I was in an accident after drinking and driving, what should I do? In Texas, thankfully, you can legally drink and then drive as long as you are not Driving While Intoxicated. You may have seen billboards that say, “Drink, Drive, Go to Jail.” While that’s a memorable phrase, it is not an accurate statement of the law. You can go out, drink an alcoholic beverage or two and still legally drive a vehicle, so long as you are not “intoxicated.”
How do I know if I was intoxicated at the time of my accident?
Intoxicated is defined as (1) having lost the normal use of your physical faculties by the introduction of alcohol, drug, dangerous drug, or any combination, (2) having lost the normal use of your mental faculties by the introduction of alcohol, drug, dangerous drug, or any combination, or (3) having an alcohol concentration of .08 or more. (There is a longer definition if we are dealing with other intoxicants like drugs.) Unless you satisfy at least one of these definitions of intoxication, even if you have been in an accident, you cannot be successfully prosecuted for Driving While Intoxicated.
Did intoxication play a role in my accident?
Unfortunately accidents can happen for millions of reasons: mechanical malfunction, bad weather, driver inattention, reckless behavior of another driver or pedestrian, to name a few. If you have been in an accident involving any kind of damage or injury, you can expect your local police department to make contact with you for questioning. An accident gives law enforcement legal justification to detain, investigate, and arrest you for breach of the peace or being in a suspicious place under suspicious circumstances.
Once you have been legally, temporarily detained, you may be asked a series of questions: Were you the driver of this vehicle? Are you or anyone else injured? Where were you coming from? Have you been drinking?
Because intoxication may impair judgment, depth perception, motor skills, and attention span, it may not take long for law enforcement to begin investigating you for DWI. Obviously, your answers to these questions are critical. (Remember to ask if you are free to leave, and also remember that you don’t have to answer any questions.)
First, the police will likely investigate who was involved, or responsible, for the accident. To be prosecuted for Driving While Intoxicated or similar offense, the state must be able to prove you operated a motor vehicle. Operation is not defined by Texas law, but several court decisions have provided guidance for its limitations. If you exerted any amount of control over a vehicle, then a court looking at the facts of the case will likely determine you operated it. For intoxication related offenses, this is called “wheeling” the defendant. Every determination of operation is fact dependant, so be sure to discuss this with your attorney.
Placing you behind the wheel of a vehicle can be extremely easy or difficult depending upon the facts of your case. A case may be built against you based upon your admission to driving, eye-witness testimony and/or any number of pieces of circumstantial evidence. The single most important piece of evidence the police may obtain is your admission to operating a motor vehicle. Statements like “I was driving from” or “I was driving to” or “I mistook the gas pedal for the brake pedal” work just as well against you as “I was driving.” This admission plus any additional fact may be legally sufficient to satisfy operation. Additional facts may include having the keys to the vehicle on your person, sitting in the driver’s seat, being the registered owner of the vehicle, being the only person present at the scene, having a cut on your face with corresponding blood on the driver’s air bag.
What should I do if intoxication did play a role in my accident?
The answer to this question depends on the facts of your case, so it’s best to discuss this with your attorney. There are some general rules of thumb though: Check to make sure everyone is okay. This should always be your first priority. If someone is hurt, get them help. If no one is injured, check for property damage. If there is damage to any property over $200, be sure and leave your contact information and insurance information. Once these things are out of the way, ask yourself the following questions:
- Do you need to wait at the scene for the police to arrive? If your vehicle is off the roadway, and there’s no damage to any other vehicle or property, and no one has been injured, you may not need to wait at the scene. You might find a taxi to take you home, or call someone who can pick you up.
- Do you need to volunteer information? If an officer has made contact with you, be polite, but remember you do not have to answer questions and you do not have to do field sobriety tests.
What happens if was not intoxicated at the time I was driving?
If the police are able to determine you were operating a motor vehicle, the police will then investigate whether you were intoxicated at the time of operation. The passage of time is the most important factor in this situation. The more time there is between tests for intoxication and the operation of a vehicle, the harder it is to determine intoxication at the time of operation. As soon as you consume alcohol, your body will start to metabolize it. Depending up your specific biological make-up and the presence of food in your stomach, your body will process one standard size drink at a relatively consistent rate and your BAC will go down. (Absorption rates vary depending on a lot of factors, while elimination rates are relatively constant for an individual. Interestingly, elimination rates vary from person to person.)
Depending on what time your last drink was, what else is in your stomach, how much you had to drink, what you had to drink, how much unabsorbed alcohol was in your system, and how much time passed between your last drink and the time of driving, your Blood/Breath Alcohol Concentration (BAC) may:
- Be higher at the time of driving than when you are test
- Be lower at the time of driving than when you are tested
- The same at the time of driving and when you are tested.
An experienced defense attorney will have access to experts in the field to determine if and how this “retrograde extrapolation” would be applied. It is very important to make a threshold determination of whether this retrograde extrapolation would even be admissible – the State must have the right experts and the right pieces of evidence to introduce this in court, or the court will keep the evidence out.
Should I answer the officer’s questions?
The most obvious way for officers to find out facts needed for retrograde extrapolation is to ask you for the information. Here’s the danger of answering questions. Let’s say you are asked, “What time was your last drink?” If you answer, “I had a couple an hour ago,” you don’t have any way of knowing if your answer is going to make a difference to retrograde extrapolation. Let’s say a more accurate statement would have been, “one and a half 12-ounce beers, with my first drink being 2 hours ago and I stopped drinking 15 minutes ago.” That has the potential to change your BAC in retrograde extrapolation. Based on the more accurate answer, you may actually be under the legal limit at the time of driving. Here’s the takeaway, any admission you make will be used against you. Be careful about what you say, and think twice before making any admissions.
What should I do with the open containers in my car?
Retrograde extrapolation is not possible when there is an open container of alcohol in the car. Why? Because it is possible you were drinking in the vehicle, making your time of last drink the time you ceased to operate the motor vehicle. For example, if you make a completely sober run to the liquor store and are involved in an accident on the way home, you may, finding yourself stranded, open the liter of vodka and drink it waiting for a tow truck. In this case, you would not have been intoxicated while operating the vehicle, but became intoxicated after the accident. While it is likely you will still be arrested for suspicion of DWI, it will be much more difficult to prove such a case against you in court.
So, what is my best option?
When you’ve been in an accident, and you have had something to drink, there are a lot of decisions to make once you’ve made sure everyone is ok, and you’ve left your insurance information if you need to.
- Do you need to stay at the scene?
- Can you find a safe way to get home?
- Are you going to stay and talk to the police?
- Are you going to volunteer information?
- Should you do field sobriety tests?
- Should you “blow” or provide a breath specimen, if you are asked to?
- Should you agree to a blood test?
To know what your best option is in your time of need, find an experienced, knowledgeable, and available defense attorney and put them on speed dial. Varghese Summersett PLLC, with over 100 jury trials worth of experience in this field, should be your first call. We will help you navigate the most difficult of circumstances with confidence.
Call us at (817) 203-2220 for a complimentary strategy session. Our team of former prosecutors and Board Certified Criminal Lawyers are here to help. During this call we will:
- Discuss the facts of your case;
- Discuss the legal issues involved, including the direct and collateral consequences of the allegation; and
- Discuss the defenses that apply to your plan and in general terms discuss our approach to your case.
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