A police officer must articulate a reason for infringing on your right to be free of unreasonable detention. Although he need not issue a traffic citation he must have had more than a “hunch” that you were violating the law. Many non-intoxicated persons are legitimately stopped for a traffic offense and thereafter arrested for DWI. It is also true that a great number of innocent people are also arrested for suspicion of DWI. 

Attorney note: Many cases can be won simply by challenging the legality of the initial stop. If the stop is ruled unconstitutional, no evidence gathered thereafter may be admitted into evidence.

A person commits an offense when he or she is intoxicated while operating a motor vehicle
in a public place.  

Intoxication is legal terminology. In Texas, a person is considered to be intoxicated when:  

• Through the use of an alcoholic beverage, drug, controlled substance, or any combination thereof, she has lost the “normal” use of either her mental or physical faculties, or
• She has an alcohol concentration of .08 or more in her body.
  

The “normal mental and physical faculties” to which the DWI statute refers are those of the particular person who has been arrested. The term does not refer to the normal faculties of the arresting officer, the jurors in a DWI criminal trial, or those of an “average” person. The term “normal” actually refers to a range of measurement of the faculties of the person arrested. 

Attorney note: Determining a client’s specific “normal mental or physical faculties” is what pre-trial investigation reveals. “Normal” is different for everyone. Your lifestyle is evaluated so that information can be used to counter the State’s evidence of intoxication.

A Standardized Field Sobriety Test (SFST) is a tool used by a police officer to identify an intoxicated driver. There are three SFSTs:

1) The Horizontal Gaze Nystagmus (HGN) test;

2) The one-leg stand test; and,

3) The walk and turn test.

Researchers funded by the National Highway and Traffic Safety Administration (NHTSA) developed these three tests. A failure of any of the tests, according to the researchers, means the person has an alcohol concentration of greater than .08. Of importance is the fact that there is a great ongoing debate about the validity, accuracy, and reliability of both the researchers’ conclusions and their tests. There is no implied consent requirement that a person submit to a law enforcement officer’s request to take either these SFSTs or any other police motor skill coordination exercise.

Attorney note: As you might imagine, if you’ve never performed these tests before, under stressful conditions it is very easy to make a mistake. Each mistake is considered a “clue” to intoxication. This is true even if the mistake is as simple as not looking at your foot when performing the one-leg stand.

Yes! Because there is no “implied consent” statute that requires a person to submit to field sobriety testing, a person may decline to take them. Many innocent drivers refuse to submit to these tests because they are not very coordinated or are very nervous and concerned that any test results will not accurately reflect their sobriety. 

No. While you can legally refuse to answer questions prior to/after arrest, there is no statute or
court decision that provides that the police must allow you access to a telephone in order for you
to speak to an attorney for advice and assistance. However, a person arrested for any alleged criminal activity has a constitutional due process right of reasonable access to a telephone to contact an attorney for the purpose of arranging bail, preserving exculpatory evidence, and in deciding whether to answer interrogation questions asked by police. Once an arrested person clearly invokes her right to counsel, the interrogation should stop.

No. However, although a person has no right to refuse being videotaped, he does have the right to refuse to perform any police field sobriety exercises and to refuse to answer any questions, the answers to whichn might be incriminating. Unlike breath- or blood-test refusals, there are no penalties for refusing to perform field sobriety tests or refusing to answer questions while being videotaped.

“Alcohol concentration” is defined as

b. The number of grams of alcohol per 210 liters of breath; or,

c. The number of grams of alcohol per 67 milliliters of urine.

Yes. Texas law only provides that the crime of DWI occurs when a person drives and, at that time, has an alcohol concentration of .08 or more in her body. It is not a crime to have an alcohol concentration of .08 in the body either before or after one has driven, as long as the driver still had the normal use of her mental and physical faculties while driving

The timing of the particular test in question can present significant problems for the prosecution during the trial of a DWI case. Alcohol concentration testing is hardly ever done at or immediately after driving. Consequently, unless there is information about the number of alcoholic drinks consumed, the type of drinks consumed, and knowledge of when the drinks were consumed, it is scientifically impossible to determine if the person was over or, more importantly for the innocent, under a .08 alcohol concentration at the time of driving.

Police breath-alcohol concentration testing in Texas is usually performed by a machine called the Intoxilyzer^® 5000. 

