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NEW LAW UPS THE ANTE

New penalties are becoming more severe. As of September 1, 2005, anyone whose blood or breath test shows a alcohol concentration of .15 percent or greater will have an ignition interlock installed in their vehicle for up to two years at an additional charge of $70.00 a month.

The criminal offense of DWI occurs when a person operates a motor vehicle in a public place while intoxicated.

What does “Intoxicated” mean?
”Intoxicated” is defined by law in two ways. First, a person is intoxicated when he does not have the normal use of his mental or physical faculties through the use of alcohol, a drug, dangerous drug, controlled substance, a combination of those, or any other substance. Alternatively, a person is intoxicated when he has an alcohol concentration of 0.08 or more in his body. It is important to note that a breath test failure (0.08 or more) some time after having been arrested does not necessarily mean that the person has an alcohol concentration of 0.08 or more at the time of driving.

What signs do people exhibit when they are driving while intoxicated?

The National Highway Traffic Safety Administration is the government agency credited with developing DWI investigation. Its research indicates that the following signs will be observed when a person is driving while intoxicated:

What should I say if I am stopped by a police officer and I have been drinking?

Be respectful and polite. Do not apologize for anything you have done or admit guilt of any type. You will most likely be nervous, so do not attempt to talk your way out of the situation. If you tell the officer that you have had 1 or 2 drinks, that is not incriminating. It will explain why there is an odor of alcohol on you or in your car. If you tell the officer how many you have had, you should also indicate over what period of time you consumed the drinks.

The number of drinks consumed is not as important as the number of drinks consumed over a certain period of time.

If the officer asks me to perform field sobriety tests, do I have to do them?

No. Texas law does not require you to perform any roadside tests. The officer, interestingly enough, has no duty to advise you of this right. If you refuse to perform any field sobriety tests, the officer will most likely arrest you for DWI. Keep in mind, field sobriety tests are the basis for an officer’s decision to arrest you. Even if you get arrested for refusing to perform field sobriety tests, the officer has very little evidence of actual intoxication , if any at all. This lack of evidence greatly increases your chances of having your DWI charge dismissed or reduced to a lesser offense.

If the tests are performed in a controlled environment by a highly skilled police officer, the tests can be a good indicator of intoxication. The reality of field sobriety testing is that not all officers correctly administer the tests and often do so in less than ideal environments.

The National Highway Traffic Safety Administration developed 3 tests: the Horizontal Gaze Nystagmus Test (the “eye test”), the Walk and Turn Test, and the One-Leg Stand Test. Original research shows that the eye test is up to 77% accurate, the Walk and Turn test is up to 68% accurate, and the One-Leg Stand test is up to 65% accurate so long as the tests are administered in the prescribed, standardizedmanner. Any deviation from the standardized manner compromises the tests’ validity. Based on this information, with the most experienced officer, under the most ideal testing environment, the 3 field sobriety tests can inaccurately label up to 35% of people tested as being intoxicated. The National Highway Traffic Safety Administration has admitted that not everyone can perform the field sobriety tests successfully, even when sober. Moreover, many factors may affect one’s performance on field sobriety tests.

The National Highway Traffic Safety Administration has claimed that even sober persons may have difficulty performing field sobriety tests! A person’s ability to perform field sobriety tests can be affected by factors other than alcohol, including:

The amounts of alcohol in the above-defined concentrations are not equal, which may result in a person being guilty according to one definition, but not guilty according to another. This fact alone lets you understand the importance of hiring an experienced DWI attorney.

Texas law provides that DWI occurs when a person drives and at that time has an alcohol concentration of 0.08 or more. It is not unlawful to have a 0.08 alcohol concentration after or before driving so long as that person has the normal use of his mental and physical faculties. The time at which the test is conducted may be relevant in determining if a person had a 0.08 or more at the time of driving. Generally, unless there is information about how many alcoholic beverages were consumed, the type of alcoholic beverages consumed, over what time period they were consumed, when the first and last alcoholic beverages were consumed, and whether that person was drinking on an empty or full stomach, it is scientifically impossible to determine if the person was under, at, or above 0.08 when driving. If it cannot be determined what the person’s alcohol concentration would have been at the time of driving, the breath or blood test score is not relevant in determining intoxication, and can generally be disregarded.

