Pictured: A man hiding the fact that he is blowing into an interlock device.
You only qualify for the interlock if you are charged with DWI Alcohol, not DWI Drugs, but you may not be required to get the interlock device if you are charged with DWI Alcohol.
The first thing you should do if you’ve been charged with Driving While Intoxicated (DWI) in Arkansas is immediately fill out and send off the page attached to the back of your pink “temporary license.” That second page is a request to contest the suspension of your driver’s license. You only have 7 days to request a hearing to contest the suspension. If it has been longer than 7 days, still fill that out and send it back via snail mail and fax. Some hearing officers will still let you contest the suspension and the 7 day deadline will not impact your ability to request an interlock device. This 7 day deadline does not impact your ability to appeal the hearing decision. (more on this later)
When you are charged with DWI in Arkansas, there are four scenarios for your license:
1. You will be required to get a breathalyzer device installed in your vehicle for a period of months depending on the number of DWIs you have been charged with within the past 5 years. This applies even if you do not own a vehicle; you can’t just wait out your driver’s license suspension without driving. Yes, you read that correctly. Yes, I know it doesn’t make sense.
2. You will be able to get a waiver and won’t be required to install an interlock device (breathalyzer) in your car. That may or may not allow you to drive during that “suspension” period, depending on the waiver you get.
3. You appeal your license suspension from the administrative hearing to the circuit court and hope that the judge agrees to pause the suspension until the resolution of your DWI. If you beat the DWI then it is possible your license will never be suspended and that you will never be required to have an interlock device (breathalyzer) in your car. If you do not end up beating the DWI, you can still use this method to try to postpone the suspension or breathalyzer requirement until the resolution of your DWI. This can be particularly appealing to those who have Commercial Driver’s Licenses.
4. Your license will be temporarily or permanently revoked. Or, if you have a Commercial Driver’s License (CDL), your CDL will be revoked and you can apply from scratch to get another one in 1 year. Unless you appeal the revocation, which can be done!
The Arkansas Interlock Device Waiver Process and Law:
Due to a new change in the law as of August 1st, 2017, if it is your only Driving While Intoxicated offense within five years, you may qualify for an installation waiver. If you qualify for a waiver you do not have to get the interlock device (breathalyzer) installed in your car. The three conditions that allow you to get a waiver are:
- The person accused of DWI (Driving While Intoxicated) in Arkansas is required to operate an employer’s motor vehicle in the course and scope of employment and the business entity that owns the vehicle is not owned or controlled by the person accused.
- The person accused of Driving While Intoxicated in Arkansas is certified by a medical doctor as being unable to provide a deep lung breath sample for analysis by an ignition interlock device.
- An state-certified ignition interlock provider is not available within one hundred miles of the person’s residence.
See: Arkansas Code Annotated § 5-65-118
All of this only applies if you have been charged with DWI Alcohol, not DWI Drugs. The first waiver might allow you to drive for an employer in the scope of your employment. With the other two waivers, you wouldn’t be able to drive at all. You would just not have to install the interlock device.
Here’s the tricky part: it is the current position of Arkansas Department of Finance and Administration that you can get the waiver, but you still may not be allowed to drive. If you are allowed to drive under the work exception waiver you have to get the interlock device installed on a vehicle somewhere. That doesn’t make much sense, because their legal position is based on an earlier version of the statute that didn’t include the work exemption. In order to get them to change their mind, you will probably have to appeal their hearing decision to a circuit court. Be forewarned, the judge might not have the same opinion on this law as the author of this blog. The position of the DFA might evolve and you eventually may not have to appeal, only time will tell. In the meantime, you have to get the District Court Judge to sign an order allowing you to drive your work vehicle without a breathalyzer.
