Fort Worth DWI Attorney
Being arrested for a DWI can be one of the most traumatic experiences a person can go through. You were stopped or approached by officers, you may have done field sobriety tests, and the police may even have obtained a breath or blood specimen. You likely spent hours or even a night in jail before you were released. You’re on this page because you’re wondering what happens next and where you go from here. Our Fort Worth DWI attorneys know you have many questions:
- Will I be sent to jail again as punishment?
- Will I have to have one of those interlock devices on my car?
- Do I have a DWI case I can fight?
- Will this go on my record?
- Will I lose my job?
- Will I lose my Driver License?
We have helped many individuals in similar circumstances. We’ve represented individuals you might never imagine would be arrested for DWIs – teachers, police officers, pilots, nurses, and the list goes on. The bottom line is almost anyone can be arrested for a DWI and we know how to help. Whether your case is one we take to trial, contest in a motion to suppress or negotiate a favorable outcome on, one of the most valuable things we do for you is evaluate your case and guide you through each possible path so that you know which options will reach your specific goals.
From first-time DWIs to felonies, including intoxication manslaughter cases with multiple deaths, we’ve defended intoxication cases large and small and we know how to help you.
Former Tarrant County Prosecutors | Tarrant County DWI Defense
We also understand how the other side thinks. We’ve served as prosecutors in Tarrant County and Dallas County. We’ve been appointed as special prosecutors in almost every major county in north Texas. We’ve handled thousands of DWI’s as prosecutors and we’ve put our experience to work as some of the most effective DWI defense attorneys in the area.
We have examined hundreds of police officers, we know how they are trained, and we are adept at spotting mistakes the officers make.
Once we become the attorneys on your case, we will have an opportunity to look at the videos that tell us more than the police reports will. We have had many instances where our client was intoxicated but the officer made mistakes that we were able to use to get the case dismissed or reduced. These range from issues with the stop or arrest to analysts who mishandled evidence.
Our goal on every DWI or intoxication-related case is to first understand your needs and then craft a plan of action that is most likely to reach your desired outcome.
How do you find the best DWI attorney for your case?
When you’re looking for the best DWI attorney for your case, you have a lot to consider:
- How many cases has the attorney handled?
- Are they Board Certified in criminal law?
- Are they former prosecutors in the county you were arrested in?
- Do they know the judge and prosecutors in your case?
- Are they at the courthouse every day?
- Will the attorney you talk to be your attorney?
Find a local attorney. For instance, if you were arrested in Tarrant County, look for the best Tarrant County DWI attorney. Factors you will want to consider include how many DWI trials they have tried in that county and whether they served previously as a prosecutor in Tarrant County.
Your attorney should be able to talk to you intelligently about the offense you’re charged with, possible defenses, and the best approach to resolve your case. For some, that will mean pushing a case all the way to trial. For others, it may be leveraging the defense case for the most favorable outcome.
Our firm has been awarded time and time again for being the “best” (including being named Best DWI Attorneys, Best DUI Attorneys in Client Reviews, and Top Attorneys by Fort Worth Magazine and D Magazine) but what we are the proudest of are the reviews that over 100 former clients have left for us.
Before you go on
This page is full of information about our experience, how DWIs are investigated, prosecuted, and defended, and information that will help guide you through the next few months of your life. We are just a phone call away. Call us at (817) 203-2220 and let us help you through this chapter in your life.
What is a DWI in Texas?
A DWI in Texas is the offense of Driving While Intoxicated. DWIs and DUIs are two distinct offenses in Texas. A DWI may be a Class B misdemeanor all the way up to a felony offense. A DUI, on the other hand, is a Class C misdemeanor that is punishable by only a fine. Our Fort Worth DWI Lawyers have compiled this guide to answer many of the questions you will have if you are arrested for an intoxication-related offense.
In order to prove a person was driving while intoxicated, the State must show:
- the person (the named Defendant)
- a motor vehicle
- in a specified county in Texas
- in a public place
- while the defendant was intoxicated.
How long do DWIs take to be resolved?
Most criminal cases take about a year to be resolved. A DWI case may take a few months for a negotiated plea to a few years if the case is set for trial. Here is a look at the timeline of a DWI case in Texas.
How long can a person go to jail for a DWI in Texas?
A first time DWI, without any enhancing factors, is a Class B misdemeanor with a special punishment range from three days to 180 days in county jail. Misdemeanor DWIs can be enhanced with one prior DWI or with an allegation that the person’s Blood Alcohol Concentration was a .15 or greater at the time the blood was tested. Either of these aggravating factors will increase the range of punishment to 1 year in jail.
Varghese Summersett DWI Client Reviews
You don’t have to take our word for how hard we work on your behalf.
Hear from an actual client who had his life flash before his eyes when he was accused of a felony DWI:
DWI Misdemeanor Repetition in Texas
A second DWI in Texas is an offense with a unique punishment range. The minimum time in jail on a second DWI is 30 days and the maximum is 1 year. Even though it has a unique minimum time in jail requirement, it is considered a Class A misdemeanor.
Jailtime as a Condition of Probation on a DWI Second in Texas
Even a probated sentence requires time in jail. If the prior DWI was within the last five years, your minimum time in jail on a probated sentence is five days. If the prior DWI was longer than five years ago, the minimum time in jail on a probated sentence is 72 hours. The most time a person can do as a condition of probation on a misdemeanor is 30 days. The longest time a person be originally sentenced to probation for on a misdemeanor in Texas is two years.
Other Conditions of Probation of DWI Second in Texas
You will have to complete the following conditions, and possibly more, for a DWI Second charge in Texas:
- DWI Repeat Offender Program (DWI ROP)
- Substance Abuse Evaluation/ Treatment Alternatives to Incarceration Program (TAIP)
- Interlock as a Condition of Probation
- Community Service
- Victim Impact Panel
Bond Conditions of DWI Second in Texas
If you are charged with a DWI Second in Texas, you should expect the court will require you to have interlock installed on any vehicle you operate while you are out on bond. You should also expect the judge to add a condition that says you shall not consume alcohol while you are bond.
Fines for DWI Second in Texas
A fine of up to $4,000 will be imposed for a DWI Second charge in Texas. This is true for jail sentences and probated sentences.
License Surcharges for DWI Second Convictions in Texas
If you are convicted of a DWI Second in Texas, you should expect a $2,000 per year surcharge on your Driver License for three years, for a total of $6,000.
DWI Second Investigation and Prosecution
While the punishment range for a DWI Second is very different from a first-time DWI, the burden of proof and elements other than the prior are the same as that of a DWI first. For more information on DWI investigations and prosecutions in Texas, don’t miss this article: DWIs in Texas.
DWI Second License Suspensions
The criminal court judge may suspend your driver license for up to two years if you receive a jail sentence on a DWI Second charge in Texas. Administratively, your license will be suspended for one year if your driving record shows more than one DWI-related contact during the last 10 years.
How are DWIs Investigated?
You will likely know when you are under investigation for Driving While Intoxicated (DWI) or a similar intoxication-related offense when an officer approaches you, retrieves your license and registration and then asks, “How much have you had to drink tonight?” However, most officers began looking for signs of intoxication long before you become aware of it, long before you were even pulled over.
