DWI is simply “driving while intoxicated.” Intoxication under Texas law means (a) not having normal use of physical faculties due to the introduction of alcohol, a drug, a dangerous drug, a controlled substance, a combination of two or more of these substances, or any other substance that may affect how the body functions; (b) not having normal use of mental faculties due to the introduction of alcohol, a drug, a dangerous drug, a controlled substance, a combination of two or more of these substances, or any other substance that may affect how the body functions; OR (c) a person having a blood alcohol concentration (BAC) of .08 or more. It’s worth noting that in order to obtain a conviction, the police or prosecutor only need to prove one of these three ways. For instance, if there’s no blood or breath test and the jury believe that the individual has lost their physical faculties but not their mental faculties, that individual could be found guilty of DWI. However, that’s not always the case because intoxication tends to cause the loss of both mental and physical faculties. But if the evidence shows the loss of either physical or mental faculties, there’s usually a logical explanation and the result should be the individual is not intoxicated. In essence, a person is considered guilty of DWI if they operate a motor vehicle in a public place while intoxicated.
Alcohol concentration refers to the number of grams of alcohol per (a) 100 milliliters of blood, (b) 210 liters of breath, or (c) 67 milliliters of urine. Unless you’re a toxicologist, chemist, engineer, or an expert of alcohol, it’s difficult to determine whether the alcohol concentration in your blood is .08 or more. What’s more, tests may vary as one test may insinuate your guilt with a .08 concentration or more while another test could confirm your innocence.
Well, the answer to this is not straightforward. Your body begins to remove alcohol as soon as you consume it. As such, the concentration rises when you drink more alcohol than your body can adequately eliminate. A general rule of thumb is that you may have one glass of wine (4 oz.), one beer (12oz.) or one short of whiskey (1.5 oz.) per hour. If, for instance, an “average” man drinks 4 glasses of wine in 40 minutes, his alcohol concentration at the end of those 40 minutes would be .08 or more. There are many factors that may affect the level of concentration as the estimations vary from individual to individual. This shows why it’s important to hire a seasoned Forth Worth DWI attorney who knows the differences.
No. Just because an officer pulled you over and then brought you in based on DWI suspicion doesn’t outrightly mean that you’re guilty. There are so many instances of wrongful DWI arrests made across the state. An officer must have probable cause in order to make a lawful DWI arrest. In addition, there must be proof to show intoxication. Remember, there are two sides of every story and since DWI arrests are based on the opinions of the arresting officers, there could be a way to prove your innocence.
These rights are commonly known as Miranda rights and originate from a U.S Supreme Court Decision that states that before a suspect is interrogated by police and prosecutors while in custody, the suspect must be advised of his/her rights. As such, your statements or actions may not be used against you if you’re not warned. Your rights in the case after an arrest are to remain silent and not give out any information without the advice of an attorney. Anything you say can and will be used against you. But if you can’t afford to have an attorney to advise you during questioning, you have the right to terminate the interview at any time.
But when it comes to DWI cases in Texas, you’re considered not to be under custody and do not have to be told you have these rights if you’re stopped for a traffic offense. And while they still apply, the police are under no obligation to read the rights and there’s no penalty if they fail to do so. Therefore, before telling you that you’re suspected of driving while intoxicated, the police may legally ask you if you’ve been drinking and how many drinks you’ve had. It’s also okay for you to say no to an officer’s questions. If you were arrested an already answered the questions, the law makes it legal for your statements to be used against you in court and at your trial. This does not apply to other criminal cases.
Driving While Intoxicated can be charged against any driver who operates a motor vehicle while intoxicated from alcohol, drug, a controlled substance, or any other substance that may cause impairment. DUI stands for “Driving Under the Influence” and is an offense only charged against minors. To be arrested in for DUI in Texas, the individual must be under the age of 21 and having any detectable amount of alcohol in their system while operating a motor vehicle in a public place. Since it’s illegal for any person under the age of 21 to consume alcohol in Texas, the state applies a zero-tolerance to underage drivers regardless of whether they are actually intoxicated or not. Generally, this is a Class C Misdemeanor.
