Driving While Intoxicated (DWI)/Driving Under the Influence (DUI)

If I had one or two drinks does that mean I am guilty?

I have been arrested for Driving While Intoxicated, now what?

What is DWI?

What is the legal definition of intoxication?

What is the legal definition of 'normal'?

What is 0.08-alcohol concentration?

How accurate are field sobriety tests?

What can affect my performance on field sobriety tests?

What are the typical Penalties for DWI?

Am I going to jail?

Do I have to have an interlock device on my vehicle?

Will my Driver's License be Suspension?

How long will a DWI arrest stay on my record?

Increased Penalties for Hit & Run

If I had one or two drinks does that mean I am guilty?

Not necessarily, however the consumption of alcohol may be a factor in your arrest. In Texas you can have a drink and drive. You cannot and should not drive if those drinks affect your normal mental and physical fatalities. A 0.02 generally equals one drink. A drink is considered to be:

  • 1/4 ounces of liquor,
  • 12 ounces of beer, or
  • 1 glass of wine

It typically takes one hour for the body to burn off a 0.02 down to a 0.00. Thus, to reach a 0.08 a person must consume four drinks in one hour. However, each persons body metabolizes alcohol at a different rate and many factors influence the rate of metabolism.

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I have been arrested for Driving While Intoxicated, now what?

In most cases you have been pulled over by the police for some minor traffic violation. The police officer contacts you and s/he observes some signs which s/he believes indicate intoxication. S/he performs field sobriety testing. You might believe that you passed the test, however you are arrested.

Your case will now be filed with the local District Attorney's office. You will have a court date in several weeks and you are facing a DWI charge.
In most counties you will receive a first appearance date. This date can be from three weeks to several months after the arrest. On this setting, you appear in court and review the case and usually reset the case for another date. You may reset the case one or more times but eventually you will have to decide to either contest the charge and set the case for trial or agree to a plea bargain.
It is important to contact an attorney right away. There is evidence that can be lost if you wait several weeks or months.

An experienced attorney can review the evidence and point out the strengths and weakness of the case against you to help you make the right decision.
You also have the Administrative License Revocation (ALR) process to be concerned with and you need to decide if you want a hearing to contest that license revocation or obtain an occupational license in the alternative.

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What is DWI?

The Texas DWI Statute falls under Title 10, Chap 49 of the Texas Penal Code: Intoxication & Alcoholic Beverage Offenses. DWI is a criminal offense that says a person may not drive a motor vehicle in a public place while "intoxicated". The DWI statute does not say driving while drunk or "drunk driving."

What is the legal definition of Intoxicated? Intoxication means not having the normal use of mental or physical faculties by reason of the introduction of alcohol, a controlled substance, a drug, a dangerous drug, a combination of two or more of those substances, or any other substance into the body; or having an alcohol concentration of 0.08 or more.

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The legal definition of intoxication in Texas is:

* Having an alcohol concentration of 0.08 or more
* Not having the normal use of physical faculties by reason of the introduction of alcohol, a controlled substance, a drug, a dangerous drug, a combination of two or more of those substances, or any other substances into the body
* Not having the normal use of mental faculties by reason of the introduction of alcohol, a controlled substance, a drug, a dangerous drug, a combination of two or more of those substances, or any other substances into the body
The State only needs to prove one of the three ways beyond a reasonable doubt in order to obtain a conviction.

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What does 'normal' mean?

According to the law, the definition of the word normal is the average person. The problem is how do we determine the average person? The law is vague in this subject, which lends itself for good argument to a jury that everyone is different and each has his own normal.

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What is 0.08-alcohol concentration?

"Alcohol concentration" is defined by statute as:* the number of grams of alcohol per 100 milliliters of blood;
* the number of grams of alcohol per 210 liters of breath; or
* the number of grams of alcohol per 67 milliliters of urine.
In the state of Texas, a person commits the offense of driving while intoxicated if the person is intoxicated while operating a motor vehicle in a public place. 


If a law enforcement officer has reasonable suspicion that a person is driving while intoxicated, s/he may make a traffic stop.  During the traffic stop, the officer will examine the driver for signs of intoxication.  If the officer has reason to suspect that the driver is intoxicated, s/he may ask the driver to consent to a breath alcohol test and/or field sobriety tests.  If the driver has a blood alcohol level of 0.08% or higher, or if the person fails his/her field sobriety tests, the officer may make a DWI arrest.   

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The Officer determined I failed the field tests, are field sobriety tests very accurate?

If performed in a controlled environment in the exact proscribed standardized manner, the tests can be a likely indicator of intoxication. This is hardly done on the street.

The research conducted by the National Highway Traffic Safety Administration, the designers of the tests, concluded the Horizontal Gaze Nystagmus is 77% accurate, the Walk & Turn is 68% accurate, and the One Leg Stand is 65% accurate only when administered in the prescribed, standardized manner. Any change from the standardized manner will compromise the tests validity and make any result inaccurate. When not conducted properly it becomes an opinion test of the officer. Therefore, these tests will inaccurately claim 23%-35% of the people tested as intoxicated. Which when done incorrectly, which is the norm, can drop the accuracy to a frightening level.

Often there is a video tape of your arrest or the field test which may contradict the officer's opinion and lead to an acquittal.

The police officer has to make a judgment call in the field. They also have a lower burden of proof in the field to make an arrest than that required of a jury to make a finding of guilt. The police officer only needs to make an arrest if they have probable cause to believe you are intoxicated.

