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DWI DEFENSE

To build a powerful defense, you must first know exactly what you’re up against. The State has to overcome the highest burden of proof in Texas in order to convict for DWI. They must prove every element of Driving While Intoxicated (DWI) as defined in Texas Penal Code Title 10 Chapter 49:
 

Sec. 49.04. DRIVING WHILE INTOXICATED. (a) A person commits an offense if the person is intoxicated while operating a motor vehicle in a public place.

 

The law defines “intoxicated” as having lost the normal use of your mental or physical faculties due to the introduction of any substance including alcohol or a drug or a combination of the two, or having a blood alcohol concentration (BAC) of .08 or greater.
 
“Public place” is defined in Section 1.07 of the Texas Penal Code as any place where the public or a significant portion of the public has access. This includes neighborhoods, and the parking lot at Whataburger.
 
The word “driving” does not appear in the definition. That’s because you don’t necessarily have to be driving. Operation is somewhat broadly interpreted. If the keys are in the ignition, and the vehicle is on, that could be enough.
 
Read through the tabs below to find out everything you need to know about DWI in Texas. If you still have questions, give me a call at 210-920-1281.

 
Your situation is not hopeless. I don’t care how awful you think the evidence against you may be. My first goal is to get your case dismissed outright.
 

Reasonable Suspicion
 
The best place to start is at the beginning. The officer who pulled you over needed a valid reason (reasonable suspicion) to do so. Most law enforcement vehicles are equipped with video, and most officers are either wearing body cameras or have some wireless audio recording device on their person.
 

This technology is crucial in tracking the consistency (or identifying the inconsistency) between what the officer said they saw you do, and what you did.
 
Officers are also often wrong about the law. I have had cases dismissed because an officer cited a traffic violation as the reason for a stop, when, in fact, that particular traffic violation does not exist. You could be 5 times the legal limit. If the stop is unconstitutional, your case will be dismissed.

 

Probable Cause for Arrest
 
Even if the stop was “good” – i.e., you were speeding, or ran a stop sign, or red light – the officer still must have probable cause to arrest you. It is important to note that probable cause is a much lower standard than the burden of proof the State must overcome to convict you.
 
Most officers are going to use the traffic stop encounter to begin investigating whether or not you have been drinking and are impaired. Click here for a field guide on what to do if you are pulled over.
 
Even if an officer had a good reason to pull you over, he or she cannot then simply just arrest you for DWI. Without evidence of impairment, the arrest can be suppressed. If the arrest is suppressed your case will be dismissed.
 
You can read about more ways to combat a DWI charge here.

 
While DWI is extremely common, it is a costly offense with serious consequences.
 
DWI – 1st Offense
 
A first time DWI offense is a class B Misdemeanor, which has a punishment range of 3 -180 days in jail, up to a $2,000 fine, Texas Driver’s License suspension for up to 2 years, and an annual DPS surcharge of up to $2,000 for 3 years to keep license.
 
DWI – 1st Offense with an Open Container
 
DWI with an open container is a Class B Misdemeanor, which has a punishment range of 6 -180 days in jail, up to a $2,000 fine, Texas Driver’s License suspension for up to 2 years, and an annual DPS surcharge of up to $2,000 for 3 years to keep license.
 
DWI – 1st Offense with a BAC .15 or Higher
 
A first time offense with a blood alcohol concentration of 0.15 or higher is a Class A Misdemeanor, which is punishable by 3-365 days in jail, up to a $4,000 fine, Texas Driver’s License suspension for up to 2 years, and an annual DPS surcharge of up to $2,000 for 3 years to keep license.
 
DWI – 2nd Offense
 
A second DWI offense (DWI-Repeat Offender) is a Class A Misdemeanor, and is punishable by 30-365 days in jail, up to a $4,000 fine, Texas Driver’s License suspension for up to 2 years, and an annual DPS surcharge of up to $2,000 for 3 years to keep license.
 
DWI with a Child Passenger
 
DWI with a Child Passenger is a State Jail Felony, which is punishable by 180 days – 2 years in a Texas State Jail facility, up to a $10,000 fine, Texas Driver’s License suspension for up to 2 years, and an annual DPS surcharge of up to $2,000 for 3 years to keep license.
 
