### TEE ATTOR,VEP GENERAL **OF** 

### TEXAS
May15.1907

Honorable EdwardWoolery-Price Opinion No. **JM-703** ColoradoCountyAttorney 910Milam Re: Whether acquittal or dismissal Columbus,Texas 78934 of a charge of drivingwhile intoxicated 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 suspenda driver's license?
Article 6701&-S.V.T.C.S.. provides in part:

Section 1. Any person who operates a motor vehicle upon thepublic highways or upon a public beach in this state shall be deemed tohave given consent, subject to theprovisions of thisAct, to submit to the taking of one or more specimens of his breath or blood for the purpose **of** analysis todetermine 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 tohave been committedwhile 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 shallnot be deemed, solelyon the basis ofhis operation of amotor vehicleupon 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 takenat the request of a peace officer having reasonable grounds to belleve the person to have

P. 3251Honorable EdwardWoolery-Price - Page 2 (JM-703)

been driving or in actual physical control of a motor vehicle upon the public highways or upon a publicbeach in this statewhile 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 asprovided in Section 1.none shall be taken.
(b) Before requesting a person to give a specimen. the officer shall inform ~theperson orally and in'writing that ~ifthe 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 thehearingprovided for in Subsection (f) of this ~section.whether or not the person is subsequentlyprosecutedas 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 theperson is subsequently prosecuted as a result of the arrest. The officer shall inform the person that the person has a right to ahearing on suspensionor 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 hearingbeheld.
(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 thathe refused to give a specimen.

p. 3252Honorable EdwardWoolery-Price- Page 3 (~~-703)

(d) If theperson refuses to give a specimen, whether the refusal was express or the result of
an intentional failure of the person ‘togive a specimen as designated by the peace officer, the officer before whom the refusal was made shall immediatelymake a written report of the refusal to theDirector of the Texas~Department of Public Safety.

,- (e) The director shallapprove 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 evidencedby:
(1) a written refusal to give a specimen, signedby theperson; 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~officer

under Subsection (c)of thisarticle.
(f) When thedirector receives thereport, 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, receivesnoticeby certifiedmail or 31days 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 20thday after the date on which the person receives notice by certifiedmail 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 10thday after the day of receiptof the demand, requesta court to set thehearing for the earliestpossible date. The hearing shallbe set in the same manner as a hearing under Section 22(a),Chapter 173.Acts of the 47thLegislature, Regular Session, 1941, as amended (Article6687b, 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

p. 3253Bonorable EdwardWoolery-Price - Page 4 (JM-703)

physical control of amotor vehicleon thehighway **or** upon a publicbeach while intoxicated, (2) that the personwas placed under arrestby 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 theDirector of the Texas Department of Public Safety shall suspend the person's license or permit to drive, or any nonresident operatingprivilegefor aperiod of 90 days, as orderedby the court. If theperson .I5 a resident without a license or permit to operate a motor vehicle in this State, theTexas Department of Public Safety shall deny to the person the issuanceof a license orpermit 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 Safetymust prove three things: (1) thatprobable cause existed that such person was driving while intoxicated. (2) that the person was

-given an opportunity to give a blood orbreath specimen, and (3) that theperson refused to give ablood orbreath specimen. The department does not have to show that the person actually was driving while intoxicated.

The degree of proof required in a criminalprosecution necessary to convict an accused of the offense of drivingwhile intoxicated is beyond a reasonabledoubt. SeeRussellv. State, 551 S.W.2d 710 (Tex. Grim, App. 1977). On theorher hand, in a hearing under article 67011. the department must show by a preponderance of the evidence that the accusedwas drivingwhile intoxicated.

Probable cause is reasonable ground for belief of guilt which
means less than evidencewhich would justify a conviction. Brinegar
v. United States, 338U.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 offenseas abasis for revokingprobation,stated:

The principaldifference ina criminalprosecution and a revocation hearing is the degree of proof required. Acquittal in a criminal proceeding merely determines that guiltwas notprovedbeyond
a reasonable doubt while in a revocation

p. 3254.- Honorable EdwardWoolery-Price - Page 5 (JM-703)

proceeding proof need not be beyond a reasonable doubtbut onlyby apreponderanceof 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 ofdrivingwhile intoxicated isnot 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 suspenda driver's license.

JIti MATTOX Attorney General of Texas

JACK RIGHTOWRR First AssistantAttorney General

MARY KELLER ExecutiveAssistantAttorneyGeneral

JUDGE ZOLLIE STF.ARLEY SpecialAssistantAttorneyGeneral

RICK GILPIN Chairman,OpinionCommittee
Prepared by Tom G. Davis AssistantAttorney General

p. 3255