Arrests for intoxication related offenses such as DWI can have serious consequences. Even before you’ve had your day in criminal court, the State of Texas will move to suspend your driver’s license through an Administrative License Revocation for failure to provide a specimen or for a failed breath or blood test. Sometimes a Court will require you to place on your vehicle an inhterlock device as a condition of being allowed out on bond. If you are convicted, you can face both criminal and civil penalties.
TRUCKERS BEWARE: Under federal law, the holder of a commercial driver’s license will be disqualified from operating a commercial motor vehicle for a period of one year, regardless of, and in addition to, any suspensions imposed by the state, if convicted of a DWI (and also for failure to comply with Implied Consent laws) even if the DWI occurred when the operator was operating a private and not a commercial motor vehicle. See United States Department of Transportation website www.fmcsa.dot.gov for more information related to federal sanctions Texas Commercial Driver’s License holders can face.
If you have been arrested for DWI or an intoxication related offense, it is important that you contact a lawyer as soon as possible to plan your defense and to discuss your options. Fortunately, in any DWI case the State has to prove its case of Driving While Intoxicated beyond a reasonable doubt, and there are numerous ways to defend against a charge of DWI. For example, a lawyer can challenge the legality of the traffic stop which resulted in the charge of DWI. The Fourth Amendment of the United States Constitution protects citizens against illegal search and seizure. A law enforcement officer must have reasonable suspicion that a traffic violation or criminal activity has occurred before it can pull over a vehicle, and must have probable cause that a legal violation has occurred to arrest a person. Where there is a warrantless arrest, as in most DWI cases, the defense can file a Motion to Suppress the search and seizure on the grounds they violated the Fourth Amendment to the Constitution. Sometimes, even if there was a warrant, the legality of a search can be challenged. If the State, represented by the District Attorney, cannot show that a stop or warrant was valid, evidence can be suppressed and a case can be dismissed.
If a driver consented to roadside testing at the time of the traffic stop, the validity of the testing can also be challenged at trial. Usually law enforcement officers in El Paso County, Texas conduct three standardized field sobriety tests at the time of a stop for suspicion of DWI. The three tests are the walk and turn, the one leg stand, and the horizontal gaze nystagmus test, which involves a test administered on a motorist’s eyes. A motorist’s ability to perform well on standardized field sobriety tests can be affected by factors other than intoxication such as the motorist’s health or previous injuries, whether the motorist is overweight, and the age of the motorist. Also, whether the law enforcement officer conducted the tests properly can also affect the validity of the tests. Hence, if a person has physical issues such as age, illness, handicaps, back or knee problems, or feet issues, or if the officer conducts the tests incorrectly, such as on a slope or in heavy wind, a person may fail the standardized field sobriety tests regardless of the level of alcohol in his or her body. Moreover, the scientific validity of the standardized field sobriety tests is questionable. For example, results of the horizontal gaze nystagmus test are not even admissible as evidence at trial in some states.
The reliability of breath test results from the Intoxilyzer 5000 machine used in El Paso County can also be challenged. First, the breath test results are an estimate of a person’s blood alcohol content, not an exact reading. The accuracy of the reading can be affected by many factors. Research has shown that the ratio between breath and blood may vary between individuals. This is important since a person with a ratio lower than 2100 to 1 will result in an inaccurate and high blood alcohol test result from a breath sample. Breathing techniques may also affect the Intoxilyzer 5000 reading as longer breath samples, or shallow breathing or a person holding his or her breath may result in a higher reading than the true blood alcohol content. Also, residual alcohol in a person’s mouth can result in a higher blood alcohol content reading too. Some illnesses or disabilities such as heartburn, liver disease, and diabetes can create chemical reactions in the body which affect an Intoxilyzer reading. Likewise, the temperature of a person’s breath can have an effect on the accuracy of a breath test. Intoxilyzer results can also be challenged such as through a review of maintenance records. Failure to perform the semi-annual calibration of the equipment, to perform the weekly simulator test and to repair the equipment when the simulator provides anomalous results are grounds for challenging the Intoxilyzer results.
