YOU ONLY HAVE 15 DAYS AFTER YOUR ARREST TO REQUEST A HEARING OR YOUR LICENSE WILL BE SUSPENDED!!
Everyone driving on the freeways in Texas has seen the signs flashing “Drink, Drive, Go to Jail … Drive Sober or Get Pulled Over.” Initially, these slogans were designed to deter people from having a drink before driving, even though the law does not prohibit someone from driving after consuming an alcoholic beverage. What was initially a slogan is now the protocol of law enforcement around the State of Texas. In Texas, it is illegal to drive while intoxicated. Intoxicated is defined as not having the normal use of mental or physical faculties by reason of the introduction of alcohol or drugs into the body or having an alcohol concentration of .08 or more. The once enforcement slogan and now protocol advertise that having one drink before driving is illegal. This is far from the truth and law, but it leads to many innocent citizens being arrested and wrongly accused of Driving While Intoxicated.
It depends on the individual and particular circumstances of the time when that individual consumes alcohol. In other words, eight drinks may be too much one time but not too much another time. If you are unsure whether you have had too much to drink to safely drive, then you should not drive. What about when you know you have not had too much to drink to safely drive, does that mean you will not be arrested if you are stopped? The answer is definitively no. If you drink then drive, odds are that if you are stopped, you will be arrested just as the signs say. That is the risk you take in our world today.
The Officer will ask you a lot of questions, which tend to make you more nervous than you would normally be in a traffic stop situation. Many of times the first words out of the Officer’s mouth will be have you been drinking? This causes concern for many as it should. Just because it is ten o’clock at night or you look tired or sound tired, should not lead to a presumption that you are intoxicated, but it does. Many officer’s that work the night shifts are only looking for intoxicated driver’s. They are not patrolling to write tickets or respond to burglaries; they are only looking for people who have had a drink and are driving. So, your location leads to suspicion, the time of night, your eyes, your speech, and every little thing you do in the Officer’s presence lead to suspicion. If you accidentally drop your driver’s license or give the officer an expired insurance card, you are building the officer’s case against you.
You will likely be asked to perform a series of motor skill and coordination tests that you could never perform to satisfaction, even if you were rested, in shape, athletic, coordinated, and had the opportunity to practice the tests. Unfortunately, even if you perform the tests well, the end result of an arrest is likely because the officer is grading with criteria that you are not told i.e. the instructions are not the grading scale. After an arrest for DWI, you will likely not be given your Miranda warnings or the opportunity to speak with a lawyer, but instead you will be asked to give a specimen of your breath or blood. If you do not immediately consent or are unsure what to do, the officer will mark his report that you refused to give a specimen. At that time, the Officer will likely apply for a warrant to forcefully take your blood without your consent. That’s right, the officer can and most likely will get a specimen from you whether it is by your choice or his force. Bottom line, your consent has no effect on the pending criminal charge against you.
However, your consent is part of your driving privileges. No, you likely were not informed about implied consent when you obtained your driver’s license, but it is part of your privilege to drive. What is implied consent? Implied consent means you consent to give a specimen of your breath or blood when you drive. However, the officer is required to read and provide you a form known as a Statutory Warning, which provides you with the option of withdrawing your consent and the consequences of doing so. If you consent to giving a specimen of your breath or blood and the test reveals a concentration of .08 or more, DPS will suspend your license for 90 days if you do not request a hearing. If you refuse to give a specimen of either your breath or blood, DPS will suspend your license for 180 days if you do not request a hearing. If this is the second time you have been requested to give a specimen within 10 years, DPS will suspend your license for one year if you consent or two years if refuse if you do not request a hearing.
The hearing is called an administrative license revocation or ALR for short. An ALR is a proceeding in front of an administrative judge where DPS must prove by a preponderance of the evidence that reasonable suspicion to stop you and probable cause to arrest you existed. Furthermore, they must prove that you either did not provide a specimen or that a specimen you provided showed an alcohol concentration of .08 or more. They do not have to prove the chemical test was done properly or the result accurate, or in the case of a refusal, they do not have to prove you actually refused, it is just whether or not you gave a specimen to the officer when he requested it. Legally speaking, it is not a very difficult case for DPS to prove, but there are several issues that arise in an ALR hearing that make it a critical part of defending a DWI charge.
If you fail to request a hearing, you have lessened your chances of defending yourself against a DWI and you have agreed to a license suspension that you may not have had to serve. Any lawyer that does not advise you about an ALR hearing and stress its importance is likely an inexperienced lawyer with respect to adequate and effective DWI defense. You cannot lose an ALR hearing, unless you do not request the hearing within 15 days of arrest. Win or lose is not suffer a license suspension or not, because you may suffer a suspension and still have won. How can that be? If your arresting officer is subpoenaed to the hearing by your lawyer (which he or she should always be) and that officer is cross examined by a skilled and prepared lawyer, that testimony may be what is needed to convince a district attorney to dismiss the charge against you. Every officer writes a report that says you were intoxicated and they did everything properly and as they were trained, but in cross examination, many of times the officer’s report and the truth are two different things entirely.