Untitled Texas Attorney General Opinion

-..-~--..--- -. . Honorable Clifford Powell County Attorney Opinion NO. M-673 Grayeon County Courthouse Sherman, Texas RS: Article 802f, Penal Code, and related questions. Dear Mr. Powell: You requested an opinion of this office concerning a suepension of an operator's license where a Defendant who ham been arrested for driving while intoxicated, first offehne, refut?elr to mubmit to a Chemical Breath Tzs provrddd for in Article 802f, Texas Penal Code, commonly referred to as tbe "Implied Consent" law. Rephrased, your questions are as follows: 1. Where, upon arrest for driving while in- toxicated, first offense, a defendant refuses to take a chemical breath test and later is found guilty of misdemeanor driving while in- toxicated and receives a probated sentence, is that Defendant &ill subject to the adminfstra- tive procedure to revoke his operator’e license under provisions of Article 802f, Penal Code? 2. If the Defendant refuses to take the chemical breath test upon arr,estfor timdemeanor driving while intoxicated and is later found guilty of said offense receiving a 12 months l uspen6ion for caid offense as provided in Article 6687b, Section 24(a)(2), iu a pending administrative case filed by the arresting officer for Me Defendant's refumal to take the test atill re- quired? Y -3210- , , Honorable Clifford Powell, Page 2, (M- 673 ) 3. If the answer to question 2 is Yes, then do the two suspensions of the driver's license run concurrently or consecutively? 1. In answer to your first question, it is our opinion that a defendant who receives probation for the offense of misdemeanor driving while intoxicated (Article 802, Texas Penal Code), and who refuses to take the chemical breath teat upon arrest as provided in Article 802f, Penal Code, is subject to the administrative proceedings of Section 22, Article 6687b, Vernon's Civil Statutes, as amended, to re- voke his operator's license. Accordina to Section 24(a)(2), Article 6687b, the operator's license of any individual is suspended for 12 months automatically upon final conviction for the criminal offense of driving while intoxicated (Article 802, Penal Code). Attorney General's Opinions Nos. M-640, C-515, and C-685 held thatan operator's license is not suspended however, where conviction for the misdemeanor offense of driving while intoxicated is probated. There is no final conviction under the Misdemeanor Probation Law, Article 42.13, Texas Code of Criminal Procedure, where a probated sentence is imposed unless the probation is revoked. Attorney General's Opinion No. M-640. The Legislature has the right and power to enact statutes for the protection of the general public travel- ing the highways of Texas, and to require that the privilege of maintaining an operator's license be attendant with some oblisations and responsibilities. Gaytan v. Caaaidy, F.Su&. (W.D. Tex;. 1970); Gillespie v. Tex;s Department --.~ 347 u.8.yh3;~i Tex. 459, L59 s.w.Zd 17 (1953) cert. ,f-Zil&afet c- aenfec Two separate Texas courts have held constitutional the procedure for hearings and appeal from administrative decisions founded under Section 22, Article 1960 writ). -3211- _... - .._ __ . honorable Clifford Powell, Page 3, (M- 673 ) Section 2, Article 802f, provides for utilization of the administrative procedures found in Section 22(a), Article 668713,Revised Civil Statutes of Texas, as emended, which are civil end administrative in nature, generally independent of any criminal proceedings which may be instituted pursuant to other statutes or ordinances. The legislature provided in Section 2, Article 802f, that any individual shall have his license suspended if a sworn statement is filed by a law en- forcement officer that he has reasonable grounds to believe that the arrested person did drive or was driving a motor vehicle upon public highways of this state while under the influence of intoxicating liquor end that the individual refuaed to submit to the test, end that the hearing officer finda upon hearing that probable cause existed that the in-' dividual was operating or had been operating a vehicle on the public roads of this state under the influence of in- toxicating liquor. Thus, the legislature has established en additional civil sanction of possible suspension of driver's license by administrative hearing separate end independent of the automatic suspension impoaed by Section 24(a)(2), Article 6687b.l Article 802, Vernon's Penal Code, imposes a civil asnction.even though it'ia found in the Penal Code. 1 CAVEAT : Section 7(b), Article 42.13, Texas Code of Criminal Procedure provides that the administrative hearing may not take into account the finding of guilty after the probated case is dismissed by the court, in the following language: "After the case against the probationer is dis- missed by the court, hia finding of guilty may not be con- sidered for snx ur oae except to determine his entitlement to a future probat on under this Act, or any other probation ,5?---- Act." -3212- . Honorable Clifford Powell, Page 4, (M- 673 ) 2. fin answer to your second question, it is our opinion that a pending administrative case filed under Section 22(a), Arti- cle 6687b, by the arresting officer for the defendant's refusal to take the chemical breath test, is not re uired to be heard or brought to a conclusion or decision .