Will I Lose My License?
First, let’s make the distinction between a driver’s license card and the privilege to drive. When a person is arrested for a DWI offense the officer likely will take the driver’s license card from that person. Many clients mistakenly believe that the mere confiscation of that card means they may not legally drive in Texas. However, the privilege to drive remains even after the card winds up in the officer’s pocket. The “privilege” to drive is an amorphous permission granted by the State of Texas through the Department of Public Safety. The driver’s license card is merely proof of that “privilege”.
But this is no mere privilege! Without the ability to drive in Texas, Houston and the surrounding Counties, life becomes an impassible prison of freeways. Work and family responsibilities are all but impossible when one is forced to rely on public transportation. To most people, the ability to keep their privilege to drive is at least as important as keeping their criminal record clean. Unfortunately, without vigilance on the part of a criminal DWI lawyer, an accused person can easily lose that privilege.
There are two ways this can happen. The first is through an Administrative License Revocation (ALR). A DWI arrest is almost always accompanied by an officer’s request of the accused to take a breath test. The officer is required to provide warnings to the accused person prior to offering a breath test. These warnings are referred to as statutory warnings because they are codified. The officer must provide these warnings orally and in writing. The written document given by the officer that satisfies this requirement is called a DIC-24, a title given to it by the Department of Public Safety. If the officer fails to give these warnings, or varies from these warnings in any measurable way, the resulting breath test results may be suppressible.
Texas is an implied consent State. This means, the granting of the privilege to drive carries with it the implication that the driver consents to the taking of a breath test if requested by a peace officer. Nonetheless, an officer cannot force someone to blow into a machine and if an accused citizen refuses, DPS is authorized to suspend the privilege to drive for 180 days for a first offender. Repeat offenders or people with repeat “contacts” with law enforcement can expect greater suspension terms.
The decision on whether to take a breath test presents a Cornelian dilemma to the accused citizen. If he refuses, DPS will try and take his license. If he consents to taking the breath test and the breath test machine registers over .08 breath test concentration, DPS is still authorized to suspend the person’s driving privilege, albeit for only 90 days for the first offender. Both the refusal to take a breath test and the “failure” of a breath test authorizes DPS to suspend, but despite what many lawyers believe, suspension is not automatic unless the accused citizen fails to contest it. In such a case, the suspension becomes effective 40 days after arrest.
Contesting a Suspension
However – and this is important – the citizen does have the right to contest the suspension. If requested, a hearing will be scheduled at the State Office of Administrative Hearings. At the hearing, DPS will have the burden of presenting evidence that the peace officer had reason to stop the driver and reason to believe that the driver was intoxicated. Lastly, the department must prove the driver refused a breath test or took the test and had an alcohol concentration in his breath greater than the legal limit. (.08) Every witness presented by the Department can be fully cross-examined by the Defense. In addition, the Defense can present its own witnesses.
Granted, the Department’s burden is not great. It must prove each element only by a preponderance of the evidence, and Administrative Judges are not paid by the State to make things hard on DPS. However, the cause is not lost as long as there is a fight to be had. In many cases the Department is unable to provide witnesses or evidence requested by the Defense. In others, the Department wholly fails to prove a necessary element.
Senselessly, some lawyers don’t bother fighting the license suspension. Still other criminal defense attorney’s request a hearing, and then refer out their responsibility at the hearing to another Houston criminal lawyer who they pay to relieve them of the trouble of attending. In our opinion, this does a disservice to the client. To the delight of our clients, we win these license hearings consistently! But, there’s another important reason why the attorney should fight the license suspension.
The license revocation hearing is a civil proceeding that takes place long before the criminal trial. The prosecution has neither the chance, nor inclination to speak to the officer about the case until it is set for a trial or suppression. At the ALR hearing, the criminal defense attorney can request the presence of the officer, place him under oath and cross-examine him on specific facts that impacted on his decision to arrest his client for Driving While Intoxicated. On more than one occasion, we have been able to take the transcript of the hearing to the Criminal Court and convince the prosecution to dismiss the charges. Without fighting the license suspension, this opportunity would have been lost.
The second way an accused person can lose his license is somewhat simpler. In addition to an Administrative License Revocation, an accused person can lose his license upon final conviction of Driving While Intoxicated. This means that if a person is convicted of DWI and his sentence isn’t probated, the court must order a suspension of that person’s license from anywhere between 90 days and one year. Most people prefer probation to a “straight” conviction, to avoid the jail time and concurrent license suspension.
Of course, none of that matters if an accused person fights his case and wins at trial. No conviction means no suspension, and even if DPS had suspended prior to trial at the ALR hearing, they are required to immediately rescind the suspension and send back the license. Additionally, it should not be overlooked that despite a suspension, a person can still apply in the court of conviction for an occupational license.