specimen shows that the minor had an alcohol concentration of greater than .00 but less than the level specified by Section 49.01(2)(B), Penal Code.

(b) A peace officer shall:

(1) serve or, if a specimen is taken and the analysis of the specimen is not returned to the arresting officer before the person is admitted to bail, released from custody, delivered as provided by Title 3, Family Code, or committed to jail, attempt to serve notice of driver's license suspension by delivering the notice to the arrested person;

(2) take possession of any driver's license issued by this state and held by the person arrested;

(3) issue a temporary driving permit to the person unless department records show or the officer otherwise determines that the person does not hold a driver's license to operate a motor vehicle in this state; and

(4) send to the department not later than the fifth business day after the date of the arrest:

(A) a copy of the driver's license suspension notice;

(B) any driver's license taken by the officer under this subsection;

(C) a copy of any temporary driving permit issued under this subsection; and

(D) a sworn report of information relevant to the arrest.

(c) The report required under Subsection (b)(4)(D) must:

(1) identify the arrested person;

(2) state the arresting officer's grounds for believing the person committed the offense;

(3) give the analysis of the specimen if any; and

(4) include a copy of the criminal complaint filed in the case, if any.

(d) A peace officer shall make the report on a form approved by the department and in the manner specified by the department.

(e) The department shall develop forms for the notice of driver's license suspension and temporary driving permits to be used by all state and local law enforcement agencies.

(f) A temporary driving permit issued under this section expires on the 41st day after the date of issuance. If the person was driving a commercial motor vehicle, as defined by Section 522.003, a temporary driving permit that authorizes the person to drive a commercial motor vehicle is not effective until 24 hours after the time of arrest.

Department's Determination for Driver's License Suspension (ALR) - Texas Transportation Code Section 524.012

Section 524.012. Department’s Determination for Driver’s License Suspension

(a) On receipt of a report under Section 524.011, if the officer did not serve a notice of suspension of driver's license at the time the results of the analysis of a breath or blood specimen were obtained, the department shall determine from the information in the report whether to suspend the person's driver's license.

(b) The department shall suspend the person's driver's license if the department determines that:

(1) the person had an alcohol concentration of a level specified by Section 49.01(2)(B), Penal Code, while operating a motor vehicle in a public place;  or

(2) the person is a minor and had any detectable amount of alcohol in the minor's system while operating a motor vehicle in a public place.

(c) The department may not suspend a person's driver's license if:

(1) the person is an adult and the analysis of the person's breath or blood specimen determined that the person had an alcohol concentration of a level below that specified by Section 49.01(2)(B), Penal Code, at the time the specimen was taken; or

(2) the person is a minor and the department does not determine that the minor had any detectable amount of alcohol in the minor's system when the minor was arrested.

(d) A determination under this section is final unless a hearing is requested under Section 524.031.

(e) A determination under this section:

(1) is a civil matter;

(2) is independent of and is not an estoppel to any matter in issue in an adjudication of a criminal charge arising from the occurrence that is the basis for the suspension; and

(3) does not preclude litigation of the same or similar facts in a criminal prosecution.

Notice of Department's Determination (ALR) - Texas Transportation Code Section 524.013

Section 524.013. Notice of Department’s Determination

(a) If the department suspends a person's driver's license, the department shall send a notice of suspension by first class mail to the person's address:

(1) in the records of the department; or

(2) in the peace officer's report if it is different from the address in the department's records.

(b) Notice is considered received on the fifth day after the date the notice is mailed.

(c) If the department determines not to suspend a person's driver's license, the department shall notify the person of that determination and shall rescind any notice of driver's license suspension served on the person.

ALR Notice of Suspension - Texas Transportation Code Section 524.014

Section 524.014. Notice of Suspension

 A notice of suspension under Section 524.013 must state:

(1) the reason and statutory grounds for the suspension;

(2) the effective date of the suspension;

(3) the right of the person to a hearing;

(4) how to request a hearing; and

(5) the period in which the person must request a hearing.

Effect of Disposition of Criminal Charge on Driver's License Suspension - Texas Transportation Code Section 524.015

Section 524.015. Effect of Disposition of Criminal Charge on Driver’s License Suspension

(a) Except as provided by Subsection (b), the disposition of a criminal charge does not affect a driver's license suspension under this chapter and does not bar any matter in issue in a driver's license suspension proceeding under this chapter.

(b) A suspension may not be imposed under this chapter on a person who is acquitted of a criminal charge under Section 49.04, 49.07, or 49.08, Penal Code, or Section 106.041, Alcoholic Beverage Code, arising from the occurrence that was the basis for the suspension. If a suspension was imposed before the acquittal, the department shall rescind the suspension and shall remove any reference to the suspension from the person's computerized driving record.

ALR Suspension Effective Date - Texas Transportation Code Section 524.021

Section 524.021. Suspension Effective Date

(a) A driver's license suspension under this chapter takes effect on the 40th day after the date the person:

(1) receives a notice of suspension under Section 524.011; or

(2) is presumed to have received notice of suspension under Section 524.013.

(b) A suspension under this chapter may not be probated.

Period of Suspension - Texas Transportation Code Section 524.022

Section 524.022. Period of Suspension

(a) A period of suspension under this chapter for an adult is:

(1) 90 days if the person's driving record shows no alcohol-related or drug-related enforcement contact during the 10 years preceding the date of the person's arrest; or

(2) one year if the person's driving record shows one or more alcohol-related or drug-related enforcement contacts during the 10 years preceding the date of the person's arrest.

