To preserve your right to drive in Texas, you must request a hearing within 15 days of the date you were served with a Notice of Suspension. In most cases, this is the day of your arrest. If you timely requested a hearing to contest your license suspension, you will be able to continue to drive unless an Administrative Law Judge rules against you and authorizes the Department of Public Safety (DPS) to suspend your driver's license. If you lose at the hearing, your driver's license will be suspended and you cannot drive unless you obtain an occupational driver's license. In some cases, the suspension may be stayed (temporarily prevented) by the filing of an appeal. It is our opinion you should always request a hearing. Information can be learned, through the Administrative License Revocation process, which can be vital to your defense of your DWI. If your license is suspended at the hearing, you may be able to secure an occupational license to drive.
To preserve your right to drive in Texas, you must request a hearing within 15 days of the date you were served with a Notice of Suspension. In most cases, this is the day of your arrest. If you timely requested a hearing to contest your license suspension, you will be able to continue to drive unless an Administrative Law Judge rules against you and authorizes the Department of Public Safety (DPS) to suspend your driver's license. If you lose at the hearing, your driver's license will be suspended and you cannot drive unless you obtain an occupational driver's license. In some cases, the suspension may be stayed (temporarily prevented) by the filing of an appeal. It is our opinion you should always request a hearing. Information can be learned, through the Administrative License Revocation process, which can be vital to your defense of your DWI. If your license is suspended at the hearing, you may be able to secure an occupational license to drive.
Contrary to what you will have been led to believe by the officer who arrested you, suspension of your driver's license is not automatic. There are a number of ways to potentially avoid and prevent a suspension. There are a variety of circumstances when a suspension does not occur. Of course, if you fail to request a hearing by the 15th day after your arrest, suspension will be automatic.
At the ALR hearing, the Texas Department of Public Safety must prove by a preponderance of the evidence that: (1) there was a sufficient legal basis to initially stop you (That is, reasonable suspicion to believe you had committed or were committing a crime); (2) there was sufficient legal basis to arrest you for DWI (that is, probable cause to believe you were DWI; and (3) either that you were validly offered and refused to provide a specimen for a breath or blood test or that you provided a specimen of breath or blood and the result exceeded the legal limit of .08 at the time you were driving.
These issues provide a variety of ways potentially to prevent you from losing your driver's license. Since the ALR process also includes some discovery and may involve a hearing at which one or more officers will testify, your lawyer may learn things that will help win both the ALR proceeding and the DWI case.
Any person or lawyer who tells you that you should not worry about or pursue the ALR process is likely not knowledgeable about or competent at defending DWI cases.
Saving Your Texas Driver's License
Your driver's license is subject to suspension if you refuse to submit to a breath or blood test when requested by an officer following an arrest for DWI or a DWI related offense. Your license is not automatically suspended. You have a right to request a hearing and, in the event you fail to request a hearing, your license will be suspended. Always request the Administrative License Revocation (ALR) hearing. Your lawyer should do this for you, as well as request the discovery of any and all documents the Department of Public Safety (DPS) prosecutors will rely on in attempting to suspend your license. To preserve your right to drive in Texas, you must request a hearing within 15 days of the date you were served with a Notice of Suspension. In most cases this is the day of your arrest. If you timely requested a hearing to contest your license suspension, you will be able to continue to drive until an Administrative Law Judge rules against you and suspends your driver's license. If you lose the hearing, your driver's license will be suspended and you cannot drive unless you obtain an essential needs (occupational) driver's license. You can request either an in-person hearing or a telephonic hearing. In many cases it is advisable to request an in-person hearing and issue a request for a subpoena for the arresting officer's presence in court. Additionally, requests for subpoenas can be filed for other officers involved in the case. This can give you a preview of your DWI trial, a rarity in criminal cases. At other times, it may be more prudent to request a telephonic hearing and forego the appearance of the officers in the ALR court. This is a very important decision and one that should certainly be discussed with your lawyer. These hearings are very technical and victory, more times than not, hinges on your lawyer's ability to identify and present a technical mistake made by the officer or by the DPS prosecutor.
In the event your license is suspended, you may be eligible to receive an essential needs (occupational) driver's license. This can be obtained by filing a petition in civil court. It is much like filing a civil lawsuit seeking to have a court make a ruling. Once the petition is filed, the case is put on a civil docket and a court date is set. You will accompany your lawyer to civil court and testify as to certain statutory elements, which must be shown in order to secure the license. The judge will set the hours you may drive during each day. The total number of hours the judge may allow you to drive during each day is 12, but more often than not, the judge limits the hours to the hours necessary for getting to and from work, school, grocery store, etcetera. Once the judge signs the order, you may drive with a certified copy of the written order for a period of 30 days. In the meantime, your lawyer should send a copy of the order along with an SR-22 form your insurance carrier to the Department of Public Safety (DPS), in Austin. DPS will thereafter issue an Essential Needs (or occupational) License and mail it to you. Once the period of suspension expires you cannot get your actual driver's license back until you pay a reinstatement fee. Once this is paid, DPS will mail you your license. Most good lawyers will mail everything to DPS at the same time. That way, DPS will automatically mail your actual driver's license back to you when the suspension period ends.
