Practice Areas - DWI


          A. Answers to your Questions

         Many non-intoxicated persons are legitimately stopped for a traffic offense and thereafter arrested for DWI.  Of course, the many of those arrested are guilty of DWI. However, it is also true that a great number of innocent people are also arrested for suspicion of DWI. 

          Below is some basic information about DWI cases.

            1. What is DWI?

            DWI is a criminal offense that says a person may not drive a motor vehicle in a public place while "intoxicated".   The DWI statute does not say driving while drunk or "drunk driving." 

            2. What does "intoxicated" mean?

            A person need not be drunk to be "intoxicated" but a person who is drunk must be intoxicated.  "Intoxicated" is defined by the DWI statute in two ways.  First, a person is "intoxicated" when she drives and, when, through the use of an alcoholic beverage, drug, controlled substance, or any combination thereof, has lost the "normal" use of either her "mental" or "physical" faculties.  Second, a person is "intoxicated" when she drives and has an alcohol concentration of .08 or more in her body. It is important to realize that .08 an hour after the arrest does not necessarily mean that the person was at/above .08 when he or she was actually driving. This is particularly true if the driver's last drink was immediately prior to the time that she was stopped by the police.

            3. Whose "normal mental and physical faculties" are we judged by and "what is normal"?

            The "normal mental and physical faculties" the DWI statute refers to are those of the particular person who has been arrested.  The term does not refer to the normal faculties of the arresting officer, the jurors in a DWI criminal trial, or those of an "average" person.  The term "normal" actually refers to a range of measurement of the faculties of the person arrested. 

            4. What is .08 alcohol concentration?

            "Alcohol concentration" is defined by the statute as:

                   a. the number of grams of alcohol per 100 milliliters of blood;

                   b. the number of grams of alcohol per 210 liters of breath; or,

                   c. the number of grams of alcohol per 67 milliliters of urine.

            If you've been drinking, unless you are a physicist, an engineer, or a chemist, and have a calculator, you will not be able to determine if you have an alcohol concentration of .08 or more.  Furthermore, it is worth knowing that the amount of alcohol in each of the above statutorily defined concentrations is not equal, and can therefore result in a person being innocent according to one concentration but guilty according to another.  Moreover, under the two statutory definitions of intoxication, it is also possible for a person to be innocent of being intoxicated because there is no loss of either normal mental or physical faculties but still be guilty of being intoxicated via .08. The opposite can also be true.

            5. Is it .08 or more when I drive or .08 or more at the time I'm tested, or both, that will make me guilty of DWI?

            As mentioned earlier, Texas law only provides that the crime of DWI occurs when a person drives, and at that time, has an alcohol concentration of .08 or more in his body.  It is not a crime to have an alcohol concentration of .08 in the body either before or after one has driven, as long as the driver still had the normal use of his mental and physical faculties while driving.  However, depending on the time the test is conducted, such an alcohol concentration may be relevant, but not necessarily dispositive, in determining if the person had a .08 or more alcohol concentration when the actual driving occurred.

            The timing of the particular test in question can present significant problems for both the prosecution and the defense in the trial of a DWI case. This dilemma arises because .08 alcohol concentration testing is hardly ever done at or immediately after driving.  Generally, an alcohol concentration test is usually administered approximately 45 minutes to 1 hour and 15 minutes after driving.   Consequently, unless there is information about the number of alcoholic drinks consumed, the type of drinks consumed, and knowledge of when the drinks were consumed, it is scientifically impossible to determine if the person was over, or more importantly for the innocent, under a .08 alcohol concentration at the time of driving.

            Imagine the following scenario: Let's say that a person finishes her fourth alcoholic beverage at 11:55 p.m.  She leaves the smoke-filled restaurant at 12:00 a.m. for a 5 minute drive home.  At 12:01 a.m., on the way home, she is stopped by the police because her vehicle's inspection sticker had expired two days earlier. The officer, having observed a fresh "strong" odor of an alcoholic beverage on the driver's breath and her smoke reddened eyes, arrests her for DWI.  The officer then transports her to the station house for an alcohol concentration test.  The test is given at 12:30 and its result is .081.  Here, depending on the timing of the person's earlier consumption of alcoholic drinks, it is equally possible that earlier at 12:01 a.m., the person's alcohol concentration was .05, that is, below the .08 level. In the final analysis on this point, it may not have been a smart thing for our person to have driven at all, but if she was driving with a level of .05, she did not commit the offense of DWI if she had not lost the use of her normal physical or mental faculties when she was driving. In other words, she was NOT GUILTY of the charge of DWI.

