Let’s face it. When it comes to DWI, there are a lot of myths, misconceptions, half-truths, and exaggerations. Because it’s such a common charge, everyone seems to have a DWI story – or knows someone who does. This has contributed to the spread of a lot of inaccurate information over the years. So how do you know what to believe? Start by reading these 101 DWI facts — and prepare to be surprised.
1. You can be charged with DWI if you haven’t had a drop to drink.
Table of Contents:
- 1 1. You can be charged with DWI if you haven’t had a drop to drink.
- 2 2. Officers can’t force you to take field sobriety tests – yet most people consent.
- 3 3. You can get a DWI in a golf cart, tractor…or just about anything.
- 4 4. You don’t have to answer an officer’s questions – except to ID yourself and provide license and proof of registration and insurance.
- 5 5. You are a poor judge of your own intoxication.
- 6 6. Americans with DWI or DUI convictions can’t enter Canada – without special permission.
- 7 7. Your driver’s license may be suspended. Twice.
- 8 8. If you are convicted of DWI, you will lose your concealed handgun license.
- 9 9. All 50 states (except Utah) have set .08 BAC as the legal limit for DWI/DUI.
- 10 10. All 50 states have some sort of “implied consent” law.
- 11 11. You CAN refuse to take a breath test in Texas.
- 12 12. You CAN refuse a blood test in Texas.
- 13 13. You CAN refuse during “No Refusal” holidays and weekends.
- 14 14. Officers may ask you (again) back at the station to do field sobriety tests or take a breathalyzer.
- 15 15. If you consent, the police officer gets to choose which test to administer: breath or a blood.
- 16 16. If you consent to take a breath or blood test and your BAC is over the legal limit, your license will be suspended for three months.
- 17 17. If you consent to the officer’s test, you can ask for an additional blood test to be performed at your own expense.
- 18 18. Police officers cannot get a warrant for a breath test – only a blood draw.
- 19 19. Police must obtain a search warrant to draw blood from suspected intoxicated drivers who refuse to voluntarily provide a specimen – unless there are exigent (emergency) circumstances.
- 20 20. Officers may use reasonable force to take blood if they have a search warrant.
- 21 21. Imperfect warrants can be attacked.
- 22 22. Officers don’t always have to read your Miranda Warnings during a DWI arrest.
- 23 23. After a DWI arrest, officers must read you a DIC-24 statutory warning.
- 24 24. If you refuse to give a breath or blood test, you will receive a DIC-25.
- 25 25. You only have 15 days to request a hearing on your license suspension.
- 26 26. Even if your license suspension is upheld at an ALR hearing, you may be eligible for an Occupational License that allows you to drive.
- 27 27. A second (or repeat) DWI within a five-year period will result in a “hard” license suspension
- 28 28. You may have to put an interlock device on your vehicle as a condition of bond.
- 29 29. You may have to put an interlock device on your vehicle as a condition of probation.
- 30 30. You may be ordered to install an interlock on your vehicle in order to obtain an occupational driver’s license.
- 31 31. You’re can’t skip the alcohol monitoring requirement – even if you don’t own a vehicle.
- 32 32. The judge may allow you to have your interlock removed once you have completed half the length of your probation.
- 33 33. The National Highway Traffic Safety Administration Manual is used to train all officers across the country to detect DWI.
- 34 34. Speeding by itself is not a sign of intoxication.
- 35 35. Many officers administer the HGN (eye test) incorrectly.
- 36 36. Labs mess up.
- 37 37. Prosecutors have three ways to prove you were intoxicated.
- 38 38. There is no “legal limit” for drugged driving in Texas.
- 39 39. In Texas, prosecutors must prove a defendant was intoxicated at the time of the offense, and not just at the time of the blood draw.
- 40 40. DWI and DUI are not the same thing – at least not in Texas.
- 41 41. If you are under age 21 and drive with any amount of alcohol in your system, you could be charged with Driving Under the Influence (DUI).
- 42 42. If you are sentenced to jail, you must spend at least 72 hours behind bars on a first-time DWI if your BAC was under .15.
- 43 43. You must serve SOME jail time if convicted of second DWI.
- 44 44. DWIs are extremely costly.
- 45 45. If convicted of DWI, you will have to pay a surcharge for three years.
- 46 46. There is relief from DWI surcharges if you are indigent.
- 47 47. You can request copy of your DWI video.
- 48 48. Your DWI charge could be changed to obstruction of a highway.
- 49 49. The only cure for being drunk is time; nothing else will “sober” you up.
- 50 50. You can get a DWI while trying to “sleep it off” in your car.
- 51 51. You can still be charged with DWI if you BAC is below .08.
- 52 52. Texas law allows retrograde extrapolation testimony.
- 53 53. Two to four drinks could easily get you to a .08 – but driving may be affected before that.
- 54 54. A prior DWI conviction can be used against you regardless of how long ago it was.
- 55 55. A probated DWI before 1/1/84 is not a conviction for enhancement purposes.
- 56 56. A DWI can take over a year to be resolved.
- 57 57. The statute of limitations for a misdemeanor DWI in Texas is two years.
- 58 58. The statute of limitations for a felony DWI in Texas is three years.
- 59 59. A third DWI is a felony DWI.
- 60 60. A DWI can be enhanced from a Class B to a Class A misdemeanor if your BAC is .15 or greater.
- 61 61. You can’t be stopped for a DWI based on anonymous tip alone; the tip must be “reliable.”
- 62 62. Health problems can affect the performance of field sobriety tests.
- 63 63. DWI roadblocks and sobriety checkpoints are illegal in Texas.
- 64 64. Driving while intoxicated with a child in the car is a state jail felony.
- 65 65. CPS may open a case against a parent charged with DWI with kids in the car.
- 66 66. Individuals charged with DWI in Texas cannot receive deferred adjudication probation.
- 67 67. You may be able to get a first-time DWI sealed or non-disclosed in Texas.
- 68 68. A DWI conviction cannot be expunged from your record.
- 69 69. A DWI could result in a suspended professional license.
- 70 70. On average, a drunk driver will drive 80 times before getting arrested.
- 71 71. A pilot who flies under the influence can be charged with Flying While Intoxicated.
- 72 72. Boating while intoxicated is also against the law.
- 73 73. It’s also illegal to operate an amusement ride while intoxicated.
