Did dismissal or acquittal of a Texas DWI charge prevent suspension of the driver's license for refusing a breath or blood test?

Texas AG Opinion JM-703: DWI Acquittal and Test-Refusal Suspension

Plain-English summary

A county attorney asked whether dismissal or acquittal of a driving-while-intoxicated charge was a defense in a separate proceeding to suspend the driver's license for refusing a breath or blood specimen.

The Attorney General concluded that it was not. Article 6701l-5 focused on refusal to provide the requested specimen, not on proving the driver was actually intoxicated. The temporary license suspension was a civil consequence of refusal.

At the suspension hearing, the Department of Public Safety had to establish three matters: probable cause to believe the person had driven while intoxicated, an arrest and opportunity to provide a specimen, and the person's refusal. It did not have to prove beyond a reasonable doubt that the person committed DWI.

The opinion compared the different proof standards. A criminal DWI conviction required proof beyond a reasonable doubt. The civil proceeding used a preponderance standard, while probable cause itself required less evidence than a conviction. An acquittal therefore established only that criminal guilt had not been proved to the higher standard; it did not resolve the refusal case.

Currency note

This opinion was issued in 1987. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

What conduct triggered the suspension proceeding?

Refusal to provide a breath or blood specimen after an officer requested one under the implied-consent law.

Did DPS have to prove the driver was actually intoxicated?

No. The opinion said DPS needed probable cause, a proper arrest and test opportunity, and refusal. Actual intoxication was not an element of the suspension decision.

Why did a DWI acquittal not control?

An acquittal meant the criminal charge was not proved beyond a reasonable doubt. The separate civil proceeding used a lower standard and decided whether the statutory refusal conditions were met.

Did dismissal of the criminal case make a difference?

No. The opinion's answer covered both dismissal and acquittal. Neither was a defense to the refusal-based suspension proceeding.

What consequence did the statute impose at the time?

The quoted statute provided a 90-day suspension or denial of driving privileges after the statutory hearing process when the required findings were made.

Background and statutory framework

Article 6701l-5 treated driving on Texas public highways or beaches as consent to provide breath or blood specimens after an arrest arising from suspected intoxicated driving. Before requesting a specimen, an officer had to warn the person about admissibility of the refusal, license consequences, and the right to a hearing.

If the person refused, the officer reported the refusal to DPS. At a requested hearing, the court considered probable cause, arrest and opportunity to provide a specimen, and refusal. A finding on all three led to the statutory license consequence.

The opinion relied on Russell v. State, which held that acquittal of an offense did not bar using the same conduct in a probation-revocation proceeding governed by a preponderance standard. It cited Brinegar v. United States for the difference between probable cause and evidence sufficient for conviction.

Citations and references

Statutory authorities:

• Article 6701l-5, V.T.C.S. (implied consent and refusal suspension)
• Article 6687b, V.T.C.S. (driver-license hearing procedure)

Cases:

• Russell v. State, 551 S.W.2d 710 (Tex. Crim. App. 1977)
• Brinegar v. United States, 338 U.S. 160 (1949)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/jim-mattox/jm-0703
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1987/jm0703.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain; the linked PDF is authoritative.

THE ATTORNEY GENERAL
OF TEXAS

May 15, 1987

Honorable Edward Woolery-Price
Colorado County Attorney
910 Milam
Columbus, Texas 78934

Opinion No. JM-703

Re: Whether acquittal or dismissal of a charge of driving while intoxicated is a defense to a proceeding under article 6701l-5, V.T.C.S., to suspend a driver's license

Dear Mr. Woolery-Price:

You ask:

Whether an acquittal or dismissal of a charge of driving while intoxicated is a defense to a proceeding under article 6701l-5, V.T.C.S., to suspend a driver's license?

Article 6701l-5, 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 concentration, 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 believe the person to have 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 peace 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 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. If the officer determines that the person is a resident without a 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 be held.

(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.

(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 requested by the officer under 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 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 is 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. . . . (Emphasis supplied).

Article 6701l-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 6701l-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 Russell v. State, 551 S.W.2d 710 (Tex. Crim. App. 1977). On the other hand, in a hearing under article 6701l-5, 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 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 6701l-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 6701l-5 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 6701l-5, V.T.C.S., to suspend a driver's license.

JIM MATTOX
Attorney General of Texas

JACK HIGHTOWER
First Assistant Attorney General

MARY KELLER
Executive Assistant Attorney General

JUDGE ZOLLIE STEAKLEY
Special Assistant Attorney General

RICK GILPIN
Chairman, Opinion Committee

Prepared by Tom G. Davis
Assistant Attorney General