For the poor, unfortunate soul arrested for DWI in Texas, many people are surprised to learn that an arrest for DWI triggers not just one, but two cases. The first is the criminal case, in which the State must prove beyond a reasonable doubt that you loss the normal use of your mental or physical faculties. The second is a civil case regarding suspension of your license for refusing or failing a breath test.
Under the Transportation Code, you are entitled to a hearing on the license suspension if you request one within 15 days after receiving notice of the suspension (for most people, notice is given to you by the officer at the time of arrest). The issues at the hearing are pretty straight-forward and the Department must prove by preponderance of the evidence (more likely than not) that:
(1) reasonable suspicion or probable cause existed to stop or arrest the person;
(2) probable cause existed to believe that 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.
As a matter of practice, these are pretty much a slam-dunk for the Department. If the officer shows up and says he thought the person was intoxicated, then you lose. Every once in a while, though, something amazing happens.
I had a case this week that involved what’s called a “total refusal” – the client refused field sobriety tests and the breath tests. The officer testified at the hearing that her speech was slurred and she was using the car door for balance when she was asked to step out of the vehicle. I offered the video for the judge, in which my client spends 20-30 minutes clearly and articulating telling the officer she does not want to perform his tests. No slurred speech. No balance problems.
Here’s the amazing part: I actually won on the merits and avoided the license suspension. Hats off the the ALR judge for not merely rubber-stamping the arrest and making his own call. Many wouldn’t have had the guts to do the right thing.