To understand what officers are looking for when investigating a DWI you have to understand how they were trained. The National Highway Traffic Safety Administration (NHTSA) Manual is used to train officers all across the country in DWI detection. DWI detection is the whole process of identifying and gathering evidence to determine whether you should be arrested for a DWI. This process begins when the officer suspects you of DWI and ends when the decision for arrest or release is made. The NHTSA manual teaches police officers there are three main phases of DWI detection:
In order for an officer to stop your vehicle and temporarily detain you, he or she must have at least reasonable suspicion a crime was, is, or will soon be occurring. Evidence for reasonable suspicion is generally gathered through an officer’s first-hand observation of your activity. (Occasionally officers come up to parked but running vehicles. If the subject engages with the officer, this is considered a voluntary consensual encounter.)
Sometimes reasonable suspicion can be established by a civilian reporting your actions to the police. A civilian tip must be deemed reliable before officers can use it as the basis for a stop. Generally speaking, anonymous tips are not reliable because the caller does not put themselves in a position to be held accountable for the information they report to the police. In order to determine whether a 911 tip is sufficient to establish cause for the police to stop your vehicle, a totality of the circumstances must be considered.
For example, in Navarette v. California, an unidentified citizen observed reckless driving behavior and called 911 to report the activity. In Navarette, the Supreme Court of the United States determined probable cause was formed based upon a 911 call from an unidentified person for the following reasons: (1) a 911 bore adequate evidence of reliability because the caller was detailing an eye witness account; (2) there was only a short time between the reported reckless driving and 911 call; (3) and the fact that the 911 system is no longer really anonymous due to the recording of call back numbers. When factors like these tend toward finding an informant reliable, police officers may consider the information in establishing reasonable suspicion or probable cause to conduct a stop. That means it would not be necessary for police to continue following you to establish their own, independent reason for a legal stop.
The first phase of a DWI investigation, Vehicle in Motion, begins when an officer’s attention is first drawn to your vehicle. Just because an officer has a reason to stop your vehicle does not mean they will. Even if an officer decides to stop your vehicle, does not mean they will do so right away. It is not uncommon for officers to follow behind you with their in-car cameras recording your driving behavior for additional evidence. However, this phase is not limited to their initial observation or decision to stop your vehicle, but also their observations of how to stop your vehicle. Did yield to the officer immediately? Did you use your blinker to pull over? Did you pull over in a safe place? Did you hit a curb when pulling over to the side of the road? Did you park correctly? TIP: Every move you make matters so be aware of your surroundings and follow all traffic laws. You could be building a case against yourself or giving an officer reason to let you go.
The second phase, Personal Contact, is where the officer has face-to-face contact with you as the driver. NHTSA trains officers to use their sense of sight, sense of hearing, and sense of smell during a face-to-face interaction to gather evidence of intoxication. During this phase, they will determine whether there is sufficient cause to have you exit your vehicle for further examination. Officers in Tarrant County investigating DWIs use these techniques, just as they are used throughout the United States.
Using their sense of sight, officers are trained to look for the following before you even step out of the vehicle:
- Red eyes
- Bloodshot eyes
- Glassy eyes
- Watery eyes
- Avoiding eye contact
- Soiled clothing
- Disorderly clothing
- Slow or lethargic movements
- Depth perception
- Stained clothing
- Wet clothing
- Undone clothing
- Open alcohol containers
- Closed alcohol containers
- Illegal drugs
- Prescription drugs
- Drug paraphernalia
Officers also use pre-arrest interview techniques to develop evidence to prove that you are intoxicated. These include non-standardized tests such as asking you to count backward or recite the alphabet forwards from one letter to another. They are testing to see if you remember what number or letter you were asked to start at and what letter or number you were asked to stop at. One option can always be to refuse to answer any questions or complete any tests. While you should always provide your identification, name, registration, or insurance upon request, as to the rest you are free to answer or not answer anything you choose without a lawyer present. TIP: If you refuse to answer questions or complete sobriety tests, an officer can and likely will use your refusal as evidence to arrest you for DWI.
Officers may ask you to complete divided attention tasks. For example, a Grand Prairie officer may ask for two things simultaneously, your license and insurance card. If you forget to produce both documents, produce documents other than those asked for, fail to find the documents when they are right in front of you, or have trouble removing the documents from your purse or wallet, an officer could see this as a sign of intoxication. TIP: Before you drive, always make sure your license, insurance, and registration are easily accessible.
Officers may ask you interrupting or distracting questions. An example of this could be a Southlake police officer asking where you were coming from then interrupt and ask you to tell them what time it is without looking at your watch. An officer will be on alert if you ignore one question or another, if you forget to answer one question after answer another, or if you give a wrong answer. TIP: Repeat an officer’s questions to them to solidify them in your memory, “You want me to tell you where I was coming from and you want to know the time…I was coming from Dallas and it is around 11:45pm.”
Officers may ask you unusual questions. Unusual questions, ones you are not expecting during a traffic stop, require you to process information rather than repeat routine information. For example, an officer may hold your driver’s license and ask for your middle name. Because you are used to providing you first name, it is considered a sign of intoxication if you respond to the expected usual question instead of the unusual question you did not expect. TIP: Take your time to listen to an officer’s question and if you are responding, respond only to the question asked.
After an officer has notated evidence in your face-to-face interaction, he or she will ask you to exit the vehicle and evaluate you further. If you are asked to exit a vehicle, the officer has already developed suspicion that you are impaired. As you exit, step away, and walk from the vehicle, officers will be evaluating your actions for evidence of intoxication. NHTSA trains officers to be aware of drivers who: show angry or unusual reactions, cannot follow instructions, cannot open the door properly, leaves their vehicle in gear, uses the door or other object for support when exiting, leans against the vehicle for balance, or keeps their hands on the vehicle for support.
Your personal contact with law enforcement is highly scrutinized and will likely be recorded on video for further scrutiny down the road. There are thousands of innocent reasons why you could act the way you do during a DWI investigation: you were tired, you were nervous, you were hurt, you were disabled, the list could go on and on.
Nystagmus is the involuntary jerking of the eyes. Everyone has nystagmus: your eyes have a minor jerking that for most people is not visible to the naked eye of someone looking at your eyes. There are many types of nystagmus that are visible to the naked eye. The NHTSA Student Manual (VIII-4) acknowledges there could be a variety of causes of nystagmus. Nystagmus can be caused by certain pathological disorders. Some people have naturally existing nystagmus. Brain tumors and brain damage can cause nystagmus. NHTSA also acknowledges the existence of nystagmus due to other causes such as disruptions in the vestibular system (inner ear) or the nervous system disturbances. Other types of nystagmus include rotational nystagmus, caloric nystagmus, optokinetic nystagmus, epileptic nystagmus.
Horizontal Gaze Nystagmus (HGN) is one type of nystagmus. The HGN test is a psychophysical test used to test small muscle control of the eyes. The underlying theory is the introduction of certain substances (including a central nervous system depressant like alcohol) causes a loss of small muscle control so the involuntary jerking of the eyes becomes more pronounced and can be seen by the naked eye. HGN occurs when the eye gazes side to side. As alcohol is a central nervous system depressant, HGN is expected to appear if you have alcohol in your system and will increase in visibility as your blood alcohol concentration (BAC) goes up.
To administer the HGN test, an officer will first ask you a series of question about possible head injuries. TIP: It is important to be forthcoming any possible head injuries, especially if you were involved in an accident. A head injury can render the HGN test ineffective. If you are a good candidate for the test, the officer will instruct you to follow a small stimulus with your eyes and your eyes only. The stimulus can be the tip of the pen or a penlight or even the officer’s fingertip. The test will start with your left eye and the officer will make several passes back and forth. Do not move your head. If you move your head to follow the stimulus, instead of just your eyes, the officer will restart the test. If you continue to move your head to follow the stimulus, the officer may see this as a sign of intoxication for inability to follow instructions.