--IT+- y t e administrative agent for the Texas Department of Public Safety. Such hearing, however, may be had or-ma continue either after or before - the defendant is found h Article 802. Vernon's Penal Code, of driving while-intoxicated, firat.offense, if the Texas Department of Public Safety wishes to suspend the operator's license. Section 2, Article 802f, provides that upon refusal to take the chemical breath teat and receipt of a sworn report as to reasonable grounds by the arresting officer the Texas Department of Public Safety or its agent shall set the matter for a hearing as provided in Section 22(a), Article 6687b. There is no language, either directory or mandatory, which requires the hearing to be had or to continue after it is set; neither is there any language which prohibits such hearing from taking place after a conviction for the misdemeanor offense is obtained. We are strengthened in this reasoning by the.following language of Section 2, Article 802f, which invokes the maxim that the expression of a particular thing excludes the idea of something else not mentioned, or "expreasio unius ee,texlueio alterius:" II . . .Provided, however, that should such person be found 'not guilty' of the offense of driving while under the influence of intoxicating liquor or if said cause be dismissed, then the Director of the Texas Department of Public Safety shall in no case suspend such persons driver's license; . . .II Had the legislature intended to prohibit the Department from instituting proceedings $+nderSection 22(a), Article 6687b, to suspend the operator's license separately and in- dependently of the automatic suspension provided for in Sec- tion 24Ca) (2) of this same Article, our opinion is that it would have specifically done so. By failing to disallow suspension of an operator's license where a guilty finding -3213- honorable Clifford Powell, Page 5, (M-673 1 is made the statute infers that all omissions were intended by the legislature and that the administrative proceedings are therefore maintainable. We find no basis in reason or legislative history for any contention that the implied con- sent law, Article 802f, Vernon's Penal Code, and the criminal offense article, Article 802, of that Code, are to be con- strued together to allow the guilty plea to nullify the effect and meaning of the implied consent test. Further, such interpretation would be unconstitutional under the coercion doctrine of U.S. v. Jackson, 390 U.S. 570, (1967), for it would place a premium on guilty pleas by saying that no operator's license can be suspended under the implied consent law if the defendant pleads guilty to the criminal offense of driving while intoxicated, whether or not he re- ceives probation. See a similar Ohio case Hoban v. Rice, 7 Cr.L. 2257,tJune 25, 1970). A hearing must be held, however, to determine if probable cause exists to suspend the license and such hearing must comport with the requirements of Arti- cle 42.13(7)(a), Texas Code of Criminal Procedure, unless the operator waives his rights to a hearing and submits to the suspension voluntarily. 3. In answer to your third question, it is our opinion that should an administrative hearing on sworn statement be held pursuant to Section 22(a) , Article 6687b, any suspension may run either concurrently or consecutively or both with the auto- matic suspension imposed by,Eection 24(a)(2), Article 6687b. Any other result would be tantamount to refusing to allow the legislature to impose additional reasonable responsibili- ties and obligations upon the privilege to drive the highways of this state. Simply stated, by enactment of the hearing pro- visions in Article 802f, under Section 22(a), Article 6687b, the legislature has provided for more than the former minimum 12 months revocation upon a finding of driving while intoxicated; whether or not that findin< is by administrative or judicial decision; without regard to and independent of the character or osigin of that finding , viz., civil or criminal. Whether the auepenaion periods run concurrently or consecutively is -3214- Honorable Clifford Powell, Page 6, (M- :673 ) left solely to the administrative discretion of the hearing officer or magistrate. It is therefore possible that with consecutive terms of suspension, and under the proper factual circumstances, sua- pension of an operator's license may be for as long as a period of two years. We view the above conclusions as properly harmonious and comporting with the legislative history, object and purpose of the statute: An attempt to provide stringent regulation for safer highway travel in the face of sn increasing number of accidents caused by individuals who drive while intoxicated. SUMMARY A defendant who receives probation for the misdemeanor offense of driving while intoxicated, under Article 802, Texas Penal Code, and who refused to take the chemical breath test upon arrest as provided in Article 802f, Penal Code, is subject to the administrative proceedings of Section 22(a), Article 668713,V.C.S., as amended, to re- voke his operator's license. A pending administrative case filed by the arresting officer for the defendant's refusal to take the chemical breath test is not required, but may be held or brought to a conclusion, additionally suspending an individual's opera- tor's license, where that person has been found guilty of the misdemeanor offense of driving while intoxicated and has received an automatic suspension under the terms of Section 24(a) (21, Article 6687b, V.C.S., as..amended,where the Texas Department of Public Safety deems such action necessary or proper. -3215- Bonorable Clifford Powell, Page 7, (M- 673) Should an administrative hearing be held upon refusal of an individual to submit to a chemical breath test upon arrest, any suspen- sion of an operator's license based upon Sec- tion 22(a), Article 668733,V.C.S., as amended, may run either consecutively or concurrently, depending upon the facts and decision of the hearing officer, with the automatic suspension imposed by Section 24(a) (2). YO very tr yI ? & ./@s WFO C. MARTIN 4 Attor y General of Texas Prepared by Bennie W. Bock, II Assistant Attorney General APPROVED: OPINION COMMITTEE Kerns Taylor, Chairman W. E. Allen, Co-Chairman Jim Swearingen Tom Sedberry Rex White Jay Floyd MEADE F. GRIFFIN Staff Legal Assistant ALFRED WALKER Executive Assistant NOLA WbITE First Assistant Attorney General -3216- -