DRIVING WHILE INTOXICATED, YOUR LICENSE, THE CONSEQUENCES, AND THE DEFENSE
According to the Texas Penal Code, a person commits a DWI if the person is intoxicated while operating a motor vehicle in a public place.
Intoxication is defined as:
(a) Not having the normal use of mental or physical faculties by reason of the introduction of alcohol, a controlled substance, a drug, a dangerous drug, a combination of two or more of those substances, or any other substance into the body; or
(b) Having an alcohol concentration of 0.08 or more.
If you have been arrested for a DWI, YOU MUST ACT NOW! You only have 15 days from the date of your arrest to request an ALR (Automobile License Revocation) hearing. If you fail to request the hearing, your license will be automatically suspended by DPS.
Call DPS at (800) 394-9913 to request your ALR hearing or just click HERE.
A DWI is unlike many other crimes, in that it is a stackable offense and has other far reaching consequences.
What is a stackable offense? A stackable offense means that any subsequent DWI charge will be further enhanced.
DWI 1st is a Class B Misdemeanor – Up to 180 days jail and up to a $2,000 fine.
DWI 2nd is a Class A Misdemeanor – Up to One year jail and up to $4,000 fine.
DWI 3rd or more 3rd Degree Felony – From 2-10 years jail and up to $10,000 fine.
In addition to the court system, you have to deal with DPS. With each new conviction, DPS will try to suspend your license for more time than the time before. In addition, with each conviction, you will face a surcharge of more that $1,000 for three years after your first DWI and it only goes up from there.
Another thing to mention is that a DWI 1st with a Breath or Blood test that results in a BAC (blood alcohol concentration) at or above a .15 is classified as a Class A Misdemeanor.
You were not intoxicated beyond the legal limit and/or you did not loose normal use of mental or physical faculties.
The burden is on the State to prove beyond a reasonable doubt that you were driving while intoxicated. There are a number of ways that the State is going to try to prove their theory.
1. Your Blood Alcohol Concentration.
2. How you perform on what “they” call “Standard Field Sobriety Tests.” and what I call “roadside antics”.
3. How you generally appear on Video.
4. Your Driving Facts.
5. The officer’s testimony.
At the end of the day, here in America, and more specifically, Texas, we have certain rights.
You have the right to refuse a Breath Test.
You have the right to refuse a Blood Test. (Please see notes below)
You have the right to refuse any and ALL Field Sobriety Tests.
PLEASE EXERCISE YOUR RIGHTS!
It is important note that there are certain instances in a DWI, where you may be physically forced to give a blood specimen. Here are some reasons that the State will try to force you to give blood:
1. It is a DWI No Refusal Weekend.
2. It is a DWI 3rd or more.
3. The officer has obtained a warrant from a Judge.
4. There is a child under the age of 15 yrs. of age in the vehicle.
SOME IMPORTANT INFORMATION ABOUT DWI STOPS
The first thing I would like to say is that it is a whole lot cheaper to take a $100 cab ride out to the suburbs than it is to take that ride downtown. Not to mention, hurting someone is something that no one wants to live with for the rest of their life.
With that said, if you are pulled over for any reason and you have even had one drink, you should be prepared to be arrested. If an officer pulls you over and smells alcohol on you, chances are, they are going to go into DWI Mode.
First, they will ask you if you have had anything to drink. If they ask you that question, admitting to more than one or two drinks is bad news.
Then they will probably ask you to step out of your vehicle. Here’s where they are going to try to conduct their field sobriety tests. Standard Field Sobriety Tests are broken up in three parts:
1. HGN (Horizontal Gaze Nystagmus) – or the follow my pen test.
2. WAT (Walk and Turn) – or the walk the line test.
3. OLS (One Leg Stand)
Before doing any of these tests, including the follow the pen test, you have the right to refuse these tests. If it was me, I wouldn’t necessarily just say that I refuse. I would say something like, “I feel like I am being railroaded for no good reason and I want to speak to my attorney please.” “I am not refusing, but, can I please speak to my attorney first?”
He will undoubtedly say no. Then he will more than likely place you under arrest. Then he will request a breath or blood test. At this point, it gets a little tricky. If he asks for your breath, then ask him what happens if you don’t take the breath test. If he says that he will take your blood, then consent to the breath. Otherwise, refuse to take either test, unless you can consult your attorney first. Chances are, they will not let you consult with any attorney.
The important thing to know is that chances are you were going to get arrested no matter what tests you take or don’t take, so why would you let them trip you up with their tests that are designed to make you fail. Then they will just hold those tests against you.
A completely sober person will likely fail their so called “Standard Field Sobriety Tests.” Everything you do will be considered a sign of intoxication. If you start too soon, it’s a sign of intoxication. If you don’t know exactly what time it is, that’s a sign of intoxication. If you can’t hold one leg up for thirty seconds without using your arms or swaying, that’s a sign of intoxication. Everything is a sign of intoxication.
Furthermore, the “Intoxilyzer 5000” is the breath test machine they use is not exactly scientific equipment. In fact, by design, if it is off by as much as 20%, it is considered to be operating properly. Even blood tests have their own problems.
If you find yourself facing a DWI or even a BWI (Boating While Intoxicated), it is important that you hire a DWI lawyer that knows how to effectively defend you. If you are facing DWI charges in Galveston, Conroe and Montgomery County or the Houston area, contact the Saman Law Firm today!
THE AGGRESSIVE & EFFECTIVE DEFENSE!