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What is Driving While Intoxicated ("DWI")?
Anyone who operates a motor vehicle in a public place while intoxicated commits an offense. If you are charged with DWI, the state must allege the following: 1.) the nature of the substance alleged to have caused the defendant's intoxication; 2.) the method of intoxication; and 3.) either the loss of physical or mental faculties or the presence of at least a 0.10 alcohol concentration.
The vast majority of DWI's are prosecuted based upon the same general set of facts. A suspect is seen driving erratically, usually either speeding or weaving from one driving lane to another. After stopping the driver, the police officer usually smells an odor of alcohol, notices the driver's glassy or bloodshot eyes, observes a lack of coordination including slurred speech, and forms the conclusion that the driver is probably intoxicated. The driver may be ordered to submit to field sobriety tests, which can include various coordination tests or a horizontal gaze nystagmus test ("HGN"). Once arrested and taken to a police station, the driver is usually ordered to submit to a breath test to determine alcohol concentration and, in most counties, another field sobriety test, this time in front of a video camera.
What happens if I am arrested for DWI?
If you are detained under suspicion of DWI, you will be questioned at the scene about your alcohol consumption. The officer may request that you perform sobriety tests and submit to a breath test. You have the right to refuse these tests, although that refusal may later be used as evidence of your guilt. If the police have reason to believe that you are over the legal limit, you will be arrested. Typically, you will be handcuffed and transported to a jail.
Once you arrive at the police station, you will again be asked to submit to a breath test. If you refuse, you will be given a series of sobriety tests which are videotaped by the police to observe your performance. You will also be questioned about various questions regarding the events leading to your arrest.
Sobriety/Breath Tests
Can I refuse to answer questions or perform sobriety tests?
Although you must answer questions pertaining to identification, it is your constitutional right not to answer any other questions. You may also refuse to perform field sobriety tests, and, unless a life-threatening injury has resulted from a collision, you may refuse to submit to breath or blood testing.
Should I take breath test if I am Arrested for DWI?
We don't recommend taking a breath or blood test because it will result in helping the state prove it's case against you. You would be providing evidence for the state's case. The testing techniques are flawed and can be contested in court. By taking either test, you make the case against you stronger. You should exercise your constitutional rights and request to speak to your lawyer.
How dependable is the equipment used for breath tests?
The equipment used by police to measure your body alcohol concentration can be challenged in court. Although the state routinely testifies that the equipment used is accurate and reliable, independent experts have questioned the reliability of this testing equipment. Consequently, the results may vary depending on the person being tested and the person performing the test. If there is any question about your ability to pass the test, you should not submit to perform any of the police tests, and consult with an attorney.
What happens if I take the breath test?
Remember, the results of a breath test are admissible against your in a future prosecution. If you pass the breath test, it will make your case much stronger. There is a strong likelihood that you will not be charged with a DWI offense. However, if you submit to a breath test and fail, you can challenge the accuracy of the device at trial (PLACE LINK -- Q&A how dependable is the equipment used for breath tests). Challenging the State's breath test results will oftentimes necessitate the need to hire independent experts for your case.
What happens if I refuse to take a breathalizer test?
Anyone who drives a vehicle in Texas is deemed to have consented to have his or her breath or blood tested to determine his or her alcohol concentration if the arresting officer has reasonable grounds to believe that the driver has committed the offense of DWI. If a driver refuses, no sample is taken, but that refusal may be admissible in a subsequent prosecution, and the suspect's driver's license is subject to suspension for a period of ninety days (PLACE LINK HERE -- Driver’s License Suspension). Furthermore, a driver must be informed of these consequences as well as the right to demand a hearing on that license suspension. The implied consent law extends to anyone who operate watercraft and aircraft as well as motor vehicles.
Driver’s License Suspension
In addition to criminal and civil monetary fines, DWI convictions result in the issuance of a “Notice of Suspension/Temporary Driving Permit.” This occurs in two circumstances: 1.) when there is a refusal to submit to a breath or blood test or 2.) if consent was provided, the result was an alcohol concentration greater than 0.08. DPS will initiate civil action to suspend a person’s license.
DPS will automatically suspend a license on the forty-first day after the arrest, unless, within fifteen days of the arrest, an Administrative License Revocation ("ALR") hearing challenging the attempted suspension is requested. A Driver's License Suspension will not be effective until after the hearing concludes and a violation is found to have occurred. An ALR hearing will also provide information regarding the strength or weakness of the State’s criminal case, including information about police officer’s findings and basis for his arrest.
