One of the first questions we hear after a DWI arrest is:
Am I going to lose my driver’s license?
Maybe. But an arrest for DWI does not automatically mean that you immediately lose your ability to drive.
Texas has a separate administrative process that can suspend your driver’s license after a DWI arrest. It is called Administrative License Revocation, usually shortened to ALR.
The ALR case is separate from the criminal DWI case. You can have an ALR case even though you have not been convicted of DWI, and what happens with your driver’s license does not necessarily determine what happens with the criminal charge.
Most importantly, there is a deadline – 15 days in most cases – to request an ALR hearing. Missing that deadline can result in a suspension without ever having a hearing.
The ALR Process After a DWI Arrest
An ALR suspension generally arises in one of two ways:
- Refusal to give a requested breath or blood specimen; or
- Failure of a blood or breath test (over .08 BAC).
The rules and potential suspension periods are different depending on which occurred.
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What Is an ALR Refusal?
After a DWI arrest, an officer may request that you provide a specimen of breath or blood.
If you refuse the requested specimen, Texas’s implied-consent law allows DPS to seek an administrative suspension of your driver’s license.
For a driver who is at least 21 years old, a first ALR refusal generally results in a 180-day suspension. If the driver’s record contains a qualifying alcohol- or drug-related enforcement contact during the preceding 10 years, the refusal suspension can increase to two years.
A refusal does not necessarily mean that police will not obtain a blood sample. An officer may seek a search warrant authorizing a blood draw.
That creates a situation that sometimes confuses clients:
You can have a blood test and still have an ALR refusal.
For example, a driver may refuse the officer’s request, after which the officer obtains a warrant and has blood drawn anyway. The later blood draw does not erase the earlier refusal.
What Is an ALR Failure?
A failure generally occurs when a driver provides a breath or blood specimen showing an alcohol concentration of 0.08 or greater while operating a noncommercial motor vehicle.
For an adult driver, a first ALR failure generally results in a 90-day suspension. A qualifying prior alcohol- or drug-related enforcement contact can increase the suspension to one year.
A failure case can also develop differently depending on whether the test was breath or blood.With a breath test, the officer may know the result immediately. Blood testing usually takes longer. The sample must be analyzed, and the result may not be available until well after the driver has left jail.
As a result, a person who voluntarily provided blood may leave jail without receiving an immediate ALR suspension notice. If DPS later receives a qualifying blood-test result, DPS can send the suspension notice afterward.
What Is the DIC-25?
In many DWI arrests involving a refusal or known test failure, the officer provides the driver with a DIC-25 Notice of Suspension and Temporary Driving Permit.
Do not throw this paperwork away.
The DIC-25 provides notice of the proposed suspension and information about requesting an ALR hearing.
Clients sometimes assume that because the officer took their physical driver’s license, they are immediately prohibited from driving.
That is not necessarily true.
The paperwork provided after the arrest can serve as evidence of temporary driving authority during the period before the proposed suspension takes effect. More importantly, a timely request for an ALR hearing can prevent the proposed suspension from taking effect while the administrative case is pending.
How Long Do I Have to Request an ALR Hearing?
The deadline depends on how notice of the proposed suspension is provided.
In the typical refusal case where notice is served following the arrest, the hearing request must be received by DPS within 15 days after the person receives notice.
This deadline is one reason it is important to contact a DWI lawyer quickly after an arrest rather than waiting for the first criminal court setting.
Blood-failure cases can work differently.
If you consented to a blood draw and DPS later receives a laboratory result showing an alcohol concentration over the applicable limit, DPS may mail you a Notice of Suspension. The applicable deadline runs from that later notice.
The important practical rule is:
Do not assume that the deadline begins with your first criminal court date.
The ALR process has its own deadlines.
What Happens if I Request an ALR Hearing?
First off, if you hire ATX Legal for your DWI within the 15 day window, we will request your ALR hearing for you. If you do not yet have a lawyer, or if you are going with a court appointed attorney, you will need to request the ALR yourself. A timely request for an ALR hearing contests the proposed suspension.
