Driving while intoxicated is the criminal offense that we defend at Fort Worth DWI Defense Lawyer. Under the law, you will face DWI charges if you operate a vehicle with a blood alcohol concentration greater than 0.08 percent, which is above the legal limit. That is why it is essential to note that measuring BAC is more than a science, and the chemical test should be well-administered. Sometimes, even if everything is done right, the BAC test still has a margin of error, and we can use this error to refute the test results in court.
What is BAC?
BAC (blood alcohol concentration) is the measure of the alcohol amount in your system. It's also known as blood alcohol level or blood alcohol content.
Typically, it's expressed as a percentage, for example, 0.08 percent (the Texas legal limit for adult motorists). The percentage signifies the grams of alcohol in every one hundred milliliters of your blood. That means a higher percent suggests that you had a lot of alcohol in your system.
The blood alcohol level could be measured either through blood, urine, or breath test. BAC chemical tests are deemed to be a scientifically effective method to measure alcohol in the bloodstream. More importantly, the tests are lawful admissible as proof in a Texas driving while intoxicated charge.
How Blood Alcohol Concentration is Measured
As previously mentioned, either breath test, urine test, and blood test can be used to measure BAC. All the tests are reliable, provided they are well-administered. Additionally, they are all admissible in a court of law.
A blood test directly measures the alcohol content in the blood. It makes it the most accurate test for checking your BAC as long as everything is well-administered.
A person licensed by the state will administer your test. A portion of your blood sample will be sent to a laboratory for analysis. It will take a couple of weeks for you to get the results.
Unlike other DUI tests, blood test samples can be saved. That means your defense attorney can request for the sample and have it re-tested independently.
Typically, BAC is not measured using urine tests in Texas DUI cases. The urine test can accurately detect the existence of alcohol. However, it is the least reliable test.
The test will be used in a DUI case if:
- Breath and blood tests are not available
- You are not in a position to take one test, and the other test isn't available
Some of the reasons you might be unable to take breath and blood tests include:
- Unconsciousness or high level of inebriation
- An ailment like clotting or breathing disorder
A Breath Test
A breath test doesn't measure the alcohol amount in your blood. Rather, it measures alcohol in the lungs (where it's close to your blood supply).
Then the breath testing instrument converts the amount into blood alcohol percentage. It uses a formula that is called partition ratio.
Partition ratio varies with persons and situations. However, in Texas, the legal partition ratio is 2,100 to 1. In other words, the alcohol amount in two thousand and one hundred millimeters of a deep breath is lawfully equivalent to the alcohol amount in one millimeter of blood.
PAS (Preliminary Alcohol Screening) Test
A preliminary alcohol screening test is administered before you are arrested for drunk driving. Usually, it happens at a traffic stop.
Post-arrest Drunk Driving Breath Test
After you have been legally arrested for driving while intoxicated, you'll be given the choice of a blood or breath test. You have to take the test irrespective of whether you had taken a preliminary alcohol screening breath test or not.
Refusing to submit a breath test is an offense.
Most defendants prefer the breath test because it's less invasive. The breath test can be taken at a police station.
Legal Limit for Blood Alcohol Concentration
In Texas, it is a crime to operate your motor vehicle with a BAC of 0.08 percent or more. It is also known as per se DUI laws. It means that if you are driving with a BAC above the legal limit, you are automatically guilty of driving while intoxicated even if it can't be established that you were drunk driving.
Since it is unlawful for an underage person to drink alcohol, the state of Texas has imposed an alcohol zero-tolerance rule for motorists below twenty-one years of age. That means underage motorists can be found guilty of driving under the influence of alcohol (DUIA), regardless of whether the motorists are impaired or not. Additionally, individuals below 18 years who meet the driving while intoxicated standard, as discussed above, could be sentenced for both DUIA and DWI.
DUIA by Motorists Below Seventeen Years
The penalties of a DUIA charge varies with the motorist's age. If a driver is below seventeen years of age, the offense is considered a Class C misdemeanor. A first-time conviction is punishable by:
- A maximum of five hundred dollars
- Driver's license suspension for sixty days
- Twenty to forty hours of community service
- Enrolling in an alcohol awareness course for both the underage driver and their parent
DUIA by Drivers Aged Seventeen to Twenty Years
For a driver aged seventeen to twenty, DUIA is a class B misdemeanor. Depending mainly on whether you have previous infractions, you risk facing:
- A fine of two thousand dollars
- A one-year driver's license suspension
- A jail sentence that ranges between seventy-two hours and one hundred and eighty days
Your suspension period can be reduced to ninety days if coupled with an installation of an IID (ignition interlock device) and community supervision.
Implied Consent and Refusing to Submit Chemical Tests
Under the implied consent laws, underage drivers who are legally arrested for DUIA should take a breath or blood BAC test. If you refuse, you will be put into custody until you either post bail or appear in a juvenile court. Moreover, the refusal carries a six-month license suspension or delay in acquiring a driver's license if not licensed.
If you are a commercial motorist and hold a commercial driver's license, your legal BAC limit is 0.04 percent.
