Dallas DWI Lawyers

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Dallas DWI Lawyers

Douglas Wilder: What are the realities of performing Field Sobriety Tests?
The reality is that you will be asked to perform these tests in less then ideal conditions.
Ideal conditions would be to perform the tests on a flat, smooth surface, inside with proper lighting, when you are not tired, with an Officer who knows how to, and does, perform the tests in the prescribed standardized manner.
In reality, the majority of the time people are asked to perform field sobriety tests under some or all of the following conditions:
- Early in the morning
- Fatigued
- In the dark
- Wind
- On the shoulder of a highway/street
- Uneven/slanted roadway
- Cracked roadway
- Dirt & debris on the roadway
- Where traffic is heavy in both directions of the highway
- Where cars and other vehicles have their headlights on within 5 feet of you
- With an officer standing in front of you shining a flashlight into your eyes
- When you are physically fatigued
- With an Officer not following the prescribed, standardized manner in giving the tests
Clearly, nobody could prepare themselves for conditions such as these.
Daniel Biltz:
What are the penalties for DWI?

Generally speaking, the penalties for DWI are as follows:

a) first offense : a first-offense conviction includes a fine not to exceed $2,000.00 and/or the possibility of serving jail time from 3 days to 180 days, and a driver's license suspension of 90 to 365 days. (Class B Misdemeanor).

b) second offense : the maximum fine increases to no more than $4,000.00 and/or jail from 30 days to one year, and a possible driverżs license suspension ranging from 180 days to 2 years. (Class A Misdemeanor).

c) third offense : here, you may receive a fine up to $10,000.00 and/or 2 to 10 years of imprisonment, and suspension of your driverżs license ranging from 180 days up to 2 years. (3 ^{rd Degree Felony).}

^{d) DWI with an open alcohol container (first
offense) : In addition to the penalty referenced above you face a minimum 6 days in jail and a
fine of no more than $2,000.00. (Class B Misdemeanor).}

^{e) DWI with an accident
where serious bodily injury occurred as a proximate cause of the intoxication
: this crime is called intoxication assault, and upon conviction you
may serve a minimum of 2 years up to a maximum of 10 years in jail. Additionally, you may be fined
up to $10,000.00. (3 rd Degree Felony).}

^{f) DWI where a death has occurred as a
proximate cause of the intoxication
: here, the crime is intoxication manslaughter. Upon conviction you
might have to pay a maximum fine of $10,000.00 and/or be imprisoned from 2 to 20 years (Intoxicated
Manslaughter or Manslaughter with use of Deadly Weapon are both 2 nd Degree Felonies).}

^{g) A prior DWI conviction and a present drag racing charge
: drag racing is a Class B Misdemeanor, however, it becomes a Class A
Misdemeanor where the person had a prior drag racing conviction, a DWI conviction, or had an open
alcohol container while they were driving.}

^{h) DWI with a child passenger :
A person commits a state jail felony if they drive while intoxicated and there is another person in
the vehicle who is under 15 years of age. `Punishment for a non-enhanced state jail felony is by
confinement in a state jail for any term of not more than 2 years or less than 180 days and a fine
not to exceed $10,000.00.}

^{In some of the above minor classifications you may be
eligible for probation, but there is no guarantee that you will receive a probated jail sentence or
fine. If you are convicted of intoxication assault and wish to receive probation, a minimum of 30
days in jail must be served as a condition of probation. Furthermore, to receive probation upon
being convicted of intoxication manslaughter you must serve a minimum of 120 days in jail. However,
if you are convicted of Intoxication Assault or Intoxication Manslaughter and the court or jury
finds that you committed the offense with a deadly weapon you may be ineligible to receive
probation at all.}
^{What is a surcharge
?
A surcharge is an administrative penalty charged by the Texas Department of Public Safety
as a fee for a person to maintain their driverżs license after they have suffered either a DWI
conviction or submitted to a chemical test which showed an alcohol concentration of .16 or more. The
surcharge is assessed for 3 years following either of the aforementioned events.
Specifically, the surcharges are:}

^{1) $1,000.00 per year for a DWI 1 st
conviction;
2) $1,500.00 per year for subsequent DWI convictions; and,
3) $2,000.00 per year
for registering a .16 or more.}