A police officer must have probable that criminal activity is occurring so as to make a lawful traffic stop. The following are factors that police officers on the highways in Texas will look for when searching for drunk drivers:
- Turning with wide radius
- Following too closely
- Straddling the center of the lane marker
- Tires on the center or on the lane marker
- Stopping without cause in traffic lane
- Almost striking another vehicle or object
- Speed more than “10” miles below the speed limit
- Driving on other than designated roadway
- Headlights off
- Braking erratically
- Turning abruptly or illegally
- Slow response to traffic signals
- Driving into opposing or crossing traffic
- Accelerating or decorating rapidly
- Signaling inconsistent with driving actions
- Stopping inappropriately other than in a lane
While speeding may be considered by police officers as a factor, it is not a recognized sign of intoxication. Your reactions, reflexes, and judgment increase with the speed at which you’re driving. So, if you appear to be driving normally while speeding, that would show sobriety rather than intoxication.
If an officer does have probable cause to make a traffic stop for DWI they will base their suspicion on observable facts, including:
- Flushed face
- Slurred speech
- The odor of alcohol on breath
- Red, glassy, watery, or bloodshot eyes
- Open container in the vehicle
- Unable to follow police instructions
- Failure to understand the officer’s questions
- Swaying while standing
- Fumbling with wallet while trying to get the license
- Leaning on the car for support
- Lack of awareness in regards to time and place
- Unsteady of feet while exiting the vehicle
- Being jovial, argumentative, or combative while talking with the officer
If the officer observes any of these signs of intoxication, you may be asked to get out of the car and perform field sobriety tests.
Texas law does not require you to do the field sobriety exercises under any circumstances. When the police ask you to perform these tests, they want you to help make their case against you stronger. This means that you’re helping them manufacture evidence that will be used against you in court. Field sobriety tests are meant to challenge your ability to perform physical or mental tasks simultaneously and if your struggle doing what you’re asked to, the tests could be difficult.
The One Leg Stand test, you’re required to stand with one leg six inches above the ground for 30 seconds. The other is the Walk and Turn where you walk nine steps with one foot immediately in front of the other and then turn in a particular manner and return nine steps. The Horizontal Gaze Nystagmus (HGN) test or the pen test is an eye test where the officer observes the eyes following an object horizontally.
These are not simple exercises and taking them is usually not a good idea, especially if you’re nervous or have never practiced them. Failing a test even if you haven’t been drinking can make you look drunk and can serve as probable cause for an arrest. Most experts agree that police officers are not adequately trained to accurately interpret the symptoms during the observations. This doesn’t mean that you need to be rude to an officer when they are administering the tests. It’s much better to be courteous and respectfully decline the tests.
As an experienced DWI attorney, I have found out that most breath, blood, and urine tests are not completely accurate or reliable and should therefore not be taken. Machines used at the roadside are highly unrealizable for measuring alcohol concentration. Actually, breathalyzers have not been approved or certified for use in Texas. Even so, police officers prefer breath tests because they are the easiest and the devices are readily available. The breath tests conducted at the station are different and much better than those done using breathalyzers at the roadside. For this reason, you may want to refrain from submitting to a breath test at the roadside until an “official test” is offered.
You can also refuse to give a voluntary blood or urine test if requested. In most cases, an officer can get a search warrant to get the blood out of your body. Therefore, if the officer has a search warrant, it’s a good idea to consent to the test. However, if you agree to submit to any of these chemical tests, it’s important to know that you have a right to request your own independent test, but most police officers will not provide that information. For this reason, it’s important to call a competent and experienced DWI attorney immediately after the arrest.