However, the right to an ALR hearing will expire if an appeal is not made within 15 days of the arrest – therefore, it is extremely important to appeal your matter in a timely manner in order to protect your rights.
What can I do if my drivers license is suspended?
If your license is suspended, either due to a DWI arrest or conviction, or for any other reason, you can file a request an Occupational Driver's License ("ODL"). An ODL is a restricted license that allows you to meet such essential needs as work, school, or necessary household responsibilities. The court may limit your driving to scheduled times or the court may require you to keep a log of your driving times details, which will be subject to inspection.
What happens if I Drive despite a suspension of my license?
If you drive while your license is suspended, you can be charged with Driving While License Suspended ("DWLS"). If you are on Probation and drive, your license can be revoked and you can be re-arrested. If you violate the conditions of your ODL, your ODL license will likely be revoked and you can be charged with violation of the conditions for your Occupational Driver’s License.
What happens if Minors Using Alcohol?
The laws for minors differ significantly than those for adults. A minor commits an offense if he operates a motor vehicle in a public place while having any detectable amount of alcohol in the their system. Furthermore, although Texas law prohibits the prosecution and conviction of juveniles for many offenses, the legislature has made special exceptions to prosecute juveniles who drink alcohol and drive. As evidence of this, minors can be cited under the new Zero Tolerance laws for buying, attempting to buy, possessing, consuming, or driving with any detectable amount of alcohol in their system. If a minor has any detectable amount of alcohol in their system or have a detectable odor of alcohol, and they are stopped while driving, they can be ticketed for a DUI, even if they are not intoxicated. The police do not have to offer a breath test. It is irrelevant if any of the alcohol is still in the body, as long as the officer can smell it on your breath.
What kind of Punishment can I face for a DWI Conviction?
Community Supervision (probation):
In most cases, a person convicted of DWI is eligible and will receive Community Supervision, allowing that person to carry on with the significant activities of their life and avoiding incarceration. However, the conditions of Community Supervision can be time-consuming, expensive, and will require some changes in personal lifestyle.
1st Offense:
Class B Misdemeanor, punishable by not less than 72 hours or more than 180 days in the county jail, and/or a fine not to exceed $2,000.
2nd Offense:
Class A Misdemeanor, punishable by not less than 30 days or more than 365 days in the county jail, and/or a fine not to exceed $4,000
3rd (or more) Offense:
Third Degree Felony, punishable by not less than 2 years or more than 10 years in prison, and/or a fine not to exceed $10,000.
What additional consequences can I encounter if I am convicted of a DWI?
Civil Penalties for DWI Conviction
The Texas Department of Public Safety ("DPS") will assess a surcharge on the license of each person who during the preceding 36-months, has been convicted of an offense relating to the operating of a motor vehicle while intoxicated.
1st DWI Conviction:
$1,000 per year for 3 years (total $3,000)
2nd DWI Conviction:
$1,500 per year for 3 years (total $4,500)
Breath/Blood Alcohol Concentration 0.16 or greater:
$2,000 per year for 3 years (total $6,000)
Standardized field sobriety tests are what the police use to try to determine if a person is intoxicated. The tests uses are the horizontal gaze nystagmus ("HGN") test; the one leg stand test; and the walk and turn test.
Police and prosecutors use these tests to try and prove that a person is intoxicated. Further, these tests are standardized because the tests are administered in the prescribed, standardized manner; there is a standardized basis used to assess the suspect's performance; and a standardized criteria is employed to interpret the test subject's performance.
What is the HGN sobriety Test?
The horizontal gaze nystagmus ("HGN") test has been in use for 30 years, it is now used throughout the United States. The HGN test is used to detect both alcohol and drugs, and is especially valuable because it detects lower levels of intoxication. Nystagmus is an involuntary jerking of the eyeball. The jerking may be aggravated by central nervous system depressants such as alcohol or barbituates. Horizontal gaze nystagmus is the inability of the eyes to maintain visual fixation as they are turned to the side.
In the HGN test the driver is asked to cover one eye and focus the other on an object, usually a pen, which is held by the officer at the driver's eye level. As the officer moves the object gradually out of the driver's field of vision toward his ear, he watches the driver's eyeball to detect involuntary jerking. The test is repeated with the other eye. By observing: (1) the inability of each eye to track movement smoothly; (2) pronounced nystagmus at maximum deviation; and (3) onset of the nystagmus at an angle less than 45 degrees in relation to the center point, the officer can estimate whether the driver's blood alcohol content exceeds the legal limit.