            6. If I decide to submit to chemical testing and my alcohol concentration is less than .08, can I still lose my license?

            Yes, but this is usually the result of a subsequent criminal conviction for DWI or a related offense.  For your driver's license to be automatically suspended as a result of chemical testing, the alcohol concentration taken from your blood, breath, or urine must be .08 or more while driving.

            7. How reliable are the police methods used to  determine alcohol concentration?

            Texas law provides that testing of alcohol concentrations can be performed by analysis of a DWI suspect's urine, blood or breath.  All three of these testing methods, however, can leave much to be desired.

            Urine testing is the least accurate and least reliable means of alcohol concentration testing.  Indeed, there appears to be no debate in the scientific community that this method of alcohol concentration testing is the least accurate method of testing. 

            Blood testing, unlike that of urine testing, is thought by the majority of forensic scientists to be the most accurate and reliable means of alcohol concentration determination.  From a police perspective, however, it is also thought to be the least desirable and least convenient method.  Further, like the testing of urine specimens, it provides an opportunity for the arrested person to recheck the blood test.  If found to be erroneous, the validity of the police test can be attacked by re-testing the exact specimen taken and tested by the police.

           From a law enforcement perspective, breath testing is the most convenient means of alcohol concentration determination.  In regard to the issues of accuracy and reliability of breath testing, however, there continues to be a considerable debate within the scientific community.  Additionally, under current procedures for breath testing in Texas, unlike most blood tests, breath samples are not preserved for subsequent analysis of the initial test result. 

            8. How is breath testing done?

            Police breath alcohol concentration testing in Texas is usually performed by a machine named an Intoxilyzer 5000. 

            The Intoxilyzer machine is said to work on the basis of infrared light absorption by alcohol detected in a person's breath. According to its manufacturer and the Texas Department of Public Safety (DPS), which certifies and writes the rules for its use, the machine determines alcohol concentration by subtracting the amount of light absorbed from the person's breath sample and then compares that amount to the amount of light originally introduced into the breath sample. The difference is the test result. 

            9. What is the debate over the Intoxilyzer's reliability?


            Of particular importance here are several facts.  First, the DWI alcohol concentration law says a person is intoxicated when he has a .08 concentration in his breath. The law does not say .08 by the Intoxilyzer. 

            Second, neither the manufacturer nor the DPS will allow anyone, other than law enforcement personnel, to test either the machine's accuracy or its reliability.  It is generally understood that for a procedure to be accepted as accurate and reliable in science, that it must be open and available for the scientific community to test and retest the procedure.  This is simply not the case with the Intoxilyzer.

            Third, the manufacturer says it does not warrant that the Intoxilyzer is fit for any particular purpose.  This fact clearly is an implicit admission by the manufacturer that its machine is not even warranted to be accurate or reliable for breath testing.

            Fourth, the Intoxilyzer is capable of breath preservation, however, our DPS purposely fails to require the breath specimens to be saved.  The cost of preservation would be less than $2.00 per test and would allow an opportunity for the person charged with DWI to check the accuracy of the sample.  And, if it is found to be inaccurate, the defense could attack the validity of the prosecutor's test.  Indeed, it is a generally accepted scientific fact that the re-testing of preserved breath specimens, which is done by a method known as gas chromatography, is a more accurate and reliable means of breath alcohol concentration testing than that done by the Intoxilyzer.

            Fifth and finally, the Intoxilyzer's working design is premised on the assumption that every person tested is exactly the average person.  We all know that all persons are not exactly average. Human beings come in all different sizes, weights, ages, muscle tones, lung capacities, alcohol tolerances, temperatures, hematocrit levels, and blood/breath ratios. Automatic and undetected error can be illustrated by simply having the person tested not be exactly average.  In this regard, it should be noted that the  Intoxilyzer assumes a blood/breath ration of 2100/1 (i.e., 2100 parts of alcohol in the blood for every 1 part of alcohol in the breath) for every person tested.  Here, it can be noted that a majority of persons have a blood/breath ration of 2100/1 or greater.  Persons with a higher blood/breath ration of 2100/1 will not be prejudiced by the Intoxilyzer's assumption.  However, persons with a lower blood/breath ration will be prejudiced because the Intoxilyzer will erroneously read too high of an alcohol concentration result, thus potentially causing a person who should test at .04, .05, .06, etc. to actually test out at artificially higher levels.   It should be noted that  scientists have identified persons with blood/breath ratios as low as 1100/1.


