Maybe It Should Be The Law, But It Isn't

Over two years ago, I wrote a post called “The Implied Consent Fallacy”. In the essay I objected to the legal fiction that everyone knows they are consenting to give a breath or blood test when asked by the police, simply by virtue of applying for and accepting a Texas Driver’s License.

Semi-anonomous first time reader “Jason” weighed in recently with this comment:

It's a good law. Bottom line, don't drive after consuming alcohol.

Simple enough, why don't they get it? Too bad there are attorney's [sic] who defend these people of lower than average intelligence.

Well, Jason, despite the fact that you missed the entire point of the post itself, let’s address your point. It seems to be that you think:

Driving after consuming alcohol is illegal…

and that therefore,

You deserve to have your license suspended…

even if the suspension is predicated on the falsehood that you knowingly and willingly agreed to provide a breath specimen when you got your driver’s license.

Just one problem with your theory… taint so. It is not illegal to consume an alcoholic beverage and get behind the wheel in Texas. You can make a good argument that it should be; but until you change the law to make it so, your premise is 100% incorrect.

One last thing. I often edit people’s grammar and spelling errors in comments, but given this particular combination of double ad hominem attack with a healthy dose of self righteousness I decided to let your comment stand as is.
 

Questions: One Always Seems to Lead to Another

My internet stats program for this blog - Mint - keeps track of IP addresses associated with various searches as well as other interesting (if you’re a geek) tidbits of information. Tonight I saw the following string of searches, which started five weeks ago:

How long does a DWI case take in Travis County?

Of course the answer to this question, like all of those that don’t provide enough information to properly answer, is… it depends. But let me see if I can do better than that anyway. The discovery process – getting the video, offense report, intoxilyzer records if it’s a breath test case, and sitting down at least once to substantively chat with a prosecutor about your case? – will take at least three to four months, sometimes longer.

Several more uncontested settings and at least one contested pretrial setting on a motion to suppress can be several more months, depending primarily on availability of the officer and your lawyer’s schedule.

How long will you be on the jury docket if you don’t work out a plea? I talked to a client earlier today and his case is a year and half old. We are just now bubbling to the top of the jury docket in that court. (I’d say that’s a little unusual, but it’s by no means record-setting either.)

Next search, some time later, same IP:

Travis County DWI No Contest

Can’t tell if this is part of a “do I have to hire a lawyer” stage. Since the first search is only five weeks ago, it seems a tad early to be hearing this from your lawyer, but who knows? Maybe it’s just ‘background’ research on what happens. Next query:

Transcripts of ALR hearings

Seems like something a lawyer might Google if they were trying to learn some good cross examination questions. Or maybe the client wants to know how much something like that might cost. Next search, a little later still:

What if officer does not appear at ALR hearing?

A lawyer would know the answer – I hope – to this one, so maybe this really is a defendant trying to figure out how things work. Assuming the officer has been properly subpoenaed, and DPS doesn’t have ‘good cause’ for his absence, it should be dismissed. (But don’t hold your breath – I’ve objected to and been overruled on some pretty flimsy ‘good cause’ issues at SOAH.)

What if my attorney did not get an ALR hearing?

Well now things have taken a turn for the worse. The next search/same IP provides us some insight into the mystery:

My attorney did not request ALR because I passed breath test did not take a blood test

“I see,” said the blind man. I think I’ve figured this out. You told your lawyer that you passed the breath test – blew under .08 – and I hope for your sake that you told him about the blood test part.

Was your license confiscated? Did they ask for blood after you passed the breath test? If you refused the second test, they may have issued the DIC paperwork and started the license suspension process. Including that 15 day period you’ve been reading about – at least since you started doing your own internet research.

I think it’s good advice for the lawyer to request an ALR in every case, including when the potential client comes in and says, “I passed the test”. First, I’ve had cases where clients told me, “They said I blew .07”, but we find out later there was some confusion about the “.0” part. (i.e., “.17”)

Second, if DIC paperwork was issued, it has to be done. DPS is basically just a big bunch of computers. There are humans too, of course, but by and large they are there to correct the computer errors. Some clerk receives a Notice of Suspension from a police agency, enters the info, and that 15 day time limit starts ticking.