- 74 74. Sucking on a penny will not affect breathalyzer results.
- 75 75. In many cases, you can be still be convicted of DWI for driving intoxicated on private property.
- 76 76. Commercial drivers are considered to be intoxicated with a BAC of .04
- 77 77. If you are a CDL holder, your CDL will be disqualified for one year for DWI.
- 78 78. If you are arrested for DWI and have an open container, you face a minimum of six days in custody if you are sentenced to jail time.
- 79 79. A DWI conviction will make your car insurance rates increase.
- 80 80. The SR-22 is not an insurance policy.
- 81 81. The Standardized Field Sobriety Test consists of a battery of three tests.
- 82 82. Police are not required to video record roadside Field Sobriety Tests, but they often do.
- 83 83. Minors who are convicted of DWI will receive a one-year driving license suspension in Texas.
- 84 84. You have an absolute right to a DWI jury trial.
- 85 85. A DWI trial typically lasts from one to five days.
- 86 86. In a misdemeanor DWI jury trial, six jurors hear the case.
- 87 87. In a felony DWI trial, 12 jurors hear the case.
- 88 88. You can be over the limit at the time of the breath/blood test, and still be ‘not guilty’ of DWI.
- 89 89. A high breath or blood test does not necessarily mean you will be found guilty of DWI.
- 90 90. Certain foods could affect an interlock device.
- 91 91. An out-of-state DWI conviction can be used to enhance your current DWI.
- 92 92. If you are placed on probation for a DWI, you will have to complete a DWI Education Course.
- 93 93. If you are placed on probation for a DWI, you will have to complete a Substance Abuse Evaluation.
- 94 94. If you are placed on probation for a DWI, you will have to complete a Victim Impact Panel.
- 95 95. Coffee doesn’t sober you up.
- 96 96. According to the CDC, one third of all traffic-related deaths involved drivers who consumed alcohol.
- 97 97. Also according to the CDC, 16 percent of motor vehicle accidents involved drugs.
- 98 98. DWI arrests increase around holidays.
- 99 99. The legal limit was .10 before Sept 1, 1999.
- 100 100. There is a now a nationwide push to lower BAC levels from .08 to .05.
- 101 101. It is not illegal to have a drink and drive.
When most people think of Driving While Intoxicated, they think of alcohol. They picture someone who should have their keys taken from them, maybe someone who is slurring, stumbling, or has had the proverbial “one too many.” The reality is it’s also a crime to drive a vehicle when you are not normal, mentally or physically, due to drugs in your system, regardless of whether they are illegal, prescription, over-the-counter or a combination of prescription and illicit drugs.
ACTION TIP #1
Don’t make any admissions or statements to police. Provide your license and proof of insurance but politely decline to answer any questions.
2. Officers can’t force you to take field sobriety tests – yet most people consent.
You may have heard that it’s a mistake to perform field sobriety tests – and that is true. I have done a number of presentations where I’ve asked audience members, even fellow attorneys, to come up and perform sobriety tests and an overwhelming majority of them fail even though they were not under the influence. Officers cannot force you to take field sobriety tests, so don’t take them.
ACTION TIP #2
Politely decline to do field sobriety tests.
3. You can get a DWI in a golf cart, tractor…or just about anything.
You can be charged with DWI for driving a golf cart, tractor, or four-wheeler, among other things. In Texas, a “motor vehicle” is defined as a device, in, on or by which a person or property can be transported on a highway (excluding trains.) This is a very broad definition which leaves the door open for a wide variety of motorized vehicles.This means if you are impaired and get behind the wheel of just about anything, you are subject to the same DWI rules and penalties as if you were driving a car.
4. You don’t have to answer an officer’s questions – except to ID yourself and provide license and proof of registration and insurance.
When motorists are stopped for suspected DWI, the officer will almost certainly ask where you were coming from, if you had anything to drink, and what time was your last drink. You will be in a much better position if you politely decline to answer any of the officer’s questions. So how do you do this? Here are some suggestions of what to say:
- “I respectfully decline to answer any questions.”
- “I prefer not to answer any questions without first speaking to an attorney.”
- “I have a friend who is an attorney and he told me I should not answer any questions.”
5. You are a poor judge of your own intoxication.
The first thing alcohol affects is judgment and as a result, you are a poor judge of your own level of intoxication. While you may have a good idea of what your “tolerance” is, that does not change the fact that the state can prosecute you even if you look completely normal as long as they can prove your blood alcohol concentration was a .08. One way to always find out your level of intoxication is through a portable Blood Alcohol Calculator such as BACtrac, which even offer Smartphone breathalyzers. You can also answer quick online questions at Blood Alcohol Calculator, which will give your estimated BAC based on the quantity and duration of your alcohol consumption.
6. Americans with DWI or DUI convictions can’t enter Canada – without special permission.
Americans are often shocked to learn that they may be turned away at the Canadian border if they have been convicted of DWI, DUI or another alcohol-related offense. The only way to guarantee entry is to apply for a Temporary Resident Permit (TRP) or Criminal Rehabilitation, according to Canadian Immigration Lawyer Marisa Feil, who specializes in helping Americans with criminal records travel to Canada. Feil explains the entry process in an informative podcast, “Earning Freedom,” with Prison Consultant Michael Santos, of Prison Professors.
7. Your driver’s license may be suspended. Twice.
Many people arrested for DWI in Texas face two potential driver’s license suspensions – one at the time of the breath or blood test and another if convicted of a DWI. Here are the ways (and duration) of license suspensions for a first-time DWI.
- Refusing to provide a specimen of breath or blood: 180 days suspension
- Providing a specimen of breath or blood over the limit: 90 days suspension
- Receiving a jail sentence for a DWI: up to two years suspension
ACTION TIP #3
Ask your attorney about getting an occupational license which will allow you to drive while your license would otherwise be suspended.
8. If you are convicted of DWI, you will lose your concealed handgun license.
A DWI conviction (first) counts as a Class B misdemeanor, and in the state of Texas, you can’t have a concealed handgun license for the next five years after being convicted of a Class A or Class B misdemeanor. This includes DWI cases that were dismissed after the completion of deferred adjudication probation. Additionally, people who have been convicted of two or more alcohol or drug-related offenses within the last 10 years are considered “chemically dependent” and are disqualified from obtaining a license to carry.
