I NEED A TICKET TO RIDE
What about my driver’s license?
A life spent making mistakes is not only more honorable,
but more useful than a life spent doing nothing.
GEORGE BERNARD SHAW
An arrest for Driving While Intoxicated (DWI) carries civil consequences for the person charged. This is separate from the criminal case in which the municipal prosecutor or the District Attorney’s office is attempting to obtain a conviction, monetary fines, and possibly jail time. Immediately after an arrest for DWI, the Texas Department of Public Safety will start civil administrative proceedings against you to suspend your Texas driving privileges.
The State Office of Administrative Hearings (SOAH) can only suspend or revoke your Texas driver’s license or Texas driving privileges. If you possess an out of state driver’s license, please see the following sub-section entitled “Out of State Licenses”. If you possess a commercial driver’s license (CDL), please refer to Chapter 10 “COMMERCIAL DRIVERS LICENSE”.
If this DWI is your first and you refused to give a breath or blood specimen, then SOAH will attempt to suspend your driving privileges for 180 days. If you have had a DWI or ALR hearing within the past ten *** years and you refused to give a specimen, then suspension can be 2 years.
If this DWI is your first and you fail a breath or blood test, then SOAH will attempt to suspend your driving privileges for 90 days. If you have had a DWI or ALR hearing within the past ten *** years and you failed, then suspension can be one year.
Following a conviction for DWI, the court will report the conviction to DPS. In order for you to regain your driver’s license after that, DPS will charge you a surcharge. The surcharge is in three different amounts. If it is your first DWI conviction, then you will have a surcharge of $1,000 a year for the next three years ($3000). If you have two or more DWI convictions, then you will have a surcharge of $1,500 a year for the next three ($4500). If your BAC is found to be 0.16 or greater, then you will have a surcharge of $2,000 a year for the next three years ($6000).
In Texas, there is no such thing as a “work permit”. Other than winning your license back through the license procedures, the only way to get driving privileges is to obtain an Occupational Driver’s License.
Occupational Driver’s License
If the SOAH administrative judge issues an order of suspension for your driver’s license, you may qualify for an Occupational or Essential Needs Driver’s License. (ODL) The occupational/essential needs license allows you driving privileges for your occupation and essential household needs.
Occupational licenses are not automatic. You have to obtain a certified copy of your complete driver’s license record. If you have any previous arrests, convictions, ODL’s, or license suspensions, you must provide a Certified Abstract of Driving Record (AOR). You must also obtain an SR-22 insurance policy (high risk plan that can be purchased from numerous insurance providers) and provide a copy to the court. You must complete an SR-37 Occupational License Information sheet with a signed and notarized verification form. Your employer should write a letter on their company letterhead stating your position with their company, your schedule, and the counties where you would be driving. If that is not applicable to your situation, your employer would have to draft a letter stating the reasons that you are petitioning for an occupational driver’s license. This letter would also have to include your preferred driving times and the main counties you will need to drive in for work. Once all that paperwork is submitted to your attorney, your attorney has to get approval from the judge involved in your pending criminal case. However, if your suspension involved allegations of an assault on the arresting police officer or if your BAC is too high, the judge probably will not agree to the occupational license.
If the judge agrees to an occupational license, you might be required to install an ignition interlock device in your vehicle. The judge may order this device to be installed if this is your second DWI or if your BAC was too high. The expense of the device is, of course, to be paid by you, the licensee. There are several companies that will install and monitor the device. These private companies charge an installation fee and a monthly monitoring fee for the ignition interlock device. The Department will also charge a $10.00 ***filing fee that will have to be paid before DPS will send the original occupational driver’s license to you.
If you drive your employer’s vehicle, your employer may be required to place an ignition interlock device on any employer owned vehicles that you may drive. This requirement can be avoided if your employer requests that the device not be installed on your employer’s vehicles. This request must be made in writing on the employer’s letterhead and must be notarized. But the decision rests with the judge not your employer.
If you are self-employed or own any part of the company or corporation you work for, this exception to the installation of the interlock ignition device does not apply. Also, the exception does not apply in cases where the employer is a relative.
Preventing the Suspension
The suspension of your driving privileges can be prevented by challenging the administrative suspension. To challenge the suspension, it is necessary to request an administrative hearing within 15 days of being served notice of the suspension or revocation. This notice is usually given when the person is arrested; the appeal rights are printed on the DIC 24. However, it is not immediately obvious. The notice is buried at the bottom of the form in very small print. This DIC 24 form is given to you after you refuse to be tested or you are tested and the result is over the legal limit.
