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 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 

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 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 belleve the person to have 

P. 3251 
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 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'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. 

p. 3252 
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 ~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 

p. 3253 
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 

p. 3254 
.- 

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