DWI / DUI License Suspensions, Surcharges, and Occupational Licenses

License Suspension for Failure or Refusal of Alcohol Test

After lawfully placing someone under arrest for DWI, a Texas law enforcement officer is authorized to request a breath test or blood test to determine the alcohol concentration in the arrestee's body. This is known as the “implied consent” law, under which the arrested motorist is deemed to have consented to the taking of a breath or blood specimen to determine the presence of alcohol or drugs in the body. Texas Transportation Code §§ 724.011 and 724.012. A failure of the test can result in the suspension of driving privileges from 60 days to 180 days for an underage (under 21) offender, 90 days for a first-time adult offender, or a year for a repeat adult offender. Texas Transportation Code § 524.022. A refusal of the test can result in a suspension of six months for a first offender or two years for a repeat offender. Texas Transportation Code § 724.035.

The suspension can be contested in an administrative license revocation hearing, held before an administrative judge in the State Office of Administrative Hearings. The hearing must be requested within 15 days of the arrest. Texas Transportation Code §§ 524.031-524.033, 724.041. At the hearing, the Department of Public Safety must prove by a preponderance of the evidence that the officer had reasonable suspicion to detain the person, as well as probable cause to arrest the person for DWI. The Department also must prove that the person, after being properly warned by the officer, either refused the test or took the test and the test showed that the person had an alcohol concentration of 0.08 or more while driving a motor vehicle. A negative finding on any of these issues prevents DPS from suspending the person's driving privileges. Texas Transportation Code §§ 524.035, 724.042-724.043.

License Suspension for DWI / DUI Conviction

With one main exception, a conviction for DWI results in the suspension of the defendant’s driver’s license. For a first-time adult offender, the suspension period must be set somewhere between 90 days and a year. If the adult defendant has one or more prior DWI convictions, the suspension period must be set somewhere between six months and two years. If the latest prior DWI offense occurred within five years of the current offense the suspension period must be set between one year and two years. Texas Transportation Code §§ 521.341, 521.344. The first-time adult offender who suffers a conviction suspension will receive credit for any suspension already incurred as a result of an alcohol test failure or refusal. Texas Transportation Code §§ 521.344(c), 524.023(b). The exception to the automatic conviction suspension rule applies to the adult first-time offender who receives probation – so long as the defendant completes a DWI education course in the first 180 days of the probation period, no conviction suspension is imposed. Texas Code of Criminal Procedure Art. 42.12 § 13(h), Texas Transportation Code § 521.344(d). This exception does not apply to minors or repeat offenders, even if they receive probation.

If convicted of a DWI, a minor (under 21 years of age) almost always will suffer a license suspension; the question is whether the suspension will be for 90 days under a provision in the Texas Code of Criminal Procedure or a year under a provision in the Texas Transportation Code. The provisions arguably conflict, but the courts have tried to reconcile them as follows. If convicted and sentenced prior to turning 21, the defendant who receives probation is facing a 90-day suspension with an ignition interlock required as a condition of probation. Texas Code of Criminal Procedure Art. 42.12 § 13(n). The defendant who turns 21 before being placed on probation does not face a license suspension if an ignition interlock is required as a condition of probation. Texas Transportation Code § 521.342(b). If the defendant is under 21 at the time of the offense and is sentenced to jail time rather than probation, the suspension is one year whether or not the defendant turns 21 prior to sentencing. Texas Transportation Code § 521.342(a).

DWI / DUI Surcharge and License Suspension for Failure to Pay Surcharge

The Department of Public Safety (DPS) assesses a surcharge on the license of a person who is convicted of DWI. For a first-time defendant, the surcharge is $1000.00 per year for three years, for a total of $3000.00. If the convicted defendant has a previous DWI conviction within the past three years, the surcharge is $1500.00 per year for three years, for a total of $4500.00. If it is proven that the defendant submitted a breath, blood, or urine specimen with an alcohol concentration of 0.16 or more, the surcharge is $2000.00 per year for three years, for a total of $6000.00. Texas Transportation Code § 708.102.

DPS maintains that it can suspend the driver’s license of anyone who fails to pay this surcharge. Chapter 708 of the Transportation Code does not provide for a license suspension in the event of nonpayment. It remains to be seen whether such a suspension is valid.

Occupational License

An individual whose driver's license has been suspended generally is eligible for an occupational, or restricted, license. This requires the filing of a legal action in county or district court and the issuance of a court order authorizing the Department of Public Safety to issue the license. Texas Transportation Code § 521.242. An occupational license may allow the individual to drive not just to maintain employment, but also to attend an educational institution and to perform essential household duties. Texas Transportation Code § 521.241(1). The court order must specify the purposes for which driving is allowed, as well as permissible driving times and areas of travel. Texas Transportation Code § 521.248.


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