Drivers’ License Consequences of a DWI Arrest

By Chuck Stanfield

For many, the ability to drive is essential in being able to hold a job, maintain a home, and attend to family needs. Recent hurricane evacuations show that it can also be a matter of life and death. This importance is the reason why so many people charged with Driving While Intoxicated (“DWI”) are more concerned with the status of their drivers’ licenses than any other aspect of their cases. This article will set out the potential drivers’ license consequences of a DWI arrest and discuss some strategies to avoid them. Most people who suffer a license suspension will be eligible for an occupational license. Judge Mark Atkinson addresses the issue of occupational licenses in a separate article in this publication. License suspensions may occur in different ways, as outlined in this article.

CONVICTION SUSPENSIONS
Conviction suspensions are the first category of drivers’ license suspensions faced by a person convicted of DWI. Conviction suspensions for DWI, intoxicated assault, and intoxicated manslaughter include: (1) a suspension imposed by the judge at the time of sentencing (i.e., a court-ordered suspension); (2) a conviction in which no part of the sentence was probated or the conditions of probation were violated (i.e., a mandatory suspension); (3) a conviction where a condition of probation results in the defendant completing a second DWI education course or the repeat offenders program (i.e., a subsequent education suspension.); or (4) a conviction where the defendant was under 21 on the date of the offense (i.e., a minor suspension).

COURT-ORDERED SUSPENSIONS
Upon conviction of a DWI, intoxicated assault, or intoxicated manslaughter, the judge may impose a drivers’ license suspension.1 For a first DWI, the range of suspension is from 90 days to one year. If a defendant’s sentence is enhanced pursuant to §49.09 of the Penal Code (Enhanced Offenses & Penalties), the range of suspension is from 180 days to two years. With one exception, the same suspension rules apply to a person charged with intoxicated assault. A person convicted of intoxicated assault who has, within the last five years, been previously convicted of intoxicated assault shall be suspended for one year. This provision does not make reference to the Penal Code section controlling DWI enhancement, and would thus appear to apply regardless of whether the prior offense is alleged in the charging instrument. The range of suspension for a first intoxicated manslaughter is 180 days to two years. With a prior conviction for intoxicated manslaughter within the last 10 years, the suspension period is from one to two years.2 The enhanced range is in effect regardless of whether the prior conviction is alleged in the charging instrument.

MANDATORY SUSPENSIONS
A mandatory suspension occurs when a person is convicted of DWI, intoxicated assault, or intoxicated manslaughter and the sentence is not probated3, or if probated, the probation is revoked or the probationer fails to attend the DWI education class. The mandatory suspension is for one year on a first suspension and 18 months on a subsequent suspension4. This suspension is imposed even if the judge does not order a suspension at the time of sentencing. If, however, the judge does order a suspension at the time of sentencing, the length of the court-ordered suspension will supercede the mandatory suspension periods.5 Mandatory suspensions may be avoided by successfully completing the DWI education course and all other conditions of probation. Although not provided for by statute, the Texas Department of Public Safety (DPS) will not impose a mandatory suspension if the judge orders that no suspension be imposed.

SUBSEQUENT EDUCATION SUSPENSIONS
A one-year subsequent education suspension occurs when a person is placed on probation for DWI, completes an alcohol education course as set out in Art. 42.12 §13 of the Code of Criminal Procedure, and has, in the past completed another alcohol education course due to a DWI probation. This suspension will occur regardless of whether or not the prior DWI is alleged in the charging instrument and without an order of suspension by the judge. This suspension may be avoided if the judge waives the DWI education class and orders that no suspension be imposed.

MINOR SUSPENSIONS
In addition to being subject to all the same reasons for suspension as adults, minors face an additional basis for suspension. Whereas an adult would avoid a suspension if their DWI arrest resulted in a successfully completed probation, a minor is not in the same position.6 Even if a minor is ordered to attend and successfully completes a DWI education class, he or she will suffer a license suspension of one year. This suspension is imposed directly by D.P.S. and does not depend upon a suspension order from the sentencing judge. There is, however, an exception to this suspension. If the judge orders that a deep-lung ignition interlock device7 be placed on the minor’s vehicle as a condition of probation, the suspension will be avoided. This exception would be superceded if the judge orders a suspension at the time of sentencing.8

