DWI OVERVIEW
Reasons you were pulled over  |  What the government must prove
Court settings for a DWI  |  DWI Field tests  |  BAC and breath tests
DWI enforcement  | Glossary  |   FAQ


Possible reasons you were pulled over and may have been arrested
A cop must have a reasonable suspicion that you violated the law in order to pull you over. There are many reasons completely unrelated to intoxication that a law enforcement officer can justify a temporary detention, including the following:

-Weaving, crossing over lane boundaries
-Tailgating
-Speeding or driving too slowly
-Slowing down and speeding up repeatedly
-Erratic driving
-No insurance
-Failure to signal a lane change
-Running a stop sign or traffic light
-Improper turn
-Driving without headlights or taillights
-Expired registration
-Expired driver's license
...and the hundreds of other minor moving
violations which you could be cited for


What the government has to prove to find someone guilty of DWI
As a first offense, DWI is a Class B Misdemeanor. A person commits an offense if the person is intoxicated while operating a motor vehicle in a public place. The State must prove the defendant's guilt beyond a reasonable doubt. A prosecutor must prove that the defendant was:

1) Operating a motor vehicle
2) In a public place (street, highway, lot, etc.)
3) In a particular county - while intoxicated

Intoxication is defined by the Texas Legislature as:

1) Not having the normal use of mental or physical faculties by reason of the introduction of alcohol, a controlled substance, a drug, a dangerous drug, a combination of two or more of those substances, or any other substance in the body; or
2) Having an alcohol concentration of 0.08 or more. The law allows for intoxication by way of any intoxicating substance. It is no defense that the intoxicating substance was a prescribed drug; if any substance, legal or illegal, deprives a driver of the normal use of mental or physical faculties, the case may be prosecuted.
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Court Settings

1) Administrative License Revocation
Within 15 days of the time you were served with a Notice of Suspension you must request a hearing to contest your license suspension. When we defend our clients, the defense begins well in advance of the ALR hearing. We will question the arresting officer at the hearing and begin to make formulate your defense. If your license is suspended, you may be granted an occupational license which allows you to drive to places such as work, school, or the grocery store. If you do not request a hearing, the suspension will go into effect 40 days from the date the notice was sent. A fee of $125 will be charged to reinstate the license after the suspension period expires.

2) First Appearance
A first appearance in court will be requested usually 30 days after your arrest or release for a DWI. If you have retained us as your attorney by this time, we will make this appearance for you, so that you don't have to attend. During the 30 day period, your case is filed and set on the court's docket.

3) Pretrial Conference
By this point (about 8 to 10 weeks after the first appearance) we have extensively researched your case and analyzed video and witness statements. At pre-trial we will discuss your case with the Prosecution and attempt to get the best possible outcome.

4) Pretrial with Witnesses
If we find that your constitutional rights have been violated, we will file motions to suppress certain evidence and the Court may exclude evidence which could be used to incriminate you.

5) Trial
If you decide to take the case to trial, you may request either a bench trial where the court hears your case or a jury trial where the jury decides whether or not you are guilty.
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Standardized Field Sobriety Tests (SFST)
Police officers routinely ask motorists suspected of DWI or DUI to perform field sobriety tests. These "voluntary" tests were developed to help an officer determine whether or not a motorist is safe to drive. The officer subjectively determines the motorist's performance based on the results of these tests. Even if you do not appear to be intoxicated but you have the odor of an alcoholic beverage on your breath, the officer will usually ask him or her to take a breathalyzer and/ or blood test.

The tests should be administered to you immediately after being pulled over because they are time sensitive. The scoring of the SFST is based on many things, including the opinion of your performance by the arresting officer. Some other things include:

-how you get out of your car
-if you have any injuries , balance problems, or weight issues that might cause problems when performing field tests such as walking in a straight line or balancing on one leg
-the surface you perform the tests on should be smooth and flat, and the area should be well lit

Three tests have been scientifically tested for accuracy (although their accuracy is not very impressive).

You don't have to be read your Miranda rights prior to performing field tests. back to top


Blood Alcohol Content and Breath Tests
The legislatures of most states are frequently passing new laws or increasing punishment for existing laws. The pursuit of "prohibition" by certain organizations pressures state legislatures every year. The truth is that as citizens we have the right to drink, and as long as you are not over the legal limit (.08 in Texas), then you are legal to drive.