(b) A period of suspension under this chapter for a minor is:

(1) 60 days if the minor has not been previously convicted of an offense under Section 106.041, Alcoholic Beverage Code, or Section 49.04, Penal Code, or an offense under Section 49.07 or 49.08, Penal Code, involving the operation of a motor vehicle;

(2) 120 days if the minor has been previously convicted once of an offense listed by Subdivision (1); or

(3) 180 days if the minor has been previously convicted twice or more of an offense listed by Subdivision (1).

(c) For the purposes of determining whether a minor has been previously convicted of an offense described by Subsection (b)(1):

(1) an adjudication under Title 3, Family Code, that the minor engaged in conduct described by Subsection (b)(1) is considered a conviction under that provision; and

(2) an order of deferred adjudication for an offense alleged under a provision described by Subsection (b)(1) is considered a conviction of an offense under that provision.

(d) A minor whose driver's license is suspended under this chapter is not eligible for an occupational license under Subchapter L, Chapter 521, for:

(1) the first 30 days of a suspension under Subsection (b)(1);

(2) the first 90 days of a suspension under Subsection (b)(2); or

(3) the entire period of a suspension under Subsection (b)(3).

Application of Suspension Under Other Laws - Texas Transportation Code Section 524.023

Section 524.023. Application of Suspension Under Other Laws

(a) If a person is convicted of an offense under Section 106.041, Alcoholic Beverage Code, or Section 49.04, 49.07, or 49.08, Penal Code, and if any conduct on which that conviction is based is a ground for a driver's license suspension under this chapter and Section 106.041, Alcoholic Beverage Code, Subchapter O, Chapter 521, or Subchapter H, Chapter 522, each of the suspensions shall be imposed.

(b) The court imposing a driver's license suspension under Section 106.041, Alcoholic Beverage Code, or Chapter 521 or 522 as required by Subsection (a) shall credit a period of suspension imposed under this chapter toward the period of suspension required under Section 106.041, Alcoholic Beverage Code, or Subchapter O, Chapter 521, or Subchapter H, Chapter 522, unless the person was convicted of an offense under Article 6701l-1, Revised Statutes, as that law existed before September 1, 1994, Section 19.05(a)(2), Penal Code, as that law existed before September 1, 1994, Section 49.04, 49.07, or 49.08, Penal Code, or Section 106.041, Alcoholic Beverage Code, before the date of the conviction on which the suspension is based, in which event credit may not be given.

ALR Hearing Request - Texas Transportation Code Section 524.031

Section 524.031. Hearing Request

If, not later than the 15th day after the date on which the person receives notice of suspension under Section 524.011 or is presumed to have received notice under Section 524.013, the department receives at its headquarters in Austin, in writing, including a facsimile transmission, or by another manner prescribed by the department, a request that a hearing be held, a hearing shall be held as provided by this subchapter.

ALR Hearing Date; Rescheduling - Texas Transportation Code Section 524.032

Section 524.032. Hearing Date; Rescheduling

(a) A hearing requested under this subchapter shall be held not earlier than the 11th day after the date on which the person requesting the hearing is notified of the hearing unless the parties agree to waive this requirement. The hearing shall be held before the effective date of the suspension.

(b) A hearing shall be rescheduled if, before the fifth day before the date scheduled for the hearing, the department receives a request for a continuance from the person who requested the hearing. Unless both parties agree otherwise, the hearing shall be rescheduled for a date not earlier than the fifth day after the date the department receives the request for the continuance.

(c) A person who requests a hearing under this chapter may obtain only one continuance under this section unless the person shows that a medical condition prevents the person from attending the rescheduled hearing, in which event one additional continuance may be granted for a period not to exceed 10 days.

(d) A request for a hearing stays suspension of a person's driver's license until the date of the final decision of the administrative law judge. If the person's driver's license was taken by a peace officer under Section 524.011(b), the department shall notify the person of the effect of the request on the suspension of the person's license before the expiration of any temporary driving permit issued to the person, if the person is otherwise eligible, in a manner that will permit the person to establish to a peace officer that the person's driver's license is not suspended.

State Office of Administrative Hearings - Texas Transportation Code Section 524.033

Section 524.033. State Office of Administrative Hearings

(a) A hearing under this subchapter shall be heard by an administrative law judge employed by the State Office of Administrative Hearings.

(b) The State Office of Administrative Hearings shall provide for the stenographic or electronic recording of the hearing.

ALR Hearing Location - Texas Transportation Code Section 524.034

Section 524.034. Hearing Location

A hearing under this subchapter shall be held:

(1) at a location designated by the State Office of Administrative Hearings:

(A) in the county of arrest if the arrest occurred in a county with a population of 300,000 or more; or

(B) in the county in which the person is alleged to have committed the offense for which the person was arrested or not more than 75 miles from the county seat of the county in which the person was arrested; or

(2) with the consent of the person and the department, by telephone conference call.

ALR Hearing - Texas Transportation Code Section 524.035

Section 524.035. Hearing

(a) The issues that must be proved at a hearing by a preponderance of the evidence are:

(1) whether:

(A) the person had an alcohol concentration of a level specified by Section 49.01(2)(B), Penal Code, while operating a motor vehicle in a public place; or

(B) the person is a minor and had any detectable amount of alcohol in the minor's system while operating a motor vehicle in a public place; and

(2) whether reasonable suspicion to stop or probable cause to arrest the person existed.