There are three phases of the HGN test: Lack of Smooth Pursuit, Distinct and Sustained Nystagmus at Maximum Deviation, and Onset of Nystagmus Prior to 45 Degrees. The officer will check for involuntary jerking in each eye for each pass. There are three specific clues the officer will look for in each eye for a total of six clues:
- As your eye moves from side to side, does it noticeably jerk?
- As your eye moves as far to one side as possible and kept in that position, does it jerk distinctly, and is the jerking sustained for at least 4 seconds?
- As your eye moves toward one side, does it start to jerk prior to a 45-degree angle?
If you exhibit any of these clues, the officer will mark it as a sign of intoxication. If you score four or more of the six possible clues, an officer can make the determination you have lost the normal use of your faculties. HGN is a complex test. For instance, while defending a Fort Worth DWI case, the attorneys at Varghese Summersett PLLC will review the video of the DWI stop for things including:
- Whether the officer left his red and blue lights
- Whether the stimulus was held at the proper distance;
- Whether the officer moved the stimulus at the proper rate when checking for lack of smooth pursuit;
- Whether the officer held the stimulus for too long when checking for distinct and sustained nystagmus at maximum deviation;
- Whether the officer held the stimulus out for at least 4 seconds when checking for the onset of nystagmus prior to 45 degrees.
If the officer improperly conducts the HGN, it may make the test inadmissible in court, or even if it is admissible, it may eliminate any weight the jury would give to that evidence.
The Walk and Turn Test is a divided attention which requires physical and mental faculties. If you have any physical or mental ailment that could affect your ability to perform this test, you should let the officer know immediately. This can include things like ADD, ADHD, balance issues, surgeries, sprains, sore muscles etc. If there is anything you think that may affect your performance, let the officer know.
This test with two stages: the Instruction Stage and the Walking Stage. The Instructions Stage divides your attention between balancing and processing the set of instructions the officer gives you. The Walking Stage divides your attention between balancing, small muscle control, and short-term memory. An officer will instruct you on this test then demonstrate a portion of the test for you. TIP: When an officer demonstrates this test, he or she will only demonstrate 3 steps out and back, but you must take 9 steps out and back as instructed. The instructions are as follows:
- Imagine a straight line out in front of you
- Place your right foot on the line
- Place your left foot in front of your right foot touching heel-to-toe
- Stand with your feet heel-to-toe
- Keep your arms down to your side
- Listen to the instructions
- Do not start the test until instructed to do so
- Do not move from the starting position until you are asked to do so.
- Take nine heel-to-toe steps down the line
- On your ninth step, leave your lead foot planted and take a small series of steps around
- Take nine heel-to-toe steps back down the line
- Count your steps out loud
- Watch your feet
- Keep your arms down by your side
The Clues on the Walk and Turn:
Just as the test must be administered by the police the same way every time, it must also be interpreted in a standardized manner. The interpretation of your performance on this test is determined by the presence of eight different clues:
- Cannot balance during instructions
- Starts too soon
- Stops while walking
- Do not touch heel-to-toe
- Step off line
- Use arm for balance
- Lose balance or turn incorrectly
- Take the wrong number of steps
If you exhibit any these eight clues, the officer will mark it as a sign of intoxication. Generally, exhibiting the same clue multiple times will still only count as one clue. If you score two or more of these clues, an officer can make the determination you have lost the normal use of your mental and/or physical faculties. In other words, with just two clues, the officer will testify that you were intoxicated.
The One-Leg Stand test is a divided attention test requiring the use of both your physical and mental faculties. Similar to the Walk-and-Turn test, the One-Leg Stand test has two stages: The Instruction State, and the Balance and Counting Stage.
The Instruction stage divides your attention between balancing and processing the instructions. The Balance and Counting stage divides your attention between balance and small muscle control.
An officer will instruct you on this test then demonstrate a portion of the test for you. TIP: When an officer demonstrates this test, he or she will only demonstrate several seconds, you will have to perform the test for 30 seconds as instructed. The instructions are as follows:
- Stand with your feet together
- Keep your arms down by your sides
- Do not start the tests until instructed to do so.
- Pick one leg, either leg, and raise it approximately 6 inches off the ground
- Look at your foot
- Count out loud, “one thousand one, one thousand two, one thousand three…” and so on until you are told to stop.
Just as the test must be administered by the police the same way every time, it must also be interpreted in a standardized manner. The interpretation of your performance on this test is determined by the presence of four different clues:
- Sways while balancing
- Uses arms for balance
- Puts foot down
If you exhibit any these four clues, the officer will mark it as a sign of intoxication. Generally, exhibiting the same clue multiple times will still only count as one clue. If you score two or more of the clues, an officer will say you have lost the normal use of your mental and/or physical faculties. However, if you put your foot down three or more times or cannot perform the test, the One-Leg Stand will be terminated for inability to complete the test.
My vehicle got towed. Now what?
First, your vehicle may be towed pursuant to a law enforcement agency’s written tow policy. Additionally, if your vehicle was towed in conjunction with an arrest it will be subjected to an inventory search. All vehicles in police custody are inventoried for their existing contents. This is generally done for the safe keeping of your property as well protection for officers. However, if you have anything illegal in your vehicle, police may seize it and use it to build a case against you. For example, if you were arrested on a warrant in Arlington and your car was towed and inventoried, and an officer sees marihuana in plain view, you may be charged with Possession of Marijuana. Also, a vehicle in police custody may be thoroughly searched under the authority of a search warrant. For example, if you were arrested for Intoxication Assault or Intoxication Manslaughter, you can bet the prosecution will obtain a search warrant for your vehicle. A search may include evidence of intoxication and operation of the motor vehicle.
Second, if your vehicle was towed for any reason, you will want to get it out quickly as possible. If you are unaware of why your vehicle was towed and where it may be, first call your local police department to determine if it is in police custody. If not, then you will need to call around to the tow yards in your area to find your vehicle.
Third, you will need to have proof of vehicle ownership and a photo ID available to pick up the vehicle. You will also need to pay any tow or storage fees.
- Towed by Fort Worth Police
- Call the Fort Worth Police Impound at (817) 392-5950
- Towed by Arlington Police
- Call the Arlington Police Impound at (817) 265-1336.
- Towed by Tarrant County Sheriff
- Call the Tarrant County Sheriff’s Office at (817) 884-1213
- Towed by Dallas Police
- Call the Dallas Police Impound at (214) 670-5116
- Towed by North Richland Hills Police Department
- Call AA Wrecker Service at 817-656-0104
- Towed by Irving Police Department
- Call the Irving Police Impound at (972) 721-7700.
If your vehicle was impounded by the Tarrant County Sheriff’s Department, you will have to retrieve the vehicle from a local commercial towing service company. There are a number of local towing companies used by the Tarrant County Sheriff’s Department, but one call to (817) 884-1212 will confirm whether your vehicle has been impounded, where it is located, and directions on how to get it out.
Where is the Fort Worth Police Tow Yard?