Texas law allows alcohol concentration analysis to be determined through a breath or blood test.

Breath testing is the most convenient way of determining alcohol concentration. There is considerable debate in the scientific community regarding the reliability and accuracy of breath testing. Unlike blood testing, breath samples are not preserved for the opportunity for further analysis of the initial test results.

Blood testing, on the other hand, is regarded as a more accurate method of determining alcohol concentration. From a law enforcement perspective, however, blood testing is the least convenient way of determining alcohol concentration. It does provide an opportunity for the same specimen to be re-analyzed.

The Texas Department of Public Safety has determined that alcohol concentration testing will be performed by the “Intoxilyzer 5000” machine.

The Intoxilyzer is presumed to work on the basis of infrared light absorption of alcohol detected in a person’s breath. According to both CMI, the Intoxilyzer’s manufacturer, and the Texas Department of Public Safety, the machine determines alcohol concentration by subtracting the amount of infrared light absorbed from the person’s breath sample and compares it to the amount of light originally introduced into the breath sample. The difference between the two amounts is the test result, measured in the number of grams of alcohol per 210 liters of breath.

Law enforcement claims that the Intoxilyzer will only show a test result from deep lung air (alveolar absorbed breath) alcohol and nothing more. Opponents say that the Intoxilyzer often misreads other common substances in human breath and falsely attributes them to alcohol. There are several facts to keep in mind.

First, CMI, manufacturer of the Intoxilyzer, does not warrant the machine as fit for any particular purpose. This is an admission by the manufacturer that its own machine is not even warranted to be accurate or reliable for breath alcohol testing.

Second, neither the manufacturer nor the Department of Public Safety allow anyone other than law enforcement personnel to test the machine’s reliability or accuracy. It is a commonly accepted principle that for a procedure to be accepted as scientifically reliable and accurate, then it must be available for the scientific community to test and re-test the procedure.

Third, the Intoxilyzer is capable of preserving breath samples with a “ToxiTrap;” however, the Department of Public Safety deliberately fails to require breath samples to be saved, thus allowing an opportunity for re-testing to determine the accuracy of the test results. If found to be inaccurate, the defendant could then challenge the validity of the Prosecutor’s evidence. It is a generally accepted scientific fact that re-testing preserved specimens, through a process called gas chromatography, is a more accurate and reliable method of determining breath alcohol concentration than that done by the Intoxilyzer.

Fourth, the Intoxilyzer’s design is based on the presumption that every person tested is an exact average person. The Intoxilyzer assumes a blood to breath ratio of 2100:1 for every person tested. Persons who have a higher ratio will be not be prejudiced by this automatic assumption. Persons who have a lower blood to breath ratio will be negatively prejudiced by the Intoxilyzer because the machine will falsely read too high of an alcohol concentration, thus making a person test out at an artificially higher level. Muscle development, internal temperature, weight, age, size, lung capacity, and alcohol tolerance all vary from one person to the next. All of these can affect how a person tests.

Finally, since the machine is built by humans, serviced by humans and operated by humans, it is subject to human error just like any other machine. These facts indicate that even if the Intoxilyzer machine is properly working and is properly operated, an innocent person can be labeled guilty.

Texas law gives the officer the choice of offering either a breath test or blood test. If the officer requests a breath specimen and you state that you will only take a blood test, and the officer does not extend to you the opportunity to take a blood test, then your request to take a blood test will amount to a breath test refusal, and you will be arrested accordingly.

However, Section 724.019 of the Texas Transportation Code provides that a person who submits to the taking of a breath or blood test at the request of the arresting officer may, upon request and within a reasonable time (not exceeding 2 hours from the arrest), have a physician, chemist, or nurse selected by that person, take an additional independent specimen of that person’s blood for analysis. This law further provides that a person should be given a reasonable opportunity to contact a physician, chemist, or nurse.

There are 2 interesting points to keep in mind. First, the arresting officer is under no obligation to inform a person about their right to an independent analysis. An arrested person has no idea, generally, about all of their rights under law when deciding to give a specimen of breath or blood. Moreover, how confident can the State of Texas be in the Intoxilyzer 5000’s ability to accurately measure a person’s alcohol concentration if a person has a right to an independent blood test?
What are the penalties for DWI?