DWI 3rd Offense or More
 
A third DWI (Habitual DWI) is a 3rd Degree Felony, which carries with it a punishment range of 2 – 10 years in a Texas Department of Criminal Justice (TDCJ) penitentiary, up to a $10,000 fine, Texas Driver’s License suspension for up to 2 years, and an annual DPS surcharge of up to $2,000 for 3 years to keep license.
 
DWI Probation
 
DWI offenses are not eligible for Deferred Adjudication in Texas. Therefore, if you receive probation you will have a lifelong conviction for the underlying DWI offense. The likelihood of DWI probation is entirely dependent on your history and the facts of your case.
 
Most all DWI probations include, but are not limited to monthly reporting to probation officer, restricted travel, up to a $2,000 fine, court costs, probation monitoring fees, DWI intervention or education program, an alcohol monitoring device, and community service hours.

You only have 15 days to save Driver’s License. If you’ve been arrested for DWI, the officer very likely confiscated your Texas Driver’s License. Go get a new one immediately. Your driving privileges are not suspended. Your driving privileges may eventually be revoked, but it does not happen instantly when you are arrested for DWI.
 
If you do nothing, your license will be suspended on the 40th day after your arrest. You’ll receive a letter from the Department of Public Safety (DPS) outlining the suspension dates.
 
If you act quickly, you can contest the suspension.
 
You have 15 days from the date of arrest to request an administrative hearing on the revocation of your license. These Administrative License Revocation Hearings are commonly referred to as ALR’s.
 
Administrative License Revocation Hearing (ALR)
 
The ALR hearing and the procedures surrounding it are outlined in case law, the Texas Transportation Code, Texas Administrative Code, and the State Office of Administrative Hearings (SOAH) procedural rules.
 
The ALR hearing does not take place at the courthouse. It isn’t presided over by an elected judge. It is simply an administrative hearing, the purpose of which is not to convict you for the underlying offense.
 
Your chances of victory in an ALR hearing are slim. This is because the State has a very low burden in administrative hearings.
 
You have everything to gain and nothing to lose by doing it.
 
Prevailing at the ALR hearing means you will not incur a license suspension. That saves you time and money. Additionally, even if you don’t win, your attorney can still pin the officer down to a specific story through testimony. If the officer contradicts this testimony at another hearing or at trial, it will weaken the State’s case.
 
Having a driver’s license is a privilege, not a right. Because Texas is an “implied consent” state, when you receive your driver’s license you essentially enter into an agreement with DPS to provide a specimen of breath or blood when requested.
 
Because the burden is so low, and because of the implied consent laws, all the State really needs to prove at an ALR in order to prevail is that you refused when asked.
 
If you lose the ALR hearing you can pursue an Occupational Driver’s License that will allow you to drive legally, while your regular driver’s license is suspended.
Here are the respective suspension periods:

Minor (under 21) 60 Days
Failed Test 90 Days
Refused 180 Days
DWI 2nd 1-2 Years
Felony 2 Years

 
Can I get an Occupational Driver’s License?
 
An Occupational Driver’s License (ODL) authorizes someone with a suspended or revoked license to operate non-commercial vehicles for the purposes of attending school, work, church, life errands, etc.

If you hold a Commercial Driver’s License (CDL) you are not eligible for an ODL.

Section 521 of the Texas Transportation Code states that in order to receive an ODL, a person must demonstrate an “essential need”. It defines an essential need as:

To perform their occupation or job
For transportation to and from the workplace,
For transportation to and from school, or
In the performance of an essential household duty
An ODL will be effective until the end of the driver’s license suspension period.

What is the waiting period for an ODL?

  • Immediately – if you’ve had no previous license suspensions for alcohol-related incidents in the past 5 years
  • 90 Days – if you have had a license suspension in the past 5 years for an alcohol related incident.
  • 6 Months – if you’ve been convicted of a DWI in the past 5 years.
  • 1 Year – if you have been convicted of two or more DWIs in the past 5 years.