If your vehicle was impounded by the Fort Worth Police Department, you will have to retrieve the vehicle from the FWPD Auto Pound. Within 48 hours of your car being towed, you the last known owner or lien holder of the vehicle will be notified of impoundment. However, if you wait for this notification, an additional $50 will be added to the cost of getting your vehicle out. To avoid the $50 fee, call (817) 392-5950 to confirm whether your vehicle has been impounded and what you will need to get it out. For starters, a state-issued ID, proof of ownership (title, current registration, contract, or notarized bill of sale) will be required to view or retrieve your car. This auto pound is open 24/7 and located at 2500 Brennan Avenue. Towing fees are set by City Ordinance No. 12924, but here are some estimates:
- Standard: $135.00
- Tilt Bed/Rollback: $135.00
- Heavy Duty: $216.00 per hour
- Preservation/Impoundment fee: $20.00
- Storage fee: $20.00 per day. Over 25 feet: $30.00 per day
- Notification fee: $50.00
- Extra Labor on Towage: $100.00 per hour
- Second Wrecker: $135.00 covering the first hour
If your vehicle has been towed to a storage facility without your consent, the Texas Transportation Code Sections 685.002-.007 grants you the right to an administrative hearing to determine whether such removal was proper. Your vehicle may only be removed without your consent if there is probable cause for the removal and placement. To assert this right, you or your attorney should deliver a written request to the Justice Court of jurisdiction before the sixth day after the date your vehicle was placed in storage; excluding weekends and legal holidays. To learn which Justice Court will hear your matter, call Tarrant County with the address where your vehicle was towed from. If you are the owner of the vehicle, your written request must include the following:
- Your name
- Your address
- Your telephone number
- The location from which the vehicle was removed
- The date on which the vehicle was removed
- The name of the vehicle storage facility holding your vehicle
- The address of the vehicle storage facility holding your vehicle
- The telephone of the vehicle storage facility holding your vehicle
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?
There are nearly 100,000 DWI arrests in Texas in a given year, yet very few people know about a recent change in the law that allows them to request a copy of the videos relating to their arrest — even if a case hasn’t been filed against them yet. It is not uncommon for arresting agencies to wait for blood results before filing DWI cases with a prosecutor’s office and it can sometimes take months before the results come back.
Regardless of when the criminal case is filed, a person arrested for a DWI has a 15-day deadline to request an ALR hearing. A person may also want to review the video before the case is filed so they can write down things that were not captured on video — before they are forgotten.
In the past, drivers who wanted a copy of their DWI arrest video ran into legal roadblocks at every turn.
Now, obtaining a copy of your DWI arrest video may be as simple as going to the police department and requesting it. You don’t have to wait to be charged. You don’t need permission from a prosecutor or a judge. You don’t even need to have an attorney. Under a new law that was passed last year, the arresting agency is required to produce any and all videos of your stop, arrest, field sobriety tests or blood draw.
New Law Requires Police to Release DWI Arrest Videos
Before September 1, 2015, drivers arrested on an intoxication offense had an uphill climb if they wanted a copy of the video recording their arrest. The only way to try to get it was through an Open Records Request or through an attorney, who had to first seek prosecutorial permission or a court order to release the video to you.
In essence, the new law, which was passed during the 2015 legislative session as House Bill 3791, cuts out the middle man. It amended Chapter 2 of the Texas Code of Criminal Procedure, allowing drivers arrested for suspicion of DWI to go straight to the source for arrest videos:
A person stopped or arrested on suspicion of an offense under Section 49.04 (Driving While Intoxicated), 49.045 (Driving While Intoxicated with a Child Passenger), 49.07 (Intoxication Assault), or 49.08 (Intoxication Manslaughter), Penal Code, is entitled to receive from a law enforcement agency employing the peace officer who made the stop or arrest a copy of any video made by or at the direction of the officer that contains footage of: the stop, the arrest, the conduct of the person stopped during any interaction with the officer, including during the administration of a field sobriety test, and a procedure in which a specimen of the person’s breath or blood is taken.
So Exactly How Do I Request My DWI Arrest Video?
The request for your DWI arrest video should be made directly to the law enforcement agency that arrested you. To aid you in making your request, we have prepared a PDF form that you can use. You will need to contact the law enforcement agency that arrested you to get their mailing address, fax number, or contact person to whom the request should be made. Once you know the contact person for a given agency, you can help out other Texans by adding that information to the comments section below. If you’ve found this information to be useful, don’t forget to like us on Facebook and check our blog for regular updates about Texas law.
Click to download our fillable DWI Arrest Video Request PDF form.
Many law enforcement agencies may not be aware of the new law, but you shouldn’t take “no” for an answer. If the arresting agency fails to produce the electronic recording, it would be in your best interest to consult an attorney if you have not already done so. An attorney can seek an order to compel the agency to produce the video.
DWIs and Involuntary Intoxication in Texas
Involuntary intoxication occurs in instances where a person tricks another person into taking drugs or alcohol. Unfortunately, a common example of this when a person slips a drug, usually a sedative, into another person’s drink. Legally, involuntary intoxication can be used as a defense for crimes that require a culpable mental state or criminal intent. Strict liability offenses, such as a DWI (Driving While Intoxicated), do not require a culpable, or blameworthy, mental state in order for a person to be charged with that crime. Therefore, involuntary intoxication is not a defense to a DWI.
What is a Strict Liability Offense?
To explain further, the Texas Penal Code provides the definitions of crimes. Within those definitions are elements, or requirements, that must be satisfied in order for a person to be charged with a specific crime. Some crimes, such as murder, require in its definition that a person have a culpable, or blameworthy, mental state at the time he or she committed an offense. In order words, some crimes require that a person have a guilty state of mind when he or she commits a crime. Some crimes, however, do not require that a person have a culpable mental state when he or she commits a crime. A strict liability offense does not require that a person have a guilty state of mind at the time he or she commits an offense. Strict liability offenses are designed to protect the public health, safety, or welfare. Therefore, when someone commits a strict liability offense, he or she is putting the public at risk so he or she is held criminally responsible for that act. One example of a strict liability offense is a DWI or Driving While Intoxicated.
Texas Penal Code Section 49.04 states that a person commits a DWI “if the person is intoxicated while operating a motor vehicle in a public place.” As previously mentioned, the definition of a DWI does not contain a requirement that the person have a criminal mental state because a DWI is a strict liability offense. Rather, the definition only states that the person (1) be intoxicated, (2) while operating a motor vehicle, (3) in a public place. If those three requirements are met, a person can be charged with a DWI. This is because an intoxicated driver is extremely dangerous to the public so a person is held criminally liable for just committing the act of driving while intoxicated; even if the person did not have the intent to commit a crime.
Involuntary Intoxication as a Defense
The Court of Appeals of Texas in Peavy v. State explained that involuntary intoxication is a defense to criminal culpability, or guilt, when it is shown that: (1) the accused exercised no independent judgment in taking the intoxicant; and (2) as a result of his intoxication, the accused did not know that his conduct was wrong or was incapable of conforming his conduct to the requirement of the law he allegedly violated. This defense, however, does not apply when the accused’s mental state is not an element, or requirement, of the offense. As mentioned before, the definition of a DWI does not require a culpable mental state. Therefore, the courts have held that involuntary intoxication is not a defense to a DWI. As a result, even though a person may become intoxicated through no fault of his own because he unknowingly consumed a drug that was slipped into his drink, the law still holds him responsible for driving while intoxicated if he gets behind the wheel despite feeling or being impaired.
Do I Have a Defense to a DWI if Someone Slipped Something in My Drink?