ADMINISTRATIVE SUSPENSIONS
The Administrative License Revocation (ALR) process began January 1, 1995. It was implemented as a way to encourage people arrested for DWI to agree to provide a sample of their breath, and provided for a mechanism for the state to suspend drivers’ licenses of those people who fail or refuse to provide a breath or blood sample upon a proper request by a police officer.
Under the current version of the law, a person who fails a breath or blood test is subject to a license suspension of 90 days, or, if there has been a prior alcohol contact within the last ten years, one year.9 A person who refuses to provide a breath or blood sample faces a suspension of 180 days or, with a prior drug or alcohol contact within the last 10 years, a two year suspension.10
The Transportation Code defines an “alcohol or drug related enforcement contact” as a drivers’ license suspension arising from one or more of a variety of convictions or administrative actions arising from a drug or alcohol related arrest.11 Thus, a prior arrest or conviction that did not result in a license suspension would not count as a contact for purposes of enhancing an ALR suspension.
An ALR suspension will begin 40 days after a person is served with a Notice of Suspension.12 This notice is generally served at the time a person is asked to provide a breath or blood sample; however, it is frequently served by mail after blood test results are obtained. The Notice of Suspension will serve as a person’s drivers’ license until the ALR suspension takes effect or until he or she prevails at an ALR hearing.
An ALR suspension may be avoided in two ways. If a person requests an ALR hearing within 15 days of being served a Notice of Suspension, there will not be an automatic suspension. Instead, the State Office of Administrative Hearings (SOAH) will conduct a hearing to determine whether or not to impose a suspension. The second way to avoid an ALR suspension is to obtain an acquittal on the DWI arising from the same incident that gave rise to the Notice of Suspension.13 A simple dismissal of charges is not sufficient to cause a rescission of the ALR suspension. Only a not guilty verdict, whether by judge or jury, or a dismissal occurring after jeopardy has attached will suffice.

ALR HEARINGS
A detailed discussion of all ALR strategies goes well beyond the space limitation of this article. Because other resources are available elsewhere,14 this article provides only a brief overview of the procedures for requesting a hearing and discovery. A hearing may be requested by phone, fax, or certified mail.15 The instructions for requesting a hearing are set out at the bottom of the Notice of Suspension (DIC 25). Telephone requests can be made to (800) 394-9913. Written requests can be mailed to Texas Department of Public Safety, Driver Improvement Bureau, P.O. Box 4040, Austin, TX 78765-4040. Faxes should be sent to (512) 424-2650.
A discovery request must be made in writing, and can be served by facsimile or by mail. The fax number is (512) 424-7171. Alternatively, discovery requests can be mailed to Director of Hearings, A.L.R. Program, P.O. Box 15327, Austin, TX 78761-5327. Failure to send discovery requests to these exact addresses or fax numbers can result in a discovery request being unenforceable.16 Finally, it is possible to compel the Texas DPS to provide live testimony at the hearing by either making a written request for the breath test operator and technical supervisors (in breath test failure cases) or by having a subpoena issued and personally served to another witness.

COMMERCIAL DRIVERS’ LICENSES
In addition to all of the license consequences set out above, holders of commercial drivers’ licenses face other potential disqualification from operating a commercial vehicle. If a person who holds a commercial drivers’ license is convicted of DWI, intoxicated assault, or intoxicated manslaughter, whether or not he or she was operating a commercial vehicle at the time, that person will face a one year disqualification from operating a commercial vehicle. A person will also face a one year disqualification upon receiving any sort of ALR suspension. The period of disqualification would be three years if the underlying incident occurred while transporting hazardous materials. And, a lifetime disqualification would occur if a person had previously committed an act that would have subjected him to one of the reasons for disqualification set out above.

CONCLUSIONS
When advising a person about the drivers’ license consequences of a DWI arrest, several items should be stressed. First, if they fail to request an ALR hearing within 15 days of arrest (DPS must also receive the request within 15 days of arrest), they will automatically face a 90-day suspension for failing, or a 180-day suspension, for refusing a breath test. Second, most first offenders who are over 21, who successfully complete a DWI probation, and who prevail at their ALR hearings will receive no license suspension. Third, if a person holds a commercial drivers’ license, any DWI or ALR suspension will result in at least a one year disqualification. For a person who is under 21 or has a prior alcohol related arrest, any advice will depend on detailed examination of his or her driving record and criminal history.

Endnotes
1. Texas Transportation Code § 521.344 (a). 2. Texas Transportation Code § 521.344 (b). 3. Texas Transportation Code § 521.344 (d). 4. Texas Transportation Code § 521.343 (b). 5. Texas Transportation Code § 521.343 (a). 6. Texas Transportation Code § 521.342. 7. The ignition interlock device is described in Texas Code of Criminal Procedure, Art. 42.12 §13 (i). 8. Texas Transportation Code §§ 521.432 (a) and 521.344. 9. Texas Transportation Code § 524.022. 10. Texas Transportation Code § 724.035. 11. Texas Transportation Code § 524.001 (3). 12. Texas Transportation Code § 524.021. 13. Texas Transportation Code § 524.015. 14. See, e.g., Hampton, Cynthia ed., Administrative License Revocation and Occupational License Manual (TCDLA 2005). 15. Texas Transportation Code § 524..031. 16. Texas Department of Public Safety v. Cantu, 944 S.W.2d 493 (Tex.App.–Houston [14th Dist.] 1997, no writ).

Charles Stanfield is a solo practitioner focusing on DWI defense and drivers’ license issues. Stanfield is a 1987 graduate of the University of Texas Law School. He served as a briefing attorney and research assistant from 1987-1990 for the Hon. Charles Campbell of the Texas Court of Criminal Appeals. From 1990-1992, he was an Assistant District Attorney in the Harris County District Attorney’s Office.

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