What is the ODL waiting period for someone under 21?

According to Section 524 of the Texas Transportation Code, a minor under the age of 21 must wait the following periods before they are eligible for an ODL:
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    • 30 days – if no previous alcohol related suspensions
    • 90 days – after the administrative license has been in effect if one prior alcohol-related conviction
    • If a minor has had two or more driver’s license suspensions, they are not eligible for an ODL

 
Most everyone facing a DWI charge is released on bond. You can be released on a Personal Recognizance (PR) Bond, a Bail Bond through a bail bondsman, or an Attorney Bond.
 
When facing your first DWI charge, you typically are going to have very few requirements while your case is pending. You’ll be required to check in regularly, update contact information as it changes, and show up to court.
 
If, however, you are facing an enhanced DWI because of your BAC or otherwise, you will likely have additional, burdensome, expensive requirements.
 
If you have been charged with an enhanced DWI then you will likely be required to install an ignition interlock device on every vehicle you drive. Alternatively, you could required to have a mobile device, like Smart Start Mobile, or Soberlink.
 
With an in-vehicle device, you are only required to give a specimen when operating the vehicle. So, to a certain degree you have some control over when you give a specimen and when you don’t. The mobile devices, on the other hand, require scheduled blows daily.
 
Daily blow requirements can be an enormous inconvenience as well as a prime opportunity for you to mess up. A mistake can result in a violation. A violation, depending on your judge, can result in your bond being increased, which means you will be re-arrested, and or have additional, more stringent pre-trial conditions added, such as drug testing or the Secure Continuous Remote Alcohol Monitor (SCRAM) device.
 
Failure at the pre-trial level can negatively impact your pending criminal case outcome as well. Here’s a link to Bexar Co. Pre-Trial Services.

 
Standardized Field Sobriety Tests (SFST)
 
A: The National Highway Traffic Safety Administration (NHTSA) has developed a set of Standard Field Sobriety Testing (SFST). These are psychophysical tests administered by law enforcement to determine if an individual is under the influence of alcohol.
The SFSTs consist of three tests: The Horizontal Gaze Nystagmus (HGN), the Walk-and-Turn and the One-Leg Stand. These tests are meant to be administered and evaluated/scored in a standardized way in order to obtain validated clues of impairment. The officer uses these clues to establish probable cause for arrest.
 
Don’t do the tests:
 
You cannot be compelled to do them. The SFSTs are 100% voluntary. They are designed to aid law enforcement in evidence gathering, and prosecutors in getting convictions.
 
By refusing the tests, you are taking away one of the biggest parts of the State’s case against you. Remember, the burden to prove intoxication beyond a reasonable doubt is on the State.
 
You have a Right to Remain Silent:
 
The 5th Amendment is powerful. Among other things, it provides everyone with the right to remain silent.
 
The officer is going to ask you questions. You do not have to answer them.
 
By refusing to participate in the SFSTs, and by staying tight-lipped, you are very likely going to aggravate the officer, and you may very likely be arrested. Resist the urge to get out of the arrest. Anything you do and say will be used against you.
 
By sticking to your guns and exercising your rights, you will put yourself in the best position to ultimately beat whatever charge is brought against you. Read more here. (link to blog)
 
The Standard Field Sobriety Tests:
 
If you did the tests, not all hope is lost. The NHTSA Manual itself states that the SFSTs can be compromised if any one element of any test is not conducted properly.
 
I have the same training in SFST administration that law enforcement officers receive. One of the very first things I will do is review the video in your case to determine if the tests were administered correctly. They often are not.
 
Horizontal Gaze Nystagmus Test (HGN)
 
HGN is an involuntary jerking of the eyes that occurs naturally when you gaze to the side. Normally, this jerking movement happens when the eyes are rotated at high peripheral angles. Alcohol impairment can exaggerate this jerking. and can occur at lesser angles.
 
The officer performing the test is trained to look for three clues in each eye:
 

  • Lack of Smooth Pursuit: Where the eyes cannot follow a moving object smoothly.
  • Distinct and Sustained nystagmus at Maximum Deviation: If jerking is distinctly noticeable when the eye is looking as far to the side as it can.
  • Onset of Nystagmus Prior to 45 Degrees: If the jerking starts when the eye is within 45 degrees of center.