WHAT TO DO IF PULLED OVER
If you are pulled over on a DWI charge and are asked, provide your name, date of birth and address. However, you have a Fifth Amendment Constitutional right to remain silent and you should not answer any questions beyond providing your name, date or birth and address. If asked, do provide your registration and proof of insurance. While you should try to be polite to law enforcement, you should not agree to perform any roadside tests. You should not agree to have your eyes tested. In our opinion, most people, regardless of whether or not they are intoxicated, will fail the roadside tests collectively known field sobriety tests, which are the one-leg stand test, the walk and turn test, and the nystagmus test (which is the eye test which law enforcement will ask the motorist to perform). “Implied consent” laws in Texas as well as in many other states, expect that one as a condition of having a driver’s license will agree to give a breath or blood test if requested in exchange for the privilege of having a driver’s license. The United States Supreme Court recently held that a warrant is required for blood tests, although a law enforcement agency can get around the warrant requirement with your consent. Until recently, some states (but not Texas) had laws where a person could be prosecuted criminally for refusing to provide a blood sample. It is important to note that a blood test may register a higher concentration of alcohol in the blood than a breath test will register for the same person at the same time.
ADMINISTRATIVE LICENSE SUSPENSION WHERE REFUSAL TO PROVIDE SAMPLE
Although it is usually easier for a lawyer to defend a DWI charge or related case where a person has declined to give a breath or blood sample, one should be aware that period of administrative license suspension for a person ultimately charged with a DWI or related offense who declines to take a breath test or provide a blood sample is longer than that of a person who agrees to provide a sample.
LAW RELATED TO ALCOHOL AND INTOXICATION RELATED OFFENSES
In Texas, intoxication is defined as (1) Not having the normal use of mental faculties due to the introduction of alcohol, drugs, dangerous drugs or a controlled substance into the body, OR (2) not having the normal use of physical faculties due to the introduction of alcohol, drugs, dangerous drugs or a controlled substance into the body, OR (3) having an alcohol concentration greater than or equal to .08 grams of alcohol per 210 liters of breath. Thus, if the alcohol concentration in a person's blood, breath or urine is .08 or higher, the person is considered intoxicated by law. Sometimes, the legal definition of intoxication is met even if a person's alcohol concentration is lower than .08 percent. Having alcohol, a drug or a controlled substance in one's body that causes loss of normal use of mental or physical faculties also is considered intoxication.
Subject to the exception that follows, in Texas, a first DWI is a Class B Misdemeanor pursuant to Section 49.04 of the Texas Penal Code; the first time Class B DWI is punishable by confinement for a period from 72 hours to 180 days in jail, or if an open alcohol container was found in the vehicle, by a punishment range of six to 180 days in jail. The maximum fine which someone convicted of a Class B Misdemeanor can get is $2,000. A person convicted of Class B DWI who receives probation does not have to serve any days in jail as a condition of probation.
However, a DWI 1st can be punishable as a Class A misdemeanor where the person driving has a blood alcohol concentration of 0.15 or higher at the time the analysis is performed. A Class A first DWI is punishable by up to 365 days in jail and by a fine of up to $4,000. A person who receives probation for a Class A first time DWI does not have to serve any days in jail as a condition of receiving probation.
A second DWI offense in Texas is a Class A misdemeanor, and an individual convicted of Class A second DWI is subject to a punishment range of 30 days to 180 days in jail and a fine of up to $4,000. A person convicted of a Class A second DWI who receives probation is required to serve 72 hours in jail as a condition of receiving probation, or if the previous DWI occurred within five years of the second DWI, then the person receiving probation is required to serve five days in jail as a condition or probation.
A person convicted of three or more DWI offenses is charged with a third degree felony and faces a term of imprisonment from two to ten years and a fine of up to $10,000. If a person receives probation for third degree felony DWI he or she will be required to serve ten days in jail as a condition of probation. However, a judge is required to order a person convicted of three or more DWIs to “attend and successfully complete an educational program for repeated offenders approved by the Department of State Health Services” as a condition of receiving probation. Texas Code Criminal Procedure Section 42.12 13(j). Typically that program is the program known as SAFP, or Substance Abuse Felony Punishment, which usually requires a person to spend at least six months in prison receiving treatment, followed by up to three months in a transitional treatment center.