^{There is a great deal of controversy that the
surcharges are really nothing more than an additional fine charged by DPS. If the surcharge is
deemed to be an additional by the Texas judiciary, then they will ultimately be deemed
unconstitutional as a violation of a personżs double jeopardy rights. If a .16 surcharge is assessed
prior to the DWI trial ending and it is paid, then may be possible to assert a double jeopardy bar
that would preclude the DWI trial from ever occurring. Clearly, there will be more litigation in the
future on surcharges.}
^{What if I am pulled over:
For
DWI or any traffic violation, use your turn signal and pull off to the right as quickly and as
safely as possible. Your every move is now being watched, noted, and perhaps even recorded, so be
careful about everything you do & say! Clientżs always underestimate the importance of what they
do and say. Many police vehicle's have mobile video recorders. What does this mean for me? Many DWI
trials are won and lost depending upon what is on the video. Whatever you do, do not get out of your
car. When asked, get your driver's license and proof of insurance out for the officer to inspect. Be
very careful not to make any sudden movements that could lead the officer to fear for his or her
safety or to believe you are trying to hide something. Some of the things that a police officer may
do to get you to talk or sign a confession are clever, but you must recognize these tricks and
invoke your right to remain silent. The police may promise you that if you tell them or sign a
document they will let you go home. You must remember that the job of the police is to gather
evidence. They will not let you go home after you tell them want they want to hear or sign a
confession.}

^{JUST SAY "NO" ....
To searches of your person and/or
vehicle unless you are absolutely certain that NOTHING illegal will be found. Unless the stop goes
beyond a stop for a mere traffic violation, the police have no right to search your person and/or
vehicle unless you consent. That is because the current state of the law says ż where there is no
traffic violation or the citation or warning for that traffic violation has been given, there can be
no further reason to detain a suspect except in a few narrow circumstances (i.e. the police smell
alcohol on your person or smell the odor of burnt marijuana or see contraband in plain
view).}

^{IF THE POLICE SAY THEY SMELL ALCOHOL ...
If you've been
drinking, you probably do have the odor of an alcoholic. beverage - so be honest since it will give
you more credibility. However, when they ask how much you have had to drink, politely explain that
you drank earlier in the day but beyond that you would rather not answer any more questions. Then
ask if you are free to go - if the officer says no or asks you to step out of the car, ask if you
are under arrest. If he or she says "no", ask whether you will be receiving a citation and then ask
to leave.}

^{If you are told you are not free to leave, DO NOT ANSWER ANY MORE
QUESTIONS OR PERFORM ANY TASKS. Insist - politely but firmly - that you wish to contact a lawyer.
Explain that you don't know what to do since you've never been arrested before (assuming this is
true!). Repeat that you want a lawyer over and over again to as many people as you encounter. The
police may tell you do not have the right to an attorney - they may tell you that you are not under
arrest, but under investigation - don't let them play these mind games / word games with you - as
long as you are firm but polite, your lawyer will sort all this out for you later. In these
situations it's best to remember that a judge will ultimately decide the law, not the police. This
advice rings even truer than ever when you get to the police station because you are being
videotaped. Again, be very aware of all that you say and do!}
^{WILL I BE ARRESTED ANYWAY? ...
I have found that the police always
arrest persons who are driving and smell like alcohol. So, why give them more evidence to use
against you? You will never pass the field sobriety tests (FSTs). Nothing you say will be reported
the way you intended so be polite, be calm and be firm - tell the officer you want to speak to an
attorney and then invoke your right to remain silent. NEVER BE AFRAID TO EXERCISE YOUR RIGHTS,
you'll only be sorry later if you don't!}
^{SHOULD I TAKE THE
BREATH OR BLOOD TEST? ...
If you've had anything to drink or ingested any drug of any kind
(including your own prescription drugs), do NOT take the test. You are within your rights to refuse.
Don't believe the officer when he/she says you will be suspended automatically upon your refusal.
You are BY LAW entitled to request a hearing on that issue - call me as soon as you are released,
and I will tell you what needs to be done. General DWI questions:}

^{What is
the legal definition of intoxication?
The legal definition of intoxication in Texas
is:}

^{· 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; OR}
^{· 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; OR}
^{·
having an alcohol concentration of 0.08 or
more.}

^{The Prosecutor only needs to prove one of the three ways. However, the Prosecutor must
prove at least or more of these three ways beyond a reasonable doubt in order to convict you. If the
prosecutor does not have a breath or blood specimen, they will try to prove that you are not normal
because of the introduction of alcohol. If you are wondering what does normal mean?, see the next
section. Many people talk about "drunk driving" (i.e. friends don't let friends drive drunk), a
person does not necessarily have to be drunk to be intoxicated. A drunk person is a person who is
very intoxicated. Therefore, if you are drunk, you most certainly are intoxicated. The
Prosecutor does not have to prove that you are drunk, only that you are not
normal.}

