DWI FAQ’s

Driving While Intoxicated . . . Lawyer handling all aspects of DWI cases in Dallas County (including Dallas, Garland, Richardson, Grand Prairie, etc.).

In the United States, the criminal justice system is “adversarial” in nature. What this means is that you have the prosecution on one side, the defendant on the other, and the judge is the referee (supposedly not on one side or the other). The prosecution will try to “win” by obtaining a conviction with as much punishment as possible. In order to protect yourself, you need an attorney to make sure you are treated fairly.

In a criminal case your liberty is at stake. You also can be hit with multiple fines, expenses, surcharges, and costs that can exacerbate your situation. You need an attorney to ensure you have someone fighting for you.

Call Doug Goyen / Dallas DWI Lawyer to discuss your case to get the representation you need.

Frequent DWI Questions:

1. Meaning of DWI

DWI is a crime in Texas where if you drive your vehicle in a public place while “intoxicated” you are breaking the law. It is not drunk, smashed, or any other definition. It is “intoxicated”.

2. Definition of intoxication & “normal”

There are 3 ways in Texas to prove intoxication. If a person has lost the normal use of their mental faculties due to the introduction of alcohol, drug, controlled substance or a combination of; if a person has lost the normal use of their physical faculties due to the introduction of alcohol, drug, controlled substance or a combination of; or if a person drives with an concentration of .08 alcohol in their body (detected by breath, blood, or urine testing).

Normal use of mental or physical faculties in DWI means what is normal for that particular person. It is not talking about the “average person” or anyone else. The standard of normal must refer to the defendant’s normal physical or mental faculties. Normal for a person varies from day to day as well, depending on rest, anxiety level, hormones, what they have eaten, etc. So normal for an individual falls into a range of behavior depending on the day and circumstances. Not normal falls outside that range.

3. What is meant by .08 alcohol in body

For DWI the statute in Texas defines the concentration of alcohol by the number of grams of alcohol per milliliters & liters of either blood, breath, or urine in your system. The exact number is defined by statute. Each test – breath, blood, urine – has their own definition of alcohol concentration. The interesting thing about these tests is that each test can vary from each other. If you test .08 on a breath test, you will likely test a different result on a blood or even different from that on a urine test.

If you have a .08 a particular test, you may still have your normal use of mental or physical faculties, which makes you innocent under 2 of the 3 standards the prosecutor will try to use to prosecute your DWI case.

One of the problems in DWI prosecutions is that the police usually take 30 minutes to an hour to transport an arrested person from the scene of where they were driving, to a facility where they do the breath testing. During this time, a person’s alcohol level may go up or down depending on several factors. If they had just consumed the alcohol just prior to being arrested, the alcohol in their stomach may not have gotten into their system yet, depending on the amount of food they had eaten earlier. So it is possible that a person was driving below the .08 mark, but because of the delay in time for being tested, that the alcohol concentration crept up to the .08 mark at the time of testing.

The law in a DWI is that the person must be intoxicated at the time of driving the vehicle, not at the time of testing. This is a distinction that a good Dallas DWI lawyer or any DWI lawyer must make in every case.

4. You can still lose your license even if you pass the breath, blood, urine test

If the police give you a breath test, you pass it, but they still prosecute you (assume they think you not only have some alcohol in your system, but the police think that you also took some sort of drug that has multiplied the effect of that alcohol on your system – so they believe you do not have your normal mental or physical faculties due to this combination – at least that is what they accuse you of). If the prosecution obtains a guilty verdict or plea, then your license is subject to suspension for being found guilty in a DWI.

5. Accuracy of police sobriety testing

Breath, blood and urine testing are the ways the police do chemical testing for alcohol concentration in a person. The most common and easiest for the police is the breath test. It is unclear which of these 3 testing procedures is most accurate though. This uncertainty allows prosecutors and police to “claim” that whatever testing procedure they use on you is the most accurate one – even though this is debated by scientists involved in this area. Most forensic science personnel will admit that they believe blood testing is the most accurate form of testing. Unfortunately, police frequently do not offer blood tests because they take more effort for them to obtain a result in this way. Urine testing is the least reliable of the 3 types of testing, many variables can throw a urine test off. The advantage of blood testing is that the blood can be retested. Unfortunately, police in Dallas do not save your breath samples, so you cannot retest the sample of breath they take (it is interesting though that the makers of the breath test machines have attachments available for the capture of the breath test sample – but Dallas police opt not to purchase this option on the machine).

