ELIADESLAW      TEXAS BOARD CERTIFIED CRIMINAL LAW SPECIALIST

Have you been charged with Driving While Intoxicated (DWI)?

The very first thing you must do is make sure that either you, or I on your behalf, contact DPS within fourteen days of your arrest to assure your driving privileges are not suspended. Once we are assured you may keep your license while we fight your case, this is what you can expect to happen:

COURT:
The officer who pulled you over will provide his reports to the prosecutor's office. The prosecutor may add or delete charges originally brought once he or she obtains the blood alcohol results. You must enter a plea of NOT GUILTY. In no case should you plead guilty right away. It is essential to review all police reports, scientific results, and the procedures used at arriving at a particular blood alcohol level, before you enter a plea.

The scientific procedures are not available at such an early stage of the proceedings. It takes time and effort to force the prosecution to provide you every shred of evidence needed to defend your case. You must obtain calibration results of the machines used. You must obtain the protocol used to test and evaluate your blood or breath sample. You must obtain evidence from the crime lab, which may establish the machine used was not properly functioning at the time your test was analyzed. You may need the services of an expert witness - called a forensic toxicologist - to help assess your defenses.

ALR:
The arresting officer will also refer his reports to the Department of Public Safety (DPS). DPS has its own separate disciplinary proceedings distinct from the court proceedings. Even if the prosecutor offers you the option of pleading to a lesser charge because the case against you is weak, and you decide to take that offer, the DPS may still attempt to suspend your license after it has conducted its own independent review of your case. You can't let that happen.

The ALR hearing is a very technical hearing. The ALR reviews only limited issues and they are difficult for non-attorneys to understand. The hearing officers, who are not attorneys and who feel it is their purpose to keep you off the road, will not be sympathetic to you because they view anyone who drinks and drives as a menace. Therefore, it is essential for you to have an attorney at an ALR hearing to properly defend your rights.

Texas Drunk Driving Law - Driving While Intoxicated (DWI)

Laws:
The Texas alcohol zero tolerance for driving law went into effect on September 1, 1997. The offense is called Driving Under the Influence (DUI). There are two basic tracks. The first track of DUI is administrative in nature and is the offense of driving with any (>.00) alcohol in the system for persons who are under 21. Licensing sanctions are applied administratively by the Department of Public Safety (DPS) and the procedures have been rolled into the existing administrative license revocation (ALR) procedure. There also is a criminal track for the DUI offense, which is tried in the justice or municipal courts. It is a Class C misdemeanor and carries other sanctions such as fines and community service. There is no additional license suspension upon conviction of DUI. There are also several underage alcohol possession, consumption and purchase criminal offenses which now also carry licensing sanctions which are triggered by notification of DPS of the conviction by the courts and in general are referred to as zero tolerance violations. The offense of driving with a BAC of .08 or above is called Driving While Intoxicated (DWI) and may apply to persons of any age.

Enforcement:
Enforcement of the DUI law requires that the law enforcement officer have a reasonable suspicion to conduct a traffic stop. Once the officer determines that the driver's age is under 21, and has reason to believe that he or she has consumed alcohol, one of two enforcement methods may be followed. In less serious cases, the officer may issue a citation for DUI and serve a Notice of Suspension on the driver. The driver is not placed under arrest and no chemical test is required. The officer's testimony of smelling alcohol on the breath is sufficient evidence of consumption in this case.

In more cases that are more serious, the officer proceeds with a custodial arrest procedure if he or she believes the driver is seriously impaired. Field sobriety tests are administered. If he or she fails, the driver is placed under arrest (or taken into custody) and transported to a chemical testing facility. If the driver has a positive BAC or refuses to submit to a chemical test, a Notice of Suspension is served. If the BAC is at or above the .08 level, the driver may be arrested for the more serious offense of DWI. If the driver is under 17, the reading of the implied consent statute and breath testing must be videotaped. Those under 17 who are arrested for DWI are processed as a juvenile, which usually entails releasing to a parent or guardian. If 17 or over, DWI arrestees are processed as adults. Those tested positive that are below .08 are issued the citation and Notice of Suspension. If under 17, they are released to a parent or guardian if under 17. If they are 17 or over they may be released to any responsible party.

Adjudication:
Zero tolerance DUI violations in Texas are adjudicated under two different tracks. The criminal offense is adjudicated through the adult justice or municipal court system unless the offender is under 17, in which case the case is handled through the juvenile justice system. Licensing actions are instituted through the regular administrative license suspension procedures of the Department of Public Safety and are triggered through the results of breath or blood alcohol testing or refusal to submit thereto. The driver has 15 days from receipt of the Notice of Suspension to request a hearing. If no hearing is requested, the license suspension goes into effect on the 40th day after notice was served.