DWI can either be a misdemeanor offense or a felony offense, depending on whether the person has prior convictions within a certain time period, as well as other factors exist with respect to driving.
Generally, the penalties for DWI are as follows:

There is no guarantee that probation will be offered or received for conviction of intoxication assault or intoxication manslaughter, although you may be eligible. If you are convicted of intoxication assault and receive probation, you must serve a minimum of 30 days in County Jail as a condition of probation. If you are convicted of intoxication manslaughter, you must serve a minimum of 120 days in County Jail as a condition of probation. If you are convicted of either intoxication assault or intoxication manslaughter, and the court or jury determines that you committed the offense with a deadly weapon (car), you may then be ineligible to receive probation.

Misdemeanor DWI conditions of probation include monthly reporting to a probation officer, payment of all fines and costs of court, pay a reporting fee to the probation department, community service hours, attend DWI classes, commit no other offenses, and complete any other conditions imposed by the court.

Bond conditions are generally within the court’s judgment and discretion for a first offense.

For a subsequent DWI offense or for intoxication assault or intoxication manslaughter, you must have an interlock ignition device installed in your car. You are not allowed to operate a motor vehicle unless it has an interlock device. This device is designed to determine the presence of alcohol in your breath. The car will not start if the interlock device detects a certain level of alcohol. A judge may also, depending on the facts, require interlock device installation even on the first DWI offense.

Is a person required to take a breath or blood test upon request by the officer?

Texas law states that all persons who drive on Texas roads have impliedly agreed, after being arrested for DWI, to take a breath or blood test upon request by the police officer who has reasonable belief that the person was operating a motor vehicle in a public place while intoxicated. A “public place” is any place where a substantial group of the public access. Generally, a person is required to take the breath or blood test.

Yes. Texas law states that while a person is required to submit to a breath or blood test, he may refuse to take the requested test. A refusal to submit to the testing may result in:

The purpose of this evidence is for the prosecutor to argue that the person refused the tests because he was intoxicated.

If a person does submit to the taking of a breath or blood test, and an analysis of that specimen provided shows an alcohol concentration at or above 0.08, results may include suspension of driving privileges for not less than 90 days for your first DWI arrest or for 1 year for a subsequent DWI arrest within 10 years or driver license suspension within 10 years.

No. Even though a person cannot refuse to be videotaped, he has the right to refuse to perform field sobriety tests and to refuse to answer questions without penalty.

Many times, the videotape may be of great assistance in preparing a defense for the case.

You may legally refuse toanswer questions before, during, or after you have been arrested. Once a person has been arrested, he should have access to a phone to arrange bail and consult with a lawyer.

Currently, there is no law or court ruling that requires police to provide you with an opportunity to seek legal advice before taking a breath or blood test at jail. Once arrested, and before police begin an investigative interrogation, you will have your “rights” read to you.

If you clearly invoke your right to counsel, all police interrogation must stop.

When you were arrested for DWI, the police officer most likely seized your driver license and provided you with a temporary driving permit. This permit lets you drive legally for 40 days from date of issuance. Once your license has been seized, you may petition the Department of Public Safety for a hearing on your driver license suspension. These hearings are called Administrative License Revocations (ALR) that take place at an Administrative Law Office of the State of Texas. You have 15 days from the day you receive written notice of your driver license suspension to request an ALR hearing. The temporary driving permit issued to you serves as notice of your suspension. The ALR request must be made by fax or in writing, addressed to the Department of Public Safety in Austin. If you fail to request an ALR hearing within 15 days of receiving notice of your suspension, you waive your right to a hearing and your license will be suspended on the 40th day after receiving notice of the suspension.

It is very important to request the ALR hearing within 15 days of your arrest. When you do request an ALR hearing, your driver license suspension is delayed until the hearing date. It is important to note that your temporary driving permit is good for 40 days only. If your ALR is scheduled outside of the 40 day provisional period, you may ask the Department of Public Safety to extend your temporary permit until the ALR hearing is conducted.

If you lose the ALR hearing and the Department of Public Safety is authorized to suspend your driver license, you may appeal that decision. To appeal, you must file a request for appeal within 30 days after the ALR judgment becomes final. While your appeal is waiting to be heard, your driver license suspension is delayed again, but only for 90 days. Your license will be suspended on the 91st day, even if your appeal has not been ruled on; however, if you are successful on appeal, the suspension is lifted altogether. If you have had a previous alcohol or drug-related suspension in the preceding 10-year period, your license will be suspended on the 40th day during the period your appeal is pending. Your suspension is lifted if you are successful on appeal.