9. All 50 states (except Utah) have set .08 BAC as the legal limit for DWI/DUI.
In December 2018, Utah’s BAC is expected to be changed to .05, making it the strictest drunk driving law in the country.
10. All 50 states have some sort of “implied consent” law.
In return for the privilege of driving on the roads in our country, motorists are deemed to have given their implied consent to provide a breath or blood specimen if they are ever arrested for driving while intoxicated. There are penalties for not providing a specimen voluntarily upon request, but in Texas (unlike some other states) you will not be charged with a separate criminal offense for failure to consent to a breath or blood test.
11. You CAN refuse to take a breath test in Texas.
Even though Texas is an “implied consent” state, drivers can (and should) refuse to take a breath test. Texas drivers who refuse to give a breath sample will have their driver’s license suspended. This is considered an administrative penalty. If you consent to take the breathalyzer, it’s possible that you could incriminate yourself. Do not do the officer’s job for them. If they want evidence to try and prove you are intoxicated, they can get a warrant and draw blood.
12. You CAN refuse a blood test in Texas.
Just like with a breath test, drivers can (and should) refuse to give a blood test. Texas drivers who refuse a blood test will have their driver’s license suspended for 180 days, but there are ways to potentially save your license. While risking losing your license is not ideal, it is better than volunteering to give a blood specimen. By refusing to give a specimen, you are forcing the police officer to do his or her job and take the extra steps needed to get a warrant.
13. You CAN refuse during “No Refusal” holidays and weekends.
Many people believe if they get stopped for suspicion of DWI during a “No Refusal” holiday or weekend, they do not have the right to refuse to give breath or blood. This could not be further from the truth. What “No Refusal” really means is that your refusal will not keep an officer for seeking a warrant obtain your blood. During “No Refusal” weekends, resources are increased and the process for obtaining a search warrant for a blood draw is expedited. Magistrates are usually readily available to review and sign affidavits for search warrants and blood-draw nurses are on standby. You can (and should) refuse the tests, whether it’s a “No Refusal” weekend or not.
ACTION TIP #4
Don’t volunteer to give a specimen of breath or blood. Ever.
14. Officers may ask you (again) back at the station to do field sobriety tests or take a breathalyzer.
The same advice that applied out in the field applies at the station or jail: do not voluntarily perform their tests.
15. If you consent, the police officer gets to choose which test to administer: breath or a blood.
If you consent and the officer asks you for blood and you’d rather give breath, you are stuck with what the officer is offering.
16. If you consent to take a breath or blood test and your BAC is over the legal limit, your license will be suspended for three months.
If you are over 21 and you provide a breath or blood sample that shows you have a Breath/Blood Alcohol Concentration of a .08 or greater, your license will be suspended for 90 days.
17. If you consent to the officer’s test, you can ask for an additional blood test to be performed at your own expense.
Once you have consented to a blood or breath test, you have the right to have a blood test taken within two hours of arrest by a medical professional of your choosing.
18. Police officers cannot get a warrant for a breath test – only a blood draw.
If you refuse to give a specimen of breath or blood, officers can only get a warrant for blood in Texas. Good to know if you are deathly afraid of needles.
19. Police must obtain a search warrant to draw blood from suspected intoxicated drivers who refuse to voluntarily provide a specimen – unless there are exigent (emergency) circumstances.
Police cannot order a blood test on a suspected drunk driver who refuses to voluntarily provide a specimen without first obtaining a warrant – except under exigent, or emergency, circumstances.The Supreme Court has ruled that the “exigency” created by the dissipation of alcohol in the blood is not enough to overcome the warrant requirement.
20. Officers may use reasonable force to take blood if they have a search warrant.
There have been cases where officers strapped a person down and forcibly took their blood after obtaining a warrant. Of course, many remember the nurse who got arrested after refusing to draw blood.
21. Imperfect warrants can be attacked.
Police officers sometimes fail to establish probable cause or put in the correct date and time of their observed facts in search warrant affidavits. These flaws could lead to evidence being kicked out by the judge. Remember to be polite at all times during a DWI investigation but insist the officer do their job by obtaining a warrant. Don’t do their job for them by consenting to a breathalyzer or blood draw.
22. Officers don’t always have to read your Miranda Warnings during a DWI arrest.
By law, police are only required to read your Miranda rights when they begin what is known as a “custodial interrogation.” That is, they only have to read you your rights if they question you while you are in police custody. If police have all the evidence they need without questioning you – say from a field sobriety or breathalyzer – they are not required to give you a Miranda Warning. This is also why officers ask you a series of questions when they first walk up to your vehicle, before you are in custody.
23. After a DWI arrest, officers must read you a DIC-24 statutory warning.
This lengthy form asks the driver for a sample of breath or blood and warns that refusal or failure will result in an automatic license suspension.
24. If you refuse to give a breath or blood test, you will receive a DIC-25.
The DIC-25 is a Notice of License Suspension and Temporary Driving Permit. The police will take your driver’s license and give you this piece of paper, which will become your license for the next 40 days or until you’ve had an hearing regarding the license suspension. If you don’t request a hearing, the 180-day license suspension kicks in on the 41st day after your arrest.
25. You only have 15 days to request a hearing on your license suspension.
The clock starts ticking on your driving privileges as soon as you are arrested. If you do not request an Administrative License Revocation (ALR) hearing within 15 days of your arrest, your license will be automatically suspended when your temporary permit expires.
26. Even if your license suspension is upheld at an ALR hearing, you may be eligible for an Occupational License that allows you to drive.
An Occupational Driver’s License (ODL) is a permit issued by a judge that gives a person limited driving privileges while their license is otherwise suspended.
27. A second (or repeat) DWI within a five-year period will result in a “hard” license suspension
A “hard suspension” refers to a period of time in which a person’s driving privileges are suspended and they cannot drive for any reason. If you have had a license suspension in the preceding five years due to a DWI, you will have a 180-day hard suspension . If you were convicted of a repeat offense in the last five years, you will have a one-year hard suspension. Despite these hard suspensions, Texas Transportation Code 521.251(d-1) says a judge can issue an occupational license if the person has an interlock device installed on their vehicle.