Yes, having an open container of alcohol in your possession while operating a motor vehicle in a public place is a Class C Misdemeanor. It’s also illegal for any passenger to have an open container of alcohol in the vehicle. However, if you’re the passenger of a bus, taxicab, limousine, or in the living quarters of a mobile home, you can have an open container in your possession or legally consume alcohol while being driven around.
If, for instance, you go to a party and leave with a bottle of wine, liquor, or beer, you can be ticketed for having an open container of alcohol. It is not illegal to carry a bottle of wine, liquor, or alcohol if the seal is not broken. But if the seal is broken, the only legitimate way to carry the bottle is to put it behind the last row of seats or in the trunk of your car. However, my advice is to leave the alcohol at the party or any other place to avoid presenting the police with evidence for a DWI charge against you.
If a person refuses or fails a chemical test following an arrest for DWI, their license may be suspended for 90 days up to 2 years, depending on the number of prior DWI convictions. Whether you take or refuse to take a chemical test, Texas law grants you 15 days after your arrest to request a hearing to contest the automatic suspension of your driver’s license. This is referred to as the Administrative License Revocation hearing, which seeks to stop the Texas Department of Public Safety (DPS) from suspending the license. If you request a hearing within this time, your license will not be suspended until the judge gives an order.
If you fail to request the ALR hearing within 15 days of your arrest, your driver’s license will automatically be suspended on the 40th day after your arrest. If this is your first DWI offense, the suspension can last for 90 days (if you submitted to and failed a chemical test) or 180 days (if you did not take a test). The license can be suspended for up to 2 years for a second or subsequent DWI offense. This is why it’s important to ensure that you don’t take too long to request the ALR hearing. It’s also worth noting that if your license is suspended and you’re stopped by a police officer, you can be charged with Driving While License Invalid (Class B Misdemeanor).
Yes. Your license may be suspended if you are later convicted of DWI. Just as with the suspension after an arrest, your license may be suspended for 90 days up to 2 years. A conviction for Driving Under the Influence will result in an automatic driver’s license suspension for one year, except in cases where the individual is on community supervision and required to install an Interlock Ignition Device on their vehicle.
An occupational license is a special restricted license issued to a person whose license has been suspended or revoked for reasons other than physical or mental disability. If your driver’s license is suspended after refusing or failing a breath test, you may be eligible for an occupational license. This restricted or occupational license works in terms of purpose, hours, and region. It is authorized by a court for the operation of a non-commercial automobile in the performance of essential household duties, for educational purposes, or in connection with a person’s occupation.
An occupational license may be granted for about 4 hours to 12 hours per day. These hours are not usually continuous and may vary on different days. In most DWI cases, most people are allowed to use the license for 12 hours each day. These hours apply to physically driving a car. The requirements to have an occupational license if you have multiple DWI offenses on your record may be more stringent. You may be required to install a deep lung ignition interlock device on any vehicle you operate while you have the occupational license. And depending on the facts of a case, some driving periods may not be available.
No, the court plays the role of authorizing the restricted license. The court order and other related documents are then submitted to the DPS so an occupational license can be issued. However, the court order can be used as a temporary occupational license for 30 days from the date of the judge’s signature while the occupational license is being processed by the DPS. Once issued, the restricted license should be kept in the glove box of the car you operate.
A surcharge is an administrative fee under the Driver Responsibility Act. The fees under this act are administrative in nature and are above any court costs, fines, filing fees, or probations fees received by the State in DWI cases. So, if you’re convicted of a DWI, you will have to pay a surcharge. This does not replace a revocation, suspension, cancellation, disqualification, or denial resulting from the same conviction. Surcharges may be assessed in one of two ways: conviction based or point system.
If convicted for DWI in Texas or out of state, 2 points will be assessed and if the DWI resulted in an accident, 3 points will be assessed. These fees are paid to the Department of Public Safety (DPS). Once levied, you must pay the surcharge within 105 days or your license will be suspended for failure to comply with the requirements and the suspension will be upheld until you pay an installment or pay the surcharge in full.
