[Question via email.]
Since I don’t even know the jurisdiction this question comes from it’s pretty broad but let’s answer it from the Texas DWI perspective.
In most Texas DWI cases the officer will read the subject a form called the DIC-24 entitled “Statutory Warning”. It covers the various driver’s license penalties for refusing to blow, blowing over a .08, or being a minor with a detectable amount of alcohol in your system. The warnings state those possible suspensions are “not less than” 180 days, 90 days and 60 days respectively.
The “not less than” part obliquely refers to the possibility of longer suspension periods for folks with prior alcohol related contacts – which include but are not limited to prior ALR suspensions and prior DWI convictions.
The DIC-24 form usually ends with a portion where the officer checks “I am now requesting a specimen of Breath and/or Blood” followed by two checkmark portions:
- Subject refused to allow the taking of a specimen and further refused to sign below as requested by this officer.
- Subject refused to allow the taking of a specimen as evidenced by his/her signature below.
In theory the officer is supposed to ask for the breath specimen and then ask the subject to sign the form indicating their refusal.
If the suspect refuses to sign, the officer marks the form as a refusal to blow and a refusal to sign.
But I’ve certainly had cases where this procedure wasn’t followed. The unfortunate thing for my client is that even when I can prove that the officer didn’t follow procedure correctly it doesn’t necessarily lead to all that big of an advantage in the case.
It can show that he is unfamiliar with the DWI process – which in turn can create doubt as to the grading of the field sobriety tests – but it’s not going to get a criminal judge to throw the DWI charge out against my client. In other words, the state can still proceed to trial.
In most Austin DWI cases the actual reading of the DIC-24 and the verbal refusal by my client will be on tape; so the state can still legitimately argue it as a refusal. (And I can argue that refusing the breath test is a sign that you have not lost the normal use of your mental faculties since agreeing to it is almost always a bad idea.)
As for the ALR hearing, there are too many variables to predict whether this scenario would lead to a negative finding – that is a finding by the administrative law judge that DPS is not allowed to suspend my client’s license. But it could be a good start.