28. You may have to put an interlock device on your vehicle as a condition of bond.
After you have been arrested for a DWI offense, you may be required to have an alcohol ignition interlock device installed on your vehicle as a condition of your bond (before your case is heard in court.) This is especially true if you are charged with a DWI with a BAC greater than or equal to .15 or if you have previously been convicted of a DWI. The device tests your level of alcohol consumption and prevents you from driving your vehicle until you can pass a test, according to Smart Start, a nationwide reputable Interlock company. To get an interlock device installed or removed, you must take your vehicle to Interlock company in your area.
ACTION TIP #5
Every judge handles interlock as a condition of bond individually. Some judges may allow affidavits of non-driving in lieu of an interlock device, others will require wearable or portable devices. Ask your DWI lawyer about the interlock requirements for your case.
29. You may have to put an interlock device on your vehicle as a condition of probation.
If you are placed on probation for a DWI in Texas and you are alleged to have had a BAC of a .15 or greater or are a repeat offender, the judge will order you to have an ignition interlock device installed on any vehicle you drive. According to Draeger Inc., a national Interlock company, all 50 states in the U.S. have adopted laws that allow or require the installation of interlock devices to prevent convicted offenders from driving under the influence.
30. You may be ordered to install an interlock on your vehicle in order to obtain an occupational driver’s license.
This is true even if your BAC was lower than .15 and even if it was your first offense.
31. You’re can’t skip the alcohol monitoring requirement – even if you don’t own a vehicle.
If you have been ordered to install a breathalyzer but don’t actually own a vehicle, you will still be required to install an interlock device on any vehicle you drive, such as a company vehicle or a friend or family member’s car. If you don’t drive at all, expect the judge find another way to make sure you don’t drink, such as ordering a SCRAM Monitor to ensure you are abstaining from alcohol 24/7.
32. The judge may allow you to have your interlock removed once you have completed half the length of your probation.
If you have not had any interlock violations – and your probation officer supports the removal – there is a chance the judge will go along with removing your interlock device early. Contact an attorney about modifying the terms or your probation by filing a “Motion for Removal of Interlock.
33. The National Highway Traffic Safety Administration Manual is used to train all officers across the country to detect DWI.
The NHTSA publishes a course given to law enforcement around the country to administer, detect and document field sobriety tests.
ACTION TIP #6
Don’t give up hope. If you are reading this guide after you were arrested for DWI, it is likely that you already performed the field sobriety tests. All hope is not lost. An experienced DWI defense attorney can look for weaknesses in the State’s case including the officer’s administration of the test.
34. Speeding by itself is not a sign of intoxication.
The National Highway Transportation Administration (NHTSA) has a guide that lists suspected drunk driving signs – and just speeding alone is not a clue. The guide, called the Visual Detection of DWI Motorists, lists clues that have been found to predict blood alcohol concentration of .08 percent or greater. The behaviors are presented in four categories:
1) Problems in maintaining proper lane position
2) Speed and braking problems
3) Vigilance Problems
4) Judgment problems
The guide also specifies that when there is weaving plus any other clue, the probability of DWI is more than 65 percent. With any two clues the DWI probability is at least 50 percent.
|Percent Chance of Intoxication||Driving Clues|
|50 to 75 percent||Problems Maintaining Proper Lane Position|
|Weaving across lane lines|
|Straddling a lane line|
|Turning with a wide radius|
|Almost striking a vehicle or other object|
|45 to 70 percent||Speed and Braking Problems|
|Stopping problems (too far, too short, or too jerky)|
|Accelerating or decelerating for no apparent reason|
|Slow speed (More than 10 miles mph under the limit)|
|55 to 65 percent||Vigilance Problems|
|Driving in opposing lanes or wrong way on one-way|
|Slow response to traffic signals|
|Slow or failure to respone to officer’s signals|
|Stopping in lane for no apparent reason|
|Driving without headlights at night|
|Failure to signal or signal inconsistent with action|
|35 to 90 percent||Judgement Problems|
|Following too closely|
|Improper or unsafe lane change|
|Illegal or improper turn (too fast, jerky, sharp, etc.)|
|Driving on other than the designated roadway|
|Stopping inappropriately in response to officer|
|Inappropriate or unusual behavior (throwing, arguing, etc.)|
|Appearing to be impaired|
|Greater than 85 percent||Post Stop Clues|
|Difficulty with motor vehicle controls|
|Difficulty exiting the vehicle|
|Fumbling with driver’s license or registration|
|Repeating questions or comments|
|Swaying, unsteady or balance problems|
|Leaning on the vehicle or other object|
|Slow to respond to officer or officer must repeat|
|Providing incorrect information, changes answers|
|Odor of alcoholic beverage from the driver|
|Greater than 50 percent when combined with any other clue:||Driving with no headlights at night|
|Failure to signal or signal inconsistent with action|
35. Many officers administer the HGN (eye test) incorrectly.
Horizontal gaze nystagmus tests the eyes for a particular kind of nystagmus or involuntary jerking of the eyes. If administered correctly, this can be a powerful sign that a person is not normal physically (one of the ways to prove intoxication in Texas.) The test, however, requires the officer to hold and move the stimulus in a very particular manner and at very particular speeds. If the officer does not administer the test correctly, it may affect the validity of the results. Just ask Tony Corroto, a DWI Expert.
36. Labs mess up.
While lab reports can be strong evidence of a person’s BAC, remember the reports have been prepared by people and devices that aren’t perfect. We’ve seen accidental mistakes to intentional false reports in labs across the country. We regularly have blood retested to see if a lab report is accurate.
ACTION TIP #7
Talk to your attorney about re-testing blood evidence. There may be times when it may be prudent to re-test the blood evidence. This includes if you have reason to believe the test results are wrong, your result was right above the .15 enhancement, or the lab is untrustworthy. An experienced DWI defense attorney will know there are many reasons not to re-test evidence, including potentially strengthening the State’s case when a cross-examination would have been more effective. It is important to consider the pros and cons of this course of action before proceeding.
37. Prosecutors have three ways to prove you were intoxicated.
- They can prove your BAC was a .08 or over at the time of driving.
- They can prove you did not have the normal use of your physical faculties due to the introduction of a substance into your body.
- They can prove you did not have normal use of your mental faculties due to the introduction of a substance into your body.
