Sep 30, 2013

Driving While Intoxicated (DWI) Part 4: Administrative License Revocation

In the State of Texas,  a DWI arrest actually creates two separate cases: both the original criminal charge as processed through the county or district court system, as well as a separate civil proceeding known as Administrative License Revocation. Any driver arrested when they refuse a breath or blood test -or fail the test- will automatically have their license suspended.
The Administrative License Revocation (“ALR”) program was created by the Texas Legislature in 1993 and became effective on January 1, 1995 with the intent " provide a fair and efficient administrative hearing process for determining whether the proposed suspension by the Department of Public Safety (“DPS”) of the driver’s license of a person who has been accused of driving or boating while intoxicated (or in the case of minors, driving or boating with any detectable amount of alcohol in their systems) should be upheld".  

Texas maintains an "implied consent" statute, stating that any person who applies for a license to operate a motor vehicle on a public roadway has consented to provide a specimen of breath or blood if arrested for DWI. The implied consent statute also applies to watercraft in Texas.

If you are arrested for DWI and have a Texas driver's license, the police are required to take possession of it and issue you a temporary driving permit that will expire 41 days later. If you request a hearing to challenge the suspension, that will delay any ALR sanctions until a hearing takes place.

ALR suspension are automatic unless you specifically request a hearing to challenge the suspension, in writing, WITHIN FIFTEEN (15) DAYS after receiving notice of suspension from the arresting agency.

Even thought the notice of suspension states that the suspension will automatically begin 41 days, requesting a hearing postpones the suspension from starting until after the hearing actually takes place and an administrative decision is issued by a judge. Further, in the event of an ALR appeal your suspension can be delayed for an additional 90 days.

Burden of proof in an ALR hearing is on the Department of Public Safety: if you or your attorney have made the request for a hearing within the 15 day time limit, the Department of Public Safety must prove the following elements before a suspension can be imposed:
  • There must have been reasonable suspicion to stop or probable cause to arrest the driver,
  • The person was driving or in actual physical control of a motor vehicle in a public place while intoxicated,
  • The person was placed under arrest and was offered the opportunity to give a specimen of breath or blood after being notified both orally and in writing of the consequences of either refusing or failing a breath or blood test, AND
  • That the person either refused to give a specimen on request of the officer, or failed a breath or blood test by registering an alcohol concentration of .08 or greater per 100ml of blood or 210 liters of breath.
If you don't have any prior alcohol or drug related offenses during the previous 10-year period, the suspension is usually 180 days in cases where the driver refuses to submit to the test, or 90 days if the test results are above the legal limit.
If you DO have a prior alcohol or drug related charge within the past 10 years, a refusal will result in a two year suspension and a one year suspension if you take the test and the results are above the legal limit.

If no suspension is imposed at the hearing, DPS must return your license; if a suspension is ordered, either automatically or after a hearing, you must submit a reinstatement fee of $125.00 to TDPS before the license will be reinstated. Because reinstatement of your license will be held up until the fee has been both received and entered on the TDPS computer system, it is usually advised to send your fee to TDPS as soon as you find out that a suspension has been ordered.

If you neglect to request an ALR hearing, your license will DEFINITELY be suspended. By requesting a hearing you have a chance to prevent your license from being suspended.
If you have been arrested for DWI you need an experienced criminal defense lawyer to protect your license. Contact Parnham & McWilliams today at (713) 224-3967 

Depending on the circumstances, we may be able to save your license.

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