Third, DPS considers passing the breath test but refusing the next round of blood tests to actually be a refusal. And more importantly, back to point number two, if the computers were fed the information about the notice of suspension, and you/your lawyer didn’t do anything then the “Automatic” License Revocation kicked in.

Something like this came up recently – although I can’t find the email so the details might have differed - on either the Texas criminal defense lawyer listserv or the Texas DWI defender listserv, and Houston DWI lawyer Troy McKinney properly referred the questioner to Texas Transportation Code 524.012:

(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;

Unfortunately section (d) continues:

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

So it’s a moot point without the request. Sounds like your lawyer woulda, coulda, shoulda… Or maybe I’m missing something, who knows?
 

Continue Reading...

How Long Have You Been a Certified Peace Officer?

There are certain boring yet inevitable questions that often begin an examination of a police officer in a DWI (by a prosecutor) or an administrative license revocation ALR case (by a defense attorney):

  • State your name for the record please…
  • You’re employed by Austin Police Department?
  • Any prior law enforcement experience?

 A defense lawyer usually wants to know how many arrests a particular officer has made for DWI and how long he has been a peace officer at all. The theory is that the fewer arrests he has made or the shorter period time he has been doing this, the more likely it is that his opinion that the client was intoxicated is suspect.

 

And while the defense lawyer might not bring out the possible experience of an officer at jury trial if it is extensive – that is, if the prosecutor hasn’t done that already – there’s sort of a no harm/no foul rule when it comes to asking questions at an ALR. After all, the odds are stacked against you, there’s no reasonable doubt to rely on, and in a refusal case DPS doesn’t even carry the burden of proving that your client was actually intoxicated – simply that he was properly offered a breath test and refused.

 

Basically, if you’re going to win or lose the driver’s license hearing it won’t often be because of that painful one-question-too-many moment. At any rate, most ALRs by defense attorneys start with these type of pro forma questions.

 

So as I’m taking a break in the back of the room this afternoon waiting for my client’s ALR to start (brushing up on some top notch possible avenues of cross examination like “Are there any reasons someone might be asleep at the wheel other than intoxication?”) I hear the defense lawyer ask, “How long have you been a certified peace officer?...”

 

At which point – I am not making this up – the baby faced officer… looks at his watch.

 

OK, so he replies, “10 months” and I assume that his watch is one of those that has the month on it – but it still made me inwardly chuckle about how that might have looked to a jury.

Out of State DWI Suspension and Texas Driver's License Question

From an email:

I was arrested in 2005 while in the military in North Carolina for a DWI. My license is suspended in North Carolina but is it suspended in Texas?

Answer:

I assume you are living in Texas now?  Ever apply for a Texas DL?  Or are you just driving around hoping not to get pulled over?  (Not the best idea - by the way.)

Basically, if Texas DPS gives you a license, you're good.  Sounds like that's not the case though.  You may need to clear up any problems with NC - if your license is still suspended there - before you can get a Texas DL.

If your suspension period is up you may just have to pay a reinstatement fee to North Carolina, to get in compliance with their DMV.  Once that's done, under the interstate compact, you will probably be eligible for a regular license here.

If you aren't eligible for a 24/7 Texas driver's license, you may be able to get an occupational here in Texas.  That's a bit trickier, and not answerable without knowing more facts.

I don't know what part of Texas you're in, but you should find a DWI lawyer that practices in your (current) neck of the woods to help you with this.

Offer of Proof in an ALR Hearing: DWI and Marijuana

The Austin Criminal Defense Lawyers’ listserv was filled with replies and answers recently when someone inquired about the best way to make an offer of proof. As these things often do, there was a tangential question asked: “Anyone aware whether the Judge can require that an offer of proof be made after he goes on break?”

I’d never seen it done in county or district court, but it reminded me that it had happened in an ALR. I replied:

Some ALJs do it.

I had an Administrative Law Judge try to leave the room once - after dismissing the live in person officer/witness that could have just answered the one and only question that had been objected to, and sustained - while he finally allowed me to make an offer of proof.  (There's only a tape recorder, not a real live court reporter of course in ALRs.)  I'm pretty sure he quoted me chapter and verse on why he was allowed to leave, or it was better for him to leave the room, or something.

