Driving While Intoxicated (DWI) is the most frequently prosecuted misdemeanor offense in the State and one with some of the most damaging and far-reaching ramifications of a citizen’s everyday life, if convicted. Every other offense in the State of Texas, if the sentence is probated cannot be used to enhance punishment of subsequent charges, with one exception, DWI. A first offense is a Class B Misdemeanor; a second charge is a Class A Misdemeanor and a third charge is a Felony of the 3rd Degree, with the very real potential of incarceration in the Texas Department of Criminal Justice – Institutional Division, better known as prison.

That being said, it is extremely important to try and prevent the first DWI conviction, if at all possible in defending the charge. Many people make the potentially fatal mistake of failing to defend themselves in a first offense DWI. First offenders are typically offered a relatively light punishment involving probation, under the assumption that they do not intend to ever place themselves in a position of being charged a second time. Unfortunately, they do not truly realize that due to the extremely subjective nature of the charge (i.e. the Peace Officer’s opinion that someone is intoxicated) when a citizen is stopped on a minor traffic violation and might have had a beer or glass of wine with dinner, if the Officer smells an odor of an alcoholic beverage and then runs the driver’s license, discovering the prior DWI, that citizen’s chance of being arrested and charged with DWI again, is extremely high.

Other valid reasons to avoid conviction of DWI, if possible, includes automobile insurance rates, license suspensions, but most significant is the Texas Legislature’s recent creation of an annual “surcharge” to renew driver’s licenses for people convicted of DWI. A first offense can result in a $1,000.00 minimum surcharge for each of the three years following conviction. Surcharges increase with subsequent DWI convictions.

 

SHOULD I TAKE THE BREATHALYZER?

The short answer is NO!  Based upon many years of experience, consultations with recognized experts in the field, personal trial experiences and our own client’s stories, the Intoxilyzer machine used in Texas is not reliable in determining an accurate blood-alcohol level and should not be relied upon by you to demonstrate your sobriety.

SHOULD I PERFORM THE FIELD SOBRIETY TESTS OFFERED?

A simple answer would be NO!  In making this decision, you must understand that these tests are designed to detect minor motor skill lapses and lack of attentiveness that is interpreted as signs of intoxication (i.e. loss of normal use of mental and/or physical faculties - one of the legal definitions for intoxication in Texas). If the police officer is asking you to take the filed sobriety tests, he/she has already made some determination as to their own opinion regarding your sobriety, or lack thereof and has some suspicion of intoxication. Their observations and interpretations during both the instructional phase and in the performance of these exercises are extremely subjective in nature and can be interpreted in a number of different ways, usually to the detriment of the citizen they already think may be intoxicated. The best way to answer this question is that you must make your own decision based upon what you think is in your best interest, realizing that the entire battery of “tests” to be performed are an effort in evidence collection that may be used to try to convict you of DWI. These “tests” do not give credit for the citizen’s adequate performance as a sign of sobriety, only are the incorrect aspects of the “test” evaluated and considered as evidence of your intoxication.

DO I HAVE TO TAKE THE TESTS?

The simple answer is NO. No citizen is forced to submit to any field sobriety tests or Intoxilyzer testing. A citizen must identify oneself and provide vehicle insurance upon demand. A citizen does not have to answer questions or submit to tests. The citizen must comply with the Officer’s orders, such as movement and booking procedures, photos, videotaping, but not performance and/or answering of questions. These are rights that the citizen must either exercise or waive. There are situations in where a blood sample may be forcibly taken from the driver. One such situation is if the driver is involved in an accident in which either death or serious bodily injury is possible, then the arresting/investigating officer can direct the taking of blood for alcohol testing purposes. A recent trend has arisen where warrants are sought to obtain blood from suspected intoxicated drivers. These situations are limited, however are beginning to gain popularity in larger jurisdictions and during certain periods of the year, such as holiday weekends.

WILL MY DRIVER'S LICENSE BE SUSPENDED?

Not necessarily. If you refuse a breathalyzer or submit a sample over the legal limit (0.08), your driver’s license will only be suspended after an Administrative Hearing. You or your attorney must request a hearing within 15 days of an arrest or notice of suspension, therefore, time is critical. If a hearing request is not made by the 15^th day, then the driver’s license suspension is automatically enforced on the 40^th day after arrest or notice, so it is extremely important that this deadline is not missed.

This process is separate and has no direct legal affect on the DWI charge, however your attorney is entitled to and should contest these hearings in an effort to not only avoid the driver’s license suspension, but may also ultimately aid in the defense the DWI charge itself.

 Only if the Texas Department of Public Safety can demonstrate to an Administrative Hearing Officer that there was reasonable suspicion to stop you and there was probable cause to arrest you for DWI and request a breath sample, then:

	If you REFUSE to take an Intoxilyzer breath test, then 180 days suspension.
	If you FAIL, that is you give a breath sample, which the Intoxilyzer machine determines that you have a breath alcohol concentration of 0.08 or higher, then 90 days suspension.

IF MY DRIVER'S LICENSE IS SUSPENDED CAN I GET AN OCCUPATIONAL  LICENSE?

An Occupational license is designed to allow a person to drive during certain and specific times of the day even though his/her driver’s license has been suspended for some reason. They are commonly used when a license has been suspended because of a DWI conviction or ALR license suspension and if granted, the license it will be limited in time, area and purpose, generally for work related driving, (i.e. to get to work, school or other essential household duties). An Occupational license is not a right, it is discretionary and a judge can deny or refuse to grant the license.  An Occupational license is granted by a Judge in the County where you live or in the County where your suspension (event) occurred In order to apply for an Occupational license, documents will have to be drafted and filed with the County Clerk and a hearing held regarding the qualification of the applicant and the circumstances of both the suspension, the Applicant’s driving record and the need for the license. Texas law allows a judge to grant an occupational license for driving up to 12 hours a day. There is no standard occupational license and the conditions that may be required by any particular Judge varies greatly from County to County.

 

IF I AM UNDER 21, WILL BE TREATED DEFFERENTLY?

Yes, a person under 21 arrested for DWI and or with a detectable amount of alcohol in his/her system can expect to be treated differently under the law. Most of the differences are in the area of your driver' license. Driver's license restrictions and suspensions are more severe for a person under 21 arrested and convicted of DWI.