6. Breath Testing Machine

Intoxilyzer 5000 is the name of the machine used by police for breath testing in Texas. It uses infrared light and the absorption of that light in the breath sample. This is used to determine your blood alcohol concentration.

Those who support the Intoxilyzer 5000 state that it gives reliable evidence of the amount of deep lung air alcohol from the breath. People who oppose the Intoxilyzer 5000 insist that the machine reads common substances in people’s breath erroneously as alcohol.

The law is that the state must prove .08 concentration of the breath in order to prove intoxication, but it does not say what machine is required to do so. In fact, the manufacturer of the Intoxilyzer 5000 refuses to grant a warranty on its machine for any purpose. This is admitting that they cannot warrant that the results are reliable. There is a capability to preserve the breath specimen that would cost about $2 per test. This would allow retesting of the results, but Texas police departments and the DPS have chosen to not use this capability.

Another problem with the Intoxilyzer is that it assumes that everyone is the same. That every person is average. We all know we are not average. A person’s size, weight, age, conditioning, how often they consume alcohol, temperature, whether they are sick, among other reasons, all can cause differing results. The test assumes a 2100/1 ratio of blood to breath which is about average. If you are above the average, you are not affected. But if your blood to breath ratio is lower than average, then the machine tests you higher. A person can possibly have a blood to breath ratio in the 1100/1 to 1200/1 range which would dramatically increase the result of a blood alcohol breath test.

Finally, just like all machines we use, like computers, watches, smart phones, cars, and every other machine in our life, they are subject to errors. If the operators do not properly maintain the equipment or properly perform the tests, they are subject to even more errors. Police often carry portable breath machines to test drivers. The results of these machines are not admissible in court as the results have never been proven to be any way reliable on a particular portable machine or test.

7. DWI Penalties:

Most people end up on some sort of probation when convicted of DWI. Probation includes reporting monthly to a probation officer. You must pay a monthly fee to the probation department. You must pay the fine and court costs for the DWI in the $1500 range. You must stay out of legal troubles during your probation. You must perform between 24 to 80 hours of community service. You must attend DWI awareness classes, attend classes where victims of DWI relate how DWIs have affected them. You must not drink alcohol during your probation. You must take breath tests on request. You must install an ignition device that detects whether you have had any alcohol – in order to start the car you have to blow into it and it measures any alcohol you may have. You must donate money to Crime Stoppers and other programs. You must complete any other requirements the court places upon you to finish probation.

The range of punishment for DWI’s are:

1) First offense (class B misdemeanor): 3 to 180 days in jail, license suspension of 90-365 days, a fine of no more than $2000.

2) Second offense (class A misdemeanor): 30 days to one year in jail, license suspension of 180 days to 2 years, and a fine of no more than $4000.00.

3) Third offense (3rd Degree Felony): 2 to 10 years in prison, license suspension of 180 days to 2 years, and a fine of no more than $10,000.00.

4) DWI open container 1st offense (class B misdemeanor): 6 additional days in jail, even if on probation – additional to 1st offense range above.

5) DWI involving accident with serious bodily injury (3rd Degree Felony): This is intoxication assault. 2 to 10 years in prison, and a fine of no more than $10,000.00.

6) DWI causing death (2nd Degree Felony): This is intoxication manslaughter. 2 to 20 years in prison, and a fine up to $10,000.00.

7) DWI with minor child passenger (State Jail Felony): If child is under 15 years of age. 180 days to 2 years in state jail, and a fine up to $10,000.00.

7. “Deadly weapon” findings in DWI

In Texas, if a “deadly weapon” was used in commission of the crime, and the court / jury finds that the defendant used a “deadly weapon” then the defendant cannot accumulate “good time” towards a release until at least one half of the sentence is completed.

In a DWI, if someone was killed, the prosecutor may attempt to have the use of the vehicle be the “deadly weapon” if they believe the manner of driving was such that a “deadly weapon” charge or finding might be proper.

8. Bond issues with DWI – Ignition Interlock Devices

Bonds for the first offense of DWI are a matter of discretion for the particular court unless you are .15 or over on your breath, blood, or urine test. If you are .15 or over, you are required to install an interlock device on your car in order to start your vehicle. 2nd DWI charges or Intoxication Assault or Intoxication Manslaughter also require an ignition interlock device be installed on your vehicle as a condition of bond. If you drive a vehicle without an ignition interlock device, you violate your terms of bond and may forfeit your bond and have a warrant issued for your arrest. The ignition interlock will prevent the car from starting unless you blow into the device and it determines whether you have alcohol on your breath. If there is over a certain amount of alcohol, the vehicle cannot be started.

