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"Driving While License Suspended" Offenses in Texas

This is a general memorandum discussing the offense of "driving while license suspended" ("DWLS") in Texas. The information in this memorandum is fairly straightforward, and the facts of your particular situation will dictate how the law applies to your conduct. You should use this memorandum to familiarize yourself with the basic outline of the law regarding DWLS but, before you make any decisions about your particular case, you should consult with an attorney. The Texas Transportation Code contains two provisions that criminalize the act of driving while one's license is suspended, canceled, revoked, or otherwise invalid (DWLS). Transportation Code §521.457. There are two separate statutes that criminalize the conduct. The "general" suspension statute is found at Transportation Code §521.457. Transportation Code §601.371 governs license suspension under the financial responsibility law. These statutes create two separate offenses. An information charging either one of them must designate the statute under which the offense is charged, or else it is fundamentally defective. Tave v. State, 546 S.W.2d 317, 318 (Crim. App. 1977). Under the financial responsibility suspension statute, to prove its case in a prosecution for driving while license suspended, the state must show that the defendant drove a motor vehicle on a highway and either (1) that the defendant had an unexpired driver's license that was suspended at the time the defendant was driving, or (2) that the defendant had a license that expired during a period of suspension. Transportation Code §§521.457(a)(2), (3), 601.371(a). If the defendant's license was not under suspension when it expired, a conviction for driving with a suspended license cannot stand under that scenario. Cathy v. State, 402 S.W.2d 743, 745 (Crim. App. 1966). Under the financial responsibility suspension statute, it is an affirmative defense to the charge that a person had not received actual notice of a suspension or revocation order. However, notice is presumed (and the state does not have to prove that the defendant received notice) if the notice was mailed in accordance with the statute to the last known address of the person as shown by the records of the Department of Public Safety. Transportation Code §601.371(c). Under the general statute governing driver's licenses, a person commits an offense if the person operates a motor vehicle on a highway under any of the following circumstances: [Transportation Code §521.457(a), (b)] 1. After the person's driver's license has been canceled under the general statute if the person does not have a license that was subsequently issued. 2. During a period that the person's driver's license or privilege is suspended or revoked under the general statute or several other enumerated statutes. 3. While the person's driver's license is expired if the license expired during a period of suspension imposed under the general statute or any of the enumerated statutes. 4. While the person is the subject of an order prohibiting the person from obtaining a license, if the order is issued either under the general statute or under the statute requiring suspension or denial of a license when a person arrested for an intoxication offense refuses to provided a blood or breath specimen as required by law. [Transportation Code §724.031 et seq.]. 5. After renewal of the person's driver's license has been denied for failure to appear to answer a traffic law violation, and the person does not have a subsequently issued valid driver's license. Generally, the offense includes the following elements [Clayton v. State, 652 S.W.2d 810, 812 (Tex. App.--Amarillo 1983, no pet.)]: 1. A person's license or driving privilege has been canceled, suspended, or revoked. 2. The person drives a motor vehicle on the highways of Texas while the license or driving privilege is canceled, suspended, or revoked. Commission of the offense does not require any culpable mental state. Clayton v. State, 652 S.W.2d 810, 812 (Tex. App.--Amarillo 1983, no pet.). That means that the defendant did not have to "intend" to drive while her license was suspended. The offense of DWLS is generally punishable by a fine of $100 to $500 and confinement in county jail for not less than 72 hours nor more than six months. Transportation Code §521.457(e). If the person has previously been convicted of this offense or of driving while suspended under Transportation Code Section 601.371(a), the offense is a Class A misdemeanor. Transportation Code §521.457(f). A conviction for an offense that involves operation of a motor vehicle after August 31, 1987, is considered a final conviction, regardless of whether the sentence for the conviction is probated. Also under a charge under the "general suspension" statute, it is an affirmative defense to a prosecution for this offense that the person did not receive either actual or presumed notice of the cancellation, suspension, revocation, or prohibition order relating to the person's license. Notice is presumed if the notice was mailed in accordance with law. Transportation Code §521.457(d). However, it is not a defense that the person did not receive notice if the suspension was imposed as a result of a conviction for an offense under Transportation Code Section 521.341. Transportation Code §521.457(c); see Transportation Code §521.341 which provides for the automatic suspension following conviction of certain offenses. For example, a defendant was not entitled to an instruction on lack of notice under the following circumstances: (1) the defendant had been convicted of DWI; (2) the defendant did not complete the required educational program, and (3) the suspension letter was sent to the defendant's last known address. Davis v. State, 811 S.W.2d 956, 957 (Tex. App.--Houston [14th Dist.] 1991, no pet.). In other words, if the suspension was an "automatic" result of your conviction of another offense, it is not a defense that the Department of Public Safety (or any other agency) failed to inform you of the suspension.

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