Under current Texas law, requesting the hearing stays the driver’s-license suspension until the administrative law judge issues a final decision.
In practical terms, that means your license generally remains valid while you are waiting for the ALR hearing and decision, assuming there is not some other suspension or restriction affecting your license. If you do not request the ALR hearing, your license will automatically be suspended after 40 days.
The hearing is conducted through the State Office of Administrative Hearings, or SOAH, before an Administrative Law Judge. It’s a more relaxed standard than the criminal case, and in most cases, the judge does approve the suspension. Even if the suspension does take effect, there are still good reasons to request your ALR hearing. (see below.)
Why request an ALR hearing?
The most obvious reason is that it gives you an opportunity to challenge the driver’s-license suspension. Sometimes the officer fails to show up for the hearing and the suspension is not granted.
But the hearing can have another benefit.
The ALR case arises from the same arrest as the criminal DWI case. The hearing can therefore provide an early opportunity for the defense attorney to examine evidence surrounding the stop, arrest, and testing process.
Depending on the circumstances, the attorney may be able to obtain relevant records and examine the legal and factual basis for the suspension before the criminal DWI case is resolved.
That does not mean an ALR hearing is a substitute for litigating the criminal case. It isn’t.
But the two proceedings arise from many of the same events, so information developed during the ALR process can sometimes be useful in evaluating the DWI defense.
What Happens at an ALR Hearing?
ALR hearings are now all handled by Zoom. DPS has an attorney that presents the information. That evidence can include the officer’s reports, sworn paperwork, breath- or blood-test information, and other records associated with the arrest. The driver’s attorney can challenge whether DPS has met its burden.
The defense can subpoena up to two officers who were present at the arrest. These officers can be questioned about the arrest.
The issue is whether DPS has established the statutory requirements necessary to suspend your driver’s license. They don’t have to prove the case beyond a reasonable doubt. Probable cause is the standard, and that’s easier for them to show. The other major issue is whether the police followed the proper procedure to give notice to the driver that refusal could lead to penalties.
The hearing is conducted before an Administrative Law Judge rather than a criminal-court judge or jury.
What Does DPS Have to Prove?
The precise issues depend on whether the case involves a test failure or a refusal.
Failed Breath or Blood Test
In an adult failure case, DPS generally must establish by a preponderance of the evidence:
- that the driver had an alcohol concentration of at least 0.08 while operating a motor vehicle in a public place; and
- that reasonable suspicion to stop the driver or probable cause to arrest the driver existed.
This is an administrative burden of proof, not the criminal beyond-a-reasonable-doubt standard.
Refusal
A refusal case involves somewhat different issues.
Among other things, the ALR proceeding can involve whether there was reasonable suspicion or probable cause supporting the officer’s actions, whether probable cause existed to believe the person was operating a motor vehicle in a public place while intoxicated, whether the officer properly requested a specimen, and whether the person refused that request.
The exact issues matter because DPS must establish the statutory elements of the suspension. The mere fact that someone was arrested for DWI does not automatically prove the ALR case.
Can You Win an ALR Hearing?
Yes, but to be honest it’s rare.
If the Administrative Law Judge finds that DPS has not proven the required statutory elements, the proposed suspension is not sustained.
That can occur for different reasons depending on the case.
For example, an issue may exist concerning the legality of the traffic stop, probable cause for the arrest, the specimen request or refusal, or the evidence establishing the alcohol concentration.An ALR hearing is therefore a real legal proceeding rather than simply paperwork confirming an automatic suspension.
Winning the ALR hearing does not automatically dismiss the DWI charge. The criminal prosecutor is not required to dismiss a DWI merely because DPS loses the administrative case. The proceedings are separate.
What Happens if I Lose the ALR Hearing?
If the Administrative Law Judge finds that DPS proved the required elements, the suspension is sustained.
