It is something that happens in Collin County every day: A police officer pulls you over on suspicion of a DWI. The officer asks you to take a breath or blood test to confirm her suspicion. You refuse and are told your driver’s license will be suspended. What do you do next?
Implied Consent & Your Rights Under Texas Law
Texas has an “implied consent” law with respect to blood and breath tests. This means that by applying for and receiving a driver’s license from the State, you are presumed to consent to any subsequent sobriety tests requested by law enforcement. In practice, the Constitution forbids the police from conducting a search without your consent or a warrant, so you are still free to decline a blood or breath test.
But if you refuse–or if you agree and fail the test–Texas can automatically suspend your driver’s license for a period ranging from 90 days to 2 years. This suspension operates independently of any criminal DWI charges you may face. So even if prosecutors decide to prosecute you–or you are charged and later acquitted–you still have to deal with a potential license suspension.
Asking for a Hearing Will Delay Your Suspension
Once you refuse or fail a sobriety test, the arresting officer will generally serve you with a notice of license suspension. At this point your suspension has not taken effect. The officer will take your license, however, and issue you a temporary driving permit.
You have 15 days from the date of the suspension notice to request an administrative hearing from the Texas Department of Public Safety. If you do not act within this 15-day period, your suspension will become final on the 40th day after the notice was served, i.e. 40 days after you were arrested for DWI. But if you ask for a hearing in a timely manner, your suspension cannot begin until DPS has conducted a hearing an administrative law judge (ALJ) issues a ruling.
This often takes more time than you might think. By law the DPS can take up to 120 days to schedule a hearing. This means that you may be able to keep driving for four months (or more) while the ALJ considers your appeal. And even if the ALJ rules against you, that decision can be appealed, during which time the suspension still does not take effect.
At the hearing itself, you have the right to call and question the officer who arrested you. Since this is not a criminal trial, there is no prosecutor to prepare or cross-examine the officer. You can also challenge any other evidence used against you.
But keep in mind that to suspend your license, the state also does not have to prove you guilty beyond a reasonable doubt, as it would in a criminal DWI case. Instead, the ALJ only needs to find the officer had “probable cause” to arrest you, and that you refused or failed a sobriety test.
Fighting For Your Driving Rights in Collin County
One final thing: Even if you do not get your license back following an ALR hearing, you may still be eligible for an occupational driver’s license, which allows you limited driving privileges for work, school, or essential household duties. An experienced McKinney criminal defense attorney can help you with this or any other legal matter related to a driver’s license suspension. Contact the offices of Rosenthal & Wadas, PLLC today to speak with one of our Collin County criminal defense attorneys today.