These standards are more stringent. It is because commercial motorists operate different types of vehicles. Large motor vehicles like buses and 18-wheeler trucks are complicated for the motorist, particularly because of the potential risk to passengers and other road users when not handled properly.
On top of the 0.04% legal limit, you should know that:
- The 0.04 percent legal limit always applies regardless of whether you are operating a company car or your commercial vehicle
- Police officers should have probable cause for field sobriety tests for non-commercial motorists. Nevertheless, as a commercial motorist, you are bound by the Department of Transportation regulations that subject you to random blood alcohol concentration tests.
- Winning a driving while intoxicated charge is a high stake for all citizens. However, the charge puts at risk a means of making an income for the commercial motorist.
How Many Drinks Does It Take to Attain .08 Percent BAC?
The alcohol amount in your glass does not substantially match up to the amount of alcohol that goes into the body. Liquor, wine, and beer come in different variations as far as the alcohol content is concerned. It is more complicated when you factor in generous bartenders and cocktails.
Typically, a standard drink is about half an ounce of alcohol. In other words, a twelve-ounce beer, a 1.5 ounce shot of distilled spirits, and a five-ounce glass of wine each are considered as a standard drink.
When you drink alcohol, the liver metabolizes it. Generally, the liver takes approximately an hour to process one drink. Taking more than a drink in one hour leads to high BAC, and more time is required to break down the alcohol.
For every drink, the BAC rises by 0.02%. Therefore, reaching a blood alcohol concentration of .08% takes approximately four drinks. However, that doesn't put into consideration various factors that contribute to how alcohol is processed. These factors include:
- Rate of consumption
- Drink strength
- Fat/muscle content
- The food you have eaten
- Alcohol tolerance
- If you're on medication
- Emotional state
- General health
Penalties for Violating the BAC
Discussed below are the penalties, consequences, and sentencing for driving while intoxicated in Texas:
First-Time Drunk Driving Offense
If arrested for drunk driving, you will face a criminal court process and an administrative process at the Texas State Office of Administrative Hearings.
Provided you are legally arrested for DWI, the TxDPS might impose administrative driver's license revocation consequences. Should you fail or refuse a breath or blood test, the police officer will cease the license immediately. The police will give you a "Notice of Suspension" that serves as your temporary driver's license. You also have fifteen days from the date of your arrest to request a hearing to challenge the suspension. Failure to request the hearing, the driving privileges will be withheld for ninety days, beginning the 41st day following the arrest. Should you request the hearing, the Notice of Suspension will permit you to continue enjoying the driving privileges until you appear in the ALR hearing and get the final verdict.
Should a defendant refuse to take a breath or blood test, the Texas DPS will suspend their license for another six months upon the expiration of the temporary driver's license. The suspension will be dismissed if the defendant is acquitted of drunk driving in court.
First-time offenders qualify for an occupational license throughout the suspension period. The license will permit you to drive to and from school, work, and places essential to perform fundamental household responsibilities. To acquire the occupational license, you should:
- Provide proof of financial responsibly
- Prove that you have installed an ignition interlock device on all cars you operate (apart from employer-owned) or own
Typically, a first-time driving while intoxicated is a Class B misdemeanor.
Nonetheless, if you had a blood alcohol concentration greater than 0.15 percent, the offense is charged as a class A misdemeanor. You will face the following penalties:
- Seventy-two hours to (6) six months in jail
- Fines and administrative fees that range between two thousand dollars and four thousand dollars
A first-time offense may also carry:
- Community service
- A DWI education program
Moreover, the judge will suspend your license for ninety days to twelve months.
A second-time drunk driving offense is a severe charge. It carries more serious consequences than the first DWI conviction.
If lawfully arrested for drunk driving within ten (10) years of a prior drug or alcohol-related enforcement contact, the TxDPS might impose enhanced fees and license suspension irrespective of whether you are finally sentenced for DWI or not.
If a defendant fails the chemical test, the suspension is one year. And if they refuse to submit a chemical test, the suspension is two (2) years. The suspension will be dismissed if they are found innocent in court.
One of the conditions of release from detention is installing an IID in your cars. During the suspension period, the defendant can get an occupational driver's license provided they have not had a preceding alcohol-related suspension within the prior five years.
If the accused received the driving privilege withdrawal within the previous five (5) years for an alcohol-related contact with a police officer, there is an initial ninety-day hard suspension period during which they will not be in a position to drive. If the law enforcement contact was within the last five years, the hard suspension enhances to six months.
Please note, the occupational driver's license is available only once in ten years.
Additionally, the state imposes an annual Department of Motor Vehicles license surcharge of one thousand and five hundred dollars per year for three (3) years. The annual fees become two thousand dollars if your blood alcohol concentration is above 0.16 percent.
A second-time drunk driving offense is a class A misdemeanor. The offense does not have a lookback period and any previous boating while intoxicated, or DWI conviction is deemed a previous conviction, irrespective of age.