The latter two ways mean a person can be convicted of a DWI with a BAC of less than .08 if the jury believes the person was not normal mentally or physically due to an intoxicant.
38. There is no “legal limit” for drugged driving in Texas.
Unlike alcohol, there is no fixed blood concentration for which a motorist is deemed intoxicated by drugs. That means it’s up to law enforcement to decide whether or not to arrest a driver suspected of drugged driving. Some law enforcement departments have Drug Recognition Examiners or DREs who are trained to recognize and examine drugged drivers. Dr. David J. Hanson, a sociology professor who has been researching the subject of alcohol and drinking for 40 years and operates the website Alcohol Problems and Solutions, said on average DRE’s falsely identify one innocent driver for every eight arrested. “Who would want a doctor who botched over one of every eight heart surgeries? Or an airline pilot who botched over one one of every eight landings?” Hansen asks in an article on his website about detecting drugged driving. When drugged driving cases make it to trial, prosecutors bring in the DRE or other experts to give an opinion about whether or not the accused was intoxicated by drugs and use signs, such as erratic driving or the driver’s attitude, to try and prove their case.
39. In Texas, prosecutors must prove a defendant was intoxicated at the time of the offense, and not just at the time of the blood draw.
This is significant because sometimes it takes an hour, or even several hours, for police to get a warrant to draw blood.
ACTION TIP #8
Do not tell the officer your time of last drink. If you take nothing else away from this article, remember this: Do not make any statements about the time of your last drink. There are a number of problems if you do. First, it is an admission of consuming alcohol. Second, the officer will use whatever you say as the gospel in their retrograde extrapolation calculation. For example, if you say you had a couple of drinks about an hour ago, that will be used against you to come up with your BAC at the time of driving based on other known factors. Three, most people give an imprecise time of their last drink which can make them appear significantly more intoxicated through retrograde extrapolation than they otherwise would. The Aizman Law Firm in California has an great example of the type of Retrograde Extrapolation Calculator law enforcement may use.
40. DWI and DUI are not the same thing – at least not in Texas.
Many people use the terms DWI and DUI interchangeably but they are not the same thing in Texas. The main difference between DWI and DUI is the age of the driver. In Texas, a motorist who is legally intoxicated – has a BAC of at least .08 – can be charged with DWI. A DUI, however, is issued to motorists under the age of 21 who are caught driving with any amount of alcohol or impairing drug in their system. A DUI is a Class C misdemeanor, while a DWI is a Class B misdemeanor.
41. If you are under age 21 and drive with any amount of alcohol in your system, you could be charged with Driving Under the Influence (DUI).
If you are younger than 21 years of age, it is illegal to drive with any detectable alcohol in your system. The consequences of a DUI could include a $500 fine, a 60-day license suspension, 20 to 40 hours of community service and mandatory alcohol awareness classes, among other things. The penalties are harsher for those under 21 who blow a BAC of 0.8 or above and may including a $2000 fine, 3 to 180 days in jail, and up to a year license suspension. It’s important to point out that there is a zero-tolerance for underage drinking and driving. Any amount of alcohol in the system of a motorist under the age of 21 is grounds for arrest.
42. If you are sentenced to jail, you must spend at least 72 hours behind bars on a first-time DWI if your BAC was under .15.
Due to a legislative oversight, that 72-hour minimum does not apply if your BAC is .15 or greater.
ACTION TIP #9
Hire the right DWI defense attorney. Most people who are arrested for a first-time DWI have never been in the criminal system before. They never imagined they would be arrested. Their life is flashing before their eyes as they think of how they will explain this to their loved ones, whether they will lose their job, what will happen to their license and most of all, whether they will go to jail as a result of this. For most, the 2-48 hours they were in custody at the time of their arrest was enough to ensure they never want to be back inside a jail cell again. Our attorneys have an exceptionally high rate of keeping people out of jail on first-time DWIs. Be sure to find an attorney who has handled cases in your county, in front of your judge, and has gone to trial – and won – DWIs in your jurisdiction. We have -time and time again – and we are here to help.
43. You must serve SOME jail time if convicted of second DWI.
This is because the minimum sentence for DWI-Misdemeanor Repetition is 30 days in jail. Even if you receive probation, you will be required to do jail time as a condition of probation for a second DWI.
ACTION TIP #10
You may be able to stay out of jail – even on a DWI Second. We have successfully kept individuals out of jail on repeat DWI offenses both by winning at trial and by negotiating pleas to lesser offenses.
44. DWIs are extremely costly.
DWI’s are not cheap, and the costs increases with each offense. These costs include court costs, fines, surcharges, probation fees, attorneys fees, and a host of other costs that get tacked on to DWIs. For your third DWI offense, you could be paying around $27,000 by the end of it.
ACTION TIP #11
Cheap attorneys cost more in the long run. One of the advantages of choosing a firm that is not competing on cost is that your attorney will have the time to giving you the best representation possible. Obviously winning at trial is going to save you thousands in court costs, fees, license suspension etc, but did you know an experienced DWI attorneys can shave thousands off fines, possibly help you avoid probation fees, keep you out of jail, and help save your professional license? While you will spend thousands on a competent DWI attorney, even without a trial, the reality is it is money well spent – even from a purely financial standpoint.
45. If convicted of DWI, you will have to pay a surcharge for three years.
While considered an administrative penalty charged by the Texas Department of Public Safety, surcharges are basically a fee for you to maintain your driver’s license. The surcharge is $1000 per year for three years for a first-time DWI; $1500 a year for second DWI; and $2000 a year for any conviction with a BAC of .16 or greater. Failure to pay surcharges will result in your license being suspended.
46. There is relief from DWI surcharges if you are indigent.
Texas Transportation Code Chapter 708 allows Texas to collect surcharges for offenses including DWIs. A surcharge is an administrative fee that is charged based on convictions reported to a person’s driving record. If you are indigent, you should ask your attorney about how to have your surcharges reduced or waived through specific programs.
47. You can request copy of your DWI video.
In today’s day and age, almost all police encounters are videotaped, including DWI arrests. Under Article 2.139, a person arrested for DWI has a right to obtain the video from his or her arrest. This is true even if a case has not been filed.