What if you don’t own a car? Many client’s advise that they do not own a vehicle to place the ignition interlock device on. If that is the case, advise your Dallas DWI lawyer, but you may wish to consider placing it on a vehicle you have for your own use – whether you own it or not. Your judge may decide to make you wear a SCRAM device if you insist you have no car to drive. This is an ankle bracelet that detects whether you have consumed any alcohol at all. The judge will typically make it a violation of bond if you consume alcohol at all in these situations. SCRAM devices are more intrusive, and more expensive than ignition interlock devices. Not all judges will make you wear a SCRAM, some will just tell you to not drive a car unless it is equipped with an ignition interlock device. But if you have your license, and you are planning on driving, the ignition interlock is typically cheaper and less intrusive than the SCRAM.

9. What happens if you refuse to take a blood, breath, urine test

Texas automatically suspends your license if you refuse to take the test. This is considered a “civil” punishment, not part of the criminal punishment as Texas deems having a license to drive in this state a privilege, not a right. So they are not depriving you of any rights without a trial first – at least according to the laws of Texas – they are just taking away a privilege that Texas has given you.

If you refuse the test – You are allowed to refuse the test. The penalties for refusal are::

a) 180 day suspension on 1st DWI’s;

b) Two year suspension for additional DWI arrests (after a 1st DWI conviction) within 10 years of the prior one if you refused in the first one as well;

c) Your refusal is allowed into evidence at trial – prosecutors always argue that you knew you were too intoxicated to pass the test, and that is why you refused.

If you take and fail the test – You take the test and fail. This evidence is allowed into evidence at trial. Your license is suspended:

a) 90 day suspension if no prior DWI; or,

b) one year suspension if any other convictions or suspensions within 10 years prior.

10. You don’t have to do the field sobriety tests (walk and turn, one legged stand, horizontal gaze nystagmus tests).

Officers will often ask you to look at their pen as they wave it back and forth and up and down. This is a “nystagmus” test to see if there is jerkiness in your eyes. They often will ask you to walk a straight line (walk and turn test) and will also ask you to stand on one leg while counting. There is much debate on whether these tests are reliable in determining a person’s intoxication. Many people refuse these tests because they are not the most coordinated people, or have a condition other than intoxication that makes them unable to perform these tests. Some people are just nervous and anxious and feel like they will not be fairly judged in this testing, so that is why they refuse.

11. Instances where blood or breath testing may be forced

If you are involved in an accident and are arrested for DWI, and someone has died or the police officer thinks someone will die or has suffered serious bodily injury, and you refuse to give a specimen upon request, the officer is then required to forcefully take the specimen.

12. Open containers of alcohol in vehicle

Driving with an open container of alcohol in your vehicle is a class C misdemeanor. If arrested for DWI your penalties are increased. Passengers may not have open alcohol containers either (exceptions are buses, taxis, motor homes in back).

13. Asking the police for your attorney

You can always ask the police to have your attorney present. If this is in Dallas County, then you will want to ask for a Dallas DWI lawyer. There is no law requiring them to allow your attorney to be present during their DWI stop though. Your request places certain burdens on the police officer that make them take more care in how they treat your case and question you.

14. When you do have a right to a lawyer’s assistance

At a criminal trial you have a right to assistance of an attorney. Prior to trial – during questioning, most times you do have a right to an attorney present. An exception is when an officer is asking for a breath test in a DWI case. If you are under arrest, you are typically able to be informed of your right to remain silent, your right to an attorney or have on appointed if you can’t afford one, and to terminate the interrogation / questioning. Often, if the police violate these rules, the evidence they obtained in violation of the rules can be excluded from presentation to the court or jury.

An attorney can help you with bond. An attorney can help prevent further police intrusions on your rights. If you get an attorney quickly, you have a right to be retested by an independent doctor if done within 2 hours of the arrest. Your lawyer can help you decide on what questions to answer or tests to perform in your DWI situation.

15. If you refuse the breath test or fail it – your license:

If you refuse a test, or fail a test, the officer will take your license. The officer will issue a 40 day temporary driving certificate. You can request an ALR (Administrative License Revocation) hearing if done within 15 days of the arrest date. If the hearing date is further than 40 days out (meaning past your 40 day temporary driving certificate), your lawyer can request an extension from the DPS until your hearing. You may appeal if you lose – if appealed within 30 days of losing at your hearing. If you lose the hearing, the suspension will start on the 40th day after the loss (unless you appeal). Your extension will last another 90 days if you do appeal. The 91st day your suspension will start (even if you haven’t been reached yet on your appeal). If you win during any stage of the ALR, then your suspension is lifted.