For a driver who is 21 or older, the common suspension periods are:
ALR Result | Typical Suspension |
First test failure | 90 days |
Test failure with qualifying prior enforcement contact | 1 year |
First refusal | 180 days |
Refusal with qualifying prior enforcement contact | 2 years |
The prior-contact rules are technical, so a previous DWI arrest can matter even when a client assumes that an old case is irrelevant. There are also different rules for drivers under 21 and important additional consequences for commercial driver’s license holders.
Occupational Driver’s Licenses After a DWI Arrest
An occupational driver’s license is a restricted driver’s license that may allow someone to drive during a period when the person’s regular license is suspended. The total cost of an ODL is approximately $500-600, including the SR-22. At ATX Legal, if an Occupational License is needed as part of the DWI, there are no additional attorney fees.
An occupational license does not erase the suspension. Instead, it provides legal authority to drive under the terms established by the court.
Who Needs an Occupational License?
A person may need an occupational license if an ALR suspension actually takes effect and the person still needs to drive.
Common examples include driving:
- to and from work;
- as part of a person’s job;
- to school; or
- to perform essential household duties.
If an ALR hearing has been timely requested and the suspension is stayed while the hearing is pending, an occupational license may not yet be necessary.
How Do I Get an Occupational Driver’s License?
Obtaining an occupational license generally requires a court proceeding.
A petition may be filed – usually in the same court that is handling the DWI. The petitioner asks the court to determine that he or she is eligible and has an essential need to drive If the court grants the petition, the judge signs an order authorizing issuance of the occupational license and specifying the applicable restrictions.
After obtaining the order, the driver must provide the required documents and fees to DPS so that DPS can issue the occupational license.
DPS currently requires items including:
- a certified copy of the petition;
- a certified copy of the court order;
- an SR-22 Financial Responsibility Insurance Certificate;
- the occupational-license fee; and
- applicable reinstatement fees.
The signed court order can generally serve as temporary driving authority for 45 days while DPS processes the occupational license, subject to the applicable statutory requirements.
Are There Restrictions on an Occupational License?
An Occupational license functions basically the same as a regular license, BUT, there may be certain times when driving is restricted, and you may be restricted to certain counties in Texas. Out of state driving is typically no permitted.
The court can also impose other conditions and may require a travel log.
BUT If the person is restricted to driving a vehicle equipped with an ignition interlock device, Texas law provides that the person is not subject to the ordinary restrictions on time, purpose, and location of travel.
What Is an SR-22?
An SR-22 is a certificate from an insurance company showing proof of financial responsibility. It is not the same thing as your ordinary insurance card. DPS requires an SR-22 as part of the occupational-license process. Not every insurance company provides them, and obtaining one can affect the cost of insurance.
Often it is best to obtain the SR-22 from a company that handles them, rather than going through your regular car insurance. The cost can be lower and there is a chance it could affect your insurance rates.
Do I Need an Occupational License Immediately After My DWI Arrest?
Often, no.
There are several steps between a DWI arrest and an actual ALR suspension.
If you timely request an ALR hearing, current Texas law stays the suspension until the Administrative Law Judge issues a final decision.
So the sequence may look like this:
DWI arrest → notice of proposed suspension → request ALR hearing → license remains valid while ALR is pending → ALR hearing → suspension sustained or denied
If the suspension is denied, you may never need an occupational license for the ALR proceeding. If the suspension is sustained, an occupational license may then become necessary.
The Driver’s License Case Is Separate From the DWI Case
After a DWI arrest, you can effectively have two cases moving at the same time: The criminal DWI case determines whether the State can prove that you committed the offense. The ALR case determines whether DPS can administratively suspend your driver’s license because of a test refusal or qualifying test result.
The immediate concern after an arrest is making sure that the ALR deadline is not missed. Once the hearing has been properly requested, your attorney can evaluate the evidence supporting the proposed suspension and determine what needs to happen next.
Next: Understanding Your DWI Charge
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