Defending A Driving While License Invalid Charge In Texas

Understanding The Offense of Driving While License Invalid And What To Do About It

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It must be stated that driving while license invalid charges are one of the most misunderstood traffic offenses in the State of Texas.  Police officers and attorneys alike have misconceptions about the law and how it is should be applied to any particular set of facts.  This article is an in-depth discussion about the charge of driving while license invalid in Texas.  Hopefully, by the end of the article you leave with an understanding of how the law works and what to do in response to a charge of driving while your license was invalid.

Learn More From Listening Instead Of Reading?

If you learn more by listening instead of reading, then take the time to view our youtube video outlining driving while license invalid charges in Texas:

The Law

There are a few statutes that have to be addressed in the beginning before a discussion can be had about driving while license invalid offenses.  The first statute is the actual driving while license invalid law.

• Sec. 521.457. DRIVING WHILE LICENSE INVALID. (a) A person commits an offense if the person operates a motor vehicle on a highway:

  (1) after the person’s driver’s license has been canceled under this chapter if the person does not have a license that was subsequently issued under this chapter;

  (2) during a period that the person’s driver’s license or privilege is suspended or revoked under any law of this state;

  (3) while the person’s driver’s license is expired if the license expired during a period of suspension; or

  (4) after renewal of the person’s driver’s license has been denied under any law of this state, if the person does not have a driver’s license subsequently issued under this chapter.

  (b) A person commits an offense if the person is the subject of an order issued under any law of this state that prohibits the person from obtaining a driver’s license and the person operates a motor vehicle on a highway.

  (c) It is not a defense to prosecution under this section that the person did not receive actual notice of a suspension imposed as a result of a conviction for an offense under Section 521.341.

  (d) Except as provided by Subsection (c), it is an affirmative defense to prosecution of an offense, other than an offense under Section 521.341, that the person did not receive actual notice of a cancellation, suspension, revocation, or prohibition order relating to the person’s license. For purposes of this section, actual notice is presumed if the notice was mailed in accordance with law.

  (e) Except as provided by Subsections (f), (f-1), and (f-2), an offense under this section is a Class C misdemeanor.

  (f) An offense under this section is a Class B misdemeanor if it is shown on the trial of the offense that the person:

  (1) has previously been convicted of an offense under this section or an offense under Section 601.371(a), as that law existed before September 1, 2003; or

  (2) at the time of the offense, was operating the motor vehicle in violation of Section 601.191.

  (f-1) If it is shown on the trial of an offense under this section that the license of the person has previously been suspended as the result of an offense involving the operation of a motor vehicle while intoxicated, the offense is a Class B misdemeanor.

  (f-2) An offense under this section is a Class A misdemeanor if it is shown on the trial of the offense that at the time of the offense the person was operating the motor vehicle in violation of Section 601.191 and caused or was at fault in a motor vehicle accident that resulted in serious bodily injury to or the death of another person.

  (g) For purposes of this section, a conviction for an offense that involves operation of a motor vehicle after August 31, 1987, is a final conviction, regardless of whether the sentence for the conviction is probated.

BREAKING DOWN THE LAW’S MEANING

Parts 1 through 4 are basically saying that if you a driving while your license is invalid or suspended, then you should be charged.  There is nothing fancy or particularly hard to understand about these 4 parts.

The Actual Notice Defense

The actual notice defense is an absolute defense to prosecution under this chapter if it is available.  The problem is understanding when it is available and when it is not.  It will not be available if the suspension is due to one of the following criminal charges:

• Sec. 19.05. CRIMINALLY NEGLIGENT HOMICIDE.
• Sec. 38.04. EVADING ARREST OR DETENTION.
• Sec. 49.04. DRIVING WHILE INTOXICATED.
• Sec. 49.045. DRIVING WHILE INTOXICATED WITH CHILD PASSENGER.
• Sec. 49.08. INTOXICATION MANSLAUGHTER.
• Sec. 49.07. INTOXICATION ASSAULT.
• Sec. 550.021. ACCIDENT INVOLVING PERSONAL INJURY OR DEATH.
• Sec. 521.451. DISPLAYING A FICTITIOUS LICENSE
• Sec. 19.04. MANSLAUGHTER.