^{What does 'normal' mean?
The "normal mental and physical faculties" the DWI
statute refers to are those of the particular person who has been arrested. The term does not refer
to the normal faculties of the arresting officer, those of jurors in a DWI criminal trial, or those
of a fictitious average person. Indeed, the term "normal" actually refers to a range of measurement
of the faculties of the person arrested. For example, "normal" would not be a particular point on a
12" ruler. Rather, it is better explained as the distance between two particular points on the
ruler, i.e., between the 3" and 9" marks. The Prosecutor will try to prove that you are not normal
because of your performance on the Standardized Field Sobriety Tests (SFST). These tests require a
certain amount of athletic skill. The Dallas Police Department's training manual states that some
individuals cannot perform these tasks even when sober! Does that mean that these people are not
normal?}

^{What is .08 alcohol concentration?
"Alcohol concentration" is defined by
statute as:
a. the number of grams of alcohol per 100 milliliters of blood;
b. the number of
grams of alcohol per 210 liters of breath; or
c. the number of grams of alcohol per 67
milliliters of urine.}

^{Unless you are an expert on alcohol, you will not be able to determine if you have an
alcohol concentration of .08 or greater. One must also understand that the amount of alcohol in each
of the above definitions is not equal. Therefore, you could have the normal use of your physical and
mental faculties and one test would confirm your innocence (below 0.08) while another may unjustly
insinuate your guilt (above 0.08). This fact alone lets you know the importance of hiring an
experienced DWI lawyer who understands the differences in these
tests.}

^{Is
it .08 or more when I drive or .08 or more at the time I'm tested, or both, that will make me guilty
of DWI?
Our law only provides that the crime of DWI occurs when a person drives, and at
that time , has an alcohol concentration of .08 or more in his body. It is not a per se
crime to have an alcohol concentration of .08 in the body either before or after one has driven.
However, depending on the time the test is conducted, such an alcohol concentration may be
relevant in determining if the person had a .08 or more alcohol concentration when the actual
driving occurred. The timing of the particular test in question presents a significant problem for
both the prosecution and the defense. This dilemma arises because .08 alcohol concentration testing
is hardly ever done at or immediately after driving. Rather, an alcohol concentration test is
usually administered approximately 45 minutes to 1 hour and 15 minutes after driving. In such
delayed testing, absent other information about the number of alcoholic drinks consumed, the type of
drinks consumed, and knowledge of when the drinks were consumed, it is scientifically
impossible to determine if the person was over, or more importantly for the innocent, under a
.08 alcohol concentration at the time of driving.}

^{For example, let's change our earlier scenario
somewhat by having the person finish his fourth cocktail at 11:55 p.m. He leaves the smoke filled
restaurant at 12:00 a.m. for a 5 minute drive home. However, this time instead of being stopped for
speeding, he is stopped at 12:01 a.m. because the light over his license tag has burned out. The
officer, having observed a fresh (strong) odor of an alcoholic beverage on the driver's breath and
his smoke reddened eyes, arrests him for DWI. The officer then transports him to the station house
for an alcohol concentration test. The test is given at 12:30 and its result is .08. Here, depending
on the timing of the person's earlier consumption of alcoholic drinks, it is equally possible
that earlier at 12:01 a.m., the person's alcohol concentration was .05, i.e., not guilty, or .15,
i.e., guilty. In the final analysis on this point, it may not have been a smart thing for our person
to have driven at all, but if he was the .05, he neither committed nor would have committed a DWI
offense. Determining the actual alcohol concentration while driving is an imprecise mathematical
calculation called retrograde extrapolation. Generally, the Prosecutor will not be allowed to use
retrograde extrapolation at trial unless the prosecutor know what time you started drinking, what
time you stopped drinking, when you last ate, sex, body weight, and your alcohol
concentrationsometime after you were driving. The time of the test is a hotly contested issue. It is
extremely rare to have a test that was conducted immediately after driving. It is common for a
chemical test to be conducted 30, 60, or even 90 minutes after
driving.}

