Implied Consent is the concept that by driving on Texas roads you have agreed not to be suspected of DWI. Sounds messed up right? After you get arrested for a San Antonio, TX DWI the first thing most people notice is that their driver’s license is missing. Don’t spend hours calling the officer asking them to give it back to you. Your license has been confiscated.
Really, this section should be called, “Why is it Important to get an Attorney Immediately After my DWI Arrest?” It could also be called, “HEY I THOUGHT I WAS PRESUMED INNOCENT WHAT IS GOING ON?” The reason, implied consent. When you get a DWI you immediately get two problems, your criminal case and your driver’s license suspension. As soon as you get arrested for DWI, the State of Texas is working to get you under supervision. How are they doing that? By attacking your right to drive. They want to take away your right to drive so that they can force you to get an Occupational License. Once they have you on an Occupational License the dynamic of the DWI case changes. Because the State of Texas requires, as a condition of your Occupational License, that you install an interlock device into your vehicle. The Occupational License is a way for them to get you put on probation before your criminal case is finished. It also puts more pressure on the person charged with DWI to get put on probation for a DWI. So, what is this Implied Consent? It is the big SNEAK PLAY in your DWI. Let’s take a look at how the State uses Implied Consent to take away your right to be presumed innocent.
In Texas, and just about every other State in the United States, you make deals when you get a driver’s license and use the public roadways. You are not aware you’ve made these deals but the government believes you make it when you accept your driver’s license and when you use public roadways. An example of one of those deals is summarized in the term implied consent. Implied consent goes like this—when you get a driver’s license, you’ve made an agreement with the State of Texas. You say, “Look, I am not going to drive while intoxicated. In Texas, I understand that intoxication is defined as losing the normal use of your physical or mental faculties because of the introduction of alcohol or other intoxicating substance into my body. If I am going to use the roads of the State of Texas, if I am going to be licensed to drive, if Texas is going to give me permission to drive, then I will not drive while I’m intoxicated. If I put myself in a situation where the police officer believes that I’m intoxicated, then I’m going to have my license confiscated. I will lose my license for different time periods depending on whether or not I’ve refused the breath test, whether or not I’ve agreed to a blood test, all of those things.” That is a basic summary of the logic behind the implied consent laws. If a police officer pulls you over and has reason to believe that you’re intoxicated, he will take away your driver’s license, and use your implied consent as his authority to make the seizure.
Most people, after they’re arrested for a DWI, look for their driver’s license in the property they get back from the jail. They find out that the police officer has confiscated that driver’s license. Instead of your driver’s license, he will be giving you a temporary driving permit. It’s just a piece of paper that’s supposed to have a copy of your driver’s license on it, but usually it doesn’t. It’s considered your driver’s license. Now, you have 15 days to appeal the police officer’s reason to believe that you were driving while intoxicated. If you can do that within 15 days, make the request at DPS, then you will get what’s called an ALR (Administrative Legal Review) hearing, which is a legal review of that police officer’s decision to remove your driver’s license from you. Requesting this hearing is the single most important thing you can do to protect your right to be presumed innocent.
At that hearing, the State of Texas will try to suspend your driver’s license, and it will do so by introducing the certified police reports that the police officer generated. Police reports are written by DWI officers to give the Administrative Law Judge (different than the judge in your criminal case) enough evidence to justify suspending your license. We counter that is by getting you into the office as quickly as possible. We’ll request your ALR hearing Automatically, you win because just the request extends the time so that your license will not be suspended until we have AND LOSE the hearing. Once you request the ALR hearing, the ALR hearing will usually be put out beyond that 40 days. Once we make the request for an ALR hearing, your license is not suspended until we lose that ALR hearing. The way that we counter the police reports is we issue a subpoena to the police officer and we hire a process server.