Frequently Asked DWI/DUI Questions
Should I refuse to take a breath test?
The simple and most direct answer is, yes. Obviously, if you do not take a breath test, the prosecution will not have that evidence to use against you. Additionally, even if you take the breath test and pass, you will not be released. Keep in mind that by the time the officer asks you to submit to a breath test, you have already been arrested and you are on your way to the booking desk whether or not you take the breath test. The point is you cannot do yourself much good by taking their test, unless you are virtually certain you will pass.
With that said, however, there can be serious consequences for refusing. The political activist group, Mothers Against Drunk Driving (MADD), and all its various Political Action Committees (PACs), have been extremely successful in pushing stringent legislation through the legislative branch of government in most states, especially Texas. And, it seems we are headed for the days when a breath test refusal will automatically result in a driver's license suspension without the benefit of a hearing (a little thing we call Due Process). The collateral consequences for a DWI are very serious, affecting the rest of one's life in some cases, and seem to be getting more devastating following each legislative session.
Is the Breath Test machine accurate?
The Intoxilyzer 5000. The way it works is by reading the amount of light that passes through what is called the sample chamber, which is about the size of a toilet paper tube. The amount of light passing through the chamber is affected by the amount of alcohol in the air of the chamber. The machine itself will accurately read the amount of alcohol in the sample chamber. What it cannot accurately tell you is the amount of alcohol in a person's body. The machine, by way of a computer program, attempts to equate the amount of alcohol in the sample chamber to the amount of alcohol in 210 liters of breath, or approximately a 55 gallon drum. If the machine reads the equivalent of one gram (one cubic centimeter) of alcohol per 210 liters (approximately 55 gallons) of breath, then it will register as .10. To register a .08, the machine attempts to equate the alcohol detected in the chamber to 80 milligrams (4/5 of a cubic centimeter) of alcohol in 210 liters (approximately 55 gallons) of breath. Although the machine may accurately measure the amount of alcohol in the chamber, the chances of inaccuracy in calculating the amount of alcohol in the human body can be astronomical.
What happens if the police did not read me my rights when they arrested me?
The police are not required to read you your rights unless they want to talk to you once you are in custody. Everyone has heard of the "Miranda Rights." This phrase comes from the case of Miranda v. Arizona, where the United States Supreme Court stated that before a law enforcement officer can question a person who is in custody, they must tell them their rights. From this case came the paragraph everyone hears on television and in the movies: "you have the right to remain silent; anything you say can and will be used against you at your trial; you have the right to a lawyer; if you cannot afford a lawyer, one will be appointed; you have the right to terminate the interview at any time; do you understand your rights?" The case of Miranda v. Arizona dealt with confessions and not arrests. So, it is not necessary for the police to read you your rights at the time of arrest. That is just something that can, and often does, happen. However, it is not a prerequisite for a lawful arrest.
Will I be able to get my case dismissed because I was not read my rights?
Most likely, no. As discussed above, reading your rights is not necessary for a lawful arrest. However, if you were "interrogated" (legal term with a legal definition) after being placed in "custody" (another legal term with a legal definition), your statements may not be admissible at your trial, which can lead to a dismissal of your case.
Will I go to jail?
You have the best chance of avoiding jail by hiring an experience Texas criminal defense lawyer.
How long will a DWI be on my record?
For the rest of your life, unless you receive a pardon from the governor or the legislature changes the laws regarding the expunction of records.
Do I have to do the sobriety tests the police make you do?
No. A police officer cannot require you to perform any sobriety test, including taking the breath test. Most police officers, however, do not tell you that you do not have to perform their physical sobriety tests. They will simply order you to follow their instructions, leading you to believe you have no choice in the matter. You do have a choice.
I have prior DWI's, what will happen?
A third DWI is a felony and you could spend up to 10 years in prison and receive up to a $10,000.00 fine. A second DWI is a Class A misdemeanor and you could spend up to a year in a county jail and receive up to a $4,000.00 fine. A typical condition of any bond granted on either of these types of offenses includes the installation of an ignition interlock system on any vehicle you may drive.
I lost my Texas license due to a DWI. May I obtain a license in another state?
In most cases, no. Most states follow an interstate compact or, agreement among states, to honor the license suspensions of other states.