^{What signs do people exhibit while driving under the influence of
alcohol?
The following signs listed below signify that a person is driving while intoxicated.
This list is based upon research conducted by the National Highway Traffic and Safety
Administration. These signs do not necessarily mean that a person is intoxicated, however; the
police will say that an individual is intoxicated they observed these
signs}

· Turning with wide radius Straddling center of lane marker

· "Appearing to be drunk"

· Eye fixation

· Tightly gripping the steering wheel
^{· Slouching
in the seat}
^{· Gesturing
erratically or obscenely}
^{· Face close to the windshield
Drinking in the car}
^{}
^{·
Driver's head protruding from the car}
^{· Almost striking object
or vehicle}
^{· Weaving

sup>}
^{· Driving on other than designated roadway

sup>}
^{·
Swerving
sup>}
^{sup>^{· Speed slower than 10
M.P.H. below limit
sup>}
^{sup>^{· Stopping in lane for no apparent reason
sup>}
^{sup>^{· Following too closely
sup>}
^{sup>^{·
Drifting
sup>}
^{sup>^{· Tires on center or lane
marker
sup>}
^{sup>^{· Braking erratically
sup>}
^{sup>^{· Driving into opposing or crossing traffic
sup>}
^{sup>^{·
Slow response to traffic signals
sup>}
^{sup>^{· Signaling inconsistent
with driving actions
sup>}
^{
sup>^{· Stopping
inappropriately (other than in traffic lane)
sup>}

sup>· Turning abruptly or illegally

sup>
^{sup>^{· Accelerating or decelerating rapidly

font>}
^font>^{·
Headlights off at
night
font>}}}}}}}}}}}}
^{Although the police believe speeding is a factor, speeding is not a
recognized sign of intoxication. The faster you drive, the quicker your reactions must be and if you
are speeding and driving normally, in my opinion, it is an indicator of sobriety (i.e. having the
normal use of physical and mental
faculties.)
font>}

^{What should I say if I am stopped by a police officer and asked if I
have been drinking?
Be polite and courteous. Do not admit any type of guilt or apologize for
anything. This is not the time to try and talk your way out of your situation. You will already be
nervous enough and the chance of you saying something you do not mean will be greater. Also, if you
do try and talk your way out of the stop, the officer will keep prompting you to further incriminate
yourself and you most likely will dig yourself into a deeper hole. Further, the officer most likely
has already made up their mind to have you perform field sobriety tests, so your answer may be
irrelevant.
font>}

^{If the tongue slips, telling the officer that you have had 1 or 2 drinks is
not incriminating and may explain the odor of alcohol coming from inside the car. If you only had 2
drinks, I would tell the officer the time of your first drink, the time of your second drink, and
where you were drinking. This confident, truthful answer would certainly let the officer know that
you did not have enough alcohol to possibly be
intoxicated.
font>}

^{You need to understand the number of drinks is not as important as the
number of drinks within a certain amount of time. The State's experts testify (and officers have
been trained) that for the average male, they will absorb approximately 1 drink per hour, and will
eliminate approximately 1 drink per hour. Therefore saying you had "6 drinks" sounds very
incriminating compared to "I've had 6 drinks over the last 6 hours." Interestingly enough,
far too many officers only ask how many drinks a person had, and purposefully do not ask the time
frame, even though they know the time frame is more important then the
number.
font>}

^{What is a standardized field sobriety test ?
A standardized field
sobriety test, SFST, is a police tool to help the officer try to identify an intoxicated driver.
There are three SFSTs and they
are:
font>}

^{1) the horizontal gaze nystagmous (HGN) test;
2) the one-leg stand test; and,
3) the
walk and turn
test.
font>}

^{These three tests were developed by researchers funded by the National Highway and Traffic
Safety Administration (NHTSA) and a failure of any of the tests, according to the researchers, means
the person has an alcohol concentration of greater than .08. Of import is the fact that there is a
great on-going debate about the validity, accuracy, and reliability of both the researchersż
conclusions and their tests. There is no implied consent requirement that a person submit to a law
enforcement officerżs request to take these SFSTs or any other police motor skill coordination
exercise.
sup>}
^font>
^{What should I do if asked to take Field Sobriety Tests?
If you know you can pass
these tests at the time you are requested to perform them, taking into account all the circumstances
surrounding the request, I would suggest attempting them. If you pass them, the officer should let
you go on your way. The difficult decision is when you have never attempted any of these tests
before, are nervous and scared about being stopped and asked to exit your car, how do you know if
you can pass these tests, especially when the officer will not tell you what they are looking for?
Further, the National Highway Traffic Safety Administration has admitted not everyone can
successfully perform these tests even when
sober!
font>}