ACTION TIP #12
You can get some of the evidence even if your case hasn’t been filed. The Statute of Limitations on a misdemeanor DWI is two years. Occasionally cases don’t get filed for months after the arrest. An experienced DWI defense attorney can help you obtain the video from your arrest, and lab reports through requests to the police department. This information can, in turn, help you prepare the best defense for your case before it is even filed.
48. Your DWI charge could be changed to obstruction of a highway.
In rare circumstances, a DWI may be “reduced” to Obstruction of a Highway. This usually occurs through plea bargain negotiations when a skilled defense attorney points out problems or issues that shake the prosecutor’s confidence in obtaining a guilty verdict at trial. While DWI and Obstruction of a Highway are both Class B misdemeanors, a DWI has more severe consequences than Obstruction of a Highway charge. For example, deferred adjudication is not a punishment option for a DWI, but it is with Obstruction of a Highway.
49. The only cure for being drunk is time; nothing else will “sober” you up.
All of the home remedies you have heard over the years to “sober” you up, are just myths. No amount of coffee, cold showers, or fatty food will be able to lower your BAC. Time is the only sober remedy after a night out.
50. You can get a DWI while trying to “sleep it off” in your car.
In Texas and several other states, you can be convicted of a DWI even in a parked car. What is considered a motor vehicle is clearly defined by Texas law, but it does not define what it means to be operating one. This lack of definition allows for the court to interpret what is considered operating a motor vehicle. Texas courts have regularly found that anything beyond sitting in a running car is operation, including facts as small as having your foot on the brake pedal or having the car in neutral. People can – and do – get charged with DWI when found sleeping it off in their vehicle.
ACTION TIP #14
If you have to sleep it off, do not sit in the driver’s seat. We have represented individuals arrested in parking lots and on side streets who were asleep in their vehicles. While we vigorously defend these changes, it is far easier to sit in the passenger seat or, better yet, the back seat to sleep it off and not get arrested.
51. You can still be charged with DWI if you BAC is below .08.
While it is obvious that if you provide a sample of breath or blood that shows you were a .08 or greater at the time of driving you are going to be charged with a DWI, it may surprise you to know that motorists get charged with DWIs when the results are lower. This is most commonly because the state believes they can prove the BAC was at or higher than .08 at the time of driving through “retrograde extrapolation.”
52. Texas law allows retrograde extrapolation testimony.
Retrograde extrapolation is a calculation that allows the State to put on evidence of what your BAC was at the time of driving based on a number of facts including the time of last drink, the time the vehicle was being operated, the time of the blood test, and the blood test result. You can see why our advice is to always politely decline to answer questions rather than risking a casual response such as “a couple of drinks an hour ago” being taken as the absolute truth and being held against you in court.
53. Two to four drinks could easily get you to a .08 – but driving may be affected before that.
Everyone absorbs and metabolizes alcohol differently and many factors can affect blood alcohol concentration, including a person’s size, gender, and the alcohol content of their preferred drink. Generally, one drink is equal to 1.5 oz of 80 proof liquor, 12 ounces of beer, or a 5 ounce glass of wine. The Texas Alcoholic Beverage has a BAC Chart that estimates how many drinks it takes men and women to reach a .08 BAC in an hour. Depending on body weight, this level can be reached by some people after consuming just two drinks. Drivers Ed Hub has some great information about alcohol’s effect on driving, including a chart that breaks down how different BAC levels impact driving behavior. For example, a BAC of .05 (about three drinks) can result in a reduced ability to track moving objects, difficulty steering and a delayed response to emergency driving situations.
54. A prior DWI conviction can be used against you regardless of how long ago it was.
If you’ve been to convicted for a DWI in Texas, that can be used to enhance any future DWI arrest. An allegation of a third arrest is a felony.
55. A probated DWI before 1/1/84 is not a conviction for enhancement purposes.
While DWI convictions of any age can be used to enhance another DWI allegation, DWIs that were probated in Texas before January 1, 1984 were not considered convictions and, as a result, cannot be used to enhance you. This is something many lawyers miss.
56. A DWI can take over a year to be resolved.
While our attorneys are proactive and regularly resolve cases in a matter of months when appropriate, it is not unusual for a case in Texas to take a year or longer to be resolved.
57. The statute of limitations for a misdemeanor DWI in Texas is two years.
The statute of limitations refers to the period of time the prosecutor has to file a case against you. There are circumstances that allow the statute of limitations to be tolled (or for the State to have more time) including if a person is out of the state for a period of time.
58. The statute of limitations for a felony DWI in Texas is three years.
59. A third DWI is a felony DWI.
Once you have been convicted of a DWI offense, subsequent DWI convictions come with more serious consequences, especially your third offense. Prosecutors often charge a third offense as a felony. This can result in up to a $10,000 fine, 2 to 10 years in prison, and up to a two-year driver’s license suspension.
60. A DWI can be enhanced from a Class B to a Class A misdemeanor if your BAC is .15 or greater.
This doubles the punishment range from six months in jail to up to a year in jail.
61. You can’t be stopped for a DWI based on anonymous tip alone; the tip must be “reliable.”
Have you ever wondered what happens if you call in a suspected DWI driver? It depends. If you identify yourself, an officer can initiate a stop. If you don’t give your contact information, the officer needs some way to show the call information was reliable and this generally means the officer needs to observe corroborating information before initiating a stop.
62. Health problems can affect the performance of field sobriety tests.
This is because inner ear infections or inflammation can cause loss of balance, which in turn can adversely affect your performance on the field sobriety tests.
63. DWI roadblocks and sobriety checkpoints are illegal in Texas.
DWI checkpoints are police roadblocks set up to stop every vehicle passing through a specific location in order to check the drivers’ sobriety. DWI roadblocks and sobriety checkpoints are illegal in Texas. The state of Texas has not authorized police officers to conduct roadblocks, much less sanctioned their enforcement techniques.
64. Driving while intoxicated with a child in the car is a state jail felony.
Driving while intoxicated with a minor in Texas is a serious offense that can impact your life in unforeseen ways. Not only will you potentially have to serve jail time and pay expensive fees, but you may also lose custody of your children, put your professional licenses in jeopardy (doctor, nurse, teacher, etc.) and have a permanent criminal felony record.
65. CPS may open a case against a parent charged with DWI with kids in the car.
Officers often contact Child Protective Services when they arrest someone for DWI who has a child passenger.