(b) If the administrative law judge finds in the affirmative on each issue in Subsection (a), the suspension is sustained.

(c) If the administrative law judge does not find in the affirmative on each issue in Subsection (a), the department shall:

(1) return the person's driver's license to the person, if the license was taken by a peace officer under Section 524.011(b);

(2) reinstate the person's driver's license; and

(3) rescind an order prohibiting the issuance of a driver's license to the person.

(d) An administrative law judge may not find in the affirmative on the issue in Subsection (a)(1) if:

(1) the person is an adult and the analysis of the person's breath or blood determined that the person had an alcohol concentration of a level below that specified by Section 49.01, Penal Code, at the time the specimen was taken; or

(2) the person is a minor and the administrative law judge does not find that the minor had any detectable amount of alcohol in the minor's system when the minor was arrested.

(e) The decision of the administrative law judge is final when issued and signed.

Failure to Appear at ALR Hearing - Texas Transportation Code Section 524.036

Section 524.036. Failure to Appear

A person who requests a hearing and fails to appear without just cause waives the right to a hearing and the department's determination is final.

ALR Continuance - Texas Transportation Code Section 524.037

Sec. 524.037. Continuance

(a) A continuance under Section 524.032 stays the suspension of a driver's license until the date of the final decision of the administrative law judge.

(b) A suspension order may not go into effect pending a final decision of the administrative law judge as a result of a continuance granted under Section 524.039.

(c) If the person's driver's license was taken by a peace officer under Section 524.011(b), the department shall notify the person of the effect of the continuance on the suspension of the person's license before the expiration of any temporary driving permit issued to the person, if the person is otherwise eligible, in a manner that will permit the person to establish to a peace officer that the person's driver's license is not suspended.

Instrument Reliability and Analysis Validity - Texas Transportation Code Section 524.038

Section 524.038. Instrument Reliability and Analysis Validity

(a) The reliability of an instrument used to take or analyze a specimen of a person's breath to determine alcohol concentration and the validity of the results of the analysis may be attested to in a proceeding under this subchapter by affidavit from the certified breath test technical supervisor responsible for maintaining and directing the operation of breath test instruments in compliance with department rule.

(b) An affidavit submitted under Subsection (a) must contain statements on:

(1) the reliability of the instrument and the analytical results;  and

(2) compliance with state law in the administration of the program.

(c) An affidavit of an expert witness contesting the reliability of the instrument or the results is admissible.

(d) An affidavit from a person whose presence is timely requested under this section is inadmissible if the person fails to appear at a hearing without a showing of good cause. Otherwise, an affidavit under this section may be submitted in lieu of an appearance at the hearing by the breath test operator, breath test technical supervisor, or expert witness.

Appearance of Technicians at the Hearing - Texas Transportation Code Section 524.039

Section 524.039. Appearance of Technicians at the Hearing

(a) Notwithstanding Section 524.038, if not later than the fifth day before the date of a scheduled hearing the department receives from the person who requested a hearing written notice, including a facsimile transmission, requesting the presence at the hearing of the breath test operator who took the specimen of the person's breath to determine alcohol concentration or the certified breath test technical supervisor responsible for maintaining and directing the operation of the breath test instrument used to analyze the specimen of the person's breath, or both, each requested person must appear at the hearing.

(b) The department may reschedule a hearing once not less than 48 hours before the hearing if the person requested to attend under Subsection (a) is unavailable. The department may also reschedule the hearing on showing good cause that the person requested under Subsection (a) is not available at the time of the hearing.

Notice Requirements - Texas Transportation Code Section 524.040

Section 524.040. Notice Requirements

(a) Notice required to be provided by the department under this subchapter may be given by telephone or other electronic means. If notice is given by telephone or other electronic means, written notice must also be provided.

(b) Notice by mail is considered received on the fifth day after the date the notice is deposited with the United States Postal Service.

Appeal from Administrative Hearing - Texas Transportation Code Section 524.041

Section 524.041. Appeal from Administrative Hearing

(a) A person whose driver's license suspension is sustained may appeal the decision by filing a petition not later than the 30th day after the date the administrative law judge's decision is final. The administrative law judge's final decision is immediately appealable without the requirement of a motion for rehearing.

(b) A petition under Subsection (a) must be filed in a county court at law in the county in which the person was arrested or, if there is not a county court at law in the county, in the county court. If the county judge is not a licensed attorney, the county judge shall transfer the case to a district court for the county on the motion of either party or of the judge.

(c) A person who files an appeal under this section shall send a copy of the petition by certified mail to the department and to the State Office of Administrative Hearings at each agency's headquarters in Austin. The copy must be certified by the clerk of the court in which the petition is filed.

(d) The department's right to appeal is limited to issues of law.

(e) A district or county attorney may represent the department in an appeal.

Stay of Suspension on Appeal - Texas Transportation Code Section 524.042

Section 524.042. Stay of Suspension on Appeal

(a) A suspension of a driver's license under this chapter is stayed on the filing of an appeal petition only if:

(1) the person's driver's license has not been suspended as a result of an alcohol-related or drug-related enforcement contact during the five years preceding the date of the person's arrest; and

(2) the person has not been convicted during the 10 years preceding the date of the person's arrest of an offense under:

(A) Article 6701l-1, Revised Statutes, as that law existed before September 1, 1994;

(B) Section 19.05(a)(2), Penal Code, as that law existed before September 1, 1994;

(C) Section 49.04, Penal Code; 

(D) Section 49.07 or 49.08, Penal Code, if the offense involved the operation of a motor vehicle; or

(E) Section 106.041, Alcoholic Beverage Code.