An individual is accused of Driving While Intoxicated With Child Passenger (set forth in Section 49.045 of the Texas Penal Code) where “child” is defined is defined as a person younger than the age of 15 faces State Jail Felony charges, or a sentence of 180 days to two years imprisonment, and a fine of up to $10,000. The Penal Code and Code of Criminal Procedure do not specify that days in jail need to be served as a condition of receiving probation for this offense.
Some other intoxication charges include Intoxication Assault and Intoxication Manslaughter. A charge of Intoxication Assault, set forth in Section 49.07 of the Texas Penal code, arises where an individual is accused of driving while intoxicated and of causing by reason of his or her intoxication serious bodily injury to another person Intoxication Assault is usually charged as a third degree felony (punishable by two to ten years imprisonment and by a fine of up to $10,000) , although in some cases where the alleged victim is a peace officer, a fire fighter, or emergency services personnel it can be charged as a second degree felony (punishable by two to twenty years imprisonment and a fine of up to $10,000). Also, Intoxication Assault is a 2nd Degree felony where it can be shown that the accused caused serious bodily injury to another in the nature of a traumatic brain injury that results in a persistent vegetative state. A person receiving probation under Texas Penal Code Section 49.07 for Intoxication Assault is required to serve 30 days as a condition of probation.
A charge of Intoxication Manslaughter, set forth in Section 49.08 of the Texas Penal Code, arises where an individual is accused of causing by reason of his or her intoxication the death of another by accident or mistake. Intoxication Manslaughter is usually charged as a second degree felony punishable by two to twenty years imprisonment and by a fine of up to $10,000, although in some cases where the alleged victim is a peace officer, a fire fighter, or emergency services personnel killed while in the discharge of an actual duty it can be charged as a first degree felony punishable by five to 99 years imprisonment and by a fine of up to $10,000. A person who receives probation under this section is required to serve 120 days of jail time as a condition of probation.
SUSPENSION OF LICENSE UPON CONVICTION
Texas Transportation Code Section 521.341 provides that the license of a person over the age of 21 is automatically suspended upon a DWI or related conviction. Texas Transportation Code Section 521.343 provides that the length of that suspension is usually for one year, subject to some exceptions. A probationer requesting an Occupational Driver’s License must go back to the same court as that of the conviction to request the occupational license. However, if a person accused of DWI or a related case takes his or her case to a jury trial, and the jury convicts and recommends probation, pursuant to the Texas Code of Criminal Procedure 42.12 Section 13(g) the jury may make a recommendation against the suspension of the license. This exception does not typically apply to people with subsequent, or multiple, convictions for DWI related offenses.’
For persons under the age of 21, Texas Transportation Code Section 521.342 provides for a suspension of at least one year upon the conviction of a DWI related offense. The suspension can be subject to an exception, but can also be extended if the person under 21 does not complete certain requirements of probation.
Conditions of Probation or Community Supervision for DWI
Some typical terms of community supervision for DWI offenders include the following:
1. Commit no offense against the laws of Texas or any other state or the United States.
2. Avoid injurious or vicious habits. (The use of illegal drugs and alcohol).
3. Avoid persons or places of disreputable or harmful character.
4. Report to West Texas Community Supervision Officer as directed, which is usually once a month
5. Permit the community supervision officer to visit you at your home, place of employment or elsewhere.
6. Work faithfully at suitable employment and notify West Texas Community Supervision of any changes in your employment status
7. Remain within El Paso County, unless the Court or supervision officer authorizes you to leave.
8. Support your dependents as required by law.
9. Submit to random urine specimen analysis.
10. Pay any fines, fees, or restitution assessed through West Texas Community Supervision
11. Complete an approved alcohol/drug education program within 180 days of being placed on probation
12. Attend Alcoholics Anonymous
13. Abide by a curfew
14. installation of an ignition interlock device usually required of all but first time Class B DWI offenders. The ignition interlock device which is also known as a “Deep Lung Device” is a device installed in a vehicle for the purpose of measuring a person’s blood alcohol level. An ignition interlock device is a small device that is installed in a car that is designed to measure a person's blood alcohol level (BAC). If the ignition interlock device measures an unacceptable BAC level, it will not allow a person to drive. Also, once a person is driving the ignition interlock device requires additional breath tests and continues to monitor the driver to make sure that someone with an unacceptable BAC is not driving.