A jury can only find you guilty if they believe the State has proven your guilt beyond a reasonable doubt.

There is a difference between the two burdens.The police officer may look for a few clues to obtain probable cause; s/he only looks for those few clues. There are often numerous signs showing that you were not intoxicated and when you correctly point them out to a jury will lead to an acquittal.

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What can affect my performance on field sobriety tests?

There are several factors that affect the results of your tests, such as:

  • Age
  • Being ill
  • The distraction of traffic
  • The police cars strobe lights
  • Fatigued
  • Footwear
  • Lack of coordination
  • Gusts of wind
  • Weight
  • Road or sidewalk conditions
  • Allergies
  • Scared
  • Head lights of traffic
  • Weather conditions
  • Being nervous
  • Back problems
  • Leg or knee problems
  • Inner ear disorders

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What are the typical Penalties?

Any person who is convicted of DWI may be sentenced with jail time, fines, community service, probation, and mandatory rehabilitation. DWI crimes may be classified as a misdemeanor or a felony offense. Classification depends on if the person has prior DWI convictions, if there was a child in the car, if there was accident or if someone was injured or even killed as a result of the DWI The penalty range for DWI, therefore, can range from probation or 180 days in county jail to life in prison. Additionally, the person may lose his/her right to drive in the State of Texas.

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Am I going to jail?

In most cases the District Attorney's office will not recommend jail time but will recommend probation. Probation is up to 24 months on misdemeanor DWI offenses and will include community service, DWI educations courses, fine and court cost plus other conditions the judge feels is appropriate. As long as you do not violate your probation, you typically do not spend time in jail.

However, second and third DWI offenses require some mandatory jail time as a condition of probation.

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Do I have to have an interlock device on my vehicle?

BREAKING NEWS:   The Texas DWI Law was recently modified and Gov. Greg Abbott signed House Bill 2246 into law on Tuesday, June 23, 2015. This bill will now require all suspected drunk drivers to have an ignition interlock device installed on their vehicle if they plan to continue driving during their license suspension period following their arrest. Ignition interlock devices work similar to a breathalyzer, but will prevent a car from starting if the driver is intoxicated while trying to operate it. Texas becomes the 25th state to require interlock systems. The new law takes effect in September 2015. If you have or are required to install an ignition interlock device on your vehicle, you must be aware of the potential false-positives and consequences that can occur during this period. 

WHY THE CHANGE: Texas had not changed it’s DWI laws in10 years and Mothers Against Drunk Driving (MADD) claims that’s why Texas leads the nation in DWI deaths. MADD's big push during the 2015 Legislative Session paved the way for changing the State of Texas DWI laws.

To further assist Legislators in the 2015 session, data from the Centers for Disease Control and Prevention claims that, “researchers found that after these devices were installed, re-arrest rates for alcohol-impaired driving decreased by a median of 67 percent relative to drivers with suspended licenses.”

Approximately 24 states have laws that require the use of ignition interlock devices for DWI or DUI offenders. However, each state has different laws stipulating when an ignition interlock device is to be used. As an example, some states require the use of ignition interlock devices for DWI/DUI offenders with a BAC of .08 or greater, while other states require devices only when a DWI/DUI offender has a BAC of .15 or greater. Further, some states do not even have a mandatory ignition interlock program, but employ a discretionary implementation of when an ignition interlock device is required for DWI/DUI offender.

WHAT IS THE IGNITION INTERLOCK DEVICE:

An ignition interlock device is a small device that is installed into a vehicle upon the order of the court. It is a device that is wired into the ignition system of a vehicle and requires a driver to blow into the device before the car can be started. If the device detects a certain level of alcohol in his/her system, then the vehicle will not start. The blood alcohol concentration threshold is usually set between 0.02 to 0.04 grams per deciliter (g/dL). Under the Texas law, the minimum illegal blood alcohol concentration is .08.

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Will my Drivers License be Suspension?

Once a driver has been arrested for DWI, s/he will be asked to submit to another blood, breath or urine alcohol test after s/he has been brought to the police station. If the persons blood alcohol level is 0.08% or greater, or if the person refuses to submit to the blood alcohol test, s/he will be served with a Notice of Suspension and provided with a temporary drivers permit. From the time of the drivers arrest, s/he only has 15 days to schedule an ALR hearing to contest the suspension of s/he drivers license. If the driver does not schedule s/he hearing, s/he drivers license will remain suspended for ninety days to two years. Call immediately if you have been arrested for a D.W.I., D.U.I., B.W.I., or other alcohol related offense to protect your drivers license.

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How long will a DWI arrest stay on my record?

If you are convicted of the DWI, it will be on your record for life. Furthermore, a DWI conviction can be used for ten years to enhance your punishment of you are arrested for DWI again. If you are found Not Guilty, you can have the arrest and DWI charge expunged from your record.

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Gilbert G. Garcia has practiced Criminal Law since 1978 and has been Board Certified in Criminal Law since 1989. The Gilbert G. Garcia Law Firm is the logical choice to represent you in your criminal case, providing the quality legal services you deserve in your most important matters. Free initial consultations and reasonable fees. Personal payments plans available and most major credit cards accepted. Many issues are able to be handled via e-mail, phone calls and fax and after hours and weekend appointments are available upon request to meet the needs of each client. Conveniently located on the Montgomery County Courthouse square since 1983.

For more information on DWI Contact Gilbert Garcia today at 936-756-3333.

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