Walk and Turn Test:
The Walk and Turn test is an objective test based upon certain predictable errors that a person under the influence will display, as well as scoring factors that will give the examiner a basis for passing and failing other than their subjective opinion. It is commonly referred to as a Divided Attention Test because it divides the suspect's attention between mental and physical tasks.
The physical tasks include balance and coordination while the mental tasks include comprehension of verbal instructions, processing of information and recall of memory. While a person may be able to perform one task they may not be able to perform the other if under the influence of an alcoholic beverage.
This test encompasses nine heel-to-toe steps along a line, then turning and taking nine additional heel-to-toe steps back. The key indicators of failing the test are loss of balance, failure to follow instructions, beginning too early, stopping during the test, leaving space between heel and toe, stepping off the line, or losing balance while turning.
- Conditions for the test:
In order to perform the walk and turn test, it is required that it be performed on a hard, dry, level, non-slipping surface with sufficient room to complete nine heel-to-toe steps. This test loses some validity when conducted in certain wind/weather conditions that counters this criteria. The manual calls for a straight line, which must be clearly visible on the surface but in the DWI course it is taught that the test can be performed parallel to the curb. Conditions must be such that the suspect would be in no danger if he or she were to fall.
- Who should not be given this examination?
There are some people that this test should not be given to because even the average sober person would have difficulty with this test. People more than sixty five years of age or over fifty pounds overweight, or with any physical impairment that would affect their ability to balance should not be given this test. Individuals wearing heels more than two inches high should be given the opportunity to remove their shoes as this may diminish the validity of the results. Individuals who can not see out of one eye may also have trouble with this test because of poor depth perception and should not be given this test.
One Leg Stand Test:
This test encompasses standing heels together, arms to the side and then raising one leg six inches off the ground while counting out loud until the asked to stop. Key indicators are raising of the arms, swaying, hopping, putting the foot down, inability to stand still, body tremors, muscle tension, and any statements made by the accused during the test.
- Conditions for the test:
In order to perform this test, it must be performed on a hard, dry, level, non-slippery surface. Conditions must be such that the suspect would be in no danger if he or she were to fall. Certain wind/weather conditions obviously may interfere with and affect the validity of this test. This test should not be given to persons who are more than sixty-five years of age, more than fifty pounds overweight, or with physical impairments that interfere with balance. Individuals wearing heels more than two inches high should be given the opportunity to remove their shoes as this may diminish the reliability of the results. Furthermore, this test should only be given in adequate lighting.
The test is initiated by giving verbal instructions accompanied by demonstrations. The test subject is instructed to stand with heels together and arms down at the sides. The instructions must be demonstrated by the officer. The subject is instructed to stand on one leg, holding the other foot in front, while being demonstrated by the officer. The suspect should be allowed to stand on either leg keeping the foot raised about six inches off the ground. The subject is further instructed to count out loud for 30 seconds while standing. The subject is told to look down at their foot while counting and throughout the entire test, to keep their arms at the sides at all times. They are told to refrain from hopping or swaying while standing.
What are the other types of sobriety tests performed by police?
Although the below sobriety tests are utilized by police nationwide, they are very subjective in nature and are more like tests of your physical agility. You may refuse to perform these field sobriety tests, and, unless a life-threatening injury has resulted from a collision, you may refuse to submit to breath or blood testing. The police will not volunteer this information.
Touch Nose Test:
This test encompasses the following: placing the feet together while standing upright and with eyes closed. Then to bring the index finger touching the nose upon command. Key indicators are body sway, body tremors, eyelid tremors, muscle tension, or any statements made indicating difficulty.
The Rhomberg Balance test:
This test subject is required to stand upright, close their eyes and tilt their head back for approximately 30 seconds. Key indicators are the inability to stand still or steady; body or eyelid tremors; opening eyes to maintain balance; swaying either front to back or side to side; reaction times; muscle tension; or statements made indicating difficulty.
Other Sobriety Tests:
There are other tests including the counting backwards, and reciting the alphabet are utilized to check vital skills necessary to operate a motor vehicle. However, these tests are not foolproof as many people who are not intoxicated fail these tests and are arrested for DWI.