I managed to get out "I anticipate that Officer So-and-So would have testified that the marijuana was found in the glove compartment" (which was almost all I wanted to ask on the subject) and concluded the offer of proof before the judge was able to storm out of the room.  Unfortunately for him, although he wanted to make a point to me about how unimportant and/or irrelevant my offer of proof was, he had spent enough time lecturing me on the subject of "No appeal court will overturn my ruling" that I was able to get the Q&A in before he reached the door.

In my own defense, I still think it's relevant to the issue of intoxication - and even the officer's determination of probable cause to believe DWI blah blah blah - that the connection or nexus between the defendant and the marijuana was remote.  (And, to be fair, in his defense, the standards on appeal for ALRs are so ridiculous that he was right about the chances of appellate success - we didn't even bother appealing it.)

To put it in context, my client had been charged with both possession of marijuana and DWI. In an ALR hearing, DPS is required to ‘prove’ that the officer had probable cause to believe that my client was intoxicated. Since the state can charge you with being impaired on either substance, or a combination of the two, the officer’s belief about my client’s ‘marijuana intoxication’ was at least marginally relevant.

Looking back on it, I think both the judge and the lawyer (yes, that was me) were being somewhat childish. After my email to the listserv, another attorney ribbed me about bothering to go through the offer of proof motions in the first place. I texted him back:

Yeah, basically I was RIGHT and the judge was wrong and I tried to tell him why it WAS relevant, and he wouldn't listen so I wanted him to have to listen to the answers, then it would become clear that I was right, but then he wanted to take his basketball and go home and leave the room, but I beat him to the punch by getting it out before he could leave.

I can be very mature.

Still, you’ve got to let judges know you know how to preserve the record for appeal, even if there’s not going to be one. They may give you a little more latitude in the future with your questions.

And since one of the primary purposes of ALR is to depose the witness for the upcoming DWI case, the more questions you are allowed, the better.

I might have been able to go a little further, if allowed, and elicited testimony that the officer couldn’t or didn’t know whether my client knew about the marijuana in the glove box. Which certainly would have been useful for the possession charge.

I didn’t have a good faith basis for including that in the offer of proof; and it would only have done me good if I had gotten the officer’s sworn testimony under oath. My Q&A in an offer of proof would not have been admissible of course in the criminal trial.

Pleading 'No Contest' to DWI Tx and Preparing the Witness

Perusing my recent stats, courtesy of Mint, and I see someone has Googled the title of this post.

Maybe I’m feeling overly suspicious tonight, but I’m tempted to suspect that someone has been told by their lawyer that there’s a big difference between pleading ‘guilty’ and pleading ‘no contest’ to their (Texas) DWI charge. 

There’s not. If you weren’t involved in a collision, or something that could lead to a civil suit, there’s absolutely no difference to the defendant. Your lawyer has not worked out some ‘great deal’ by ‘convincing the prosecutor’ to ‘let you plead no contest instead of guilty’.

And frankly, if you had insurance, or weren’t at fault in the accident – that’s possible, even if you were hammered – there’s still no difference.

The only difference that counts is that a ‘no contest’ plea can’t be held against you in a civil case arising out of the criminal incident, while a ‘guilty’ plea can. If that’s a big deal to you, maybe it’s worth something. 99% of the time it won’t be.

And as long as I’m being suspicious, who else out there thinks the recent search phrase ‘preparing cops for an ALR hearing’ was done by a prosecutor? Late night search, and all I know is it was from a wireless broadband IP address, so I can’t be sure, but who else would Google such a thing?

What the heck… Never been a prosecutor, but I’m going to hand out some advice in that regard anyway:

Say, “Officer, thanks for showing up. The hearing’s about to start. Have you reviewed the documents? You remember the arrest? OK, great. You’ll get called as a witness in a few minutes.”

Pretty simple stuff. He’ll be sworn in under penalty of perjury. They taught him in the Police Academy to just tell the truth – well, didn’t they?

What other kind of ‘preparing’ could you (not a witness to the events in question) give to an officer anyway?

[OK, OK, I'm being something of a smart-alec.  I know there are prosecutors that read this blog.  Feel free to add comments on how to 'ethically' prepare a witness.  You may do so anonymously, or leave your name.  I'd be happy to hear from you.]

'Occupational' Licenses for School in Texas DWI Cases

If a get a temporary suspension of my driver’s license in Texas can I get a permit for school? [from a recent Google query]

I’m not 100% sure what is meant by ‘a temporary suspension’ but let me piece this together if I can.