After SOAH receives a request for an administrative hearing, SOAH will place the suspension on hold until the hearing is held. During this time, you will have the same driving privileges you had before your license was taken, including commercial driving privileges. After SOAH receives a timely request for an administrative hearing, SOAH will set the date for the administrative hearing to take place.
It is not necessary for you to appear at the administrative hearing if your attorney appears on your behalf. If no one shows on the licensee’s behalf, the suspension will be upheld and the suspension will begin at a date set by SOAH. If the arresting officer or the breath testing officer fails to appear (if under subpoena), then the suspension is generally set aside for lack of a necessary witness.
If all the parties appear, then the Administrative Hearing Judge (a lawyer employed by the State of Texas) will hear the issues. During this hearing, the State has the burden to prove two things; the officer had reasonable suspicion to investigate and probable cause to arrest the person. Alternatively, the State may attempt to show the arrested person had an alcohol concentration above the legal limit while operating a vehicle in a public place.
After having heard and considered the evidence, a judge will decide whether the State proved the requisite facts by a preponderance of the evidence. Afterwards, the judge shall grant or deny the department’s petition to suspend the arrested person’s driver’s license.
The burden of proof is on the police officer and the standard of proof is the preponderance of the evidence. Preponderance of the evidence means it is more likely than not that you were driving under the influence or in actual physical control of a motor vehicle under the influence. This is a lesser standard of proof then the criminal standard of proof beyond a reasonable doubt.
Unfortunately, there are attorneys who tell their clients not to bother with the administrative hearing because they cannot be won. This is malpractice in the authors’ opinion as both authors routinely get their clients’ licenses back after successfully challenging the revocation. Any attorney that advises you not to request the hearing and challenge the revocation should be avoided at all costs. The administrative hearing is the opportunity to cross-examine the officer under oath to discover the weaknesses or strengths of the government’s case against you. Not challenging the revocation and cross-examining the officer at the hearing is the equivalent of not reading the police reports.
If your license was already suspended or revoked when you were arrested, it is still very important that you request the administrative hearing. A new suspension will add to your license suspension time. Also, in cases of possible repeat offenses, you may be looking at jail time in the criminal case and thus, it is imperative to have this additional opportunity to cross-examine the officer under oath.
Appealing the Suspension
If an administrative judge orders a suspension of your driver’s license, you can appeal the decision in the county court of law in the county where you were arrested. The appeal must be filed within thirty days from the Administrative Judge’s order of suspension.
If you possess a driver’s license from another state, then Texas can only suspend or revoke your Texas driving privileges. Most states belong to the Interstate Driver’s License Compact. This compact requires all member states to report driving convictions or departmental actions to the licensee’s home state. The home state is the state that issued the licensee’s license.
Once the home state is notified, it may take action against your license. If the home state takes action, it will send notice to you at the address the home state has on file. This notice will usually advise you of the home state’s action. The notice may or may not have the licensee’s appellate rights listed. Once this notice is received, you should immediately contact a lawyer in your home state to explore ways to prevent license suspension. The authors are able to refer our clients to other qualified DWI attorneys that we have taught or trained with at the national or international level.
If the suspension in Texas is the result of not successfully challenging the suspension at the administrative level, then the suspension is an administrative suspension. If the suspension in Texas is based on a conviction for DWI, then the suspension is a conviction suspension. This is an important distinction as some states will not suspend your license based on an administrative suspension from Texas. Each state handles license suspensions differently, but most states will suspend your driver’s license if you are convicted of DWI.
For example, if you have a Kansas license and are arrested for DWI and you are not successful in challenging the administrative suspension, Texas will suspend your Texas driving privileges. However, if you negotiate a plea bargain for a deferred sentence in the criminal case which results in the DWI criminal case being dismissed, Kansas will not suspend your license because it requires a conviction before it will suspend a Kansas license for an out-of-state DWI. In fact, you would be able to drive in all states other than Texas.
You will not be able to drive in Texas until the suspension period ends and you complete the reinstatement process. If you need to drive in the State of Texas during the suspension period and you are eligible for an occupational driver’s license, Texas may grant you one.