DWI License Suspension - Looks Like Your Going To be Walking

       One of the misconceptions about a a DWI charge and trial has to do with your drivers license.  Many people are under the mistaken belief that should you either be found not guilty of the charged DWI or if the case is dismissed by the prosecutor, your license is not suspended.

        

       Nothing could be further from the truth.  In actuality, when a person is charged with a DWI in the state of Texas there are two "trials."  One will determine wheather a person is in fact guilty of the charged DWI.  More likely than not, the County Attorney will be representing the state.  Unless, the DWI is a felony, in which case the District Attorney will be representing the state.

        

       Apart from this proceeding, there will also be a "trial" (in fact, a hearing) to determine whether or not the persons license should be suspended.  This hearing is commonly referred to as an ALR hearing

       The ALR hearing is conducted by an Administrative Law Judge (ALJ) employed by DPS and the SOAH (which is one of the reasons these hearings are hard to win). On the issues to be determined during the hearing, DPS (Texas Department of Public Safety) has the burden of proof "by a preponderance of the evidence." This means that the same standard used in civil trials is used in ALR hearings; that is, the burden of proof is "more probable than not" rather than "beyond a reasonable doubt").

        If the judge makes an "affirmative finding" on all the relevant issues, the license is suspended  

        The Issues Determined at the ALR Hearing

        For Adults

        If you are an adult who failed the Texas breath test or blood test, the ALR judge must determine whether:

• you had an alcohol concentration of 0.08 or greater in relation to your DWI arrest; and
• "reasonable suspicion" to stop you or "probable cause" to arrest you existed.

         If you refused a breath test or refused a blood test, the ALR judge will be considering whether:

• the officer had a good reason to pull you over (the "reasonable suspicion" / "probable cause" analysis); 
• probable cause existed to for the officer to make a DWI arrest (belief that you were operating a motor vehicle in a public place while intoxicated);
  
• the police officer made a proper request for a sample of your blood or breath for analysis; and
  
• you refused to take the DWI breath test or DWI blood test.

       Offenders Under 21 Years of Age - If a breath test or blood test was not requested, or if the driver arrested for DWI provided a breath sample or blood sample with any detectable amount of alcohol, the ALR judge must determine whether:

(1) the person is a minor; and whether he or she had any detectable amount of alcohol in his or her system while operating a motor vehicle in a public place; and

(2) whether there was reasonable suspicion to stop the minor now charged with a Texas DUI, or probable cause to arrest the minor for dui.

        If You are a minor arrested for DUI in Texas and you refused the breath test or blood test, the ALR judge will be determining whether;

• reasonable suspicion or probable cause existed for a DUI arrest or to take you into custody for DUI;
• probable cause existed to believe that you, the minor, were operating a motor vehicle in a public place while having any detectable amount of alcohol in your system;
• you were placed under arrest for DUI (or taken into custody) and a proper breath test request or blood test request was submitted to you by the plice officer; and
• you subsequently refused to take a DUI breath test or DUI blood test.

        An individual whose license has been suspended following an administrative hearing may appeal the decision rendered by the ALR judge . The petition must be filed within thirty days of the decision in the county court in the county of arrest. A properly filed appeal petition stays the suspension for first offenders for up to ninety days.

         However, after an individuals license has been suspended he or she may still be eligible for an occupational drivers license.  Check back next week when I cover the requirements to qualify for an occupational drivers license.  Hopefully your feet won't be hurting too bad!

To Blow or Not To Blow? That is the question

       I can not count how many times I have been asked by friends and clients "If I get pulled over...and If I have had a drink....Should I blow?"  My answer to this question has always been the same.  NO!!  Why you ask.      

       First, I believe that by the time the officer has made the decision to ask you to submit to a PBT (portable breath test) he has already made up his mind that you are intoxicated.  It is extremely rare that an officer allow someone to leave a stop after a PBT has been given.

       Next, at trial, the state must show that either your blood alcohol was over a .08 while you were operating a motor vehicle OR that you did not have normal control of your mental or physical faculties while operating a motor vehicle.  So, if the operator does not submit to the PBT the State or County will have no way of proving that the blood alcohol content of the driver was over .08.  Thus, in order to be convicted of the charged DWI the State or County will have to prove beyond a reasonable doubt that the driver was operating a motor vehicle without the normal use of his mental or physical faculties.  

       Finally, I just don't trust the test!!  Call me crazy but if I were on trial for the offense of DWI, I would rather the jury judge me and my actions rather than the veracity of a man made machine, which is being operated by someone who has a minimal training on the machine at best.

       Remember, refusal to blow will almost certainly result in a license suspension, irregardless of the final outcome of the trial. 

       In closing, it is better to err on the side of caution.  If you have had a drink...Call a friend.  They will thank you for it!