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Unusual DUI case in Texas

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TLimmer

Junior Member
I was pulled over 6 days before my 21st birthday and was under the influence of roughly 3 beers. I was asked to take a field sobriety test which I believe I passed. I am 6'4 210lbs so 3 beers did not exactly get me wasted. I was not asked to take a breath test. I know that Texas has a zero tolerance with underage drinking however I was not arrested, not issued a citation, did not sign a citation, did not have my car impounded, did not have my license taken up and was not given a temporary driving permit. So two months later I receive a letter in the mail saying my license has been suspended for 2 months. Also saying that I had been arrested for driving under the influence. I was not mailed a letter giving me 15 days to request a hearing.

So my question is does anyone think I can fight this? Even though the 15 days has passed to request a hearing. Had I known I was issued a ticket I would have requested a hearing... Does anyone have ANY type of information???
 


CdwJava

Senior Member
I was pulled over 6 days before my 21st birthday and was under the influence of roughly 3 beers. I was asked to take a field sobriety test which I believe I passed.
As a note, many people (even the very drunk) say that they thought they "passed."

I am 6'4 210lbs so 3 beers did not exactly get me wasted.
Wasted, probably not. Tipsy and impaired, maybe. A lot depends on the time frame as well.

But, as you were UNDER 21 the zero tolerance laws would have been in effect I imagine.

I was not asked to take a breath test. I know that Texas has a zero tolerance with underage drinking however I was not arrested, not issued a citation, did not sign a citation, did not have my car impounded, did not have my license taken up and was not given a temporary driving permit. So two months later I receive a letter in the mail saying my license has been suspended for 2 months. Also saying that I had been arrested for driving under the influence. I was not mailed a letter giving me 15 days to request a hearing.
I was going to say you got lucky, but apparently a report got to the DMV indicating you were cited or arrested. You might want to check with an attorney or contact the DMV to ask what evidence they have of a conviction. I am not sure how it works in my state, but here the court has to send a record of the conviction to the DMV before that will take effect. Now, TX may have some process by which the officer sens something to the DMV saying you got caught drinking and driving underage, but I would think that you would have been notified of that. hence my suggestion you speak with an attorney.

One poster on here is a knowledgeable attorney from texas, so maybe he'll wander by and offer some enlightening words.
 

TLimmer

Junior Member
Well I say I think I passed because I got up to 30 while balancing on one foot, standing like a statue... and the 3 beers were about a 2 hours before. But hopefully the person you said does read this and I really do appreciate your input. I was told that it is a misdemeanor and can be expunged by taking alcohol awareness and after a year it can be petitioned.
 

CavemanLawyer

Senior Member
You license has been suspended under Transportation Code Sec. 524.012 for a period specified in Sec. 524.022(b)(1). Its obvious to me that this is the case because I'm pretty sure there is no other two month suspension related to minors or DUIs. This section deals with license suspensions related to either refusal of the chemical test or failing of the chemical test. (Failing for DUI means that there is ANY detectable measure of alcohol.)

It sounds like the officer went ahead and filed his complaint (citation) with the court without issuing you a copy of the citation and without taking you into custody. This isn't exactly proper police work but there is nothing unlawful about it. If an officer has probable cause for the offense they can always just file a complaint and have the court issue a summons or just file for a warrant. This means that there is likely an open DUI case against you and you will either get notice of a court date in the mail, or you may have a warrant out.

The officer was required under Transportation Code 524.011 to confiscate your driver's license and issue you a temporary driving permit if he was going to file the case. The fact that he did not do this likely means that, for whatever reason, he was initially going to just let you off and changed his mind after the fact. Again, its sloppy but still permissible. Even though the officer failed to comply with 524.011, DPS can still suspend your license they just cannot consider the results of any chemical test against you as evidence, but there wasn't a test done anyway in your case. Take a look at Sec. 524.012 to see what I mean.

Here's where it gets a little bit tricky since you say you were never offered a chemical test. My strong suspicion is that the officer just marked down that you refused the test. This would certainly be all that DPS would need to issue this suspension. If the officer never offered you a test, and stated such in his report, then there are no grounds for DPS to suspend the license, but that doesn't mean they didn't do it anyway. DPS is a machine and I have seen them issue false suspensions time and time again. You need to get a copy of the officer's report to see whether he called this a refusal or not.

You don't have a right to a hearing on the suspension until after the suspension is actually issued and you get notice of it. Your timeline starts running on the fifth day after the notice is postmarked, and you have fifteen days to file for the hearing. Sec. 524.013.

If this period hasn't already expired you need to contact an attorney asap and have them file the paperwork and handle the hearing. They may be able to prevent the suspension. The requesting of the hearing also tolls the suspension.

If you are ultimately convicted of the DUI then there is a separate license suspension of either six months or one year. It is possible to have this initial two month suspension (if it sticks) count against this second suspension.

Yes it is possible to receive a probated sentence on a DUI and then get it expunged under Code of Criminal Procedure 55.01. An alcohol awareness class has nothing to do with the expungment but it is a common condition of any DUI probation. The court may also offer some form of pre-trial diversion program similar to a probation but which results in the charges never being formally filed. Technically under 55.01 you are supposed to wait until the statute of limitations runs before seeking an expunction and for even a class C that is two years, not one. This entire statute, however, is very poorly written as it applies to Class C offenses because they amended it to allow expunctions for probated class C offenses (previously could only seal them) without explaining whether the other two expunction requirements apply to Class C's or not. There are several different widely published legal articles questioning whether the SOL must run on a Class C before it can be expunged. The result is that most courts simply don't care and will readily ex parte grant the expunction, sometimes even immediately after you complete your probation. Again, just hire an attorney that handles expunctions and see how it works in your jurisdiction.
 

CdwJava

Senior Member
Well I say I think I passed because I got up to 30 while balancing on one foot, standing like a statue... and the 3 beers were about a 2 hours before.
Reaching 30 and standing like a statue is not necessarily all that is required ... and, of course, I have seen people wobbling to and fro that claim they are standing like statues. I'm not saying you were, only that the person taking the test is usually the worst judge of their performance if they are impaired.

But hopefully the person you said does read this and I really do appreciate your input.
He did ... and he replied. That was Cavemanlawyer.
 

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