If you don’t qualify for a waiver then you will have to get an interlock device (breathalyzer) installed in your vehicle (unless you appeal). Here are the possible punishments:
| Offense Number: (Within the past 5 years) | License Punishment |
|---|---|
| First Offense Alcohol DWI or BWI (Boating While Intoxicated): | 6 Months with interlock device (or total License Suspension if you are granted a waiver) |
| Second Offense Alcohol DWI or BWI: | 24 Months with interlock device (or total License Suspension if you are granted a waiver) |
| First Time Refusal to Blow for Alcohol: | 6 Months with interlock device (or total License Suspension if you are granted a waiver) |
| Second Refusal to Blow or Refusal to Submit to Chemical Test: | 24 Months License Suspension, No Interlock Allowed. |
| Third Offense Alcohol DWI or BWI: | 30 Months Interlock (or total License Suspension if you are granted a waiver) |
| Fourth Offense Alcohol or Drugs DWI or BWI: | Complete license revocation for 4 years. |
| Fourth Offense Refusal to Blow or Submit to Chemical Test: | Lifetime license revocation. However, after 10 years you may reapply for a license. |
| First Offense Underage DUI (Driving Under the Influence): | 90 days with interlock device |
| Second Offense Underage DUI: | License revocation for 1 year. |
| Third Offense Underage DUI: | Complete License Revocation for 3 years or until the defendant is 21, whichever is longer. |
| First Offense DWI Drugs | 6 Months Restricted License, no interlock allowed. A restricted license allows you to drive to and from work, to and from school, and other limited circumstances. |
| Second Offense DWI Drugs: | 24 Months restricted license. No interlock device allowed. A restricted license allows you to drive to and from work, to and from school, and other limited circumstances. |
| Third Offense DWI Drugs: | 30 Months restricted license, no interlock device allowed. A restricted license allows you to drive to and from work, to and from school, and other limited circumstances. |
If You Appeal the License Suspension or Driver’s License Restriction Hearing, You May NEVER have your Driver’s License Suspended or be required to install an Interlock Device
After your hearing, you may petition a court to overturn the ruling of the hearing. If you appeal you may be able to postpone the installation of the interlock device in your vehicle or prevent it entirely (if you eventually beat the DWI charge). This can be particularly helpful if you have a Commercial Driver’s License. In order to do this, you must immediately appeal the administrative decision to suspend or restrict your Arkansas driver’s license to a Circuit Court where you reside or where the DWI occurred. Technically, you have to appeal the administrative hearing suspending your driver’s license within 30 days, but the sooner the better because your license will be suspended 30 days after your DWI arrest.
When you appeal, you should ask the judge to “stay” your suspension, and hope the judge signs it before your license is suspended or restricted. Eventually, you may have a hearing on whether or not you are guilty of the DWI. Note that that is completely separate from your criminal case. You should try to convince the Arkansas Department of Finance and Administration attorney or judge to push this off until the resolution of your DWI. If you lose your DWI case they will suspend or restrict your license. If you win, then your license could potentially never be suspended or restricted.
These are complicated issues and I’m leaving out a lot of details. If you have been charged with DWI anywhere in Arkansas, including Fayetteville, Fort Smith, and Van Buren, call one of our Arkansas criminal defense lawyers at:
479-782-1125
For more information see:
Driver Control’s Current Regulations on Interlock Device: http://www.healthy.arkansas.gov/aboutADH/RulesRegs/IgnitionInterlock.pdf
Arkansas DWI Interlock Waiver: This is the proposed statute that was not passed, the final statute that was passed, and a legal memo circulated by the Arkansas Department of Finance Administration through Arkansas Driver Control.
Driver Control Information and Frequently Asked Questions about License Suspensions, Revocations, and Restrictions:
http://www.dfa.arkansas.gov/offices/driverServices/Pages/DriverControl.aspx
Where to buy that brilliant interlock device disguise so you aren’t embarrassed driving to work or picking your kids up from school: http://www.ignitioninterlockdisguise.com/
Fayetteville, Arkansas Driver Control: http://www.dfa.arkansas.gov/Pages/dcOfficeDetails.aspx?show=7
Fort Smith, Arkansas Driver Control: http://www.dfa.arkansas.gov/Pages/dcOfficeDetails.aspx?show=8
About the Author: W. Whitfield Hyman wrote this piece with significant editorial input from a former Driver Control attorney, David Parker. David is currently in private practice in Little Rock, and you can find him at www.dkfirm.com
This is a complex area of law that is rapidly changing. Please don’t rely on this blog for legal advice, call me to make sure it is accurate and up to date. I’m not your attorney and I do not represent you.
