What is intoxication?
Intoxication is defined in Texas as one who has lost the normal use of their mental faculties, physical faculties, and/or has a blood alcohol concentration (BAC) of .08 or more.
Should I take a breath or blood specimen?
No. Agreeing to take a breath or blood test rarely works to your advantage. The Intoxilyzer 5000, the machine used to analyze your breath, can produce inaccurate results in many circumstances. For example, breath tests given by people with acid reflux can be artificially high. The breath test machine is supposed to test for digested alcohol in your blood stream (BAC) by testing deep lung air. Acid reflux causes undigested alcohol to be regurgitated into your mouth. The machine is not designed to tell the difference. The result is an unreliable breath test. Blowing under the legal limit doesn’t necessarily prevent you from being charged with DWI. The state can argue that you were intoxicated under the theory that you lost your mental or physical faculties. This is typical for people who perform poorly on the field sobriety tests.
Does having a BAC above the legal limit mean that I was intoxicated?
Not necessarily. The state has the burden to prove that you were intoxicated at the time of driving. The time you take the test could be significantly later than when you were driving. Your alcohol concentration rises and falls according to whether your body is in the absorption phase versus the elimination phase. Clearly stated, your blood alcohol concentration (BAC) might be below the legal limit when you are driving and above the limit at the time of the test. This is typical of people in the absorption phase. If you drink a few drinks right before you leave the bar, the alcohol will take a significant amount of time to absorb into your blood. Thus, when you get pulled over, your BAC will be significantly less than it was at the time of the test.
What will happen to my license?
The officer who arrested you should have given you a document labeled the DIC-25. This is your temporary driving permit during the time before your license is possibly suspended. This permit allows you to drive without restriction. DPS will suspend your license for 6 months if you refuse to provide a breath test. If you fail the breath test, your license will be suspended for 90 days. You have 15 days from the day of your arrest to request an ALR hearing on your license suspension. If you don’t request the hearing, your license will be suspended on the 41st day after your arrest. Note though, we can get you an occupational driver’s license in most circumstances. If however, we win at the ALR hearing, you will receive your driver’s license in two to four weeks in most cases.
Do I have to do the standardized field sobriety tests if the police officer asks me?
Absolutely not. The officer already suspects you of DWI, if you perform less than perfect on these tests then you have just confirmed the officer’s suspicions. My experience is they will arrest you anyway so why give them anything. Especially, if you are scared, tired or numerous other reasons that affect these tests and the officer does not know this in his evaluation of you. Is there a law like on the billboards that if you “Drink, Drive you got to Jail?” This simply is not the law. This is a misconception that we have to deal with often. This drives me crazy when I see somebody and they tell the officer they are intoxicated because they have been drinking. You can drink, and then drive and it is not against the law. Only when you drink and become intoxicated and drive is when you are breaking the law. If you are drinking while driving it is termed having an open container and is a class C misdemeanor.
Is there a law like on the billboards that if you "Drink, Drive you got to Jail?"
This simply is not the law. This is a misconception that we have to deal with often. This drives me crazy when I see somebody and they tell the officer they are intoxicated because they have been drinking. It is not illegal to drink before you drive. The law states that it is a crime to drive while you are intoxicated. Drinking while you are driving is a different crime than DWI. This offense is having an open container and is a class C misdemeanor.
How long will a DWI stay on my record?
If you plea to or are found guilty of a DWI it will stay on your record for the rest of your life. Moreover, if you later pick up another DWI they can use any prior convictions to enhance the present one to a higher degree. For instance, if you were convicted of DWI in 1980 and again in 1993, your current DWI could be enhanced to a third degree felony.
Can I get a DWI conviction off my record?
Only if it is dismissed or if you are acquitted by a judge or jury. In these circumstances you would be eligible for an expunction.
Do I need a lawyer to assist me with a DWI prosecution and an ALR hearing?
Absolutely yes. Do not think that you can do any of these by yourself. You need an experienced attorney. Most people do not know what juries are looking for, what Judges are listening for, and what is fair in plea bargaining. People who choose to represent themselves face an uphill battle; the system is complicated and doesn’t grant leeway for mistakes. If the police officers are not subpoenaed properly, the police report comes in as evidence at face value for the judge to consider without hearing from the officer. If the police report meets minimum requirements, you will most likely lose your license. Police officer testimony can be critical to your case. For instance, we had a case where an officer did not remember how far our client held his hand out to balance on his tests. The police officers training manual allows people to lift their hands under 6 inches without penalty. Months later, in the criminal case, the officer testified that our client’s hands were very far from his hip. We presented the officer the transcript of his prior testimony and he lost credibility with the jury. The officers’ prior testimony was used against him throughout the trial and finally the prosecution dismissed the case.
What is difference between a DWI and a DUI?
Some states label the crime DUI. In Texas, you have to be under 21 to get charged with a DUI. Anyone can be charged with a DWI. All the state of Texas has to show in a DUI case is that there was a minor driving with any trace of alcohol on their breath.
What is difference between deferred adjudication and probation?
Deferred adjudication is a type of probation where the judge does not find you guilty if you successfully complete the probation. This allows people to avoid a conviction. Your arrest will be on your record in most cases, but you can legally claim that you have never been convicted of the crime you were on deferred for. However, you cannot get deferred for a DWI case. Probation is where the judge finds you guilty immediately, sentences you to jail, but suspends the jail sentence by placing you on straight probation. Thus, entering a plea in a DWI case is the same as jury finding you guilty.
What are possible surcharges to keep my driver's license?
First offense is $1000 a year for three years. Every conviction subsequent is $1500 a year for three years. If you give a breath specimen over a .15, your surcharge is $2000 a year for three years.
How should I act if I am pulled over for suspicion of DWI?
Whenever you are pulled over you should always try to be cordial to the officer. Most of your actions will be noted in the police officer’s report and many times the encounter will be videotaped.
What should I do if the officer suspects me of DWI?
You have the absolute right to remain silent and you have the same right to an attorney. Take advantage of these rights. Anything you say WILL be used against you, so why say anything at all. If you feel like you are about to be arrested, tell the officer politely I would like to exercise my right to an attorney and until then I would like to remain silent. Think about not having to answer trick questions like “on a scale of intoxication from 1-10 where do you think you fall.” There is no correct answer to this question. Should you answer “1″, you are admitting that you feel intoxicated.
How long does it take to fight my DWI?
Your attorney should first appeal your license suspension. This alone will take several months. The DWI prosecution varies in time depending on which court you are assigned. If you would like to plea the case it could be done within weeks. Requesting a jury trial could take up to six months to several years. Unfortunately, some courts are so backlogged from cases that you must patiently wait your turn, as the older cases get to be heard first.
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