            10. Are crimes of DWI and public intoxication different?

            Yes, they are different.  Specifically, the statutory definitions of the term "intoxicated" are not equal in regard to the two charges.  The DWI intoxication definitions (loss of normal mental or physical faculties and/or .08 or more) require a lesser measure of intoxication than does public intoxication (P.I.).  A person is "intoxicated" for purposes of P.I. when she is either a danger to herself or a danger to others.  In addition, police officers usually videotape DWI suspects, both at the scene and in jail, and persons holding drivers licenses have conditionally pre-agreed to take either a breath or blood test, upon request, after their arrest for DWI.  No such agreement or videotape procedure exists for P.I.  Finally, the punishments for DWI, which are discussed in the following section, and P.I. are different.  Specifically, P.I. is in the lowest category for criminal offenses, it is a Class C misdemeanor which carries with it the possibility of a fine up to $500.00 -- no incarceration may be assessed upon conviction for this type of misdemeanor.

            11. What are the penalties for DWI?

DWI, depending on the number of prior convictions a person has and when those convictions occurred, can be either a misdemeanor or a felony offense. 

Generally speaking, the penalties for DWI are as follows:

a) first offense:  a first-offense conviction includes a fine not to exceed $2,000.00 and/or the possibility of serving jail time from 3 days to 180 days, and a driver's license suspension of 90 to 365 days. (Class B Misdemeanor).

b) second offense:  the maximum fine increases to no more than $4,000.00 and/or jail from 30 days to one year, and a possible driver's license suspension ranging from 180 days to 2 years. (Class A Misdemeanor).         

c) third offense:  here, you may receive a fine up to $10,000.00 and/or 2 to 10 years of imprisonment, and suspension of your driver's license ranging from 180 days up to 2 years.  (3rd Degree Felony).

d) DWI with an open alcohol container (first offense): In addition to the penalty referenced above you face a minimum 6 days in jail and a fine of no more than $2,000.00.  (Class B Misdemeanor).

e) DWI with an accident where serious bodily injury occurred as a proximate cause of the intoxication: this crime is called intoxication assault, and upon conviction you may serve a minimum of 2 years up to a maximum of 10 years in jail.  Additionally, you may be fined up to $10,000.00. (3rd Degree Felony).

f) DWI where a death has occurred as a proximate cause of the intoxication: here, the crime is intoxication manslaughter.  Upon conviction you might have to pay a maximum fine of $10,000.00 and/or be imprisoned from 2 to 20 years (Intoxicated Manslaughter or Manslaughter with use of Deadly Weapon are both 2nd Degree Felonies). 

            In some of the above minor classifications you may be eligible for probation, but there is no guarantee that you will receive a probated jail sentence or fine.  If you are convicted of intoxication assault and wish to receive probation, a minimum of 30 days in jail must be served as a condition of probation.  Additionally, to receive probation upon being convicted of intoxication manslaughter you must serve a minimum of 120 days in jail.  However, if you are convicted of Intoxication Assault or Intoxication Manslaughter and the court or jury finds that you committed the offense with a deadly weapon you may be ineligible to receive probation at all. 

Standard Misdemeanor DWI Conditions of Probation include:

1.      Report once a month to a probation officer,

2.      Not to commit any further crimes during the term of probation,

3.      To pay a monthly supervisory fee to the probation office (approximately $40.00),

4.      To perform a specified number of community service hours during the term of your probation (between 24 and 80 hours) (community service is volunteer work to benefit the community),

5.      To attend DWI awareness classes dealing with the effects of alcohol or listening to victims of DWI related tragedies,

6.      To disdain from consuming alcohol for the term of your probation,

7.      To pay your non-probated fines and court costs,

8.      Any other requirements the court sets for you.

            12. How can be a motor vehicle be a "deadly weapon"

            A motor vehicle is a "deadly weapon" where an alcohol related accident results in a death.  Recently, the Texas Court of Criminal Appeals has held that intoxicated drivers who are involved in such accidents can be found to have used a "deadly weapon. If death results from the manner of use of the vehicle, the vehicle could be a "deadly weapon" in the eyes of the law. In these cases, the manner of use was capable of causing death and therefore, the driver's were found to have used a "deadly weapon."  