In Texas, when a driver is suspected of DWI, an officer has the "option" of asking the motorist to submit to a breath or blood test. Texas allows the motorist to refuse to take these tests, or any other test the officer may ask of him or her. But if the officer has a reasonable suspicion that the motorist is over the legal limit, the motorist will probably be arrested and taken to jail. Also, the motorist's license will be suspended for at least 90 days unless certain legal action is taken immediately. If the motorist takes one or more tests and fails, their license may be suspended up to 180 days and an arrest will occur.

The charts below show what a person's BAC might be based on their body weight and how how many drinks per hour were consumed.

NOTE: One drink is equal to 1.25 oz. of 80-proof liquor, 12 oz. of beer, or 4 oz. of table wine. The average drinker's elimination is .015% per hour.








Knowledgeable criminal defense lawyers know that a large majority of the officers administering field tests conduct them in a manner not approved by the NHTSA training and student manual. Officers typically make improper judgments and incorrectly grade the subject performing the tests. If the tests are administered incorrectly, they are unreliable. A good attorney will cross-examine the arresting officer to find any improper actions taken during the stop, field tests, or arrest and to make sure the cop abided by the law on all accounts. Frequently officers make mistakes, and citizens who were charged with a DWI are able to have charges dropped because of their protection under the law and by their attorney's knowledge of the law.
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DWI Enforcement in Austin, Texas
Austin’s DWI program was modified in 1999 by the Austin Police Department. The program now has a full-time team of DWI specialists. These officers are trained specifically to catch drivers who are driving while impaired. They usually patrol the streets in two-person teams.

New officers train under members of the DWI team for several weeks to gain experience in identifying and processing DWI suspects. The Traffic Administration Section directs the DWI unit which is comprised of enforcement teams. Each enforcement team has eight officers and one sergeant who have received training in administering Standardized Field Sobriety Tests, have completed drug recognition courses and who are certified intoxilyzer operators.

The DWI units focus their efforts in areas where intoxicated drivers are most likely to be- places such as bars and nightclubs. Sometimes the DWI officers will be dispersed throughout the city, and other times they concentrate on specific areas. Oftentimes the DWI enforcement officers will support regular patrol officers when they need assistance with DWI arrests and paperwork.

The entire DWI enforcement unit works every Friday evening, while half works Tuesday through Friday evenings, and the other half works Saturday through Wednesday. APD officers must apply for any open positions within the enforcement team, which may explain reports of a low turnover rate within the unit.

The number of DWI arrests decreased from about 3,500 in 1990 to 2,200 in 1996. With the a part-time DWI task force in 1998, arrests increased to 4,077, an increase of 48 percent over the 2,747 arrested for DWI in 1997. When the DWI task-force went full-time in 199, arrests increased to 4,500.
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Glossary

BAC- Blood-alcohol concentration. The percentage amount of alcohol in a person's bloodstream.

Burn Off- How fast a person's body can eliminate alcohol. This number varies between persons and depends on factors such as weight, age, etc.

PBT- A portable machine used by law enforcement to measure the BAC of suspected drunk drivers

Chemical Test- A test of the alcohol or drug concentration in a person's blood. A breathalyzer, blood analysis, or urinalysis can be used as chemical tests for alcohol.

DUI- Driving under the influence of alcohol or drugs. This term refers to the criminal cases that arise when a minor is driving with a detectable amount of alcohol in his or her system.

DWI- Driving while intoxicated. Refers to a person driving under the influence of alcohol and they have lost the normal use of there physical and mental faculties by the reason of introduction of alcohol, a drug, or a combination, or that they are over a .08 Blood Alcohol Concentration.

Driver's License Suspension- The temporary withholding of driving privileges. The motorist's license is withheld for a given period of time.

Driver's License Revocation- The cancellation of driving privileges. The motorist must reapply for a driver's license after a designated length of time.

Standardized Field Sobriety Test- Roadside gymnastic exercises meant to test a person's sobriety when they are suspected of drunk driving. It includes include exercises that test a person's mental awareness and physical coordination.
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FAQ

Why are DWI laws so strictly enforced?
DWI laws are enforced so vigorously primarily because of the overwhelming amount of political and societal pressures.

Define "intoxicated."
A person is intoxicated when he or she has lost "normal" use or either mental or physical faculties because of an alcoholic beverage, drug, controlled substance, or any combination. A person is also intoxicated if he or she has an alcohol concentration of .08 or more.