As long as the suspension or invalidity was not caused by any of the following offenses, then there is an absolute right by the defendant to claim that no notice was given informing them of the suspension.  Again, part (d) above states the following:

• (d) Except as provided by Subsection (c), it is an affirmative defense to prosecution of an offense, other than an offense under Section 521.341, that the person did not receive actual notice of a cancellation, suspension, revocation, or prohibition order relating to the person’s license. For purposes of this section, actual notice is presumed if the notice was mailed in accordance with law.

The problem for a prosecutor is proving that a notice of suspension was mailed.  After all, the only people that can verify the mailing of the notice are those that work for that department in The Texas Department Of Public Safety.  And how on earth is a prosecutor going to be able to get an employee of DPS to show up to a trial setting?  The answer is that they probably are not going to be able to do it.  This defense should absolutely be used by a lawyer in defense of their clients if it is available.

This does not mean that work must not be done by the attorney to assert the affirmative defense.  After all an affirmative defense is one that is brought by the defendant and must first be established by the defense.  The only person can that can assert the defense will be the defendant.  Therefore they must testify to the fact that no notice was received.

Secondly, the attorney must request an instruction in accordance with Texas Penal Code Section 2.04 based on the affirmative defense as follows:

• Sec. 2.04. AFFIRMATIVE DEFENSE. (a) An affirmative defense in this code is so labeled by the phrase: “It is an affirmative defense to prosecution . . . .”

  (b) The prosecuting attorney is not required to negate the existence of an affirmative defense in the accusation charging commission of the offense.

  (c) The issue of the existence of an affirmative defense is not submitted to the jury unless evidence is admitted supporting the defense.

  (d) If the issue of the existence of an affirmative defense is submitted to the jury, the court shall charge that the defendant must prove the affirmative defense by a preponderance of evidence.

Next, it must be certain that the jury understands the presumptions of a fact and what must be done to negate that presumption.  As in this case, it is presumed that a notice was sent to the defendant unless proven otherwise through the affirmative defense.  Therefore, you must shoot down that presumption by requesting that the jury be instructed in accordance with Section 2.05 of the Texas Penal Code.  That section states the following:

• Sec. 2.05. PRESUMPTION. (a) Except as provided by Subsection (b), when this code or another penal law establishes a presumption with respect to any fact, it has the following consequences:

  (1) if there is sufficient evidence of the facts that give rise to the presumption, the issue of the existence of the presumed fact must be submitted to the jury, unless the court is satisfied that the evidence as a whole clearly precludes a finding beyond a reasonable doubt of the presumed fact; and

  (2) if the existence of the presumed fact is submitted to the jury, the court shall charge the jury, in terms of the presumption and the specific element to which it applies, as follows:

  (A) that the facts giving rise to the presumption must be proven beyond a reasonable doubt;

  (B) that if such facts are proven beyond a reasonable doubt the jury may find that the element of the offense sought to be presumed exists, but it is not bound to so find;

  (C) that even though the jury may find the existence of such element, the state must prove beyond a reasonable doubt each of the other elements of the offense charged; and

  (D) if the jury has a reasonable doubt as to the existence of a fact or facts giving rise to the presumption, the presumption fails and the jury shall not consider the presumption for any purpose.

When A Class “C” Becomes A Class “B”

Some counties will charge individuals with a Class “B” misdemeanor if they are found to have a second DWLI in the past on their record.  These convictions can be used against them as far back as 1987.

Another way to get charged with a Class “B” misdemeanor is to have a suspended or invalid license for any reason and operating a vehicle that has had its registration suspended due to outstanding traffic tickets.  These are commonly referred to as scofflaw holds.

A third way to get charged with a Class “B” misdemeanor is to operate a vehicle while your license is suspended and not have valid insurance covering the vehicle if you were to get into a wreck.

Finally, if a license was suspended due to a previous driving while intoxicated offense, then that person should be charged with the higher Class “B” misdemeanor.

The maximum punishment for a Class “B” misdemeanor is up to 6 months in jail and a $2000.00 fine.  We suggest you consult a lawyer if you have been charged with a driving while license invalid charge of this type.

CONCLUSION

In conclusion, if you have been arrested for a driving while license invalid charge, we suggest you call a lawyer that knows the laws and how to navigate them.  There are many available defenses to an experienced lawyer to help assist you.  Make sure the attorney verifies the reason for the suspension or invalidity and what needs to be done to rectify the suspension as well as what defenses are available to defeat the charge itself.