Separate and distinct from the involuntary intoxication defense is the involuntary act defense. Texas Penal Code Section 6.01 states that a person commits an offense only if he voluntarily engages in conduct. While the involuntary intoxication defense addresses a person’s state of mind; the involuntary act defense addresses the issue of the voluntariness of one’s conduct. When a person claims the involuntary act defense, he is conceding that his own body made the motion but denies responsibility for it. In other words, in order to raise the involuntary act defense, a person must admit to committing the act or acts charged while seeking to absolve himself of criminal responsibility. In order to assert involuntary act as a defense, however, the person must produce evidence of an independent event, such as the conduct of a third party, that could have caused the incident. Mere speculation, however, is not sufficient to meet this standard. Additionally, if a person consumes any alcohol during the time the alleged drugging took place, the court may not allow an involuntary act defense because the person voluntarily consumed the alcohol.
In Howey v. State, the defendant alleged that a person spiked her alcoholic drink at the Hard Rock Café in Dallas. However, there was no evidence beyond this allegation. As a result, the court rejected an involuntary act defense because (1) the defendant voluntarily consumed alcohol during the time which the alleged drugging took place and (2) there was no evidence beyond mere speculation that the drink was spiked.
To summarize, even though a person may become intoxicated because someone slipped something in his drink, it may be difficult to prove an involuntary act defense if the person had any alcohol during the time in question and/or cannot prove that the conduct of a third party caused the intoxication or impairment. Before a defendant is entitled to a charge on voluntariness of conduct, “there must be evidence of an independent event, such as the conduct of a third party, that could have precipitated the incident.”
If you have been charged with driving while intoxication but suspect that you became impaired unknowingly because someone may have spiked your drink, give us a call to discuss the defenses other than involuntary intoxication that can be raised and to ask about our experiences taking these cases to trial. (817) 203-2220.
It will be important in fighting your DWI charge that you are represented by a criminal defense attorney who knows these tests better than your arresting officer. It is important to tell the officer at the scene anything that might make it difficult for you to perform field soberiety tests: age, weight, physical limitations etc.
If you are interested in learning more about the Standardized Field Sobriety Tests, the following NHTSA manuals are the very manuals that police officers have been trained from over the last decade. The NHTSA Student Manuals contain the instructions that every licensed peace officer should follow. The ARIDE Manuals contain the materials that officers receive when they who go through Advanced Roadside Impaired Driving Enforcement certification.
NHTSA Student Manuals
NHTSA ARIDE Manuals
Driving While Intoxicated Statute of Limitations
The Statute of Limitations for a DWI is two years in Texas. The Statute of Limitations for a Felony DWI is three years.The most important aspect of the pre-arrest screening phase is the administration of field sobriety tests. Although the officer won’t tell you this, these are voluntary tests and our advice is to politely refuse the tests. Unfortunately, you may be reading this after you have already done tests. If that is the case, you can take some comfort in the fact that officers routinely administer these tests incorrectly – making the tests an area ripe for attack by experienced DWI defense attorneys.
Should you consent to provide a DWI breath or blood sample?
Though you have a right to refuse to provide a sample of your breath or blood, if you choose the cooperative route and decide to give a specimen of your blood, you may still suffer penalties. If you are of legal drinking age in Texas, 21 years old or older, and agree to provide a specimen and your test result comes back at a .08 or higher, then your license, permit, or privilege to operate a motor vehicle will be suspended or denied for at least 90 days.
Warnings for over 21 years of age:
Providing a specimen of your breath can be a good idea in rare situations. First, if you really only had a minimal amount to drink over a period of time and are not intoxicated, a low result on your breath or blood test will help you in a subsequent prosecution.
TIP: Do not guess whether you are intoxicated or not. If you are not sure, then do not consent. Require the State to get a search warrant. Second, if you have not had anything to drink or are suspected of being intoxicated by drugs then offer to provide a sample of your breath.
Warnings for under 21 years of age:
The warnings are different if you were arrested for DWI and were under the legal drinking age of 21 in Texas at the time. If you have any detectable amount of alcohol in your system, then your license, permit or privilege to operate a motor vehicle will be suspended or denied for at least 60 days. If you are under 21 years old and have any detectable amount of alcohol in your system but are not intoxicated, you may be prosecuted for DUI instead of DWI. As DUI in Texas is a Class C misdemeanor with fewer long-term implications, it is important to have an attorney who understands the difference and can help you determine which offense fits the facts of your case.
Administrative License Revocation Hearings
If your license is suspended for refusing to provide a specimen or if you provide a specimen over the legal limit, you may request a hearing on your suspension or denial. A request for a hearing must be received by the Texas Department of Public Safety (DPS) in Austin, Texas, no later than 15 days after you receive notice your license has been suspended or denied. The request for this hearing may be sent by written demand, fax, or any other way determined by Texas DPS.
The process of warning you of possible suspensions and then suspending your license is called the Administrative License Revocation (ALR) Process. At an ALR hearing, the state will be required to show there was reasonable suspicion for a stop, probable cause for your arrest, and that you were given an opportunity to consent to a breath or blood test.
How much are the surcharges after a DWI conviction?
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.
The surcharges for DWIs are:
|DWI||$1,000/year for 3 years|
|DWI Misdemeanor Repetition||$1,500/year for 3 years|
|DWI Felony Repetition||$1,500/year for 3 years|
|DWI BAC >/= .15||$2,000/year for 3 years|
Days as a Condition of Probation for Driving While Intoxicated Cases in Texas
If you are placed on probation for Driving While Intoxicated in Texas, the judge may require that you do time as a condition of probation. This is called Days as a Condition of Probation, most often abbreviated as “Days COP.” In Texas, Code of Criminal Procedure 42.12 Section 12 allows for confinement as a condition of community supervision.
On a misdemeanor, the court may impose up to 30 days as a condition of probation. On a felony case, the court may impose up to 180 days as a condition of probation. Days as a condition of probation are served in county jail.
Days as a Condition of Probation on a DWI
Article 42.12 Section 13 of the Code of Criminal Procedure sets forth the minimum days as a condition of probation for certain DWI offenses. They are as follows:
|Offense||Offense Level||Minimum Days as a Condition of Probation|
|DWI||Class B Misdemeanor||—|
|DWI Misdemeanor Repetition where first DWI was outside of five years||Class A Enhanced||72 hours as a condition of probation|
|DWI Misdemeanor Repetition where first DWI was within five years||Class A Enhanced||5 Days|
|DWI w/ Child Passenger||State Jail Felony||—|
|DWI Felony Repetition||Third Degree Felony||10 Days|
|Intoxication Manslaughter or Intoxication Assault||Third Degree FelonySecond Degree Felony||30 Days|
Other common conditions of DWI probation in Tarrant County often include:
- DWI Education Course;
- Substance Abuse Evaluation (SAE);
- Victim Impact Panel (VIP);
- Community Service;
- Do not refuse breath or blood tests;
- Report to CSCD once a month;
- Submit to random testing for alcohol or controlled substances;
- Interlock as a condition of an occupational license, etc.
Prior to a conviction for an intoxication-related offense, and during the period of an administrative license suspension stemming from a refusal to provide a breath or blood specimen after a DWI stop or a person providing a specimen of a .08 or greater, an Essential Needs License may be obtained pursuant to Section 521.241 et seq. In order to obtain an Essential Needs License, the individual must be able to set forth the reasons that the individual would need to drive for work, school, or for the performance of essential household duties. Additionally, an Ignition Interlock Device is necessary. Finally, Texas Administrative Code Rule 15.7 requires a person to obtain and maintain SR-22 Insurance while the occupational license is in effect. Once the court order is received by DPS, a license will be issued and the expiration date will be on the face of the license. It will be the earlier of the following dates: (1) when the suspension ends, or (2) first anniversary of the court order granting the occupational license, unless the applicant submitted the additional fee for the subsequent year.