Sounds like the question may refer to being arrested for DWI in Texas, having your driver’s license confiscated (not returned after your release from jail) and being issued a piece of paper that says ‘Notice of Suspension’ and ‘Temporary Driver’s License’. 

The answer to the question, in that case is this: if you qualify for an occupational driver’s license, then your DWI lawyer should include in the petition that you be allowed to drive not only ‘to and from work’ (i.e., your occupation) but also ‘to and from school’. You will probably need to provide your attorney with some form of proof that you are in school, such as an official list of the classes that you are in this semester.

Your lawyer will then also need to know the hours that you will need to drive for classes, studying at the library, etc. The default amount of time to drive per day is usually 4 hours, but it’s not unusual to get an extension of that up to 12 hours a day, which is the statutory maximum.

DWI lawyers tend to refer to ‘occupational licenses’ and that is indeed their official name. But I prefer to call it an ‘essential needs’ license, because you can be granted the right to drive to work, school, church, groceries, etc. Everywhere you need to go. Just not everywhere you want to go 24/7.

DWI, Statute of Limitations and Driver's License Questions

Question: My wife and I were pulled over in August 2005 on a rural road approximately 5 miles from my house by DPS who at the time was going the other direction on a two lane road. 

We had been out seeing my wife’s favorite band and it was her night out.  He asked me if I know what we were pulled over for and I say no.  License plate light out!  So no big deal until he shines the light at my wife and says, “What’s wrong with her?”

"She's sleeping,” I say.  Well he asks where we have been and I'm truthful, her night out and I'm the designated driver.  He proceeds through the get out of the car deal, does the eye test, then the one leg to 30, then walk the line....then the finger count....no problem here.....

He goes and finally wakes up my wife and talks with her.  Well she's hammered of course.  Then he comes back and arrests me after I refuse the breathalyzer. 

Then he arrests her for public intoxication.  I convince him to let a friend come get her and the vehicle.  He does and takes me to the pokey.  Since then my lawyer has sent three letters to the court letting them know when he will be out of town.  The court has never sent anything to me at my home or office. 

Since it has been two years, can I stroll down to the DPS and get my license or will they snatch me up?  I appreciate any input. 

Reply: What county is this from?  Also, you are saying it has been almost two years from the arrest?  The ALR suspension would usually be over well before then.  (Unless there are priors, perhaps...do you have any prior DWI arrests? or prior alcohol related license suspensions?)

Follow Up: I had one prior when I was 20 and I was 35 when I got this one.  Yes two years since arrest in August.  It is in [Anonymous] County.  I got my license suspended for not taking the breathalizer. 

I haven't done anything since.  No license, [rest of sentence deleted]. But if I can go and get it without being harassed I would love to do so.

Reply: Well, the 15 year old DWI can now (unfortunately) be used to enhance your new DWI charge to a DWI 2nd.  It used to be the law that after 10 years, new DWI charges would be filed as Class B 'first offense' DWIs.  But that's no longer the case.

But ALR (pretrial Driver's License Suspensions arising out of the DWI arrest) only started in 1995, so you shouldn't have any enhanceable alcohol related contacts.  If there were prior DWI related license suspensions within the applicable time period, DPS would have sought a 2 year suspension.

I asked because based on your facts, it sounds like DPS probably sought a 180 day license suspension, which would have started either 40 days after the arrest, if you did not request a hearing to contest the suspension.  And if you, or your DWI lawyer did request the hearing within the first 15 days of the arrest, certainly the hearing would have happened and the 180 day suspension is probably up.  I know that would be the case for an Austin DWI arrest, but I am unfamiliar with practice and docketing in your neck of the woods.

If you got an occupational license during the original ALR refusal 180 day driver's license suspension, and filed it within the 30 day grace period with Texas DPS, then they would have made you pay the $125 reinstatement fee at that time.  That would mean your license was no longer suspended.

If you never filed an occupational, or never went to pay DPS the reinstatement fee, then that is still owed, and will be necessary to get your license back.

Sounds like you've got an attorney helping you on the DWI.  You probably need to contact him for more specific information.