(b) A stay under this section is effective for not more than 90 days after the date the appeal petition is filed. On the expiration of the stay, the department shall impose the suspension. The department or court may not grant an extension of the stay or an additional stay.

Review; Additional Evidence - Texas Transportation Code Section 524.043

Section 524.043. Review; Additional Evidence

(a) Review on appeal is on the record certified by the State Office of Administrative Hearings with no additional testimony.

(b) On appeal, a party may apply to the court to present additional evidence. If the court is satisfied that the additional evidence is material and that there were good reasons for the failure to present it in the proceeding before the administrative law judge, the court may order that the additional evidence be taken before an administrative law judge on conditions determined by the court.

(c) There is no right to a jury trial in an appeal under this section.

(d) An administrative law judge may change a finding or decision as to whether the person had an alcohol concentration of a level specified in Section 49.01, Penal Code, or whether a minor had any detectable amount of alcohol in the minor's system because of the additional evidence and shall file the additional evidence and any changes, new findings, or decisions with the reviewing court.

(e) A remand under this section does not stay the suspension of a driver's license.

Transcript of Administrative Hearing - Texas Transportation Code Section 524.044

Section 524.044. Transcript of Administrative Hearing

(a) To obtain a transcript of an administrative hearing, the party who appeals the administrative law judge's decision must apply to the State Office of Administrative Hearings.

(b) On payment of a fee not to exceed the actual cost of preparing the transcript, the State Office of Administrative Hearings shall promptly furnish both parties with a transcript of the administrative hearing.

Reinstatement and Reissuance - Texas Transportation Code Section 524.051

Section 524.051. Reinstatement and Reissuance.

(a) A driver's license suspended under this chapter may not be reinstated or another driver's license issued to the person until the person pays the department a fee of $125 in addition to any other fee required by law.

(b) The payment of a reinstatement fee is not required if a suspension under this chapter is:

(1) rescinded by the department; or

(2) not sustained by an administrative law judge, or a court.

(c) Each fee collected under this section shall be deposited to the credit of the Texas mobility fund.

Texas Transportation Code Chapter 724 - Implied Consent (Breath Test Refusal ALR Statute)

SUBCHAPTER A. GENERAL PROVISIONS

Section 724.001. Definitions

Section 724.002. Applicability

Section 724.003. Rulemaking

SUBCHAPTER B. TAKING AND ANALYSIS OF SPECIMEN

Section 724.011. Consent to Taking of a Specimen

Section 724.012. Taking of a Specimen

Section 724.013. Prohibition on Taking a Specimen If Person Refuses; Exception

Section 724.014. Person Incapable of Refusal

Section 724.015. Information Provided by Officer Before Requesting Specimen

Section 724.016. Breath Specimen

Section 724.017. Blood Specimen

Section 724.018. Furnishing Information Concerning Test Results

Section 724.019. Additional Analysis by Request

SUBCHAPTER C. SUSPENSION OR DENIAL OF LICENSE ON REFUSAL OF SPECIMEN

Section 724.031. Statement Requested on Refusal

Section 724.032. Officer’s Duties for License Suspension; Written Refusal Report

Section 724.033. Issuance by Department of Notice of Suspension or Denial of License

Section 724.034. Contents of Notice of Suspension or Denial of License

Section 724.035. Suspension or Denial of License

SUBCHAPTER D. HEARING

Section 724.041. Hearing on Suspension or Denial

Section 724.042. Issues at Hearing

Section 724.043. Findings of Administrative Law Judge

Section 724.044. Waiver of Right to a Hearing

Section 724.045. Prohibition on Probation of Suspension

Section 724.046. Reinstatement of License or Issuance of New License

Section 724.047. Appeal  

Section 724.048. Relationship of Administrative Proceeding to Criminal Proceeding  

SUBCHAPTER E. ADMISSIBILITY OF EVIDENCE

Section 724.061. Admissibility of Refusal of Person to Submit to Taking of Specimen

Section 724.062. Admissibility of Refusal or Request for Additional Test

Section 724.063. Admissibility of Alcohol Concentration or Presence of Substance  

Section 724.064. Admissibility in Criminal Proceeding of Specimen Analysis

ALR Definitions - Texas Transportation Code Section 724.001

Section 724.001. Definitions

In this chapter:

(1) "Alcohol concentration" has the meaning assigned by Section 49.01, Penal Code.

(2) "Arrest" includes the taking into custody of a child, as defined by Section 51.02, Family Code.

(3) "Controlled substance" has the meaning assigned by Section 481.002, Health and Safety Code.

(4) "Criminal charge" includes a charge that may result in a proceeding under Title 3, Family Code.

(5) "Criminal proceeding" includes a proceeding under Title 3, Family Code.

(6) "Dangerous drug" has the meaning assigned by Section 483.001, Health and Safety Code.

(7) "Department" means the Department of Public Safety.

(8) "Drug" has the meaning assigned by Section 481.002, Health and Safety Code.

(9) "Intoxicated" has the meaning assigned by Section 49.01, Penal Code.