^{If you are not sure what to do, ask "Officer, I would like to contact a lawyer before
deciding whether or not to take the tests." They most likely will not give you the opportunity.
At this point, you have not refused to perform them. There is a huge difference between refusing
to perform the tests, and asking to talk to a lawyer before deciding what to
do.
font>}

^{Another approach to take would be as follows. Ask "Officer, am I required to perform
these field sobriety tests?" The honest answer is "No". Any other answer could leave a jury with
the impression the officer is deceptive. You may then want to ask "Officer, are these tests 100%
accurate?" The honest answer is "NO". The initial research conducted by the National Highway
Traffic Safety Administration concluded the Pen Test (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 deviation from the standardized manner will compromise
the tests validity. Therefore, with the most experienced officer under ideal conditions, these
tests will inaccurately label 23% - 35% of the people tested as intoxicated. And remember, these
were the best DWI officers under strict surveillance, and that is the best they could do! At this
point, ask "Officer, I would like to contact a lawyer before deciding whether to take the tests
or not." They will not give you this opportunity. You would be justified in politely informing
the officer that you are not refusing to do these tests, but want the opportunity to speak with a
lawyer before making that
decision.
sup>}

^{You may also want to ask "Officer, is there anything that can affect the tests other
than alcohol?" Outside of just being uncoordinated, nervous or scared, you may fall into one of
the recognized groups of people who cannot perform field sobriety tests even when sober.
Additionally, you may want to ask "Officer, are going to video tape me when I perform the field
sobriety tests?" Your performance on tape will be evaluated by a group of your peers during a
jury trial at a later time. Therefore, you may want to decline performing these tests if they are
not going to be videotaped. Do you want to trust the officer's opinion as to how you
performed or allow a jury to decide for themselves? Further, if the officer is not going to video
tape you, you may want to elect not to perform the tests until you are on video tape because
distractions such as policestrobe lights, traffic, headlights, wind, dust, improper lighting, or
improper police evaluation most likely will not be included in the police report. Without visual
proof, do you think an officer would admit he made a
mistake?sup>}

^{The reality is that the officer most likely has already made up his mind to arrest you and
the request for field sobriety tests is simply made to get additional evidence against you.
Remember, regardless of how well you actually perform the field sobriety tests, it is the
officers' opinion on how you performed them that will be held against
you.
font>}
^{sup>^{Does a person have a choice to refuse to perform police field sobriety testing
?
Yes! Police officers have many tools that they use to help them determine whether a person
is intoxicated for DWI purposes. Many of these tools are the subject of great debate as to whether
or not they are accurate and/or reliable indicators of intoxication. The favorite roadside tools of
the officer are the portable breath test (PBT) device and standardized field sobriety tests (SFSTs).
There is no żimplied consentż statute that requires a person to submit to either a PBT or SFSTs so a
person may decline the invitation to take them. Many innocent drivers do refuse to submit to a PBT
because the specimen given is not preserved and the devices are generally not accepted in the
scientific community as be accurate or reliable. Further, many innocent drivers refuse to submit to
the SFSTs because they are not very coordinated and are very nervous and that any test results will
not accurately reflect their
sobriety.
sup>}
^font>^{WHAT IF THE OFFICER INSISTS THAT I TAKE THE FSTs? ...
DON'T REFUSE OR AGREE!
Here's how you turn it around on them: tell the officer you'll be happy to cooperate in any way
AFTER you have an opportunity to confer with an attorney. This response works great in the video
room at the police station - make it your
mantra!
font>}
^{Are Field Sobriety Tests very accurate?
If performed in a controlled
environment by a skilled officer who administers the tests in the proscribed standardized manner,
the tests can be a good indicator of intoxication. However, this is rarely
done.
font>}
^{The initial research conducted by the National Highway Traffic Safety Administration
concluded the Pen Test (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 deviation from the standardized manner will compromise the tests
validity.
font>}
^{Therefore, with the most experienced officer under ideal conditions, these
tests will inaccurately label 23% - 35% of the people tested as intoxicated. And remember, these
were the best DWI officers under strict surveillance, and that is the best they could
do!}
^{What can affect my performance on Field Sobriety Tests?
The National
Highway Traffic Safety Administration has admitted that SOBER persons can have difficulty with
these tests!One's ability to perform the Field Sobriety Tests can be affected by many
factors other than alcohol,
including;}
^font>^{· Nervousness