One last note:  Looks like you found my DWI blog by searching for "Statute of limitations" and "DWI Texas".  You certainly need to find out from your current DWI attorney whether or not the State has filed a complaint and information officially charging you with the DWI at your local County Clerk's office.  If the full 2 years runs without them doing that, you should have a legal defense to being prosecuted for the DWI criminal charge.

Effect of DWI Dismissal on ALR License Suspension

Let’s say you are arrested for DWI in Austin, Tx, and face 2 cases: (1) the criminal DWI charge, and (2) the Driver’s License Suspension Hearing.

In Austin, the Driver’s License hearing will be probably be held before a resolution of the DWI, so again, continuing our hypothetical, let’s say the 180 day driver’s license suspension is imposed for your refusal to take the breath test. Remember, you were already under arrest for DWI when you were asked to submit to a specimen of breath or blood, so you made a wise choice as far as the criminal charge is concerned to refuse the test.

Now let’s say that your DWI lawyer goes to court, and prior to trial, works out a deal with the prosecutor that they agree to reduce the charge of DWI to Reckless Driving, or maybe even a traffic ticket. The benefit to you is that you are assured of not being convicted of DWI.

So you accept.

Well, you may still be under that DL suspension, driving around town with an Occupational License, but not 24/7 like you are used to. The suspension will be lifted, right?

Wrong. Only a ‘Not Guilty’ verdict at bench or jury trial will reverse the suspension now. Texas Transportation Code Section 524.015 states, in part:

…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… A suspension may not be imposed under this chapter on a person who is acquitted of a criminal charge under Section 49.04

A ‘dismissal’ of a DWI charge is not an ‘acquittal’ (i.e., not guilty verdict), and therefore the license will stay suspended for the original term imposed. An in jurisdictions outside of Austin, where the DWI case may run quicker than the suspension hearing, you will still be facing the loss of your license.

In my experience, most clients prefer a certain outcome in terms of getting the DWI dismissed, than to risk it all by rolling the dice at trial. But it’s something to think about. And if you are facing DWI charges in Texas, your lawyer needs to be able to lay out all the options for you.

DWI Occupational License: How Many Hours Can I Drive?

If your license is suspended through the ALR process for a DWI arrest in Texas, the default for occupational license driving time is four hours a day.

However, a judge has discretion to increase the time allowed to twelve hours a day. Likewise, a judge has the ability to reduce it below four hours a day…and in some jurisdictions, they do that quite frequently.

The number of hours you are granted will depend on how much you (or your DWI lawyer) can show the court you need to drive. It is, after all, an “essential needs” license.

In my experience, most judges in Austin understand that in today’s world people work various hours, have multiple jobs, use daycare and have child rearing responsibilities and other types of important commitments. If it is a first time DWI with no collision and no ‘aggravating’ factors, most of my Austin clients can provide me with the documentation I need to get a judge to increase the driving time from the four hour default rule all the way up to the twelve hour a day maximum.

No, an occupational license is not the same as your regular “24/7 drive anywhere anytime you want” license that you are used to. But it’s probably going to allow you to continue to do all the things you need to do.

Tests: Some People Do Better Than Others

Surfing the blogosphere I run across a post entitled “Examination Blanking Out” by Razeet:

Test anxiety is normal and can even help us function well in testing situations. The problem develops when the level of nervousness is so high that it interferes with what one is there to do.

As a result, with two people taking the exact same test, one might be calm, cool and collected, while the other is a pile of perspiration and blanking out.

Now, his post doesn’t have anything to do with Field Sobriety Tests; more likely he’s talking about studying all semester, and cramming for an exam, and still not doing well.

But DWI lawyers should remember that this phenomenon, that ‘some folks do better than others on tests’, and for a variety of reasons, is a well known fact. Indeed, it should be the theme of most DWI breath test refusal trials: starting in jury selection, bolstered by the arresting officer’s own testimony, and repeated in closing.

A series of questions I use at the ALR hearing to set this defense up goes something like this (answers left out – I don’t really care if the officer disagrees):

  • Officer, you agree that folks in the general public vary greatly in their ability to perform physical tasks?
  • Some people are gifted athletes, and some people are super klutzy?
  • Most people are somewhere in between?
  • Like most characteristics, there’s probably a bell curve of natural physical abilities?
  • And you’d never met my client before that night?
  • And you don’t know where on that bell curve he might fall?
  • He might be an Olympic athlete, or he might be uncoordinated, you just don’t know?

