Most Texans know that being pulled over for Driving While Intoxicated (DWI) can lead to serious consequences related to your driver’s license. Those same Texans, however, do not realize that many myths exist about what these consequences actually are. There are multiple types of suspensions and there are a variety of ways to fight against this suspension if you get an experienced criminal defense lawyer on the scene as quickly as possible.
Most drivers know the State will suspend their license if they are convicted of a DWI. With a first time DWI conviction, the State will suspend the driver’s license for ninety days1. All future DWI convictions within the next ten years will lead to another suspension for anywhere from six months to one full year2. The law in this area is clear and well known by most people. Where law enforcement tends to obscure a driver’s rights is prior to the conviction – when the driver is first pulled over on suspicion of DWI.
How to Keep Your License During your DWI Case
The Traffic Code dictates that any person arrested for operating a vehicle while intoxicated arrested has implicitly “consented” to giving a blood or breath sample at the time of arrest3. (Make sure and see our article No Shirt, No Refusal, No Problem for your rights related to providing a breathalyzer or blood test). This does NOT mean you have to give a sample, but the Traffic Code allows certain administrative penalties related to your license for not consenting. There are important mechanics within the traffic stop that are paramount to the question: do I get to keep my license?
First, the question of whether you get to keep your license is not relevant until you are formally placed under arrest. As a result, if you refuse to give a sample when you are pulled over, before you are arrested, this will not cause you to lose your license. The Traffic Code explicitly requires that you (1) be arrested, (2) for an offense related to operating a vehicle while intoxicated, and (3) THEN you refuse to give a sample4. Therefore, you do NOT have to blow immediately when pulled over to retain your license, because the analysis does not start until you are actually in handcuffs specifically for DWI.
Once you are actually arrested, the officer must ask you for a breath or blood sample in a very specific way5. The officer must hand you what’s called a DIC-24 form and read this form aloud to you informing you of the following:
- Your refusal may be admissible in prosecution;
- If you refuse, your license will be suspended for 180 days automatically;
- If you refuse, law enforcement may attempt to get a warrant to draw your blood;
- If you agree to provide a breath sample and the sample shows that your BAC > 0.08, your license will be suspended automatically for at least 90 days regardless of future prosecution or exoneration;
- If you are a minor and there exists any alcohol on your breath, your license will be suspended for at least 60 days;
- If you are a legal resident of the U.S. and are without a license, refusal will mean that you have no right to issuance of a license.
And the final warning the officer must give you, the most important one: You have the right to appeal the decision to suspend your license at an Administrative License Revocation hearing (ALR) if you file an appeal within 15 days of the the arrest.
The ALR Hearing
Because of the short time fuse (15 days) it is imperative that you hire a DWI defense lawyer immediately after your arrest. Your lawyer will file an appeal with the Texas Department of Public Safety (DPS) within 15 days of the suspension and request a hearing at a local State Administrative Office. There are two reasons for an ALR hearing: (1) try to win the hearing and have the State’s Revocation Application dismissed for failure to follow proper protocol (see below); or (2) to provide early discovery of the State’s casefile for a strategic advantage in the long run when defending your DWI charge. In light of trying to win the hearing and keep your license, there are two types of cases.
The Refusal Case:
DPS must prove that:
- law enforcement had probable cause to stop you;
- probable cause existed that you were operating a motor vehicle while intoxicated;
- you were arrested;
- after the arrest, law enforcement asked you to provide a breath or blood sample;
- the office read you the statutory warning while providing you a written copy to read along; and
- you refused to give a sample.
The Failure Case:
DPS must prove:
- law enforcement had probable cause to stop you;
- you consented to give a breath sample;
- you had a blood alcohol content of > 0.08;
- the breathalyzer sample was properly administered.
A trained criminal defense attorney can specifically attack certain elements of both types of cases to lead to a successful ALR hearing and a denial of DPS’ attempt to suspend your license through all of the following methods:
- Subpoenaing the arresting officer, and if he fails to show, the application will likely be dismissed.
- Challenging the probable cause or reasonable suspicion to make the original traffic stop – if law enforcement lacked a good reason to stop you, DPS cannot fulfill one of its necessary facts.
- There was not a legal arrest before law enforcement requested a sample – the arrest must occur before the request for a sample is made; any denial before the arrest is invalid to suspend a driver’s license.
- Lack of record of the driver receiving the written version of the DIC-24 statutory warning – if law enforcement simply reads the DIC-24 to the driver without providing a hard copy, this can lead to dismissal.
- Lack of voluntary consent to give a sample – if the driver consents but the consent is not legally “voluntary,” DPS cannot sustain its revocation.
- If the driver consents to a breath sample and law enforcement does not properly administer the DIC-56 form to the driver, does not acquire two specimens, or fails to adhere to the time limits between samples then a dismissal may be in order.
- If the driver agrees to submit a blood sample, law enforcement must maintain a proper chain of custody of the blood, use a qualified technician to conduct the blood draw, and administer the DIC-23A form to the driver – any failure at any step may lead to dismissal.
Even though the driver is typically facing tough odds at an ALR hearing, there are many technicalities that a skilled criminal defense lawyer can use to win the hearing and reinstate your license. More importantly, the ALR hearing can also provide access to your case file well in advance of your DWI court dates to help prepare to fight your DWI charges. This is vital to the plea bargain, evidence suppression, and even the trial stages. The law only provides 15 days after arrest to file for an ALR hearing. Therefore it is vital that you contact an experienced DWI attorney as soon as possible after being arrested for DWI.
This article focuses on your license related to alcohol related convictions, but it is important to know that the law also requires an automatic license suspension for drug convictions such as possession of marijuana, possession of a controlled substance (like cocaine), and even a drug paraphernalia ticket6. An experienced criminal defense lawyer can help prevent license suspensions in this context as well.