If you are found “not guilty” by the court or by a jury, you may have your license reinstated if you lose your license to a suspension.

It cannot be emphasized enough how important an ALR hearing is to the defense of your DWI case. There are several reasons to request an ALR hearing. First, it gives you the best opportunity to protect your driving privileges. Secondly, you force the State of Texas to prove that the officer who stopped you and arrested you had probable cause to do so. If the State cannot prove these issues, it may be prevented from re-litigating these same issues in your criminal trial for DWI, possibly resulting in a dismissal of the criminal charges.

During the ALR, the officer will be called as a witness by the Department of Public Safety and gives testimony, under oath, as to the details of the traffic stop, his observations of you and his DWI investigation. This is a wonderful opportunity for your lawyer to gain valuable discovery information about your pending criminal case. Many times, officers are caught during cross examination making mistakes about facts in your case and about proper DWI investigation techniques. This information allows your lawyer to better defend your case, possibly resulting in a dismissal of the criminal charges against you.

At the ALR hearing, the Department of Public Safety will have one of two theories to request a driver license suspension: you refused a breath or blood test, or you took a test and failed it.
For a suspension based on a refusal, the Department of Public Safety must prove that:

For a suspension based on a breath or blood test failure, the Department of Public Safety must prove that:

A skilled attorney who is knowledgeable about police procedures and DWI investigation techniques is necessary to protect your rights.

If my license is suspended for conviction of DWI, what are the penalties for driving with a suspended license?

This criminal offense, known as driving while license suspended (DWLS), is a misdemeanor and includes a fine not to exceed $500.00 and confinement in County Jail for a period not to exceed 180 days. If there is a previous DWLS offense, it may be enhanced to a Class A misdemeanor, wherein the penalties will increase.

In many cases, if your driver license has been suspended, you may obtain an occupational driver license upon demonstrating “good cause.” “Good cause” includes driving to and from work and essential household duties. This license permits you to drive during a 12-hour period, per day. The court may impose restrictions or conditions on the occupational license. Your driving record will, in large part, determine if and when you may have an occupational driver license granted by the court and issued by the Department of Public Safety. The occupational license is valid until the suspension is lifted by the Department of Public Safety, or until a date set by the court.

How long will a DWI stay on my record and will it affect my insurance rates?

A final conviction for DWI will always remain on your record. It will never go away. If you are found not guilty by the court or by a jury, you may be eligible to have the arrest and prosecution records destroyed through an expunction.

Regarding insurance, a DWI conviction will generally raise your rates from 300% to 500% for 5 or more years. Your insurance provider may cancel your coverage, forcing you to find a new insurance provider.

Amdur & Bolton
3500 Oak Lawn Avenue, Suite 700
Dallas, TX 75219
Phone: 214-520-8223
Fax: 214-521-0012

Amdur & Bolton are North Texas criminal defense and drunk driving attorneys who specialize in thorough and aggressive defense strategies. They represent clients throughout North Texas, including the counties of Dallas, Collin, Tarrant and Denton, and the communities of Dallas, Irving, Mesquite, Garland, Grand Prairie, Plano, McKinney, Fort Worth, Arlington, Carrollton, Richardson, and Denton.

DWI Laws & Important Information

DFW Metroplex Breath Test Defense
Amdur & Bolton

What signs do people exhibit when they are driving while intoxicated?

What should I say if I am stopped by a police officer and I have been drinking?

If the officer asks me to perform field sobriety tests, do I have to do them?


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	The information you obtain at this site is not, nor is it intended to be, legal advice. You should consult an attorney for individual advice regarding your own situation. Copyright © 2008 by Amdur & Bolton. All rights reserved. You may reproduce materials available at this site for your own personal use and for non-commercial distribution. All copies must include this copyright statement.

DWI Laws & Important Information

DFW Metroplex Breath Test Defense Amdur & Bolton

What signs do people exhibit when they are driving while intoxicated?

What should I say if I am stopped by a police officer and I have been drinking?

If the officer asks me to perform field sobriety tests, do I have to do them?

DFW Metroplex Breath Test Defense
Amdur & Bolton