(10) "License" has the meaning assigned by Section 521.001.

(11) "Operate" means to drive or be in actual control of a motor vehicle or watercraft.

(12) "Public place" has the meaning assigned by Section 1.07, Penal Code.

Applicability - Texas Transportation Code Section 724.002

Section 724.002. Applicability

The provisions of this chapter that apply to suspension of a license for refusal to submit to the taking of a specimen (Sections 724.013, 724.015, and 724.048 and Subchapters C and D) apply only to a person arrested for an offense involving the operation of a motor vehicle or watercraft powered with an engine having a manufacturer's rating of 50 horsepower or above.

ALR Rulemaking - Texas Transportation Code Section 724.003

Section 724.003. Rulemaking

The department and the State Office of Administrative Hearings shall adopt rules to administer this chapter.

Consent to Taking of a Specimen - Texas Transportation Code Section 724.011

Section 724.011. Consent to Taking of a Specimen

(a) If a person is arrested for an offense arising out of acts alleged to have been committed while the person was operating a motor vehicle in a public place, or a watercraft, while intoxicated, or an offense under Section 106.041, Alcoholic Beverage Code, the person is deemed to have consented, subject to this chapter, to submit to the taking of one or more specimens of the person's breath or blood for analysis to determine the alcohol concentration or the presence in the person's body of a controlled substance, drug, dangerous drug, or other substance.

(b) A person arrested for an offense described by Subsection (a) may consent to submit to the taking of any other type of specimen to determine the person's alcohol concentration.

Taking of a Specimen - Texas Transportation Code Section 724.012

Section 724.012. Taking of a Specimen

(a) One or more specimens of a person's breath or blood may be taken if the person is arrested and at the request of a peace officer having reasonable grounds to believe the person:

(1) while intoxicated was operating a motor vehicle in a public place, or a watercraft; or

(2) was in violation of Section 106.041, Alcoholic Beverage Code.

(b) A peace officer shall require the taking of a specimen of the person's breath or blood if:

(1) the officer arrests the person for an offense under Chapter 49, Penal Code, involving the operation of a motor vehicle or a watercraft;

(2) the person was the operator of a motor vehicle or a watercraft involved in an accident that the officer reasonably believes occurred as a result of the offense;

(3) at the time of the arrest the officer reasonably believes that as a direct result of the accident:

(A) any individual has died or will die; or

(B) an individual other than the person has suffered serious bodily injury; and

(4) the person refuses the officer's request to submit to the taking of a specimen voluntarily.

(c) The peace officer shall designate the type of specimen to be taken.

(d) In this section, "serious bodily injury" has the meaning assigned by Section 1.07, Penal Code.

Prohibition on Taking a Specimen If Person Refuses; Exception - Texas Transportation Code Section 724.013

Section 724.013. Prohibition on Taking a Specimen If Person Refuses; Exception

Except as provided by Section 724.012(b), a specimen may not be taken if a person refuses to submit to the taking of a specimen designated by a peace officer.

Person Incapable of Refusal - Texas Transportation Code Section 724.014

Section 724.014. Person Incapable of Refusal

(a) A person who is dead, unconscious, or otherwise incapable of refusal is considered not to have withdrawn the consent provided by Section 724.011.

(b) If the person is dead, a specimen may be taken by:

(1) the county medical examiner or the examiner's designated agent; or

(2) a licensed mortician or a person authorized under Section 724.016 or 724.017 if there is not a county medical examiner for the county.

(c) If the person is alive but is incapable of refusal, a specimen may be taken by a person authorized under Section 724.016 or 724.017.

Information Provided by Officer Before Requesting Specimen - Texas Transportation Code Section 724.015

Section 724.015. Information Provided by Officer Before Requesting Specimen

Before requesting a person to submit to the taking of a specimen, the officer shall inform the person orally and in writing that:

(1) if the person refuses to submit to the taking of the specimen, that refusal may be admissible in a subsequent prosecution;

(2) if the person refuses to submit to the taking of the specimen, the person's license to operate a motor vehicle will be automatically suspended, whether or not the person is subsequently prosecuted as a result of the arrest, for not less than 180 days;

(3) if the person is 21 years of age or older and submits to the taking of a specimen designated by the officer and an analysis of the specimen shows the person had an alcohol concentration of a level specified by Chapter 49, Penal Code, the person's license to operate a motor vehicle will be automatically suspended for not less than 90 days, whether or not the person is subsequently prosecuted as a result of the arrest;

(4) if the person is younger than 21 years of age and has any detectable amount of alcohol in the person's system, the person's license to operate a motor vehicle will be automatically suspended for not less than 60 days even if the person submits to the taking of the specimen, but that if the person submits to the taking of the specimen and an analysis of the specimen shows that the person had an alcohol concentration less than the level specified by Chapter 49, Penal Code, the person may be subject to criminal penalties less severe than those provided under that chapter;

(5) if the officer determines that the person is a resident without a license to operate a motor vehicle in this state, the department will deny to the person the issuance of a license, whether or not the person is subsequently prosecuted as a result of the arrest, under the same conditions and for the same periods that would have applied to a revocation of the person's driver's license if the person had held a driver's license issued by this state; and

(6) the person has a right to a hearing on the suspension or denial if, not later than the 15th day after the date on which the person receives the notice of suspension or denial or on which the person is considered to have received the notice by mail as provided by law, the department receives, at its headquarters in Austin, a written demand, including a facsimile transmission, or a request in another form prescribed by the department for the hearing.