Post-Conviction Occupational License
Post-Conviction Occupational Licenses
As of September 1, 2015, Texas allows residents to obtain post-conviction occupational licenses without setting out their essential need for one, as long as they have an interlock on any vehicle they drive and they meet certain other conditions.
Offense to which the new law applies:
Offense to which the new law applies:
- Penal Code Sec. 49.04 Driving While Intoxicated
- Penal Code Sec. 49.045: Driving While Intoxicated with Child Passenger
- Penal Code Sec. 49.05: Flying While Intoxicated
- Penal Code Sec. 49.06: Boating While Intoxicated
- Penal Code Sec. 49.065: Assembling or Operating an Amusement Ride While Intoxicated
- Penal Code Sec. 49.07: Intoxication Assault
- 49.08: Intoxication Manslaughter
An Occupational License is a license that is ordered by a judge and issued by the Texas Department of Public Safety which allows a person to drive while their license might otherwise be suspended. Effective September 1, 2015, an individual convicted of a first-time intoxication-related offense will be able to obtain a Post-Conviction Occupational License without setting forth any essential needs they need to meet. Instead, they will be required to do the following:
- Have evidence of financial responsibility under Transportation Code Chapter 601.
- Have proof of an interlock ignition device
It is worth noting here, that unlike Texas Administrative Code Rule 15.7, the legislature did not require an SR-22 under the new legislation for these Post-Conviction Occupational Licenses. Under Transportation Chapter 601,”Financial responsibility” means the ability to respond for damages for liability for an accident.
Specifically, the requirements under the new legislation are as follows:
A person convicted of an offense under Sections 49.04-49.08 Penal Code who is restricted to the operation of a motor vehicle equipped with an ignition interlock device is entitled to receive an occupational license without a finding that an essential need exists for that person, provided that the person shows: (1) evidence of financial responsibility under Chapter 601; and (2) proof the person has had an ignition interlock device installed on each motor vehicle owned or operated by the person.
While at first blush, the requirement for interlock may seem burdensome for first-time offenders, the law does provide for some financial relief in that it no longer requires SR-22 insurance for a post-conviction occupational license. (While the intent of the legislature is clear from the language it used in the new statute, expect potential resistance in the courtroom until everyone is familiar with the new provisions.)
Additionally, unlike the Pre-Conviction Essential Needs License, if a person obtains a Post-Conviction Occupational License based on soon-to-be-amended Transportation Code Section 521.428, the person will not be restricted to time, purpose, or location restrictions.
|Pre-Conviction Essential Needs License||Post-Conviction Occupational License||Source|
|May be filed in a justice of peace court, county court, or district court with jurisdication.||May be filed in the criminal court in which the person was convicted.||Transportation Code 521.242|
|Essential need must be found||--||Texas Admin. Code 15.7|
|--||Essential needs not required||Transportation Code 521.244, effective September 1, 2015|
|SR-22 is required||--||Texas Admin. Code 15.7|
|--||Insurance required||Transportation Code 521.244, effective September 1, 2015|
|License will have time, place and purpose restrictions||--||Transportation Code Sec. 521.248|
|--||License will not have time, place and purpose restrictions||Transportation Code Section 521.248(d), effective September 1, 2015|
What is a Commercial Driver’s License or “CDL” in Texas?
Getting a Commercial Driver’s License (CDL) involves several steps, one of which includes having a good driving history. A CDL is designed specifically for individuals who operate a motor vehicle with a gross weight rating of 26,001 pounds, which transports quantities of hazardous materials, or is designed to transport 16 or more passengers including the driver. To ensure an individual is eligible for a CDL, the state will check his/her driving record for the last 10 years in all 50 states. So how will a DWI on a driver’s record affect your eligibility?
When can you get your CDL back after being arrested for a DWI in Texas?
Disqualifications from driving a commercial vehicle after getting a DWI in Texas are governed by Section 522.081 of the Transportation Code. After a first conviction for DWI in Texas, a driver is still eligible to apply for a CDL, but there are limitations on when the person will be qualified to obtain one. The driver’s license suspension due to the DWI has to be lifted before the individual can apply for a CDL. The disqualification period to get a CDL after a DWI conviction is at least one year. It is still up to the company whether or not they choose to hire an individual who has a DWI on their record, even if the individual has legally obtained his/her CDL.
If a CDL holder refuses to provide a specimen of breath or blood after being arrested for DWI, the CDL will be suspended for a period of a year. If the CDL holder had a BAC of a .04 or greater at the time of driving a commercial vehicle, his license will be suspended for a year. If the CDL holder had a BAC of a .08 or greater at the time of driving a non-commercial vehicle, his license will be suspended for a year.
A second DWI conviction has irreversible consequences. Two or more DWI’s disqualify the driver from ever being eligible for a CDL, regardless of if the vehicle used in the incident was a personal or commercial vehicle.
Additionally, if a CDL holder uses a motor vehicle in the commission of certain felony offenses, their license will be disqualified for life.
If you currently hold a CDL and are convicted of a first DWI, in addition to the penalties you will receive under the DWI statute, you will also lose your CDL for a minimum of one year. If convicted for a second DWI, you will lose your CDL for life. This law extends to DWI’s that occurred in other states.
Can I get an occupational license for a commercial vehicle in Texas?
One of the most common questions we get from CDL holders after a DWI arrest is, “Can I get CDL Occupational License?” The answer is that pursuant to Section 522.086 of the Transportation Code, courts are prohibited from granting an occupational license that would allow a person to operate a commercial motor vehicle.
Can DPS force me to give a breath or blood specimen?
Texas is an “implied consent” state. Implied consent means that every person who has received a driver’s license accepted it on the condition that if law enforcement ever requests a sample of your breath or blood, then you must comply. While consent is implied, the officer cannot force a person to give a breath sample and must seek a warrant to obtain blood without consent. Texas law provides that if a driver refuses to submit to testing, the driver risks automatic license suspension. If an officer has probable cause to arrest you for driving while intoxicated or boating while intoxicated, the officer will read you a DIC-24 statutory warning asking you for a sample of your breath or blood. Your license will be suspended if you fail the test or if you refuse to give a sample.
Administrative License Suspension Periods
If your license has been suspended because of a DWI arrest, you only have 15 days to request a hearing contesting the license suspension.
Your license may be suspended if you refuse to provide a specimen of your breath or blood for a period of 180 days, even if you are completely innocent of driving while intoxicated.
If you provide a specimen above the legal limit of .08, your license will be suspended for no less than 90 days. The license suspension varies depending on if you are a minor or if you have a commercial driver license.
If your license is suspended, it is critical that you contact a defense attorney that regularly handles administrative license revocations. First and foremost, DPS has the upper hand in these cases. They have a low burden of proof and without intervention they can enter their evidence without a sponsoring witness, meaning DPS could simply enter the offense report into evidence, rest and win. In fact, here is breakdown of how many ALR hearings DPS won in Texas in 2015:
|# of Hearings DPS Won||# of Hearings DPS Lost||Total Number of Hearings||DPS Win %|
*Data compiled by the State Office of Administrative Hearings
If a driver refused to take or failed a blood or breath test and his license was subsequently suspended by DPS, the individual will receive a “Notice of Suspension.” This notice, also known as a DIC 25, acts as a temporary driving permit while the driver decides whether or not to challenge the suspension.
The driver has 15 days from the date of the suspension notice to request a hearing. If a hearing is not requested within 15 days, the suspension goes into effect on the 40th day after the notice was served.