Additional Civil Penalties for Driving While Intoxicated
- Administrative License Revocation
In addition to the criminal penalties associated with charges of Driving While Intoxicated there are civil penalties administered by the Texas Department of Public Safety. A DWI arrest initiates a civil proceeding against an arrested motorist’s driving privileges called an administrative license revocation. The administrative license revocation usually begins even before a Court or jury has determined the guilt or innocence of a motorist arrested for DWI. An administrative license suspension procedure is initiated when an arrested motorist fails a breath or blood test with test results which are above the legal limit, or where the arrested motorist refuses to submit to breath or blood testing. Peace officers making an arrest for DWI are required to take possession of any Texas license issued by the State which is in the possession of the arrested motorist and to issue a personal a temporary driving permit that is expires on the 40th date after the date of issuance. An arrested motorist has 15 days after the issuance of a temporary driving permit to request a hearing to challenge the proposed license suspension. A person’s request for hearing will delay the administrative license revocation sanctions until after a hearing has occurred.
The Administrative License Revocation suspension is automatic unless the accused motorist requests in writing within 15 days after receiving notice of suspension from the arresting agency a hearing to challenge the suspension. The suspension begins on the 40st day after the notice is issued unless a hearing before an Administrative Law Judge is timely requested. If a hearing before an Administrative Law Judge is requested, and after hearing the appeal is denied, the suspension begins after the denial of the appeal. If an individual appeals from the Administrative Law Judge’s decision to courts in the county where the notice was issued, the suspension of the license is further delayed for 90 days during the pendency of the appeal.
The Administrative License Revocation lasts for a period of 90 days to 1 year where a person provides a blood or breath specimen for alcohol testing, but fails, and for a period from 180 days to two years where a person declines to provide a specimen for testing. Suspensions for minors (under the age of 21) who decline to provide specimens for testing range from 180 days to two years. Suspensions for minors (under the age of 21) who provide specimens which test positive for alcohol, or who were not asked to provide a specimen but were arrested for DWI, range from 60 days to 180 days.
Motorists are required to pay a $125.00 reinstatement fee to the Texas Department of Public Safety in order for their driving privileges to be restored at the end of the suspension period. If a motorist is acquitted after a trial, the Administrative License Revocation will be rescinded in the records of the Texas Department of Public Safety.
- Surcharges imposed by Texas Department of Public Safety for DWI conviction
If you are convicted of committing a DWI either after a jury trial or after a plea of guilty you are required to pay an administrative surcharge fee to the Texas Department of Public Safety for a period of three years in order to maintain your driving privileges. For a first DWI conviction a motorist is required to pay a sum of $1,000 a year over a period of three years. For a subsequent DWI a motorist is required to pay a sum of $1,500 a year over a period of three years. If a motorist is convicted of DWI after providing a blood, breath or urine specimen showing an alcohol concentration of 0.16 or higher, the motorist is required to pay a surcharge of $2,000 a year over three years regardless of any past DWI convictions.
OCCUPATIONAL OR ESSENTIAL NEEDS DRIVER’S LICENSE
If your driver’s license has been suspended subsequent to a DWI stop, or if you are convicted of a drug offense in the State of Texas which results in a license suspension, you might be eligible to obtain an occupational driver’s license, also referred to as an essential needs license. An occupational license authorizes the operation of a non-commercial motor vehicle in connection with a person’s occupation, for educational purposes or in the performance of essential household duties. Requests for occupational driver’s license are made to the district or county courts where a person resides, or to the court that had jurisdiction over the criminal charges which gave rise to the license suspension. When a court grants an order for an occupational driver’s license the licensee can use the order for driving purposes for 30 days after the court issues the order. However, once the court issues the order, the licensee is required to send to the Texas Department of Public Safety a certified copy of the order and other paperwork associated with the request, including a form SR-22 proof of insurance. The Department of Public Safety will then issue the actual occupational license to the licensee.