Breath Specimen - Texas Transportation Code Section 724.016

Section 724.016. Breath Specimen

(a) A breath specimen taken at the request or order of a peace officer must be taken and analyzed under rules of the department by an individual possessing a certificate issued by the department certifying that the individual is qualified to perform the analysis.

(b) The department may:

(1) adopt rules approving satisfactory analytical methods; and

(2) ascertain the qualifications of an individual to perform the analysis.

(c) The department may revoke a certificate for cause.

Blood Specimen - Texas Transportation Code Section 724.017

Section 724.017. Blood Specimen

(a) Only a physician, qualified technician, chemist, registered professional nurse, or licensed vocational nurse may take a blood specimen at the request or order of a peace officer under this chapter. The blood specimen must be taken in a sanitary place.

(b) The person who takes the blood specimen under this chapter, or the hospital where the blood specimen is taken, is not liable for damages arising from the request or order of the peace officer to take the blood specimen as provided by this chapter if the blood specimen was taken according to recognized medical procedures. This subsection does not relieve a person from liability for negligence in the taking of a blood specimen.

(c) In this section, "qualified technician" does not include emergency medical services personnel.

Furnishing Information Concerning Test Results - Texas Transportation Code Section 724.018

Section 724.018. Furnishing Information Concerning Test Results

On the request of a person who has given a specimen at the request of a peace officer, full information concerning the analysis of the specimen shall be made available to the person or the person's attorney.

Additional Analysis by Request - Texas Transportation Code Section 724.019

Section 724.019. Additional Analysis by Request

(a) A person who submits to the taking of a specimen of breath, blood, urine, or another bodily substance at the request or order of a peace officer may, on request and within a reasonable time not to exceed two hours after the arrest, have a physician, qualified technician, chemist, or registered professional nurse selected by the person take for analysis an additional specimen of the person's blood.

(b) The person shall be allowed a reasonable opportunity to contact a person specified by Subsection (a).

(c) A peace officer or law enforcement agency is not required to transport for testing a person who requests that a blood specimen be taken under this section.

(d) The failure or inability to obtain an additional specimen or analysis under this section does not preclude the admission of evidence relating to the analysis of the specimen taken at the request or order of the peace officer.

(e) A peace officer, another person acting for or on behalf of the state, or a law enforcement agency is not liable for damages arising from a person's request to have a blood specimen taken.

Statement Requested on Refusal - Texas Transportation Code Section 724.031

Section 724.031. Statement Requested on Refusal

If a person refuses the request of a peace officer to submit to the taking of a specimen, the peace officer shall request the person to sign a statement that:

(1) the officer requested that the person submit to the taking of a specimen;

(2) the person was informed of the consequences of not submitting to the taking of a specimen; and

(3) the person refused to submit to the taking of a specimen.

Officer's Duties for License Suspension; Written Refusal Report - Texas Transportation Code Section 724.032

Section 724.032. Officer’s Duties for License Suspension; Written Refusal Report

(a) If a person refuses to submit to the taking of a specimen, whether expressly or because of an intentional failure of the person to give the specimen, the peace officer shall:

(1) serve notice of license suspension or denial on the person;

(2) take possession of any license issued by this state and held by the person arrested;

(3) issue a temporary driving permit to the person unless department records show or the officer otherwise determines that the person does not hold a license to operate a motor vehicle in this state; and

(4) make a written report of the refusal to the director of the department.

(b) The director must approve the form of the refusal report. The report must:

(1) show the grounds for the officer's belief that the person had been operating a motor vehicle or watercraft powered with an engine having a manufacturer's rating of 50 horsepower or above while intoxicated; and

(2) contain a copy of:

(A) the refusal statement requested under Section 724.031; or

(B) a statement signed by the officer that the person refused to:

(i) submit to the taking of the requested specimen; and

(ii) sign the requested statement under Section 724.031.

(c) The officer shall forward to the department not later than the fifth business day after the date of the arrest:

(1) a copy of the notice of suspension or denial;

(2) any license taken by the officer under Subsection (a);

(3) a copy of any temporary driving permit issued under Subsection (a); and

(4) a copy of the refusal report.

(d) The department shall develop forms for notices of suspension or denial and temporary driving permits to be used by all state and local law enforcement agencies.

(e) A temporary driving permit issued under this section expires on the 41st day after the date of issuance. If the person was driving a commercial motor vehicle, as defined by Section 522.003, a temporary driving permit that authorizes the person to drive a commercial motor vehicle is not effective until 24 hours after the time of arrest.

Issuance by Department of Notice of Suspension or Denial of License - Texas Transportation Code Section 724.033

Section 724.033. Issuance by Department of Notice of Suspension or Denial of License

(a) On receipt of a report of a peace officer under Section 724.032, if the officer did not serve notice of suspension or denial of a license at the time of refusal to submit to the taking of a specimen, the department shall mail notice of suspension or denial, by first class mail, to the address of the person shown by the records of the department or to the address given in the peace officer's report, if different.

(b) Notice is considered received on the fifth day after the date it is mailed.

Contents of Notice of Suspension or Denial of License - Texas Transportation Code Section 724.034

Section 724.034. Contents of Notice of Suspension or Denial of License

A notice of suspension or denial of a license must state:

(1) the reason and statutory grounds for the action;

(2) the effective date of the suspension or denial;

(3) the right of the person to a hearing;

(4) how to request a hearing; and

(5) the period in which a request for a hearing must be received by the department.

