Bill Mange:
Frequently Asked Questions: DWI
What is the first thing I should do, now that I am out of jail on a DWI charge?
Call DPS at 1-800-394-9913. Heres why. If you don’t call
that number and request a hearing within 15 days of being arrested, you
will automatically lose your driver license on the 40th day following your arrest.
Should I give a Sample of My Breath and Blow into the Machine?
The short answer is no. Heres why.
Advantages of Refusing to Blow:
- First,
you prevent police agencies from getting scientific evidence of the
amount of alcohol in your bloodstream. Specifically, if the
breathalyzer machine shows that your blood alcohol content is 0.08% or
higher, then youve just given the prosecution a lot of help in proving
that you were driving while intoxicated. This is because one of
the definitions of intoxicated depends only on your blood alcohol
content, regardless of how well or poorly you were driving. If
your blood alcohol content is 0.08% or higher, then you are intoxicated
as far as Texas DWI law is concerned.
- Second,
even if the breathalyzer machine shows that your blood alcohol content
is less than 0.08%, youll still probably spend the night in jail.
- Third,
if your blood alcohol content is 0.16% or higher, the annual surcharge
on your drivers license goes from $1,000 to $2,000 for 3 years.
- Fourth,
if the breathalyzer machine shows that your blood alcohol content is
less than 0.08%, the arresting officer will then probably ask for a
Drug Recognition Expert (DRE) officer to examine you to see if you are
intoxicated by something other than alcohol.
Disadvantages of Refusing to Blow:
- First,
your refusal to blow is admissible as evidence against you in
court. The prosecution will ask the jury why would an innocent
person refuse to blow? The logical answer to this question is that even
though you knew you were innocent, you believed at the time the police
asked you to blow that the test is not accurate. Theres evidence
to back up that belief.
- Second,
when the Department of Public Safety seeks to suspend your license, a
refusal to blow will usually result in a suspension of 180 days.
But a person who blows and fails will usually (more than 75% of the
time) have his or her license suspended for 90 days anyway. This
is not much of a disadvantage if you are arrested for DWI for your
first time, since you can usually get an occupational drivers license
without much trouble, and you would need that occupational license
regardless of whether you blow and fail, or refuse to blow.
Advantages to Blowing:
- Particularly
if you are arrested for DWI for the first time, you only get the
advantages to blowing if your result is lower than 0.08%. The
trouble is: how will you know in advance whether your result will be
higher or lower? You wont.
- Just
the same, here are the advantages available to those citizens who can
know the future: (1) if your result is lower than 0.08%, then DPS is a
little less likely to ask to have your license suspended
administratively; (2) if your result is lower than 0.08%, then that
will weaken the States case against you somewhat.
Could I Lose My Drivers License?
Yes. DPS will move to suspend your drivers license.
If
you blew, DPS has to prove that it is a little more likely than not
that: (1) you were lawfully stopped or lawfully arrested; and (2) that
your blood alcohol content was 0.08% or higher while you were
driving.
If you refused to blow,
then DPS only has to prove that it’s a little more likely than not
that: (1) you were lawfully stopped or lawfully arrested; (2) that
there was mere probable cause to believe you had been driving
while intoxicated; (3) that you were given a chance to blow; and (4)
that you refused to blow. The big difference, proof-wise, between
whether you blew or not is that if you blew, DPS has a tiny bit higher
burden of proof.
More than 75% of the time, the Administrative Law Judge rules in favor of DPS and against you.
You
can request a hearing in front of a judge to challenge DPSs efforts to
suspend your license. But you only have fifteen days after you
were arrested to request this hearing. If you wait longer, you
lose the right to challenge the suspension.
Can I Drive During the Suspension Period?
Yes, but generally you must petition a court for an occupational
drivers license. This license will permit you to drive if you
prove that you have an essential need to drive. By law, you may
drive no more than four hours per day, in order to go to work and
school and perform other necessary household chores and duties.
You may petition the court to waive the four-hour limit and request up
to 12 hours in a day to drive, providing that you show an essential
need.
None of the information here should be substituted for an actual consultation with an attorney.