The process server finds the police officer, hands him that subpoena, and that requires the police officer to be there. During that ALR hearing, if the police officer does not show up, then you get to keep your license to drive. If we lose the hearing, if the police officer shows that there was probable cause to believe that you were intoxicated, then you will lose your license. Your license will be suspended for 90 days if you consented to the breath or blood test, and for 180 days if you did not consent. Once your license is suspended, what we can do is we can get an occupational license for you. Essentially, it’s filing a lawsuit. We’ll file a lawsuit on your behalf in Bexar County, and we’ll ask that you’d be allowed to drive for work and for household purposes.
The downside to getting the occupational license, and the reason why we don’t want to just agree to the license suspension is that in Texas, you are required to get an interlock device installed in your car if your license is suspended because of a DWI allegation. An interlock device is a device that tests your breath, and you are required to get that in your car to breathe into that thing so that you can drive as a condition of your occupational license. They can also restrict the places that you go. You might not be able to drive out of state, for instance. You may not be able to go out of the county that issues the license. When we are requesting your occupational license, we try to make that license as broad as possible. The whole goal of this phase of the representation is to keep your rights as intact as possible, so that you can still drive to work, you can still drive for work and you can still drive for your household. We can limit the consequences of those as much as possible.
Should I request my own ALR Hearing?
A lot of people think they can request their own ALR hearing. DON’T DO IT. You are going into the dark and haunted woods, and you are going in by yourself. While the State of Texas allows you to fight your license suspension most employees do not, in their hearts, believe you should get this hearing. A lot of times people call to request their hearing and mysteriously that request isn’t processed. The poor person waits for the hearing date to come in the mail, and it never comes. They call and call saying they have proof on their phone that they requested the hearing, but no one ever listens. You should avoid this hassle and allow an attorney to request the hearing for you. We know how to make the request, the information to provide, and how to prove we actually made the request once it is filed. Protect your license and come in and let us get you an ALR hearing.
Can I Consult An Attorney Prior To Making A Decision On The Evidentiary Chemical Blood Test?
You cannot get an attorney prior to making a decision to take a breath or blood alcohol test. But you should still ask for the lawyer. Asking for the lawyer will give us arguments to make as we go forward. Juries understand that it is necessary or desirable to talk to a lawyer before you make such a monumental decision. Also, asking for a lawyer has the added benefit of establishing that you are not intoxicated that you have the full use of your mental faculties.
During the DWI investigation, one of the most important parts of the investigation is that the DWI police officer will ask you standard questions. These questions are always the same. They are printed on a form off of which the office reads. All of those standard questions are usually unfair. For instance, they’ll ask you on the scale of 1 to 10, how intoxicated do you think you are? Sometimes, people will say 5, meaning that they think they are saying that they are normal but they’ve been tricked. In Texas, the definition of intoxication is loss of the normal use of your mental or physical faculties by reason of impairment by the consumption of alcohol or drugs. So, when they ask you these questions, “Were you driving, how much have you had to drink, how intoxicated are you on the scale of 1 to 10, do you feel like you’re intoxicated,” when they ask you these questions, the best thing to do is you request a lawyer before you answer even the first question.
That doesn’t necessarily mean that they are going to get you a lawyer. In fact, they are not going to get you a lawyer. THEY WILL NEVER GIVE YOU A LAWYER. But if they continue to question you after you’ve requested your lawyer, then your answers will be inadmissible. It doesn’t mean you answer any more questions just to get it thrown out. But you should ask for your lawyer, in no uncertain terms and be very direct about it, “I want to talk to my lawyer.”
What Does An Ideal DWI Look Like From A Criminal Defense Perspective?
If I had an ideal case, what it would look like would be the following. Police officer notices driving, pulls over the vehicle, goes to the window and says, “Sir, have you been drinking?” “No, I’d like to speak to my lawyer. Am I in custody, am I under investigation, what’s going on?” “Sir, please, step out of the vehicle”. The person would step out of the vehicle but refuse to do any field sobriety tests.
He asks for his attorney. The more directly the better. They will not give you an attorney right then, but your attorney will be able to use that direct request for legal counsel to your benefit later.
For more information on Implied Consent Laws In Texas, a free initial consultation is your best next step. Get the information and legal answers you’re seeking by calling (210) 229-8300 today.