If a hearing is requested within 15 days, DPS will send a letter notifying the driver of the date, time, and location of the hearing. It can take up to 120 days for DPS to schedule a hearing. The temporary permit is valid up until an ALR hearing has been held and the judge has ruled.
An ALR hearing is a hearing that is held in the presence of an Administrative Law Judge (ALJ) who listens to the evidence in the case. DPS has the burden of proof in an ALR hearing. The driver can attack DPS’s case by presenting any legal issues that may exist. Unlike the criminal case, which must be proven beyond a reasonable doubt, the burden of proof in an ALR hearing is only preponderance of evidence.
After the hearing, the ALJ will issue a final, appealable decision and order. If the judge finds that DPS has proven its case, the judge will authorize the suspension of the individual’s driver’s license. On the other hand, if the judge finds that DPS has not proven its case, the individual’s driver’s license will not be suspended.
Once your attorney requests the ALR hearing, it can take two weeks to 120 days for DPS to schedule a hearing date. Your attorney will be notified of this date, which is typically a few weeks to a month from the date of the notice.
After the suspension period is over, you may contact your local DPS office to have your license reinstated. You will be responsible for paying a reinstatement fee, which is typically $125. Your attorney will be able to confirm your eligibility for reinstatement before you go in by logging into the DPS website.
Yes. You will be forced to pay a fee to appeal the underlying decision, but you may appeal the ALR decision. This also grants you more time to drive on your license without the suspension going into effect.
How much does a DWI cost in Texas?
SR-22 Requirements for DWIs Texas
A common question that eventually comes up after a person is arrested for a DWI in Texas is how long that person will have to keep an SR-22 Insurance Certificate on their vehicle. An SR-22 Insurance Certificate is a form that is issued by a liability insurance company in Texas that is kept on file with the Texas Department of Public Safety. These certificates may be required for a number of reasons, but one of the most common ways a person might need a “Financial Responsibility Insurance Certificate” or an SR-22 Certificate is if they have been arrested for a DWI. This article focuses on the ways an SR-22 Certificate might be required after a DWI arrest and the duration the Certificate must be maintained under each of those circumstances.
Occupational License-Based SR-22 Certificates
When a person provides a specimen showing their Blood Alcohol Concentration was above .08, their driver’s license will be suspended for a period of 90 days. When a person refuses to provide a specimen voluntarily, their license will be suspended for a period of 180 days. These suspensions are not based on convictions and are instead based on the refusal or the failure of the test. Neither of these events on their own creates a requirement for an SR-22 certificate.
However, most people in this situation end up seeking and procuring an Occupational License. A pre- or post-conviction occupational license will require an SR-22 Certificate for the term of the occupational license. It will be a condition of the Occupational License that the person maintains an SR-22 certificate with DPS. The duration of the SR-22 certificate will be based on the duration of the need for an occupational license. For example, if a person needs an Occupational License for 180 days, they will need to have the SR-22 Certificate on file with DPS for at least six months.
DWI Conviction-Based SR-22 Certificates
If a person is sentenced to a jail sentence as a result of a DWI, their Driver License will be suspended. As a result of that conviction-based suspension, Texas Administrative Code Rule 25.6 (d)(2) requires the individual have an SR-22 certificate on file for a period of two years. (This also applies when the Driver License is suspended due to a drug conviction.)
Texas Administrative Code Rule 25.6 (d) also provides other instances where a person might have to have an SR-22 Certificate:
1) where a security deposit is required for compliance in a crash case, and
2) based on a judgment from a court. (This is not an exclusive list.)
Notice that the SR-22 Certificate is not an insurance policy. It merely certifies that you have at least the minimum level of coverage required by the State and the certificate provider will notify DPS if your policy expires, lapses or is canceled.
Once an officer has placed you under arrest, he will take you back to the station. The trip to the station is often recorded, so if you pass out or curse, expect the officers to use that to tell the jury that is further evidence of your intoxication. At the station, after the book-in process, the officers will ask you to give a specimen of your breath or blood. It is up to the officer which test he is going to offer you. While there is a push to ask for more blood tests, many police departments have invested heavily in breath testing equipment so those departments often ask for breath tests. The officer will warn you that if you refuse to give a specimen, your driver’s license will be suspended for 180 days. If you provide a specimen and the specimen shows you were intoxicated, your license is only suspended for 90 days.
Merely having an open container if your vehicle is a Class C ticket. However having an open container in your vehicle while you are intoxicated on a first time DWI increases you punishment range. Instead of a 3-day minimum in jail, you will face a minimum of six days in jail. This enhancement only applies to Class B misdemeanors.
A person commits an offense if the person is intoxicated while operating a motor vehicle in a public place…If it is shown on the trial of an offense under this section that at the time of the offense the person operating the motor vehicle had an open container of alcohol in the person’s immediate possession, the offense is a Class B misdemeanor, with a minimum term of confinement of six days.
An ignition interlock device is a device that is professionally hard-wired into a vehicle that requires an alcohol-free sample of breath to be provided before the ignition will start. Many units also have cameras that the purpose of the device is not defeated someone other than the driver providing a sample of breath.
Where can I get an Ignition Interlock in Tarrant County?
Draeger Interlock is authorized to install ignition interlock devices in Tarrant County. You may reach Draeger at (817) 534-3939. Their address is 2416 Ludelle Street, Fort Worth, TX 76105.
Future Alcohol Detection
The technologies of the future for in-car alcohol detection include ambient alcohol sensors to detect the amount of alcohol within the cabin of the car, and infrared testing through the skin. The goal of future in-car alcohol testing is to make testing non-invasive, seamless, and reliable. (The main reason why widely-available handheld breath test devices are unreliable is because they are not regularly calibrated to ensure they are accurate measures of blood alcohol concentration. This article is also not suggesting that police procedures for drawing blood or asking for a breath sample at the police station will be replaced by tissue spectrometry in the near future, only that in-car testing is likely to change.)
Tissue spectrometry tests blood alcohol concentrations through the skin. For over half a decade, National Highway Traffic Safety Administration (NHTSA) has been discussing tissue spectrometry with car manufacturers. As recently as the last quarter of 2013, NHTSA Chief David Strickland urged major car manufacturers to adopt new technologies such as tissue spectrometry. Congress has approved over $5 million in funding for alcohol-sensing technology.
Spectrometry is the measurement of light over a specific portion of the electromagnetic spectrum. In English, a spectrometer measures how much light is absorbed or reflected at a specific wavelength. This works because the amount of light absorbed or reflected at a given wavelength is different for different substances.
Infrared light penetrates several millimeters into your skin. As a result, infrared light can be used to measure Blood Alcohol Concentration using infrared spectrometry. DADSS (Driver Alcohol Detection Systems for Safety) reported last year that researchers have been researching the use tissue spectrometry through sensors mounted the steering wheels and gearshifts to measure the alcohol concentrations of drivers.
Implementation of these devices as actual driving restrictors may be challenging under Texas law because we have more than the per se limit for driving while intoxicated (the .08 standard). In Texas, it is illegal to drive a vehicle if you do not have the normal use of your mental or physical faculties due to the introduction of alcohol into the body. Notice that this last definition is completely independent of the blood alcohol concentration. However for those who have been ordered not to consume any alcohol, this may be an unobtrusive way to ensure the driver of the vehicle is completely sober.
According to the Texas Department of Public Safety, SR-22 Insurance is a Financial Responsibility Insurance Certificate that is issued to a person whose driving privilege has been suspended or revoked as the result of a car crash, conviction or judgment. You must purchase SR-22 from a provider authorized to provide SR-22 coverage in Texas, such as Accurate Concept.