It is punishable by:
- Thirty days to a year in jail
- A fine of four thousand dollars plus penalty assessments
- Probation for two years
- Enrolling a DWI education program
- Rehabilitation program or substance abuse evaluation
- A maximum of two hundred hours of community service
- Attending a DWI Impact Panel
- Installing an IID while your charge is pending (you won't be permitted to drive without the IID for a year after license reinstatement)
Third DWI Offense
The section below discusses criminal and administrative penalties for a third-time DWI offense.
If you are arrested for driving while intoxicated within 10 (ten) years of a prior drug or alcohol-related enforcement contact, the TxDPS might impose enhanced fees and license suspension irrespective of whether you are found guilty of drunk driving or not.
If you fail your chemical test, you will receive a one-year license suspension. On the other hand, violation of implied consent law will result in a two-year license suspension. The suspension will be set aside only when your case is dismissed in court.
You qualify for the occupational license if you haven't received any prior alcohol-related license suspension within the last five years. If you have a prior license suspension within the last five (5) years for alcohol or drug-related contact with law enforcement, there is an initial ninety-day hard suspension period. If you have a previous law enforcement contact within the last five years, the hard suspension enhances to one hundred and eighty days.
Moreover, the state imposes an annual TxDPS license surcharge of one thousand dollars to two thousand dollars for three (3) years.
A third DWI offense is charged as a third-degree felony. It attracts the following penalties:
- Two (2) to ten (10) years in prison
- Ten thousand dollars in fines plus penalty assessments
- A two-year probation
- A maximum of six hundred hours of community service
- A rehabilitation or substance abuse evaluation program
- Installation of IID
Implied Consent and Chemical Test Refusal
Driving in Texas is a privilege, not a right and the state can revoke or suspend a driver's license, impose fines or sentence you for refusing to submit to a chemical test when suspected of drunk driving.
Under implied consent laws, all drivers legally arrested for drunk driving should take a chemical test to determine the presence of alcohol or drugs in the motorist's blood. It bears repeating that a lawful arrest is one where the police officer who stops you should have probable cause to think that you are drunk driving.
The arresting officer decides which test you should take. However, after submitting to the test, a medical doctor can take your blood test within two (2) hours of the arrest (at your expense).
Usually, the police can't force you to submit to a chemical test. Should you refuse to take the test, you will face penalties, but the law enforcer should respect your decision. However, testing is compulsory if:
- You're involved in a car accident that involves death or severe injury
- You have a previous conviction for drunk driving with a minor passenger, intoxication manslaughter, intoxication assault, or two previous driving while intoxicated convictions
The arresting police officer should tell you of the penalties of blood or breath test refusal. Moreover, the officer should explain that you are not entitled to talk to a defense attorney before taking the chemical test and that the test might be used against you in a court of law.
Pre-arrest Testing and Implied Consent
Under implied consent laws, you should not take a chemical test before a legal arrest. Nevertheless, to prove probable cause to make the arrest, the officer could request you to submit to a voluntary PAS test. The test is administered using a breathalyzer (a handheld breath test gadget).
Penalties for Refusing a Post-arrest Chemical Test
The consequences for refusing to submit to a blood or breath test begin at one hundred and eighty-day driver's license suspension. You can lose the driver's license for two (2) years if you refuse a chemical test, and you have a previous drug or alcohol-related enforcement contact within the past ten years. Failed blood alcohol tests, BAC chemical test refusal, and drunk driving convictions are considered as previous enforcement contacts.
Is it Wise to Refuse to Submit to a Mandatory Test?
The question of whether it is wise to refuse a post-arrest chemical test hinges on the case circumstances.
Notwithstanding the penalties attracted by the refusal, it could be a wise decision to refuse the test if you:
- Don't depend on driving your car to get around
- Are very intoxicated and don't want to face the enhanced penalties of driving with a BAC higher than 0.15 percent
Refusal might not assist you in avoiding a conviction (a defendant can be convicted even without the chemical test results). The prosecutor could claim that the refusal indicates guilt consciousness.
Irrespective of the choice you make, it is advisable to consult a seasoned defense lawyer as soon as possible after that.
Understanding the Margin of Error: How to Fight a DWI Charge
The prosecution team will present numerous forms of evidence that range from police reports to witness statements. More often than not, the key piece of proof consists of BAC results. The test should be conducted in an approved way, ensuring no interference or contamination. However, a well-administered test doesn't necessarily establish that the BAC results are correct. It's essential to note that testing gadgets have a margin of error.
The BAC test isn't a precise science. This is particularly true with breath test results. A breathalyzer does not directly measure your BAC; it estimates it. That doesn't mean the test is entirely incorrect but has a margin of error. For instance, assume a BAC test instrument has a margin of error of 0.01 when it is well administered. If you submitted the test and the BAC is 0.08%, that means your BAC might be between 0.07% and 0.09%.
Find Legal Representation Near Me
BAC is an essential piece of evidence in any DWI case. Most cases will be prosecuted when the BAC is higher than 0.08 percent. High BAC levels are difficult to defend and carry severe penalties. We at Fort Worth DWI Defense Lawyer have many years of experience defending clients in Fort Worth and can fight your charges irrespective of how complicated you think the case is. To discuss your case, please call us at 817-470-2128.