June 2007

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.

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.