66. Individuals charged with DWI in Texas cannot receive deferred adjudication probation.
It is not a punishment option. Texas does not allow deferred adjudication for a DWI. Deferred adjudication is a form of probation that allows defendants to have their case dismissed if they successfully complete the terms of their probation.
67. You may be able to get a first-time DWI sealed or non-disclosed in Texas.
A new law that went into effect in September 2017 makes first-time DWI offenders eligible for a non-disclosure in Texas under certain circumstances. A non-disclosure seals a criminal conviction from public view, but it does not remove the conviction from your record. The waiting period for a nondisclosure depends on the outcome (jail or probation) and whether the judge ordered that you have interlock as a condition of your sentence or not.
68. A DWI conviction cannot be expunged from your record.
Unfortunately, you cannot expunge – or delete – a DWI from your record altogether. An expunction destroys all records of certain offenses, but there is no such thing as a DWI expunction in Texas. It may be possible, however, for first-time DWI offenders to get a non-disclosure, which prevents the Department of Public Safety and other law enforcement officers from releasing information to the public. A non-disclosure basically seals it from the public eye. However, law enforcement and state licensing agencies are still able to see a non-disclosed offense.
69. A DWI could result in a suspended professional license.
Many licensing agencies such as the Texas Medical Board and Texas Nursing Board require professionals to report arrests such as DWI, and these charges could result in a loss of employment or loss of license.
70. On average, a drunk driver will drive 80 times before getting arrested.
According to a study conducted by the CDC, a person will drive under the influence about 80 times before they get arrested for the first time.
71. A pilot who flies under the influence can be charged with Flying While Intoxicated.
Operating an aircraft may seem largely different than driving a car, but there is one main similarity: It’s against the law to operate either under the influence of drugs or alcohol. Cases of FUI/FWI are especially complex. Pilots must abide but both state and federal laws and cannot operate an aircraft if:
- they have consumed alcohol in the past 8 hours
- have a BAC above 0.4 percent, and
- have used a drug that impairs ability to make safe decisions.
An FWI conviction may result in your pilot license being revoked. If arrested for FWI, it’s important to contact an experienced defense attorney immediately. We have successfully saved commercial pilot licenses in the past through aggressive defense.
72. Boating while intoxicated is also against the law.
Texas has more inland water than any other state in the country, and many people associate time on the water with drinking. It may come as a surprise to learn that boating while intoxicated is a criminal offense in Texas. A person commits the offense of BWI by operating a watercraft while intoxicated. The punishment for boating while intoxicated is Class B misdemeanor and typically results in 72 hours to 180 days in jail. It’s also important to point out that law enforcement can stop a boat and board it without probable cause or reasonable suspicion.
73. It’s also illegal to operate an amusement ride while intoxicated.
In Texas, just like operating a car, it is also illegal to operate (or assemble) an amusement ride while intoxicated. Operating an amusement ride while intoxicated is a Class B misdemeanor, punishable by up to 180 days in jail and a maximum $2,000 fine.
74. Sucking on a penny will not affect breathalyzer results.
Rumors have been circulating on the internet that if you put a penny or pennies in your mouth, this will somehow throw off the breathalyzer. Even if this trick were true, they stopped making the penny with copper back in 1982. Snopes took a look at this claim and dispelled it as a myth.
75. In many cases, you can be still be convicted of DWI for driving intoxicated on private property.
For instance, you can get a DWI in a parking lot. This may be surprising, especially since the law requires showing that the offense occurred at a “public place.” According to the statute, a public place means any place to which the public or a substantial group of the public has access. That broad language allows police to make DWI arrests almost anywhere.
76. Commercial drivers are considered to be intoxicated with a BAC of .04
Since larger vehicles have a chance of causing more damage, the BAC limit for commercial drivers is lowered from .08 to .04.
77. If you are a CDL holder, your CDL will be disqualified for one year for DWI.
Individuals with a commercial driver’s license face severe license consequences for an alcohol-related offense. In Texas, your CDL will be disqualified for at least a year for operating a commercial vehicle with a BAC of .04 or higher. If transporting hazardous material at the time of your DWI arrest, the suspension is for three years. Having a skilled attorney is crucial for these types of cases.
78. If you are arrested for DWI and have an open container, you face a minimum of six days in custody if you are sentenced to jail time.
79. A DWI conviction will make your car insurance rates increase.
When your insurer finds out about your DWI conviction, it will reflect in higher rates – or even a possible cancellation of your plan. Insure.com reports that your rates could climb from 30 to 200 percent as the result of a DWI conviction. Typically, the insurance company will slap the “high-risk driver” label onto your account, which then leads to higher rates. Some companies may choose to just cancel your policy, in which case, it is the insurer’s responsibility to notify the DMV of the cancellation. Insurers and states vary widely in how they penalize motorists convicted of DWI. For a state-by-state breakdown of how a single DUI conviction can impact the cost of car insurance, check out this graph in Quoted, an online website published by The Zebra, a car insurance comparison marketplace. In Texas, for example, car insurance premiums increase an average of 55 percent for a DWI conviction, while in Arizona they may soar 135 percent.
80. The SR-22 is not an insurance policy.
While many people, even attorneys, refer to the SR-22 as an insurance policy, it really is not insurance. As writer Brittany Anstorm points out in Progressive Insurance’s Life Lane’s blog, a SR-22 is merely a certificate that an insurer files with the state as proof that you have a valid insurance policy. If you already have insurance, you’ll just need to add it to your policy. If you get a license suspension for DWI that was punished by time in jail, you will have to maintain the SR-22 for two years.
81. The Standardized Field Sobriety Test consists of a battery of three tests.
The horizontal gaze nystagmus (HGN), walk and turn (WAT) and one-leg stand (OLS).
82. Police are not required to video record roadside Field Sobriety Tests, but they often do.
In-squad or dash-cam videos often capture field sobriety tests but sometimes they don’t. Texas law does not require officers to record their administration of field sobriety tests during a DWI investigation.
83. Minors who are convicted of DWI will receive a one-year driving license suspension in Texas.
In terms of a DWI, a minor is considered to be an individual who is under 21 years of age. According to the Texas Department of Public Safety website, in addition to a one-year license suspension, minors are required to complete a 12-hour Alcohol Education Program. If they fail to complete this program it may result in a 180-day suspension and a possible 18-month suspension.