Suspension or Denial of License - Texas Transportation Code Section 724.035

Section 724.035. Suspension or Denial of License

(a) If a person refuses the request of a peace officer to submit to the taking of a specimen, the department shall:

(1) suspend the person's license to operate a motor vehicle on a public highway for 180 days; or

(2) if the person is a resident without a license, issue an order denying the issuance of a license to the person for 180 days.

(b) The period of suspension or denial is two years if the person's driving record shows one or more alcohol-related or drug-related enforcement contacts, as defined by Section 524.001(3), during the 10 years preceding the date of the person's arrest.

(c) A suspension or denial takes effect on the 40th day after the date on which the person:

(1) receives notice of suspension or denial under Section 724.032(a); or

(2) is considered to have received notice of suspension or denial under Section 724.033.

ALR Hearing on Suspension or Denial - Texas Transportation Code Section 724.041

Section 724.041. Hearing on Suspension or Denial

(a) If, not later than the 15th day after the date on which the person receives notice of suspension or denial under Section 724.032(a) or is considered to have received notice under Section 724.033, the department receives at its headquarters in Austin, in writing, including a facsimile transmission, or by another manner prescribed by the department, a request that a hearing be held, the State Office of Administrative Hearings shall hold a hearing.

(b) A hearing shall be held not earlier than the 11th day after the date the person is notified, unless the parties agree to waive this requirement, but before the effective date of the notice of suspension or denial.

(c) A request for a hearing stays the suspension or denial until the date of the final decision of the administrative law judge. If the person's license was taken by a peace officer under Section 724.032(a), the department shall notify the person of the effect of the request on the suspension of the person's license before the expiration of any temporary driving permit issued to the person, if the person is otherwise eligible, in a manner that will permit the person to establish to a peace officer that the person's license is not suspended.

(d) A hearing shall be held by an administrative law judge employed by the State Office of Administrative Hearings.

(e) A hearing shall be held:

(1) at a location designated by the State Office of Administrative Hearings:

(A) in the county of arrest if the county has a population of 300,000 or more; or

(B) in the county in which the person was alleged to have committed the offense for which the person was arrested or not more than 75 miles from the county seat of the county of arrest if the population of the county of arrest is less than 300,000; or

(2) with the consent of the person requesting the hearing and the department, by telephone conference call.

(f) The State Office of Administrative Hearings shall provide for the stenographic or electronic recording of a hearing under this subchapter.

(g) An administrative hearing under this section is governed by Sections 524.032(b) and (c), 524.035(e), 524.037(a), and 524.040.

Issues at Hearing - Texas Transportation Code Section 724.042

Section 724.042. Issues at Hearing

The issues at a hearing under this subchapter are whether:

(1) reasonable suspicion or probable cause existed to stop or arrest the person;

(2) probable cause existed to believe that the person was:

(A) operating a motor vehicle in a public place while intoxicated; or

(B) operating a watercraft powered with an engine having a manufacturer's rating of 50 horsepower or above while intoxicated;

(3) the person was placed under arrest by the officer and was requested to submit to the taking of a specimen; and

(4) the person refused to submit to the taking of a specimen on request of the officer.

Findings of Administrative Law Judge - Texas Transportation Code Section 724.043

Section 724.043. Findings of Administrative Law Judge

(a) If the administrative law judge finds in the affirmative on each issue under Section 724.042, the suspension order is sustained. If the person is a resident without a license, the department shall continue to deny to the person the issuance of a license for the applicable period provided by Section 724.035.

(b) If the administrative law judge does not find in the affirmative on each issue under Section 724.042, the department shall return the person's license to the person, if the license was taken by a peace officer under Section 724.032(a), and reinstate the person's license or rescind any order denying the issuance of a license because of the person's refusal to submit to the taking of a specimen under Section 724.032(a).

Waiver of Right to a Hearing - Texas Transportation Code Section 724.044

Section 724.044. Waiver of Right to a Hearing

A person waives the right to a hearing under this subchapter and the department's suspension or denial is final and may not be appealed if the person:

(1) fails to request a hearing under Section 724.041; or

(2) requests a hearing and fails to appear, without good cause.

Prohibition on Probation of Suspension - Texas Transportation Code Section 724.045

Section 724.045. Prohibition on Probation of Suspension

A suspension under this chapter may not be probated.

Reinstatement of License or Issuance of New License - Texas Transportation Code Section 724.046

Section 724.046. Reinstatement of License or Issuance of New License

(a) A license suspended under this chapter may not be reinstated or a new license issued until the person whose license has been suspended pays to the department a fee of $125 in addition to any other fee required by law. A person subject to a denial order issued under this chapter may not obtain a license after the period of denial has ended until the person pays to the department a fee of $125 in addition to any other fee required by law.

(b) If a suspension or denial under this chapter is rescinded by the department, an administrative law judge, or a court, payment of the fee under this section is not required for reinstatement or issuance of a license.

(c) Each fee collected under this section shall be deposited to the credit of the Texas mobility fund.

ALR Appeal - Texas Transportation Code Section 724.047

Section 724.047. Appeal 

Chapter 524 governs an appeal from an action of the department, following an administrative hearing under this chapter, in suspending or denying the issuance of a license.