If convicted for a first DWI offense, you’ll be required to pay $1,000 a year for three years to keep your driver’s license. If convicted of a second or subsequent DWI, you’ll pay a surcharge in the amount of $1,500 per year for three years. The amount increases to $2,000 per year for three years if convicted of a DWI where the test results for a breath or blood test was .16 or more.
The SR-22 is a certificate of insurance required by the Texas Department of Public Safety (DPS) to establish the existence of insurance coverage for the future, as required by law. This form is used in most cases involving driver’s license suspension but it is not necessarily “high-risk” insurance. In a DWI case, if a license is suspended for refusal or failure of testing, the SR-22 is required to be filed alongside a request for Occupational License.
An SR-22 is a motor vehicle liability insurance which is filed with the DPS for two years and requires the insurance company to certify coverage. The insurance company must furnish the SR-22 form and notify DPS any time the policy is terminated, canceled, or lapses. Most individuals choose an alternate insurance company to avoid an increase in their insurance rates and then allow the alternate insurance policy to lapse once the period of suspension has been lifted.
That depends on the circumstances of your case. Typically, the conditions are a matter of discretion with the court. For a first time offense, the judges usually do not make a condition to get an Ignition Interlock Device (IID), unless the BAC was .15 or higher at the time of testing or there were other grave extenuating circumstances. However, if you have a prior arrest or conviction for DWI you’re required by law to install an IID on all of your automobiles as a condition of bond. This also applies to DWI cases involving Intoxication Manslaughter and Intoxication Assault. You will not be allowed to drive any vehicle that does not have an IID.
If installing an IID is a condition of bond, you’ll be required to blow into the device before starting the car. The device will disable if it determines a certain level of alcohol on your breath. Also, you’ll have to continuously blow into the device about every 20 minutes when driving or an alarm will go off until the vehicle stops. It’s worth noting that the alcohol in some mouthwashes can be higher than the allowed limit and can cause the IID to disable the vehicle if you don’t wait a certain period of time to elapse after its use.
No. Deferred adjudication is not a punishment option for DWI cases in Texas. If an attorney tells you that deferred adjudication might be available, then you’re not talking to a DWI attorney.
Yes, but this depends on the facts surrounding your case, your prior criminal history, and whether you meet the minimum requirements for probation or community service under Texas law. Those minimum requirements include (a) that you have never been put on probation for a felony offense in Texas or another state (b) that you have never been convicted of a felony in Texas or another state in the U.S.
To begin with, Texas law classifies these two punishments as “community service.” One is referred to as “Community Service” or what was initially known as “Probation” and the other is called “Deferred Adjudication Community Service.” Probation is a punishment that can be received from either a Jury or a Judge but Deferred Adjudication can only be received from the judge and never a jury. In a probation situation, an individual is judged or found guilty and sentenced, but then, the sentence is probated. With Deferred Adjudication, the finding of guilty against an individual is deferred and the individual is placed on community service without the judge entering the judgment of guilty. In essence, with probation, a person is convicted but the sentence is probated. With deferred adjudication, a person is placed on community service without being convicted.
If this is your second or subsequent DWI offense, then your case has more issues. Any prior DWI conviction can be used in charging your crime. If convicted for DWI, you’re subject to increased punishment in terms of incarceration and fine. In Texas, you could face possible felony charges if you have two or more DWI conviction in your lifetime. This means that you could serve jail time for 2 years up to 10 years and/or a fine of up to $10,000. The laws of increased punishment and enhancements are very specific and for this reason, if you have a prior DWI arrest or conviction on your record, it’s important to choose an experienced DWI attorney who can help obtain a dismissal or the minimum punishment option.
