           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.




                               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 ~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




                                    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




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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




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