16. Things you can accomplish with an ALR hearing:

You can prevent your license from being suspended. You can also test the police officer’s reason for stopping you in the first place and find out if he had reasonable suspicion to stop you and detain you. You can find out if he had probable cause for the arrest. This information can help in the defense of your DWI case.

The prosecutor in the ALR hearing must prove either 1) that you refused to take the test, or 2) that you failed the test.

Refused Test: If they are prosecuting based on a refusal, the prosecutor must prove:

a) There was reasonable suspicion to make the stop and suspect a criminal activity was happening;
b) There was probable cause that you were operating a vehicle while intoxicated – in a public place;
c) That you were under arrest and the officer made a proper request for chemical testing;
d) That you actually did refuse the test.

Failed Test: If they are prosecuting based on a failed test, the prosecutor must prove:
a) That your test result of .08 or higer was while driving in a public place, and was .08 at testing;
b) That there was reasonable suspicion to make the stop and detain you for questioning, and that there was probable cause to arrest you.

Usually the officers just submit an affidavit to prove their case at ALR hearings. Sometimes they will actually show up to testify on subpoena.

17. Penalties for driving while your license is suspended

If you drive while your license is suspended, you can be arrested for DWLS (Driving While License Suspended). This is a class B misdemeanor with up to 6 months in jail and up to a $500 fine. The penalties increase if you obtain more than one DWLS.

Occupational License: You can apply for an Occupational Driver’s License during the time your license is suspended. Most judges will allow you to drive up to 12 hours a day to and from work, household duties, and taking your children / family to places you need to care for them. Many people qualify for an Occupational License. There are some disqualifications for Occupational Licenses. Your attorney can help you obtain one and / or determine if you qualify.

18. Surcharges and insurance rates

Texas charges a surcharge to keep your license after a DWI conviction or if they have a test result of .16 or more. The amount is $1000.00 per year for 3 years on a first conviction. It is $1500 for 3 years per year for any subsequent DWI convictions. It is $2000 per year for 3 years for any .16 or higher test results.

19. Minors and Alcohol – DUI’s (rather than DWI’s)

If you or your child is arrested for DUI in Dallas County, you need to consult DUI lawyers Dallas area to ensure a proper representation.

If a minor (age 18-20) has any alcohol in their system while driving they can be charged with DUI (driving under the influence). If the minor has any detectible amount, then he can be charged with DUI.

Juveniles are people under the age of 18, and their prosecutions are handled under the juvenile system of justice.

If a minor refuses the breath test the penalties are a) suspension of drivers license for 120 days on first arrest (if no license then you will not be issued one if you apply for 120 days); b) 240 days of suspension if any prior alcohol or drug related offenses in past 5 years.

If the minor is convicted, the suspension of the license if for 1 year. If there is proof of an addiction to alcohol, Texas can make the minor unable to get a driver’s license.

The penalties for DUI are:

a) first offense is a class C misdemeanor – 20-40 hours of community service regarding alcohol education or alcohol misuse; must attend an alcohol awareness program within 90 days; the parent may be required to attend as well if under 18; if time deadline missed – the court may give an additional 6 month suspension of the license; deferred adjudication is available; the record may be expunged upon the 21st birthday if only one conviction;

b) second offense increases community service to 40-60 hours, and the record may not be expunged – but deferred is still an option if offered.

c) third offense is class B misdemeanor – 40 – 60 hours of community service ; no deferred option; parent is required to attend alcohol awareness programs if under 18; if the minor is 18 or older the fine is $500 to $2000; jail time of up to 180 days; and license suspension times.

DUI lawyers Dallas DWI attorneys can help with these issues.

20) If I have out of state license (suspension issue)

Texas does not have jurisdiction to cancel your out of state license, but they can and often do notify your home state of the conviction, and your home state will suspend the license. Texas will prevent you from obtaining a Texas license during the time your suspension should be carried out in Texas.

21. You should have a lawyer at your ALR hearing:

A Dallas DWI lawyer is the best type of lawyer to have available at your ALR hearing if in the Dallas County area. You should choose your attorney with care for your DWI, ALR, and Occupational License needs. You can call our office for a free consultation by phone to help you decide how to handle your case.