Yes. Texas allows prosecutors to offer reduced charges like Obstruction of a Roadway or Passageway or reckless driving. This allows DWI defendants to be eligible for deferred adjudication. A reduced DWI charge means having the severity of the charges lowered and having far more lenient jail time, fines, and other restrictions. Examples of reducing a DWI charge in Texas include:
- Seeking Deferred Adjudication for DUI
- Reducing DWI charges to Reckless Driving
- Getting a felony DWI reduced to a misdemeanor
- Getting the case dismissed
- Filing a Pretrial Motion to remove BAC evidence obtained through illegal means
- Negotiating a plea bargain for a lesser charge
- Getting a “No Bill” return
If you’d like to reduce the severity of the charges against you by pursuing any of these avenues, it’s important to hire an experienced DWI attorney to represent you.
Every insurance company is different and follows different rules and regulations. There’s no certain way to determine if your insurance rates will increase or if you’ll get dropped from coverage altogether. Generally, insurance coverage contracts don’t require the insured to give information about DWI convictions. So, before you take any action with your insurance provider, contact an attorney for legal counsel.
In the past, a DWI conviction would stay on your record forever since Texas law did not allow an expunction or removal of DWI convictions. That’s not the case anymore. With a new law that became effective on September 1, 2017, it is possible for first-time offenders to remove a DWI from their records permanently by getting an order of non-disclosure from the court. There is a waiting period that you must wait and conditions you must meet before petitioning the court for non-disclosure. If you’ve petition after that period has elapsed and have met all the conditions, the judge will grant an order for non-disclosure, which will effectively clear the DWI conviction from your records. Public background searches will not show any DWI arrest or conviction and you can even deny ever being charged with a DWI, even if you were convicted and sentenced.
You may petition for a DWI non-disclosure if (a) you’ve never been convicted of any other offense (b) The DWI did not result in an accident, (c) your BAC was below .15, (d) you’ve successfully completed any time of confinement or community service, and (e) you’ve paid all costs, restitution, and fines. If you received and successfully completed probation, you’ll have to wait 2 years to petition for an order of nondisclosure. If you received a jail sentence and had an interlock ignition device installed in your vehicle for a 6-month minimum, the waiting period is 3 years from the date of completion of the sentence. If you were sentenced but required to install an IID, the waiting period is 5 years.
Getting a DWI in Texas is expensive. In fact, the total cost for a first-time offender can be $15,000, $20,000 or more. The bail for a first-time offender is set between $200 and $1,000, and up to $10,000 for aggravated DWI cases. If you’re convicted of DWI, you’ll be required to pay court costs of up to $2,000 and court-imposed fines of between $2,000 up to $10,000. If you’re placed on probation, there’s a monthly fee of between $60 and $100. Part of your sentencing can include substance abuse classes and driving classes, which are not free. DWI education classes may cost between $80 and $100 for a 12-hour course. A 30-hour DWI Intervention program for repeat offenders costs $185. In addition, the DPS will subject you to an annual surcharge fee ranging from $1,000 to $2,000 for three years (for a total of $3,000 to $6,000).
This 12-hour course typically costs $70. Repeat offenders can be required to attend a DWI Intervention Program, a more extensive version of the class for first-time offenders. This 30-hour class carries a cost of $185. You’ll also be required to file an SR-22 insurance policy for two years for a minimal cost between $15 and $25. However, the real cost comes with increased car insurance premiums. After a DWI conviction, your premiums may increase by 87 percent, which is equivalent to $1,000 per year. If required to have an interlock ignition device, the cost of the switch will be between $70 and $100 per month.
After being arrested on suspicion of DWI, will be towed and impounded by law enforcement officials. The towing fee will be between $250 and $450 in addition to an impound fee of about $20. The costs will vary based on the size of your car and the jurisdiction. Some impound lots will charge an additional daily storage fee of $5 to $20 per day.
These costs do not address travel to and from your court appearances, missing work for court or community service, and attorney’s fees. Put simply, a DWI conviction in Texas is expensive!