I say I don’t care what the officer answers, because a jury will know that the truthful answer to all these questions is 'Yes'. If an officer disagrees, or ‘weasels’ on one of these basic truths, you may even be better off. You can certainly argue that he graded too hard in his evaluation of your client.

The basic point is this: everyone knows that ‘some folks do better than others’ on all types of tests…including DWI field sobriety tests.

The DIC-25 Notice of Suspension, Temporary Driving Permit after DWI arrest

If you have been arrested for DWI in Texas, chances are that your Driver’s License was confiscated before you were released from jail. In that case, you should also have been given several other pieces of paperwork, including a form called the DIC-25.

The DIC-25 is titled “Notice of Suspension” and “Temporary Driving Permit”. Your license is not immediately suspended, as many folks think. Instead this piece of paper serves as your temporary driver’s license. (In Austin DWI cases, the forms are usually yellow.)

About halfway down the page, in a box is some text:

If your Texas driver license was confiscated, this document will serve as your temporary dirving permit. It is subject to the same restrictions and endorsements as your Texas driver license. If you hold a commercial driver license, this permit authorizes the operation of commercial motor vehicles. This permit does not provide you with any driving privileges if you do not have a Texas driver license or if your Texas driver license is expired, suspended, revoked, cancelled, or disqualified. This permit is valid for 40 days from the date of service shown below. If you request a hearing, this permit will remain in effect until the administrative law judge makes a final decision in your case.

So this form is a substitute for your Texas DL. But I usually advise clients to run down to DPS and apply for a Texas ID card. It looks virtually identical to a DL, and you don’t want to wait until you need to get on an airplane to figure out that picture ID’s are useful.

Also, it’s common for folks to ask me whether this permit is good beyond the 40 days. The answer is in two parts:

(a) No, it is only good for 40 days, if you did not request a hearing to contest the suspension within 15 days of the arrest.

(b) If you requested a hearing, then, as the text says “the permit will remain in effect until the administrative law judge makes a final decision” in the ALR hearing. If you hired a DWI lawyer within the time limit, they will usually do this for you. (Although, you should probably ask.)

ALR Hearing: Live or by Telephone?

Texas law allows a person arrested for DWI to request an ALR hearing “in person” or “by phone”. Is it better to conduct an administrative license revocation hearing live/in person or by telephone?

The best practice is to request a conduct a live/in person hearing. Honestly, I can think of no exceptions to this rule.

There are two main reasons to have a hearing: (1) to keep your client’s license from being suspended in the first place, and (2) to gain an opportunity to cross examine the stopping and arresting officers without the criminal prosecutors present.

A substantial portion of ALR wins comes by default; that is, one of the requested and necessary witnesses fails to show up. Allowing DPS to proceed telephonically greatly increases the chances that an officer will be available. Obviously, it’s much easier for a police officer to literally “phone in” his appearance, than it is to come down to court and testify in person.

But even in cases where you know the witness will show up, it is still the best practice to conduct a live cross examination. 

Sometimes a client comes to see me the day or so after their arrest, and I almost immediately know by looking at their paperwork that the officer will show up at the ALR hearing. For example, the officers on the Austin DWI Task Force are known for always appearing. I have personally cross-examined most of them more than 20, 30, and sometimes 40 times.

But, again, it’s still better to request that the hearing be conducted in person rather than over the phone.

Reason #2 for having the hearing in the first place is seriously compromised when a DWI lawyer decides to just “stay in his office” and “do it on the phone”.

One of my jobs at an ALR hearing is to evaluate the strength of the State’s case against my client. The officer’s demeanor, appearance, and overall savvy on the stand can not be effectively gauged over the phone. On many occasions, what I initially suspected was a difficult case for my client to win becomes much better after the ALR. The truth is that some folks make better witnesses than others even if the substance of their testimony is identical.

Cross-examination is at least as much art as science, and only a face to face meeting between the DWI lawyer and the arresting officer will accurately reflect what that same testimony will sound like at trial.

When Does the ALR License Suspension Take Effect in Texas?

Section 524.021 of the Texas Transportation Code provides that a person’s license will be suspended on the 40th day after receiving the Notice of Suspension, which is, in almost all cases, the night of the DWI arrest. If a hearing is requested within 15 days of the arrest, Section 724.041 provides that the suspension is stayed until a final decision is issued by the judge in the case.