            13.          What special conditions are placed upon bond for DWI ?                           


            A judge may, however, decide that justice would not be served by installing an interlock device on your vehicle, and can excuse its installation.  However, some judges require that all DWI defendants,  install an interlock device on their car, even if it is their first arrest.

    14. Is a person "required" to take a breath, blood or urine test when requested by a police officer?

            Possibly, but read this section and the next section carefully. Texas law deems that all persons who drive with Texas licenses have already conditionally agreed, after their arrest, to take either a breath or blood test upon being properly requested to do so by a police officer.  This deemed consent only arises where the person has driven in a public place.  Examples of public places are public roads, highways, and other places where the public or a substantial part of the public may gain access.  There is no such deemed consent, or as it is sometimes called "implied consent" for a urine test. This area of the law appears to be evolving at this time.

            15. Does a person have a choice to refuse a required breath or blood test?

            Generally speaking, yes.  See Section 17, below. Our law provides that where the implied consent law is applicable, the person arrested for DWI may refuse to take the requested test.  Such a refusal, however, can result in the following penalties:

1.   Suspension of your driving privileges for 180 days if this is your first arrest for DWI,

2.     A two year suspension for a subsequent arrest within ten years if, in the first arrest you refused to submit to testing, and,

3. The admission into evidence of your refusal to take the test in the subsequent DWI criminal trial.  The purpose of this admission, from the prosecutor's viewpoint, is to imply to the jury, that the suspect refused because she believed that she was too intoxicated to pass the test.

            If you do submit to alcohol concentration testing and fail, your driver's license privileges can be suspended, and the test result may come into evidence in the criminal trial.  The possible suspension periods are as follows:

a)    90 days if your driving record shows no prior alcohol related arrests,

b)    One year if you have a prior conviction or suspension within the preceding ten years.

            16. Does a person have a choice to refuse being videotaped?

            No.  However, although a person has no right to refuse being videotaped, he does have the right to refuse to perform any police field sobriety exercises and to refuse to answer any questions, the answers to which, might be incriminating.  Unlike breath or blood test refusals, there are no penalties for refusing to perform field sobriety tests or refusing to answer questions while being videotaped.

          17. May a police officer use force on a person to make him take a breath or blood test?

            Sometimes for blood but never for breath.  An officer has authority to order a blood sample from an arrested person only if there has been an accident where a death has resulted, a death is likely to occur, or there has been a serious bodily injury.

            18. Can a person drink an alcoholic beverage while driving a car?


            19. Do I have the right to use the telephone to call an attorney for assistance prior to/during questioning?

            No.  While you can legally refuse to answer questions prior to/after arrest, there is no statute or court decision that provides that the police must allow you access to a telephone in order for you to speak to an attorney for advice and assistance.  However, a person arrested for any allegedly criminal activity has a constitutional due process right of reasonable access to a telephone to contact an attorney for the purpose of arranging bail, preserving exculpatory evidence, and in deciding whether to answer interrogation questions asked by police. Once an arrested person clearly invokes her right to counsel, the interrogation should stop.

            20. If I refuse  a chemical test or if I'm found to have an alcohol concentration of .08 or more at the time of vehicle operation, can anything be done to prevent my license from being suspended?

            Recent changes in the law allow law enforcement officers to immediately seize the driver's license of a person arrested for DWI if the person either refuses or fails a chemical test.  If this happens, the officer should also issue the citizen a temporary driving certificate authorizing the person to drive legally for forty days.  Furthermore, although your license has been seized, you have the right to what is called an Administrative License Revocation Hearing (these are commonly called ALR hearings).  After you are arrested for DWI and either refuse or allegedly fail the chemical test, a peace officer is required to give you written notice that your driver's license will be suspended.  After the officer does that, you will have 15 days from that date to request, in writing, a hearing from the Department of Public Safety (DPS) headquarters in Austin. Alternatively, if you fail to request a hearing, you waive that right and your license will be suspended on the 40th day after receiving notice.  It is very, very important that the ALR Hearing be requested by you or your lawyer within the 15 day period.