84. You have an absolute right to a DWI jury trial.
To have a jury trial, you just have to request it from the court. There are many reasons to go to trial including:
1) You believe the State cannot make their case.
2) You risk losing your professional license
3) You do not wish to enter a plea of guilty for any reason.
85. A DWI trial typically lasts from one to five days.
The length of a trial will depend on whether the case involves a breath or blood specimen. The more witnesses and experts that testify, the longer the trial will take. One of our longest trials was an intoxication manslaughter case that took three weeks.
86. In a misdemeanor DWI jury trial, six jurors hear the case.
In Texas, a panel of six jurors hear cases in county court municipal court. Because most first-time DWIs are misdemeanors in county courts, they are heard by a six-person jury.
87. In a felony DWI trial, 12 jurors hear the case.
While jurors must be unanimous in their verdict, they need not be unanimous in their reason to find the person guilty. In other words, three may think the accused lost his normal mental faculties, three may believe it was his normal physical faculties that he had lost, and the remaining six could rest their hats on the .08 standard and still return a verdict of guilty.
88. You can be over the limit at the time of the breath/blood test, and still be ‘not guilty’ of DWI.
Even if your BAC was above .08 when the blood draw or breath test occured at the police station (or hospital), it may well have been below .08 when you were actually driving.[callout_box callout_style=”background border” title_tag=”h3″ title=”Case Study: Over the Limit – Not Guilty”]Our most recent DWI involved an accident and a test over the legal limit. The jury returned a verdict of “Not Guilty” after we exposed the assumptions the officer made, the errors in the administration of the field sobriety tests, and the State expert’s truthful testimony that the accused could have been under the limit at the time of the accident.
89. A high breath or blood test does not necessarily mean you will be found guilty of DWI.
We have won plenty of cases that involved high scores. While it’s definitely more challenging, don’t just assume that the state can make its case against you.
90. Certain foods could affect an interlock device.
LifeSaver, which manufactures thousands of interlock devices per year, says there are certain foods that, if consumed immediately prior to an interlock test, can yield a failed test even when you have not consumed alcohol. Some of the foods to watch out for are include pizza, pastries, vinegar (think salad dressings), and vanilla extract. These foods have trace amounts of alcohol and should be avoided immediately before you blow into your interlock device. To avoid a failed test, just make sure you have not eaten anything for at least 15 minutes prior.
91. An out-of-state DWI conviction can be used to enhance your current DWI.
As long as the elements of the out of state DWI, OWI (Operating While Impaired), or DUI (Driving Under the Influence) has the same elements as a DWI in Texas, that out-of-state prior can be used to enhance a Texas DWI allegation.
92. If you are placed on probation for a DWI, you will have to complete a DWI Education Course.
If you receive probation for a DWI in Texas, you are required by law to take a 12-hour DWI Education Program certified by the state. Numerous places offer these classes, but we often refer clients to Holly Hunter at A Court Class Inc., which has two locations in North Texas. Hunter, a former drug dealer, has a remarkable story. She spent about a third of her life in prison before getting clean, becoming a certified chemical dependency counselor and founding A Court Class, which offers substance abuse counseling services and court-related education classes.
93. If you are placed on probation for a DWI, you will have to complete a Substance Abuse Evaluation.
Substance Abuse Evaluations are used to help determine the severity of one’s drug and alcohol abuse so probation officers can determine the appropriate treatment and further their assessment. The Substance Abuse Evaluation is a questionnaire that covers topics such as your history with drug and alcohol, and how substances have affected relationships/finances/employment. Your Substance Abuse Evaluation will be analyzed by a certified counselor who will make recommendations to the court on your treatment. Learn more about Substance Abuse Evaluations from RehabCenter.net.
94. If you are placed on probation for a DWI, you will have to complete a Victim Impact Panel.
A Victim Impact Panel is a program put on by Mothers Against Drunk Driving where victims or victims’ families share their experiences so prevent repeat offenses. The Victim Impact Panel is generally an hour long for first-time offenders.
95. Coffee doesn’t sober you up.
Alcohol is a central nervous system depressant. Caffeine in coffee is a stimulant. It has no effect on the absorption or elimination of alcohol from your body. The risk of mixing caffeine with alcohol is that the stimulating effect of caffeine may lead you to believe you are capable of taking on a divided attention task such as driving. In other words, it can trick you into thinking you are sober.
In 2015, 10,265 people died in alcohol-impaired crashes, accounting for for almost one-third, or 29 percent, of all traffic deaths in the U.S.
97. Also according to the CDC, 16 percent of motor vehicle accidents involved drugs.
Drugs – legal and illegal – are involved in about 16 percent of motor vehicle crashes.
98. DWI arrests increase around holidays.
New Years, Thanksgiving, Christmas, Independence Day, and Memorial Day are perennial No-Refusal weekends for a reason. These are times during the year where people engage in family and social gatherings and may be more inclined to over-imbibe.
99. The legal limit was .10 before Sept 1, 1999.
The Texas Legislature lowered the blood alcohol concentration level from .10 to .08 in 1999.
100. There is a now a nationwide push to lower BAC levels from .08 to .05.
Several years ago, the National Transportation Safety Board (NTSB) recommended that states lower the legal blood alcohol concentration (BAC) level while driving from 0.08 to 0.05 or lower. And earlier this year, a study released by the National Academies of Sciences, Engineering and Medicine called for lowering the BAC from .08 to .05. The .08 limit that is used in the U.S. is among the highest in the world, but whether it will be changed nationwide remains to be seen. So far the only state on board is Utah, which passed a .05 BAC limit that will go into effect in December 2018.
101. It is not illegal to have a drink and drive.
The billboards that read, “Drink, Drive, Go to Jail” are technically not true. It’s perfectly legal to have a beer, glass of wine, or even a shot, and drive a car – as long as you aren’t legally intoxicated.
ACTION TIP #15
We hope you found these 101 DWI facts useful. As you’ve gathered by now, it is is very easy to be arrested for driving while intoxicated even if you are not intoxicated. While you may not beat the ride (to the station) you will maximize your chances of beating the rap if you remember to keep a LIDD on it:
License – Have your license ready for the officer.
Insurance – Give the officer your proof of insurance.
Decline all test: Field Sobriety, Breath or Blood.
Also published on Medium.