In Austin, final ALR hearings are often not held until several months after the arrest for DWI. During that time period, the defendant is free to drive 24/7 – assuming, of course, that there are no other suspensions in place at the time.

The arresting officer physically confiscates the license from the defendant, usually on scene, and it is not returned with the rest of the person’s belongings when they are released from jail. 

Instead, they get several pieces of paperwork…including a yellow sheet of paper called the DIC-25, which reads “Notice of Suspension – Temporary Driving Permit” at the top. This should be kept in a wallet or purse, and used in lieu of your regular physical license.

If for some reason you, or your lawyer, did not request the ALR hearing to contest the suspension, you will want to start gathering the necessary documents for preparing an Occupational Driver’s License well before the 40th day after the arrest.

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".

Texas Driver's License may not be suspended if under .08 BAC

While the State is allowed to criminally prosecute people arrested for DWI who blow under the .08 limit, the ALR statutes provide that a person’s driver’s license may not be suspended in that situation, if the defendant is 21 or older.

Texas Transportation Code Section 524.012 (c) (1) specifically states:

(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.

However, for those under 21 who provide a breath specimen above .00 and below .08, the Department of Public Safety will seek the shorter 60 day suspension period for DUIM, driving under the influence by a minor.

Asking to consult a lawyer is a breath test refusal

One of the especially confusing things that happens during the course of a DWI arrest in Texas comes up at the point the defendant must decide whether or not to submit to a breath or blood specimen analysis.

Most people believe that since they are being asked a question (i.e. “Will you take a breath test?”) that they have a legal right to talk to a lawyer before answering the question. Unfortunately that is not the case.

In fact, insistence on speaking to an attorney before making the decision will lead the officer to mark on the DIC paperwork that you refused to take a breath test. This legal analysis was upheld in Texas Dept. of Public Safety v. Raffaelli, 905 S.W.2d. 773:

After completion of this test, the officer read Raffaelli a statutory warning regarding the possible penalty if Raffaelli refused to give a blood or breath specimen. The officers in the room asked Raffaelli for a breath specimen. Raffaelli insisted on speaking with his attorney. The officers again requested a breath specimen, and again Raffaelli asked for his attorney. The officers treated Raffaelli's failure to consent as a refusal.

The Court of Appeals upheld the license suspension in that case, for the longer suspension period. Other Courts of Appeal in Texas have followed that lead as well. A recent commenter wrote:

I am totally flabbergasted at the DWI criminal system…

Right now I am charged with DWI in NC along with a refusal charge. The officer and I were not getting along at all. There was a lot of yelling and screaming which basically came about through his total disrespectful tone and attitude towards me. When asked if I wanted a witness to the breath test I answered, "Yes, I would like an attorney."

At that point he slammed the phone book down on the table. I simply stated, I don't know anyone around here! He then went back to the desk took out a piece of paper and began writing. 

After he was done he told me to come with him, which I did. He brought me in front of the magistrate and stated, "We have a refusal here”. This cost me a one year revocation of my license which I am fighting, and I have yet to go to court for the DWI charge. 

He never even gave me SFST's. The alcohol he smelled came from a topical medication which contains 67% ethanol. I had not even had a drink that day! Seems police have absolute power when it comes to DUI anymore thanks to MADD.

While his particular case was in North Carolina, the same thing is true for folks right here in Austin and across Texas.

Texas DWI Driver's License Suspensions

Folks arrested for first time DWI offenses in Austin often come to my office surprised that their physical driver’s license was taken from them before their release from jail.

Many believe that their license is currently suspended, before they have even gone to court. The truth is that the license suspension is not concurrent with the confiscation that happens the night of the arrest.

In Texas, a person arrested for DWI, whose license was taken before they were released, has the right to contest the drivers license suspension, as long as they (or more likely, their lawyer) makes the proper request to the Texas Department of Public Safety within fifteen (15) days.

This blog will cover issues relating to the Texas Administrative Driver’s License Revocation procedure (the ALR hearing), as well as the process by which a DWI defendant may obtain an occupational license to allow them to keep driving to work, school, church, groceries, and all the important places (not necessarily to all the fun places we like to go sometimes).

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

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.

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

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.