Is it .08 or more when I drive, .08 or more at the time I'm tested, or both that is necessary to be accused of a DWI?
The driver must have an alcohol concentration of .08 at the time of driving. It is not a crime to have a .08 BAC before or after driving, and sometimes determining the BAC of the driver at the time of driving can present a problem for the prosecution and defense. Tests are usually administered 15 -45 minutes after the motorist was driving, and without knowing the amount of alcohol consumed and the time period it was consumed in, it can be nearly impossible to determine if the motorist's BAC was at least .08 while driving.

What is probation?
Probation is basically a suspension of a jail sentence, fine, or other punishment issued by a judge. If a person is sentenced to 90 days in jail and that sentence is probated for one year, then if the defendant stays out of trouble with the law for one year his or her sentence will be dropped. Probation usually includes the following:

1) Report once a month to a probation officer
2) No crimes committed during the probation term
3) Pay monthly supervisory fee to probation office (around $40)
4) Perform community service hours (usually between 24 and 80)
5) Attend DWI awareness classes
6) Disdain from consuming alcohol
7) Pay probation fines and court costs
8) Any other court requirements

What do police officers look for when looking for drunk drivers on
the highways?
The following list is based upon research conducted by the National Highway Traffic Administration.

1) Turning with a wide radius
2) Straddling center of lane marker
3) "Appearing to be drunk"
4) Almost striking an object or vehicle
5) Weaving
6) Driving on other than designated highway
7) Swerving
8) Speed more than 10 mph below limit
9) Stopping without cause in traffic lane
10) Following too closely
11) Drifting
12) Tires on center or lane marker
13) Braking erratically
14) Driving into opposing or crossing traffic
15) Signaling inconsistent with driving actions
16) Slow response to traffic signals
17) Stopping inappropriately
18) Turning abruptly or illegally
19) Accelerating or decelerating rapidly
20) Headlights off

What if the reason I was stopped was not DWI related?
You will almost never be stopped for DWI. Most police officers make a traffic stop for registration compliance, parking violations, cracked windshield, inoperative taillight, headlight out, weaving, speeding, no turn signal, etc.

What is the officer looking for after I'm stopped?
Traditional signs of intoxication taught at police academies are as follows:

1) Flushed face
2) Red, watery, glassy and/or bloodshot eyes
3) Odor of alcohol on breath
4) Slurred speech
5) Fumbling with wallet trying to get license
6) Failure to comprehend the officer's questions
7) Staggering when exiting vehicle
8) Swaying/ instability on feet
9) Leaning on car for support
10) Combative, argumentative, jovial or other "inappropriate attitude
11) Soiled, rumpled, disorderly clothing
12) Stumbling while walking
13) Disorientation as to time and place
14) Inability to follow directions

What kind of evidence does an officer need to arrest a motorist suspected of drunk driving?
There are generally three types of evidence an officer may consider in the investigation:
1) Observations of behavior in general
2) Specific observations of behavior (sobriety testing)
3) Chemical test results of blood, breath, or urine

An officer may arrest a motorist if the officer is convinced by the evidence that there is probable cause to make an arrest.

If the officer asks me if I've been drinking, what should I say?
You are not required to answer questions that could be self-incriminating. The best reply is "I would like to speak with an attorney before answering any questions."

The officer never gave me a Miranda warning. Does this mean my case is dismissed?
If the officer does not give you a warning of your right to remain silent, the only consequence is that the prosecution cannot take into evidence anything you say after your arrest. This is a simple answer to a complicated question and is best answered on a case by case basis.

How accurate are the methods used to determine alcohol concentration?
Texas law allows testing alcohol concentrations by urine, blood, or breath. Urine testing is the least reliable and is probably the least used method of testing BAC. Breath testing is commonly used by police because of its convenience. There are debates among scientists regarding the accuracy of breath tests, and we believe that breath testing is horrendously unreliable. Blood testing is the most accurate method of testing BAC, but is rarely used by police because it is expensive and inconvenient.. Blood samples, like urine samples, can be retested to validify the initial test result.

What are the penalties for refusing a breath or blood test?
1) a suspension of driving privileges for 90 days if it's your first arrest for DWI
2) a 180 day suspension for a subsequent arrest if, in the first arrest you refused to submit to testing or had an alcohol concentration of .08 or greater
3) a one year license suspension if you have a prior conviction for DWI
4) admission into evidence that you refused to take the breath test in the subsequent DWI criminal trial.

