DWI, Implied Consent & Driver's License Suspensions
In almost every case where a driver is arrested for driving while intoxicated (DWI) in Texas, regardless of which state issued his driver's license, he will have two cases to contend with:
- The DWI arrest itself &
- The ALR proceeding - a civil action that attempts to suspend their driving privileges.
When a driver either fails or refuses to submit to a breath/blood test, the resulting suspension against his or her driving privileges becomes effective forty (40) days after the driver was asked to provide a breath or blood specimen ... UNLESS you challenge the legality of the proposed license suspension.
Texas law provides that the driver may request a hearing - in writing - in fifteen (15) days of his or her arrest. (SEE MY ALR HEARING REQUEST FORM FOR THIS).
Failure to request a hearing within the fifteen day deadline will result in an automatic suspension on the 40th day after the test request. Thus, the suspension for failing or refusing a breath or blood test is only "automatic" so long as the driver fails to properly request a hearing to challenge it within fifteen days of being arrested.
The Texas Implied Consent Statute is found in Texas Transportation Code §724). In a nutshell, it says that anyone who operates a motor vehicle on Texas roadways has impliedly agreed that he or she will provide a breath or blood specimen upon a proper request by a police officer if the driver is ever arrested for DWI and provided with the legal consequences of refusing or failing a breath or blood test. The implied consent statute also applies to operators of watercraft in Texas.
The 77th Legislature recently expanded the Texas Implied Consent Statute to include Boating While Intoxicated (BWI) cases. DPS now has the authority to suspend a driver's license for refusing - but not for failing - to submit to the taking of a specimen a breath or blood test if a person is arrested for an offense involving the operation of a watercraft powered with an engine having a manufacturer's rating of 50 horsepower or above.
In cases where there has been an accident with a fatality or life-threatening injuries, there is no choice and you can be forced to provide a blood specimen to law enforcement officers.
Peace officers are now required to take possession of any Texas license issued by this state and held by the person arrested and issue the person a temporary driving permit that expires on the 41st day unless there has been a request for an ALR hearing.
A "prior alcohol/drug related enforcement contact" can also be used to lengthen the period of suspensions state above is defined as " a driver's license suspension, disqualification, or prohibition order under the laws of this state or any other state resulting from:
- a conviction of driving while intoxicated or..."
- a refusal to proved a requested specimen or..."
- providing a specimen showing an alcohol concentration of a level specified in §49.01 Texas Penal Code (alcohol concentration > 0.08)..."
Because of an agreement with the Texas Legislature and DPS, for purposes of "prior alcohol/drug related contacts" occurring before January 1, 1995 cannot be used to lengthen the period of suspension.
Be sure to go back now and read "The Key to a Good Defense".