The Intoxilyzer machine is said to work on the basis of infrared light absorption by alcohol detected in a person’s breath. According to its manufacturer and the Texas Department of Public Safety (DPS), which certifies and writes the rules for its use, the machine determines alcohol concentration by subtracting the amount of light absorbed from the person’s breath sample and then compares that amount to the amount of light originally introduced into the breath sample. The difference is the test result. 

There is much debate over the Intoxilyzer 5000’s reliability. Much concern is over whether, given its assumptions and limitations, the machine is the best method to test alcohol levels.  

For instance, neither the manufacturer nor the DPS will allow anyone, other than law enforcement personnel, to test either the machine’s accuracy or its reliability.  It is generally understood that for a procedure to be accepted as accurate and reliable in science, it must be open and available for the scientific community to test and retest the procedure. Such has not been the case with the Intoxilyzer.

Almost every product you’ve purchased carries a warranty, guaranteeing it will do what the manufacturer claims it will. However, the manufacturer of the Intoxilyzer says it does not warrant that the Intoxilyzer is fit for any particular purpose. This fact clearly is an implicit admission by the manufacturer that its machine is not even warranted to be accurate or reliable for breath testing.

Unlike a DNA sample, once an individual provides a breath sample, the sample is discarded and is unable to be retested. The Intoxilyzer is capable of breath preservation, however, our DPS purposely fails to require the breath specimens to be saved. The cost of preservation is minimal and would allow an opportunity for the person charged with DWI to check the accuracy of the sample. 

Finally, the Intoxilyzer design presumes that every person tested is exactly the average person. We all know that all persons are not exactly average. Human beings come in all different sizes, weights, ages, muscle tones, lung capacities, alcohol tolerances, temperatures, hematocrit levels, and blood/breath ratios. Automatic and undetected error can be illustrated by simply having the person tested not be exactly average. In this regard, it should be noted that the Intoxilyzer assumes a blood/breath ratio of 2100/1 (i.e., 2100 parts of alcohol in the blood for every 1 part of alcohol in the breath) for every person tested. Persons with a higher blood/breath ratio of 2100/1 will not be prejudiced by the Intoxilyzer’s assumption. However, persons with a lower blood/breath ratio will be prejudiced because the Intoxilyzer will erroneously read too high of an alcohol concentration result, thus potentially causing a person who should test at .04, .05, .06, etc. to actually test out at artificially higher levels.

Simply put, yes. Blood testing is thought by the majority of forensic scientists to be the most accurate and reliable means of alcohol concentration determination. From a police perspective, however, it is also thought to be the least desirable and least convenient method.

If a police officer has articulated probable cause to arrest a suspect he can simply obtain a warrant for a blood sample, whether a suspect consents or not. If this is done a suspect has no right to refuse to provide a sample.

Rarely will a police officer seek a warrant for a blood sample. Blood tests provide an opportunity for the arrested person to recheck the blood test. 

From a law enforcement perspective, breath testing is the most convenient means of alcohol concentration determination. In regard to the issues of accuracy and reliability of breath testing, however, there continues to be a considerable debate within the scientific community. Additionally, under current procedures for breath testing in Texas, unlike most blood tests, breath samples are not preserved for subsequent analysis of the initial test result. 

Under Texas law, a person who drives in a public place with a Texas license has already conditionally agreed, after their arrest, to take either a breath or blood test upon being properly requested to do so by a police officer.

Although the refusal to provide an alcohol concentration sample is not a crime, the refusal may result in the suspension of your driving privileges.

Attorney note: It should be noted that the failure of an Intoxilyzer^® operator to obtain a valid sample may be considered a refusal by the suspect, and the above penalties will apply.

Sometimes for blood, but never for breath. An officer has authority to order a blood sample from an arrested person only if he obtains a valid warrant; or without a warrant if there has been an accident where a death has resulted, a death is likely to occur, or there has been a serious bodily injury.

Attorney note: A blood test is considered within the scientific community to be the most accurate form of alcohol testing.

Upon refusal of a lawful request for a breath sample, the penalties are as follows:

1. Suspension of your driving privileges for 180 days if this is your first arrest for DWI;
2. A two-year suspension for a subsequent arrest within ten years if, in the first arrest, you refused to submit to testing; and
3. The admission into evidence of your refusal to take the test in the subsequent DWI criminal trial.  The purpose of this admission, from the prosecutor’s viewpoint, is to imply to the jury that you refused because you believed you were too intoxicated to pass the test.

