Untitled Texas Attorney General Opinion ( 1987 )

TEE ATTOR,VEP GENERAL
OF TEXAS
May 15. 1907
Honorable Edward Woolery-Price Opinion No. JM-703
Colorado County Attorney
910 Milam Re: Whether acquittal or dismissal
Columbus, Texas 78934 of a charge of driving while intoxi-
cated is a defense to a proceeding
nnder article 67011-5, V.T.C.S.,
to suspend a driver's-license
Dear kir.Woolery-Price:
You ask:
Whether an acquittal or dismissal of a charge
of driving while intoxicated is .a defense to a
proceeding under article 67011-5, V.T.C.S., to
suspend a driver's license?
Article 6701&-S. V.T.C.S.. provides in part:
Section 1. Any person who operates a motor
vehicle upon the public highways or upon a public
beach in this state shall be deemed to have given
consent, subject to the provisions of this Act, to
submit to the taking of one or more specimens of
his breath or blood for the purpose of analysis
to determine the alcohol concentration or the
presence In his body of a controlled substance or
drug if arrested for any offense arising out of
acts alleged to have been committed while a person
was driving or in actual physical control of a
motor vehicle while intoxicated. Any person so
arrested may consent to the giving of any other
type of specimen to determine his alcohol concen-
tration, but he shall not be deemed, solely on the
basis of his operation of a motor vehicle upon the
public highways or upon a public beach in this
state, to have given consent to give any type of
specimen other than a specimen of his breath or
blood. The specimen, or specimens, shall be
taken at the request of a peace officer having
reasonable grounds to belleve the person to have
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Honorable Edward Woolery-Price - Page 2 (JM-703)
been driving or in actual physical control of a
motor vehicle upon the public highways or upon a
public beach in this state while intoxicated.
Sec. 2. (a) Except as provided by Subsection
(i) of Section 3 of this Act, if a person under
arrest refuses, upon the request of a peacr
officer, to give a specimen designated by the
peace officer as provided in Section 1. none shall
be taken.
(b) Before requesting a person to give a
specimen. the officer shall inform ~the person
orally and in'writing that ~if the person refuses
to give the specimen, that refusal may be
admissible in a subsequent prosecution, and that
the person's license, permit. or privilege to
operate a motor vehicle will be automatically
~suspended for 90 days after the date of adjourn-
ment of the hearing provided for in Subsection (f)
of this ~section. whether or not the person is
subsequently prosecuted as a result of the arrest.
If the officer determines that the person is a
resident without's license or permit to operate a
motor vehicle in this state, the officer shall
inform the person that the Texas Department of
Public Safety shall deny to the person the
issuance of a license or permit for a period of
90 days after the date of adjournment of the
hearing provided for in Subsection (f) of this
section, whether or not the person is subsequently
prosecuted as a result of the arrest. The officer
shall inform the person that the person has a
right to a hearing on suspension or denial if,-not
later than the 20th day after the date on which
the notice of suspension or denial is received,
the department receives a written demand that the
hearing beheld.
(c) The officer shall provide the person with
a written statement containing the information
required by Subsection (b) of this section. If
the person refuses the request of the officer to
give a specimen, the officer shall request the
person to sign a statement that the officer
requested that he give a specimen, that he was
informed of the consequences of not giving a
specimen, and that he refused to give a specimen.
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Honorable Edward Woolery-Price - Page 3 (~~-703)
(d) If the person refuses to give a specimen,
whether the refusal was express or the result of
an intentional failure of the person ‘to give a
specimen as designated by the peace officer, the
officer before whom the refusal was made shall
immediately make a written report of the refusal
to the Director of the Texas~Department of Public
Safety.
(e) The director shall approve the form of the
report. The report must show the grounds for
the officer’s belief that the person had been
operating a motor vehicle while intoxicated. The
report must also show that the person refused to
give a specimen, as evidenced by:
(1) a written refusal to give a specimen,
signed by the person; or
(2) a statement signed by the officer stating
that the person refused to give a specimen and
also refused to sign the statement requegted by
the ~officerunder Subsection (c) of this article.
