• criminal charges which carry potential fines, jail time and/or probation; and
• a civil proceeding which could result in the suspension of your driver's license regardless of the state of issuance.

This civil proceeding is referred to as an "Administrative License Revocation" hearing or ALR hearing and is initiated against you by the Texas Department of Public Safety (DPS).  An ALR suspension is initiated against an individual arrested for DWI if he or she either refuses a breath, blood or urine test or fails any of these tests by having an alcohol concentration at or above 0.08.

The Implied Consent Law pursuant to the Texas Transportation Code states that each individual who operates a motor vehicle on Texas roadways has implied consent to provide a specimen of breath or blood. Thus, if you are arrested for a DWI and refuse to take a breath or blood test after a proper request by law enforcement, you are in violation of this law and a civil proceeding can legally be initiated to suspend your driver's license. The implied consent law also covers Boating While Intoxicated (BWI) and may affect the flight status of a certified pilot through agreement between Texas and the Federal Aviation Administration.

If you are arrested for DWI in Texas and a law enforcement officer tells you that you must agree to take a breath or blood test or your driver's license will be immediately suspended, he or she is not telling you the truth and may be trying to force, mislead, or intimidate you into submitting to these chemical tests.  

Unfortunately, arrested drivers are rarely informed of their right to challenge the license suspension in a civil court of law. Most law enforcement officials familiar with the DWI laws in the State of Texas will do everything in their power to get you to submit to these chemical tests because they know that a failed chemical test reduces the burden of proof for the district attorney. If you fail or refuse a chemical test, a police officer is required to seize your Texas driver's license and immediately issue a notice of suspension and temporary driving permit that is valid for 40 days from the date of arrest.  

In order to maintain your privilege to drive, you must request an ALR hearing to challenge the suspension.

An ALR suspension is automatic. Thus, your license will be suspended in accordance with your offense if you do not request a hearing within 15 days after you receive notice of suspension. At the time of your arrest, you are usually served with a written notice of your suspension. If your ALR hearing is scheduled more than 40 days after you receive notice of suspension, your attorney can ask the DPS to extend your temporary license beyond the 40-day limit until your ALR hearing takes place.

You have the right to appeal even if you lose your ALR hearing. You must request the appeal within 30 days after the ALR judgment becomes final or you waive the right to appeal and your driver's license will be suspended on the 40th day after the judgment becomes final. While you are waiting for the appeal to be heard, your driver's license suspension is stopped for a 90-day period.

At the ALR Hearing the Department of Public Safety must prove by preponderance of the evidence that:  

• There was reasonable suspicion to stop or probable cause to arrest the driver,
• Probable cause existed that the driver was driving or in actual physical control of a motor vehicle in a public place while intoxicated,
• The driver was placed under arrest and was offered an opportunity to give a specimen of breath or blood after being notified both orally and in writing of the consequences of either refusing or failing a breath or blood test, and
• The driver refused to give a specimen on request of the officer, OR, that the driver failed a breath or blood test by registering an alcohol concentration of 0.08 or greater per 100ml of blood or 210 liters of breath.

The period of suspension handed down at an ALR Hearing is as follows:

If DPS does find that there is insufficient evidence to suspend your license at the ALR hearing, DPS must immediately return your driver's license. If you receive a suspension either automatically or after an ALR hearing, you can get your driver's license reinstated at the end of the suspension period if you pay DPS a fee of $100 in addition to any other fee required by law. You should pay these fees a few months before your suspension period actually ends so that there will not be any delay in getting your driver's license reinstated.

If you have a driver's license from another state, DPS does not have the authority to suspend your driver's license, but they can prevent you from applying for a Texas driver's license during the period of suspension. Moreover, DPS may inform your state of the suspension in Texas, and your driver's license could be suspended in your home state. Obtaining an international driver's license will not allow you to drive during your period of suspension in Texas either. Whether or not you win your ALR hearing and save your privilege to drive, the ALR hearing serves as a useful discovery tool in preparing for your criminal DWI case.