Attorney note: You have the right to contest the legality of the suspension and seek reinstatement of your driving privileges during any period of suspension. Please refer to our page on Driver’s License Suspension for more information.

If the state establishes that the test was performed according to Texas Department of Public Safety guidelines, the penalties for failing a breath test are as follows:

1. Suspension of your driving privileges for 90 days if this is your first arrest for DWI;
2. Suspension of your driving privileges for one year if you have a prior conviction or suspension within the preceding ten years;
3. The admission into evidence of the test results in a subsequent DWI criminal trial. 

Attorney note: You have the right to contest the legality of the suspension and seek reinstatement of your driving privileges during any period of suspension. Please refer to our page on Driver’s License Suspension for more information.

A person may be issued an Occupational Driver's License for this period of suspension. Please refer to our page on Driver’s License Suspension for more information.

A Portable Breath Test device, commonly referred to as a PBT, is an electronic alcohol breath tester. It is generally the size of a cigarette package and is carried by the officer in the field as a tool to help him determine if a driver is intoxicated. Texas Department of Public Safety does not approve these devices for use in criminal prosecutions or in administrative license revocation proceedings. There is no “implied consent“ for purposes of compelling a person to submit to a PBT. Accordingly, there is no driver’s license suspension when a person refuses to a law enforcement request to submit to a PBT.

Attorney note: These devices are similar to those you may find advertised in the newspaper. As you can imagine, they are not acceptable alternatives to the Intoxilyzer^® 5000 because of their lack of accuracy.

DWI, depending on the number of prior convictions a person has and when those convictions occurred, can be either a misdemeanor or a felony offense. 

Generally speaking, the penalties for DWI are as follows:

            Attorney note: Under some of the above classifications, you may be eligible for probation.

If a person receives a final conviction for DWI, it will always remain on her record. Our expunction law does, however, allow for the destruction of arrest records if a number of very specific conditions are met. Unfortunately, the records relating to a driver's license suspension or revocation are not subject to expunction, even though the arrest records may be expunged. In reference to insurance rates, a DWI conviction could easily result in considerably higher insurance costs for many years.

Attorney note: A case that has been dismissed is eligible for expunction after the statute of limitations has expired.

This type of offense, known as Driving While License Suspended (DWLS), is a misdemeanor, and carries with it the possibility of three days up to six months incarceration and $100 to $500 fine for each violation, unless it is enhanced to a Class A Misdemeanor.  

Yes. Although minors between the ages of 18 and 20 may be charged and prosecuted under the adult DWI laws, the laws for minors differ significantly from those for adults. The law states that a minor commits the offense of Driving Under Intoxication (DUI) if he operates a motor vehicle in a public place while having any detectable amount of alcohol in his system. Please refer to our DUI section for more information.

No. It is a Class C Misdemeanor for a driver to operate a car and personally possess an open alcoholic beverage container. This penalty increases if the driver is also arrested for DWI. Additionally, recent legislation also prohibits any passenger from having an open alcoholic container unless the person is a passenger in a limousine, bus, taxi, or the living quarters of a motor home.

Yes, they are different. Specifically, the statutory definitions of the term “intoxicated” are not equal in regard to the two charges. The DWI intoxication definitions (loss of normal mental or physical faculties and/or .08 or more alcohol concentration) require a lesser measure of intoxication than does Public Intoxication (P.I.). A person is “intoxicated” for purposes of P.I. when she is either a danger to herself or a danger to others. In addition, police officers usually videotape DWI suspects, both at the scene and in jail, and persons holding driver's licenses have conditionally pre-agreed to take either a breath or blood test, upon request, after their arrest for DWI. No such agreement or videotape procedure exists for P.I. 

P.I. is in the lowest category for criminal offenses – it is a Class C Misdemeanor, which carries with it the possibility of a fine of up to $500. No incarceration may be assessed upon conviction for this type of misdemeanor.

For a first offense, bond conditions are a matter of discretion for the court. However, if you are charged with a subsequent offense of DWI or a first offense of Intoxicated Assault or Manslaughter, you are required to install a vehicle ignition interlock device on your car and are not allowed to operate a motor vehicle unless it is equipped with an interlock device. This interlock device determines the presence of alcohol in your breath. If the device detects a certain level of alcohol, the vehicle is temporarily disabled.

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