            When you make your request for an ALR hearing, the suspension of your driver's license is stopped while you await the hearing, although your temporary permit is only initially good for forty days.  Should your ALR hearing be scheduled more than 40 days after your arrest, your attorney can ask the DPS to extend your provisional license until your ALR can be heard.  Furthermore, if you lose your hearing, you also have the right to appeal.  To appeal, you must request the appeal within 30 days after the judgment becomes final.  Otherwise, you waive the right to appeal and your driver's license will be suspended on the 40th day after the judgment becomes final.  Again, while you are waiting for the appeal to be heard, your driver's license suspension is stopped, but only for a period of 90 days. Your license will be suspended on the 91st day, even if your appeal has not been ruled upon. Here, however, if you win your appeal, then your suspension is lifted.  Whether your suspension can be prevented is, however, dependent upon whether you have been convicted of an alcohol related offense or had any suspensions imposed against your driving privileges within the past 10 years, or whether your driver's license has been suspended in relation to a drug or alcohol related offense in the past 10 years.  If you fit into one of these categories, your driver's license is suspended on the 40th day after the final judgment during the period that your appeal is pending. Again, however, the suspension is vacated if you win your appeal.  Finally, if you ultimately lose your license to a suspension, you can still have it reinstated if you win your DWI case by being found "not guilty" by a judge or jury.

  21. Why is it important to request a hearing?



a)    Suspension based on a refusal:






b)    Suspension based on a test failure:


1) that you had an alcohol concentration of  .08 or more while operating a motor vehicle in a public place and at the time of testing; and


            Proof is generally submitted in the form of the arresting officer's written affidavit, but sometimes subpoenas are issued and the officer actually testifies.  In either event, a skilled and knowledgeable attorney is a necessity to ensure that your rights are protected.

            22. If my driver's license is suspended because I refused a chemical test or because I was convicted of DWI, then what are the penalties for driving while the license is suspended?


            Fortunately, in many instances, if your driver's license is suspended you may apply for an Occupational Driver's License.  To receive an Occupational Driver's License the law requires that good cause be shown.  Examples of "good cause" under Texas law would be going to and from work, taking children to and from school, going to and from a religious service, traveling to or from a grocery store, or traveling to or from a medical facility for treatment. This license allows you to drive during a 12 hour  period per day.  This privilege is, however, subject to restrictions.



            If a person receives a final conviction for DWI it will always remain on her record.  Our expunction law does, however, allow for the destruction of arrest records if a number of very specific conditions are met. Unfortunately, the records relating to a driver's license suspension or revocation are not subject to expunction, even though the arrest records may be expunged.  In reference to insurance rates, a DWI conviction could easily result in considerably higher insurance costs for many years.

24. Are there different  DWI laws for minors?


25. What is a Minor for purposes of DWI and DUI?

            A minor is any person under twenty-one years of age.  Thus, a minor is not necessarily a juvenile.  Persons between 18 and 21 years of age may be classified as minors, but they may also be prosecuted as adults.

26.  Can police ask a minor to take the breath test?

            Yes, the law in this area is the same as it is for an adult.  Texas law deems that all persons who drive with a Texas license have already conditionally agreed, after being arrested, to take either a breath or blood test upon being properly requested to do so by a police officer.  A proper request requires the officer to not only read a required statutory script, but also, to furnish the written script to the arrestee before the test request is made.  Again, as mentioned earlier, there is no deemed consent for urinalysis testing. 

27. Can a minor accused of DUI refuse to take the breath test?

            Yes, however, a minor's refusal to submit to a properly requested breath test will result in the following penalties:               




            Texas law states that if a minor has any detectable amount of alcohol in his system, the minor's driving privileges will be automatically suspended for not less than 60 days, even when the minor takes a breath test and the result shows an alcohol concentration less than .08 at the time of driving.  Furthermore, if the test result confirms the presence of alcohol or any other drug in the minor's system, that evidence will be used against the minor a subsequent criminal prosecution for DWI or DUI. 

29. Does a DWI or DUI conviction impact a minor's driving privileges?


30. Can a juvenile minor go to jail for an alcohol related driving offense?


31. What are the penalties for DUI and minors?