The Texas legislature law has recently added a surcharge to the driver's license of every individual convicted of a DWI that was arrested after September 1, 2003. A surcharge is an administrative penalty charged by DPS as a fee for a person to maintain their driver's license after they have suffered either:

• a DWI conviction; or 
• Submitted to a breath, blood or urine test which reveals an alcohol concentration of 0.16 or more.

The surcharge is assessed for 3 years following either of these two events.  Specifically, the surcharges are:  

• $1,000.00 per year for DWI 1st conviction - total of $3,000.00;
• $1,500.00 per year for subsequent DWI convictions - total of $4,500.00; and,
• $2,000.00 per year for registering a 0.16 or more - total of $6,000.00.

As you can see, it is a huge economic burden to maintain your Texas driver's license if you meet the requirements for a surcharge. After DPS gets notice that one of the above events has occurred, they will send you notice of the surcharge assessment by first class mail to your most recent address, the address on your driver's license. The statute is not clear on how long this process takes. Once DPS sends notice, you will have 30 days from that day to pay the surcharge. An appeal could stay your obligation to pay the surcharge, but the statute is also unclear on this point.  

Problems could arise if the mail is slow or gets lost. If notice is delayed for this or some other reason, do not assume that DPS is not aware that you meet the requirements for a surcharge, but rather, expect to receive notice. If a long period of time passes and you have still not received notice, still do not assume that DPS is unaware of you, but instead, contact DPS to make sure that you still have driving privileges. If you fail to pay the surcharge, your driver's license will be suspended until all surcharges and penalties are paid in full.  

The criminal defense attorneys at Evans & Peek are of the opinion that the DWI surcharge is unconstitutional. We believe that the surcharge will ultimately be determined or held by the courts and considered to be a "fine" and thus punishment (rather than an administrative fee or "surcharge" as DPS would argue), making it a violation of the double jeopardy clause of the United States Constitution which protects individuals from being punished twice for the same offense because the surcharge amounts to nothing more than a second punishment for the same offense.  

The State of Texas deliberately used the word "surcharge", rather than "fine", so that a surcharge would not be viewed as an unconstitutional second punishment when the statute was eventually reviewed by the appellate courts.  However, until the appellate courts find the surcharge statute unconstitutional, if you meet requirements of the statute you must pay the economic price if you want to keep your driving privileges.

Even if your Texas Driver's License is suspended for DWI or a related crime, you can petition the court for an occupational license (commonly referred to as a restricted driver's license) which will allow you to drive only for the limited purposes of work, school, or household duties. However, if your commercial driver's license is suspended for DWI, you cannot get an occupational license. If the court grants you an occupational license for these limited reasons, the court will specify in the order:  

• the hours of the day and days of the week during which you may drive;
• the reasons for which you may drive; and
• areas (i.e. counties) or routes of travel where you can drive.

If granted an occupational license, you may not drive for more than four hours in any 24-hour period, except that on a showing of necessity, the court may allow you to drive for any period determined by the court that does not exceed 12 hours in any 24-hour period. It would not be unusual for you to be allowed by a court to drive up to 12 hours a day if you are granted an occupational license. The order granting your occupational license remains valid until the end of the period of suspension of your driver's license.  

If you drive in violation of any of the conditions of your occupational license or if you fail to have the license in your possession when you drive, you could be convicted of a Class "B" Misdemeanor punishable by up to 180 days in jail and a $2,000 fine and your occupational license will be automatically revoked for the original period of suspension.

Under certain circumstances, the court may require you to install an ignition interlock device on your vehicle if it grants you an occupational license. This device prevents you from starting your car until you blow into it and it detects no alcohol on your breath. It also logs the time and date of the test and records this information for review by your probation officer. The cost of the device, installation and removal will be paid you, not the state.

If you have a commercial driver license (CDL), a DWI conviction could result in the loss of your job. If you are convicted of DWI and lose your CDL, you are not eligible to petition the court for an occupational license (restricted license). Even if you get eventually get your CDL reinstated following a DWI conviction, your insurance rates to maintain your CDL will increase dramatically. Additionally, if you hold a CDL, you will be judged by stricter standards if you are charged with DWI. If you are arrested for DWI and hold a CDL, contact me immediately so that I can request an ALR hearing and fight to save your CDL and your job.