If a hearing is requested, it is held before an Administrative Law Judge in or near the county of arrest. Some hearings are held by teleconference. The elements of the hearing are (1) whether the person was a minor and had any detectable amount of alcohol while operating a motor vehicle in a public place; and (2) whether there was reasonable suspicion to stop or probable cause to arrest or take the minor into custody. Refusals also include the issue of whether the chemical test was requested and refused. An attempt is made to conduct hearings within 40 days of the notice of suspension but continuances are sometimes granted. The cases may be heard based on documentary evidence, but the defendant may subpoena witnesses.

Sanctioning:
DPS personnel responsible for processing the administrative suspensions have rolled the zero per se into their existing process for administrative per se for adults and seem to have the process going smoothly. The license sanction for first offenders is a 60-day license suspension. Offenders may apply for an occupational license after 30 days. For a second offense (based on a prior conviction for DUI, DWI, intoxicated assault, or intoxicated manslaughter), the suspension period is 120 days with a provision for an occupational license after serving 90 days of suspension. Subsequent violations call for a 180-day suspension with no provision for an occupational license.

Test refusal results in a 120-day suspension on the first offense. If the offender can demonstrate an essential need, a occupational license may be awarded at any time. The second offense refusal penalty is a 240-day suspension with no occupational license if the prior offense was an ALR violation. If the prior suspension was for a DWI conviction, intoxicated assault, or intoxicated manslaughter, the suspension is for one year. If the offender is acquitted of the criminal offense, the suspension must either be not imposed or rescinded if already in effect. In practice, administrative suspensions generally have already been served by the time criminal cases have been resolved.

First offenders convicted of the criminal offense receive no jail time and subsequent offenses may result in incarceration up to 180 days. However, there is no mandatory minimum jail time. First offenders may be fined up to $500 and subsequent offenders may receive a fine of from $500 to $2,000. Community service sanctions range from 20 to 40 hours for first offenders and 40 to 60 hours for subsequent offenses.

Additional Commonly Asked Questions about DWI

Q1: Do I have to be drunk to be charged?

A1: No. In Texas, if your test reveals a blood alcohol level of .08 or higher, you are charged with two offenses:

1.     Driving with a Blood Alcohol Level of .08 or Higher. That means what it says: your blood alcohol content is at least .08. Not all people are "under the influence" at .08. This is called a "per se" law.

2.     Driving under the Influence of Alcohol. You could be charged with this crime if your test reveals a blood alcohol level below .08. That's because some people are under the influence at lower levels. The prosecution always charges both sections of this code because it gives them two shots at convicting you.

Q2: I refused to take any field sobriety tests. Will this hurt me in court?

A2: No. And congratulations for not providing the prosecution with any more false evidence. You are under no legal obligation to take any "field sobriety tests." Most of these tests have absolutely no scientific value whatsoever. Only a few of them have slight value, and that is only to assess that the person may have ingested some alcohol at some time.

Most police reports show clients failing these miserably, even when the client has a very low blood alcohol content. In other words, the police exaggerate how poorly individuals do after they arrest them and they later sit down to write their reports. The fact that you did not take these useless tests cannot be used against you in court.

Q3: The officer asked me to blow into a machine at the scene of the stop. I refused. Can this hurt me?

A3: Again, the answer is no. You are under no obligation to concede to the officer's wishes that you blow into the handheld breath machine at the side of the road. You are required to take a blood or breath test at the station if you are arrested. Otherwise, you are not required to take any other test.

Q4: Will my license be suspended on a first arrest?

A4: Yes, if 1) you fail to schedule an ALR hearing within 14 days of the date of your arrest. Make sure you schedule this appointment, or have a lawyer do this for you, so you can fight an administrative suspension. These are very complicated and technical hearings. No one should try to handle a ALR hearing without an attorney.

Q5: If my license is suspended, and I need to drive to work, can I get a restricted license?

A5: Yes. If this is a first time DWI, you are prevented from driving anywhere and for any reason for a full 30 days after the license suspension is implemented. However, if you are enrolled in a Drinking/Driving program, and the 30-day initial suspension is completed, DPS will issue you a restricted license that allows you to drive to and from work, during the course of work, and to and from the Drinking/Driving program during the remaining course of the suspension.

If this is a second DWI, you may not drive at all for a full year. If you are enrolled in an 18-month second offender Drinking/Driving program, DPS will issue you a restricted license like the one described above only after you have completed one full year of the 18-month program.

I am happy to discuss your case in my office at no charge. Please contact me to set up a convenient time. However, please remember that time is of the essence and the clock is ticking on your right to drive!