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Texas DUI Vehicle Code
Laws. The Texas alcohol zero tolerance for driving law went into
effect on September 1, 1997. The offense is called Driving Under the Influence
(DUI). There are two basic tracks. The first track of DUI is administrative in
nature and is the offense of driving with any (>.00) alcohol in the
system for persons who are under 21. Licensing sanctions are applied
administratively by the Department of Public Safety (DPS) and the procedures
have been rolled into the existing administrative license revocation (ALR)
procedure. There also is a criminal track for the DUI offense which is tried in
the justice or municipal courts. It is a Class C misdemeanor and carries other
sanctions such as fines and community service. There is no additional license
suspension upon conviction of DUI. There are also several underage alcohol
possession, consumption and purchase criminal offenses which now also carry
licensing sanctions which are triggered by notification of DPS of the conviction
by the courts and in general are referred to as zero tolerance violations. The
offense of driving with a BAC of .08 or above is called Driving While
Intoxicated (DWI) and may apply to persons of any age.
Enforcement. Enforcement of the DUI law requires that the law enforcement officer have a reasonable suspicion to conduct a traffic stop. Once the officer determines that the driver's age is under 21, and has reason to believe that he or she has consumed alcohol, one of two enforcement methods may be followed. In less serious cases, the officer may issue a citation for DUI and serve a Notice of Suspension on the driver. The driver is not placed under arrest and no chemical test is required. The officer's testimony of smelling alcohol on the breath is sufficient evidence of consumption in this case.
In more serious cases, the officer proceeds with a custodial arrest procedure if he or she believes the driver is seriously impaired. Field sobriety tests are administered. If he or she fails, the driver is placed under arrest (or taken into custody) and transported to a chemical testing facility. If the driver has a positive BAC or refuses to submit to a chemical test, a Notice of Suspension is served. If the BAC is at or above the .08 level, the driver may be arrested for the more serious offense of DWI. If the driver is under 17, the reading of the implied consent statute and breath testing must be videotaped. Those under 17 who are arrested for DWI are processed as a juvenile, which usually entails releasing to a parent or guardian. If 17 or over, DWI arrestees are processed as adults. Those tested positive who are below .08 are issued the citation and Notice of Suspension. If under 17, they are released to a parent or guardian if under 17. If they are 17 or over they may be released to any responsible party.
Adjudication. Zero tolerance DUI violations in Texas are adjudicated under two different tracks. The criminal offense is adjudicated through the adult justice or municipal court system unless the offender is under 17, in which case the case is handled through the juvenile justice system. Licensing actions are instituted through the regular administrative license suspension procedures of the Department of Public Safety and are triggered through the results of breath or blood alcohol testing or refusal to submit thereto. The driver has 15 days from receipt of the Notice of Suspension to request a hearing. If no hearing is requested, the license suspension goes into effect on the 40th day after notice was served.
If a hearing is requested, it is held before an Administrative Law Judge in
or near the county of arrest. Some hearings are held by teleconference. The
elements of the hearing are (1) whether the person was a minor and had any
detectable amount of alcohol while operating a motor vehicle in a public place;
and (2) whether there was reasonable suspicion to stop or probable cause to
arrest or take the minor into custody. Refusals also include the issue of
whether the chemical test was requested and refused. An attempt is made to
conduct hearings within 40 days of the notice of suspension but continuances are
sometimes granted. The cases may be heard on the basis of documentary evidence,
but the defendant may subpoena witnesses.
Sanctioning. DPS personnel responsible for processing the administrative suspensions have rolled the zero per se into their existing process for administrative per se for adults and seem to have the process going smoothly. The license sanction for first offenders is a 60 day license suspension. Offenders may apply for an occupational license after 30 days. For a second offense (based on a prior conviction for DUI, DWI, intoxicated assault, or intoxicated manslaughter), the suspension period is 120 days with a provision for an occupational license after serving 90 days of suspension. Subsequent violations call for a 180 day suspension with no provision for an occupational license.
Test refusal results in a 120 day suspension on the first offense. If the offender can demonstrate an essential need, a occupational license may be awarded at any time. The second offense refusal penalty is a 240 day suspension with no occupational license if the prior offense was an ALR violation. If the prior suspension was for a DWI conviction, intoxicated assault, or intoxicated manslaughter, the suspension is for one year. If the offender is acquitted of the criminal offense, the suspension must either be not imposed or rescinded if already in effect. In practice, administrative suspensions generally have already been served by the time criminal cases have been resolved.
First offenders convicted of the
criminal offense receive no jail time,
subsequent offenses may result in incarceration up to 180 days, however there is
no mandatory minimum jail time. First offenders may be fined up to $500 and
subsequent offenders may receive a fine of from $500 to $2,000. Community
service sanctions range from 20 to 40 hours for first offenders and 40 to 60
hours for subsequent offenses.
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