(f) When the director receives the report, the
director shall suspend the person’s license,
permit, or nonresident operating privilege, or
shall issue an order. prohibiting the person from
obtaining a license or permit, for 90 days
effective 28 days after the date the person,
receives notice by certified mail or 31 days after
the date the director sends notice by certified
mail, if the person has not accepted delivery of
the notice. If, not later than the 20th day after
the date on which the person receives notice by
certified mail or the 23rd day after the date the
director sent notice by certified mail, if the
person has not accepted delivery of the notice,
the department receives a written demand that a
hearing be held, the department shall, not later
than the 10th day after the day of receipt of the
demand, request a court to set the hearing for the
earliest possible date. The hearing shall be set
in the same manner as a hearing under Section
22(a), Chapter 173. Acts of the 47th Legislature,
Regular Session, 1941, as amended (Article 6687b,
Vernon’s Texas Civil Statutes). If, upon such
hearing the court finds (1) that probable cause
,- existed that such person was driving or in actual
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Bonorable Edward Woolery-Price - Page 4 (JM-703)
physical control of a motor vehicle on the highway
or upon a public beach while intoxicated, (2) that
the person was placed under arrest by the officer
and was offered-an opportunity to give a specimen
under the provisions of this Act,~ and (3) that
such person refused to give a specimen upon
request of the officer, then the Director of the
Texas Department of Public Safety shall suspend
the person's license or permit to drive, or any
nonresident operating privilege for a period of 90
days, as ordered by the court. If the person .I5 a
resident without a license or permit to operate a
motor vehicle in this State, the Texas Department
of Public Safety shall deny to the person the
issuance of a license or permit for 90 days. . . .
(Emphasissupplied).
Article 67011-5 focuses on the act of refusing to take a test
rather than on the act of driving while intoxicated. The "penalty"
for refusing to take a breath test is a civil penalty, the temporary
revocation of the privilege to drive a motor .vehicle. In order to
impose this penalty under article 67011-5. the Department of Public
Safety must prove three things: (1) that probable cause existed that
such person was driving while intoxicated. (2) that the person was
- given an opportunity to give a blood or breath specimen, and (3) that
the person refused to give a blood or breath specimen. The department
does not have to show that the person actually was driving while
intoxicated.
The degree of proof required in a criminal prosecution necessary
to convict an accused of the offense of driving while intoxicated is
beyond a reasonable doubt. See Russellv. State, 551 S.W.2d 710 (Tex.
Grim, App. 1977). On the orher hand, in a hearing under article
67011. the department must show by a preponderance of the evidence
that the accused was driving while intoxicated.
Probable cause is reasonable ground for belief of guilt which
means less than evidence which would justify a conviction. Brinegar
v. United States, 338 U.S. 160 (1949).
In Russell v. State. the court in holding that a defendant's
acquittal of the offense of theft did not act as a bar to using the
same offense as a basis for revoking probation, stated:
The principal difference in a criminal prosecution
and a revocation hearing is the degree of proof
required. Acquittal in a criminal proceeding
merely determines that guilt was not proved beyond
a reasonable doubt while in a revocation
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Honorable Edward Woolery-Price - Page 5 (JM-703)
proceeding proof need not be beyond a reasonable
doubt but only by a preponderance of the evidence.
A lesser degree of proof is required in the hearing provided for
in article 67011-5 than is required for a criminal conviction for
the offense of driving while intoxicated. Thus, in our opinion, an
acquittal or dismissal of a charge of driving while intoxicated is not
a defense to a proceeding under article 67011-S to suspend a driver's
license.
SUMMARY
An acquittal or dismissal of a charge of
driving while intoxicated is not a defense to a
proceeding under article 67011-5, V.T.C.S., to
suspend a driver's license.
JIti MATTOX
Attorney General of Texas
.-
JACK RIGHTOWRR
First Assistant Attorney General
MARY KELLER
Executive Assistant Attorney General
JUDGE ZOLLIE STF.ARLEY
Special Assistant Attorney General
RICK GILPIN
Chairman, Opinion Committee
Prepared by Tom G. Davis
Assistant Attorney General
p. 3255