You may not be aware, but when you obtain a driver’s license from the state of Texas you consent to give a specimen of your breath or blood upon request of an officer who has probable cause to believe you have committed an intoxication-related offense. This includes offenses that were alleged to have been committed while you were operating a motor vehicle in a public place, or a watercraft, while intoxicated, or under Section 106.041 of the Alcoholic Beverage Code.
However, just because you already consented to provide a specimen of your breath or blood does not mean you have to consent when asked. If you were arrested for a DWI or similar offense, you will be read what is titled a Statutory Warning. This warning, otherwise known as the DIC-24, is standard across the State of Texas. After you are placed under arrest, you should be given a copy of this warning to read as an officer reads the warning out loud to you.
You are Under Arrest so at this point the Officer Believes he Has Probable Cause that you were Driving While Intoxicated
First, this warning will advise you that you are under arrest. Because you are under arrest, an officer believes they have probable cause to request a sample of your breath and/or blood. It is important to remember, an officer’s belief as to probable cause for your arrest may or may not be legally sufficient. You will want an experienced criminal defense attorney to help you determine if you were illegally arrested without sufficient probable cause. If that happens, your case could be dismissed.
However, whether probable cause actually exists will not be legally determined at this point in the investigation. As such, if you have been arrested you will be requested to provide a sample of your breath and/or blood and you will be warned that the sample will be tested to determine your blood alcohol concentration (BAC) or the presence of a controlled substance, drug, dangerous drug, or any another substance in your system.
Simply because you have impliedly consented to provide a sample of your breath and/or blood when you signed your driver license, does not mean you must now consent to provide a sample. That is right, you may legally refuse to provide a specimen of your breath and/or blood. The statutory warning will inform you, however, that if you refuse to provide a sample of your breath and/or blood that refusal may be used against you in a subsequent prosecution. A subsequent prosecution could include plea negotiations, bench trial, or trial before a jury of your peers. For example, if your case is filed with the Tarrant County, Dallas County, Denton County, or other District Attorney’s Office, a prosecutor may use your refusal against you in plea negotiations. As another example, if your case is indicted by a grand jury in Tarrant County, Johnson County, Parker County, or other county across the state of Texas, a prosecutor may argue at trial that your refusal should be considered as evidence of guilt.
Refusing to provide a breath or blood specimen results in a license suspension for no less than 180 days
Though you may legally refuse, and in some circumstances a refusal could be to your benefit, there are potential penalties to consider. The statutory warning will advise you that if you refuse to provide a sample upon request, your license, permit or privilege to drive a motor vehicle will be suspended or denied for at least 180 days. This suspension will exist regardless of whether you are actually prosecuted for the offense for which you were arrested! While it sounds like a harsh penalty, some states make it a separate crime altogether to refuse to provide a sample of your breath and/or blood to law enforcement.
Officers have the option of obtaining a search warrant
In addition to the warning that you may lose your license for at least 180 days, if you refuse to provide a breath or blood sample you will be warned an officer may submit a probable cause affidavit to a local judge and obtain a search warrant to draw your blood anyways. A search warrant gives law enforcement the legal authority to take a specimen of your blood over your objection and even over your active resistance. If a search warrant is obtained, law enforcement is legally required to obtain a sample, and they will do so even if it requires physical force and restraints. TIP: Do not physically or verbally fight with officers or medical personnel taking a sample of your blood. Let your lawyer fight against it in court. Simply because an officer submits an affidavit of probable cause and a judge finds probable cause exists for the search warrant does not mean the search warrant is legally sufficient. A criminal defense attorney with specific knowledge of this area of the law can fight the search warrant in court and try to get your blood results thrown out.
It is a common mistake for people to think their 5th Amendment right against self-incrimination extends to a breath and/or blood sample. Your 5th amendment right against self-incrimination only applies to testimonial evidence like speech or writing. It does not apply to non-testimonial evidence like your blood, breath, or DNA which such biological evidence holds evidence of a criminal offense. In DWI case, of course, your blood could potentially have evidence of intoxication by alcohol or drugs. TIP: Do not yell at the officers taking your blood that you “know your rights” and that the 5th Amendment protects you from providing a sample of your blood, it does not.
Remember that the State has the Burden of Proof
The State has the burden of proof. If they intend on building a case against you, there is nothing wrong with having them follow the proper legal steps necessary in order to obtain the proof against. Remember that police officers often drop the ball and don’t follow through in attempting to obtain a search warrant, or properly obtaining a search warrant. The options you are weighing are providing a sample that might have evidence that could incriminate you and losing your license for 180 days for refusing to provide a sample. If you decide to not provide a sample, you will want to talk to your attorney about ways to restore your ability to drive.
You only have 15 days to request an ALR hearing on the license suspension
You will have the opportunity to be heard on the legality of the suspension. This hearing, referred to as an Administrative License Revocation (ALR) hearing, is only scheduled if requested. Such a request must be received by the Texas Department of Public Safety (DPS) in Austin, Texas, no later than 15 days after you received notice of your suspension.
An experienced attorney will help you request this hearing by written demand, fax, or another manner prescribed by Texas DPS. At an ALR hearing, the must show probable cause for your arrest and suspension. If an ALR Judge determines there is no probable cause, then your license could be reinstated. Unfortunately, ALR decisions do not affect the outcome of your criminal case. That is why you will need an attorney experienced in both ALR and DWI litigation to handle your criminal case.
A sixth-month suspension may be not sound like a long time when you compare it to a lifetime conviction for DWI. However, the attorneys at Varghese Summersett PLLC, we recognize license suspensions can hinder your job, earning potential, day to day activities and quality of life. We treat these matters with the seriousness they deserve.
Review from a Client
From the very first call, I could tell Varghese Summersett was a top notch firm. I called many firms before them and they immediately stood out for their professionalism and prompt response time. They were available for a consultation within 24 hours of my initial call. After retaining them, they were not only always available for calls, questions, and/or meetings but they kept our family in the loop about every step along the way. They outlined the process and set clear expectations from day one. We never felt like we were in the dark. Every one we came in contact with from the receptionist to the various attorneys, was friendly and ready to help. The outcome of our loved one’s case was better than we ever expected it to be. Our family feels fortunate to have had Varghese Summersett by our side during this long a difficult legal process. They made a terrible situation as smooth and painless as possible. I would highly recommend this firm to anyone in need of a defense attorney.
How We Are Different
- Individualized Attention: We understand that clients who hire us are coming to us with the biggest problems in their lives, and we treat their problems with the care and attention warranted by the problem. We seek out the best outcomes by over-preparing, finding weaknesses in the State’s case, through careful negotiations and, when necessary, trial.
- Exceptional Experience: We’ve handled hundreds of intoxication-related charges. All of our partners are former prosecutors. We not only know the State’s playbook, in many cases we helped write it. We have over half a century of experience handling criminal cases, and we are ready to put our experience to work for you.
- Proven Results: We know you have a lot of options to choose from. We hope our results and reviews speak for themselves.
- Time is of the Essence: As former prosecutors, we know the best results go to the most proactive attorneys. Additionally, DWIs have strict deadlines that could affect your ability to drive. Call us today at (817) 203-2220 or contact us online to find out how you can get started with our firm.
Call for a Complimentary Strategy Session with a Fort Worth DWI Lawyer
Being charged with a DWI can be overwhelming. You don’t have to go at this alone. Put our experience to work for you. Give us a call at (817) 203-2220.
During this complimentary strategy session we will:
- Discuss the facts of your case;
- Talk to the attorney who will handle 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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