Arrested for DWI? There are driver’s license consequences

The initial consequence a person arrested for DWI faces is an Administrative License Revocation hearing (ALR). The length of the suspension is dependent upon whether the person has either consented to a test sample following their arrest (with a resulting BAC of 0.08 or greater) or whether they refused to provide a sample.

Upon arrest the person is served with a Notice of Suspension and Temporary Driving Permit. The person is required to request a hearing within 15 days (referred to as an ALR suspension hearing) to contest the suspension. If they fail to do so their license will automatically be suspended the 40th day following the arrest. This suspension can be between 90 days to two (2) years depending on whether they submitted a sample or whether they have any prior suspensions for alcohol or drug related instances in the past. If a request for a hearing is timely made the initial suspension is abated (temporarily postponed) until the hearing is conducted. That hearing is limited to three issues: was there reasonable suspension for the police contact with the driver; was there probable cause for the arrest; and whether the person consented to providing a sample (and failed) or they refused to provide a sample. The legal standard of proof in these hearings is preponderance of the evidence (a civil standard which means the greater weight of the credible evidence. It is not the criminal standard of proof beyond a reasonable doubt. The rules at this hearing provide that the Texas DPS can introduce the probable cause affidavit to establish those elements and it is the duty of the Respondent (driver or their attorney) to subpoena any officer to appear at that hearing. If the Respondent fails to subpoena the officer the evidence submitted will be only the arrest documents and they will carry great weight with the judge (ALJ).

There could be an additional suspension depending on the outcome of the criminal trial. If the person is acquitted of the DWI the suspension, even if completed, will be removed from the person’s driving record. This applies only to an acquittal and not if the case is merely dismissed for some reason. This is important because even if the case is dismissed the suspension will remain on the person’s driving record as an alcohol/drug related suspension and could result in a longer suspension if another incident occurs within ten years of the first.

Should the person be convicted of a first DWI their license will be suspended for up to an additional 180 days but if the person receives probation that suspension will be probated provided they complete a DWI Education Class within 180 days. If they do not receive probation from the criminal court judge then credit for the ALR suspension will be granted to the extent there was an ALR suspension. This ALR credit can be given one (1) time so it is not available for a second or subsequent suspension.

If a person receives a suspension related to a DWI arrest or conviction they may be entitled to an Essential Needs or Occupational License (ODL). The effective date of this license depends on the driving record of the person. If the person does not have a prior suspension for either alcohol or drug related matters within 5 years of the current offense the effective date is immediate. If the suspension is the result of an alcohol or drug related contact within five (5) years the effective date of the license is 91 days after the suspension, meaning they cannot drive for the first 91 days of the suspension. If the suspension is the result of a conviction within five (5) years the effective date is 181 days. If the suspension is the result of a second or subsequent suspension for an offense committed within five (5) years of the most recent incident the effective date is one (1) year.

In addition, almost all subsequent suspensions will require that an Ignition Interlock Device (IID) be a condition of the license. There has been a recent change in the law passed in the last session of the Legislature. A reading of that law seems to indicate that notwithstanding any other provision of Section 42.12 Section 13 of the Code of Criminal Procedure (The Probation Provisions) that a judge could allow an Occupational License to a person otherwise not permitted to acquire such a license because of their past history. This provision provides that if the person’s vehicle is equipped with an IID that a judge could authorize an Occupation License even if heretofore such a license was not permitted. However, the language of the change does not seem to effect the effective dates I have set forth above for the validity of such licenses. Although it appears to me the intent of this change was to allow the issuance of an Occupational Licenses in situations where one could not have been previously authorized such license will still be governed by the limitations found in the Texas Transportation Code Section 521.251 with respect to when it will become effective.


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