What can a knowledgeable attorney do immediately after I've been arrested for a DWI?
First, an attorney can help a person get out of jail by arranging for or posting bond. An attorney's presence alone can help keep the police from asking you questions that are designed to incriminate you. A lawyer can help a person arrange a second blood test from a doctor or health clinic within 2 hours of the arrest. Most importantly, an attorney can offer advice as to what questions to answer and how to answer them and what steps to take if you are arrested.

Do I really need a lawyer or can I represent myself?
You can represent yourself, absolutely. If you are going to represent yourself, stop wasting time reading this website and start reading as many police training manuals, NHTSA manuals, scientific journals and case law as you can.

If I submit to testing and my BAC is less than .08, can I lose my license?
Yes, but usually only if you've had a prior DWI conviction or related offense. Your BAC must be .08 of greater for your license to be automatically suspended.

What are the penalties for DWI in Texas?
First offense: fine not to exceed $2,000 and/ or jail time of 3 to 180 days, driver's license suspension of 90 to 365 days. (Class B Misdemeanor)

Second offense: fine not to exceed $4,000 and/ or jail time of 30 to 365 days, driver's license suspension of 180 days to 2 years. (Class A Misdemeanor)

Third offense: fine not to exceed $10,000 and/ or jail time of 2 to 10 years imprisonment, driver's license suspension of 180 days to 2 years. (3rd Degree Felony)

DWI with an open alcohol container (first offense): In addition to the penalty referenced above you face a minimum of 6 days in jail and a fine of no more than $2,000. (Class B Misdemeanor)

DWI with an accident where serious bodily injury occurred as a proximate cause of the intoxication: Called intoxication assault, service of a minimum of 2 and up to 10 years in jail with a fine up to $10,000. (3rd Degree Felony)

DWI where a death has occurred as a proximate cause of the intoxication: Called manslaughter, imprisonment of 2 to 20 years with a maximum fine of $10,000. (2nd Degree Felony)

What is an ALR hearing and why is it important to request one?
ALR stands for Administrative License Revocation and this is a hearing in which you may attempt to save you driving privileges. The State must prove that the officer who stopped and arrested you had a probable cause to do so. If the officer didn't have proper probable cause, the case may be dismissed without a criminal prosecution for DWI. If you refused to submit to chemical testing at the time of your arrest, the State must prove the following at an ALR hearing:

1) Reasonable suspicion or probable cause for the stop and arrest
2) Probable cause to believe you operated a motor vehicle in a public place while intoxicated
3) You were placed under arrest and properly requested to submit to chemical testing
4) You refused the test upon proper request of the officer

If you are alleged to have failed a breath or blood test, the State must prove the following:

1) That you had an alcohol concentration of .08 or more while operating a motor vehicle in a public place and at the time of testing
2) Probable cause existed to stop you.

How long will a DWI arrest stay on my record?
If you are convicted of a DWI, it will be on your record for life. Although expunction law allows for destruction of arrest records if certain conditions are met, records relating to driver's license suspension are not able to be expunged.

Will a DWI arrest affect my insurance rates?
If you are convicted of a DWI your insurance rates will very likely increase.

What is the DWI law for minors?
There is no tolerance for minors, meaning a minor must not have had any alcohol while driving to be innocent of a DUI. A minor commits an offense if he or she operates a motor vehicle in a public place while having any detectable amount of alcohol in the minor's system. A minor may be prosecuted in Texas for drinking and driving.

Who is considered a minor?
A minor is a person under 21 years of age.

Can a minor refuse to take a breath test?
Yes, but the following penalties will result:

1) suspension of driving privileges for at least 120 days for the first arrest
2) a 240 day suspension of driving privileges if the minor has one or more previous drug or alcohol related offenses within a five year period

What are the penalties for a minor convicted of DUI?
First offense: (Class C Misdemeanor) If under 18 years old the court will requires a parent or guardian to be present at every court appearance. A minor may be fined, required to complete between 20 and 40 hours of community service related to education about or prevention of misuse of alcohol. The minor will attend an alcohol awareness program sponsored by the Texas Commission on Alcohol and Drug Abuse within 90 days. The parent or guardian may be required to attend with the minor. This conviction may be expunged after the minor's 21st birthday.

Second offense: Same as above except: 40- 60 hours of community service, and a second conviction may not be expunged.

Third offense: (Class B misdemeanor) same as above except: no differed adjudification and a fine from $500- $2000 and/ or up to 180 days in jail plus license suspension
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