Driver's License Suspension
You have only
15 days from the date of arrest to request a hearing to save your driver's
license. You may lose your
license unless you act now!
At the time of your DWI arrest, the police officer should have presented you with a
form entitled Notice of
Suspension/Temporary Driving Permit (DIC Ė 25). By now you should be aware that your driverís license
will go into an automatic suspension 40 days from the date of arrest unless you
or your attorney make a timely request to schedule a hearing to contest
the suspension. The
importance of contesting the suspension can not be overstated. If you
retain me as your DWI lawyer, this is the first formal step I will take to
protect your legal rights and preserve your right to drive.
You Should Challenge the Automatic Suspension of Your Driver's License
There are two primary reasons to request the hearing: (1) force DPS to prove its
case, rather than just giving up and letting them take your license;
and (2) assist in defending against the criminal charges at your DWI trial
DPS is only required to prove its case by a preponderance of the
evidence. This is the same burden of proof applicable in civil cases,
simply the greater weight and degree of the credible evidence. In
contrast, in the criminal case, the State will be required to present
evidence of guilt beyond a reasonable doubt in order to convict.
The law allows DPS to meet its burden by submitting documents. You can, however, compel live testimony by obtaining a subpoena for the
arresting officer, and requesting the presence of the breath test operator
and the supervisor in charge of the breath test program, if applicable.
If these law enforcement witness are properly subpoenaed/requested and
fail to appear at the hearing, DPS will be unable to introduce documents
authored by the missing person. This may prevent DPS from meeting its
burden. This means you will not lose your license.
As soon as you retain me, I will file a discovery request seeking to
obtain copies of documents prepared by the arresting officer setting forth
the officerís observations of you which form the basis for his decision to
initially detain and ultimately arrest you. In addition, if you took a
breath test I will obtain a copy of the breath test slip along with
maintenance records for the specific machine on which you were tested.
Under most circumstances, it will be to your benefit to subpoena the
arresting officer, breath test operator and technical supervisor to
testify at the ALR hearing. At the hearing, I will have the opportunity
to learn what each witness will say at trial. Often police officers do
not come to these hearings prepared to testify, they often guess,
contradict their written reports or other witnesses. I will obtain a
written transcript of all testimony. This is ammunition that will be
available at the criminal trial to impeach the officer in the event he
later tries to change his testimony.
The information obtained at the hearing is critical to an informed
decision as to whether or not the criminal case should be set for trial or
resolved by a plea agreement.
What DPS Must Prove
DPS' burden depends on
whether you failed the breath/ blood test or refused to take one.
The issues that must be
proved by a preponderance of the evidence are whether: (1) the person had an
alcohol concentration of .08 or greater while operating a motor vehicle in
public place; and (2) reasonable suspicion to
stop or probable cause to arrest the person existed.
The issues in a refusal
case are whether: (1) reasonable suspicion or
probable cause existed to stop or arrest the person; (2) probable cause existed
to believe the person was (a) operating a motor
vehicle in a public place while intoxicated; or (b) operating a watercraft
powered with an engine having a manufacturer's rating of 50 horsepower or
above while intoxicated; (3) the person was placed under arrest by the officer
and was requested to submit to the taking of a specimen; and (4) the person refused to submit to the taking of a
specimen on request of the officer.
The length of suspension
depends on several factors 1) whether you refused or failed a breath /
blood test; 2) whether you have any prior law enforcement contacts or
suspensions; and 3) your age. Suspension terms range from 90 days to 2
If your license is
suspended you may be eligible to obtain an
occupational driverís license
which will allow you to drive to and from work, school and in the
performance of necessary household duties.
281-240-3941 to schedule a free consultation with an experienced Fort
Bend Occupational License Lawyer in Sugar Land, Texas.