After testing both eyes, if four or more of the indicators are observed, then the police count that as a sign of intoxication.
 
Of the hundreds of DWI reports I’ve reviewed, almost all of them score for 6 clues, which is the maximum. It’s easy to do this because there is absolutely zero way to check the officer on this.
 
Click here to read more about why the HGN test is unreliable.
 
The Walk and Turn Test (WAT):
 
Remember playing Simon Says as a child? The WAT is the impromptu, roadside version of that. This is an attention diverted task, with no room for error, and no practice rounds.
The WAT has 15 different instructions, and the officer is trained to score for impairment after only two errors. equal a sign of impairment to the officer.
 
Here are the clues:
 

  • Can’t Balance During Instructions: If you can’t stay balanced during the instructions.
  • Starts Too Soon: If you start walking before the instructions are finished.
  • Stops While Walking: If you stop during the test.
  • Misses Heel to Toe: If you fail to touch heel-to-toe by half an inch.
  • Raises Arms: If you raise your arms more than six inches from the body for balance.
    Improper Turn: If you don’t do a series of small steps or fail to turn to the left direction.
  • Wrong Number of Steps: If you take an incorrect number of steps going or coming.
  • Steps Off The Line: if you step off the imaginary or designated straight line.

 
Click here to read more about why the WAT is unreliable.
 
The One Leg Stand Test (OLS):
 
You stand on one leg and count to 30.
 
The One-Leg Stand Test has 13 different instructions. There are four possible clues, and it only takes two for the officer to score for signs of impairment. The clues are:

  • Sways: If you sway while balancing.
  • Raises Arms: If you raises your arms more than six inches.
  • Hops: If you hop to maintain balance.
  • Puts Foot Down: If you put your foot down.

 

Click here to read more about why the OLS is unreliable.
 
Every officer that administers these tests will describe their observations in their report. As discussed above, this is where consistency becomes important. If the officer’s observations don’t match what is clearly shown on video, the credibility of the officer, and the arrest begin to be called into question.

The officer’s report is biased. Your personal recollection is biased. The video is the great equalizer. It shows what it shows.

 
After being arrested for DWI, you will be read the DIC 24 statutory warning. The officer must read this first before requesting a specimen of breath or blood.
 
When the officer finishes, you immediately have to answer YES or NO.
 
If you refuse, the officer cannot force you to take a breath test. People often ask if they legally have to submit to testing at all, and if so, which test to do. Remember, as outlined above (link to implied consent) you have a right to refuse, but that refusal may result in a license suspension.
 
In some Texas counties, a refusal means the State will not obtain a specimen to use against you at trial. Other counties, like Bexar County, for example, have DWI No Refusal policies.
 
The No Refusal policy means that if a person refuses to give breath and blood, the officer can get a Search Warrant and forcefully withdraw the blood. If you don’t comply with a warrant is signed they will literally hold you down or strap you down and withdraw blood.
 
Click here to read more about what can go wrong with Blood and Breath tests.

 
What is a DUI and What is the possible punishment?
 
Driving Under the Influence (DUI) is a Class C Misdemeanor. In Texas, it is never permissible for minors to have any alcohol in their body. Unlike DWI, DUI does not require proof of impairment.
 
Minors and DUI Punishment in Texas
 
A DUI conviction is a class C misdemeanor that may result in a fine up to $500; 20 to 40 hours of community service; and required attendance of an alcohol awareness program, a drug education program, or a drug and alcohol driving awareness program.
 
Law enforcement is not required to take a minor into custody for DUI, but may issue a citation to the minor that contains written notice of the time and place the minor must appear in court, and the offense charged.

Available 24/7

 
This is serious and the stakes are high. I limit the number of clients I take so that I can provide personalized service to each one.
 
Call or send a text to 210-920-1281 and you’re going to get me. Not a secretary. Not a law clerk. Not some associate attorney you don’t know.
 
I don’t charge for consultations. The State is working on your conviction. Let’s start building your defense.