Relationship of Administrative Proceeding to Criminal Proceeding - Texas Transportation Code Section 724.048

Section 724.048. Relationship of Administrative Proceeding to Criminal Proceeding 

(a) The determination of the department or administrative law judge:

(1) is a civil matter;

(2) is independent of and is not an estoppel as to any matter in issue in an adjudication of a criminal charge arising from the occurrence that is the basis for the suspension or denial; and

(3) does not preclude litigation of the same or similar facts in a criminal prosecution.

(b) Except as provided by Subsection (c), the disposition of a criminal charge does not affect a license suspension or denial under this chapter and is not an estoppel as to any matter in issue in a suspension or denial proceeding under this chapter.

(c) If a criminal charge arising from the same arrest as a suspension under this chapter results in an acquittal, the suspension under this chapter may not be imposed. If a suspension under this chapter has already been imposed, the department shall rescind the suspension and remove references to the suspension from the computerized driving record of the individual.

Admissibility of Refusal of Person to Submit to Taking of Specimen - Texas Transportation Code Section 724.061

Section 724.061. Admissibility of Refusal of Person to Submit to Taking of Specimen

A person's refusal of a request by an officer to submit to the taking of a specimen of breath or blood, whether the refusal was express or the result of an intentional failure to give the specimen, may be introduced into evidence at the person's trial.

Admissibility of Refusal or Request for Additional Test - Texas Transportation Code Section 724.062

Section 724.062. Admissibility of Refusal or Request for Additional Test

The fact that a person's request to have an additional analysis under Section 724.019 is refused by the officer or another person acting for or on behalf of the state, that the person was not provided a reasonable opportunity to contact a person specified by Section 724.019(a) to take the specimen, or that reasonable access was not allowed to the arrested person may be introduced into evidence at the person's trial.

Admissibility of Alcohol Concentration or Presence of Substance - Texas Transportation Code Section 724.063

Section 724.063. Admissibility of Alcohol Concentration or Presence of Substance 

Evidence of alcohol concentration or the presence of a controlled substance, drug, dangerous drug, or other substance obtained by an analysis authorized by Section 724.014 is admissible in a civil or criminal action.

Admissibility in Criminal Proceeding of Specimen Analysis - Texas Transportation Code Section 724.064

Section 724.064. Admissibility in Criminal Proceeding of Specimen Analysis

On the trial of a criminal proceeding arising out of an offense under Chapter 49, Penal Code, involving the operation of a motor vehicle or a watercraft, or an offense under Section 106.041, Alcoholic Beverage Code, evidence of the alcohol concentration or presence of a controlled substance, drug, dangerous drug, or other substance as shown by analysis of a specimen of the person's blood, breath, or urine or any other bodily substance taken at the request or order of a peace officer is admissible.

Article 17.441 Ignition Interlock Required as Condition of Bond

Conditions Requiring Motor Vehicle Ignition Interlock – Texas Code of Criminal Procedure Article 17.441

(a) Except as provided by Subsection (b), a magistrate shall require on release that a defendant charged with a subsequent offense under Sections 49.04-49.06, Penal Code, or an offense under Section 49.07 or 49.08 of that code:

(1) have installed on the motor vehicle owned by the defendant or on the vehicle most regularly driven by the defendant, a device that uses a deep-lung breath analysis mechanism to make impractical the operation of a motor vehicle if ethyl alcohol is detected in the breath of the operator; and

(2) not operate any motor vehicle unless the vehicle is equipped with that device.

(b) The magistrate may not require the installation of the device if the magistrate finds that to require the device would not be in the best interest of justice.

(c) If the defendant is required to have the device installed, the magistrate shall require that the defendant have the device installed on the appropriate motor vehicle, at the defendant's expense, before the 30th day after the date the defendant is released on bond.

(d) The magistrate may designate an appropriate agency to verify the installation of the device and to monitor the device. If the magistrate designates an agency under this subsection, in each month during which the agency verifies the installation of the device or provides a monitoring service the defendant shall pay a fee to the designated agency in the amount set by the magistrate. The defendant shall pay the initial fee at the time the agency verifies the installation of the device. In each subsequent month during which the defendant is required to pay a fee the defendant shall pay the fee on the first occasion in that month that the agency provides a monitoring service. The magistrate shall set the fee in an amount not to exceed $10 as determined by the county auditor, or by the commissioners court of the county if the county does not have a county auditor, to be sufficient to cover the cost incurred by the designated agency in conducting the verification or providing the monitoring service, as applicable in that county.

Ignition Interlock Companies in Austin Texas (DWI)

The 3 main providers of Ignition Interlock devices in Austin, Texas for DWI defendants are:

(1) Smart Start, 2 locations:

North Austin: 401 East Braker Lane, Suite M, Austin, TX 78753.  Phone: (512) 821-9200

South Austin: 4360 South Congress Ave. Suite 11, Austin, TX 78745.  Phone: (512) 386-6306

(2) Draeger Interlock, 2 locations:

North Austin: 501 West Powell Lane #210, Austin, TX 78753.  Phone: (512) 339-4294

South Austin: 4402 South Congress Ave., Austin, TX 78745.  Phone: (512) 448-0843

(3) Guardian Interlock, 2 locations:

North Austin: 501 W. Powell Lane, Suite 215, Austin, TX 78753. Phone: (512) 836-6867

South Austin: 2123 Goodrich Avenue, Austin, TX 78704.  Phone: (512) 912-7770