font>}
^font>^{· Scared

font>}
^font>^{· Fatigue

font>}
^font>^{·
Illness

font>}
^font>^{· Traffic

font>}
^font>^{· Wind

font>}
^font>^{· Dust in your eyes

font>}
^font>^{·
Head lights

font>}
^font>^{· The
police officers strobe lights

font>}
^font>^{· Weather conditions

font>}
^{

font>}^{· Back problems

font>}


font>· Leg and/or Knee injuries

font>
^{font>^{· Inner ear disorders

font>sup>}
^{font>sup>^{· Ankle
and/or Foot problems

font>sup>}
^{font>sup>^{· Road or sidewalk conditions

font>sup>}
^{font>sup>^{· Weight

font>sup>}
^{font>sup>^{· Age

font>sup>}
^{font>sup>^{· Footwear

font>sup>}
^{font>sup>^{· Lack of
coordination
font>sup>}}}}}}}} ^{Why was I
arrested when I passed my Field Sobriety Tests?
DWI is an opinion crime and if, in
the officer's opinion, you did not pass the field sobriety tests, he will arrest you. In
addition, the officer does not tell you what he is looking for, so you may have made a mistake
without even knowing
it.sup>}
^{Can I refuse to be video
taped?
The law does not mandate that a person has to be video taped, nor does it provide an
arrested person with the right to refuse video taping. I have had clients who refused to be video
taped, and they refused to peacefully go into the video taping room at the jail. If you do refuse to
be video taped, several things may occur. First, the officers may try and forcefully put you in
front of the camera because some officers' believe they have to video tape
you.
font>sup>}
^{Second, without being on video
tape, all a jury will be able to consider is the officers' opinion as to your mental and physical
faculties. It has been my experience that people arrested look better on the video tape then what
the officer describes in their offense
report.
font>sup>}
^{Third, the prosecutors argue
the only reason a person refused video taping is that they were intoxicated and just did not want a
jury to see them. However, if you are video taped, you do not have to answer any questions on the
tape, nor do you have to perform any field sobriety
tests.
font>sup>}
^{If you do not want to do
anything on video tape, simply tell the officer you want to speak to a lawyer before doing anything.
They most likely will not give you the opportunity to do this. But, by asking this, you are not
refusing to cooperate or do any tests; you just want the advice of a lawyer before making a
decision. Many jurors have told me in the past that if arrested, they too would want to talk to a
lawyer before deciding what to or not to do. This type of decision is also indicative of you having
the normal use of you mental
faculties.sup>}
^{The Officer never read
me my Miranda rights. What can we do about it?
Your Miranda rights only apply when an officer
tries to question you once you are under arrest or in custody (i.e. not free to leave). Once you
become the focus of the investigation, the officer must read you your Miranda rights prior to asking
you any incriminating questions or interrogating you. Texas Courts have ruled, however, that being
asked to perform field sobriety tests is non-testimonial; therefore, your response to being asked to
count backward or recite the alphabet is admissible. But remember, you are not required to do these
tests.
font>sup>}
^{If an officer does ask you
questions when you should have been read your Miranda rights, the only consequence is that those
questions and answers will be suppressed in court (which means that the jury will never hear them).
However, if a person testifies differently than what they told the officer at the scene, their prior
statements can then be admissible in court in an attempt to impeach their testimony. Therefore, an
officer can violate your rights and potentially still be able to use those statements against you.
This illustrates the need to hire a qualified DWI attorney. Remember, your freedom is on the
line.
font>sup>}
^{What is the State's
burden of proof to prove me guilty?
The State of Texas must prove your guilt "beyond a
reasonable doubt", which is the highest burden of proof in the justice system. It is not defined, so
you may wonder how I explain it to a
jury.
font>sup>}
^{Here it is in a
nutshell:
The lowest burden of proof is called probable cause. Have you ever received a
ticket that you disagreed with (as opposed to just not liking the fact you received the ticket)?
This level of proof is less then a 50-50 chance that you violated the law, but is all the officer
needs to write you a ticket, or to arrest
you.
font>sup>}
^{The next highest burden of
proof is called a preponderance of the evidence. This amount of proof occurs in civil
courtrooms where people are suing each other for money. A preponderance of the evidence is proof
amounting to you being 51%
correct.
font>}
^{The next highest burden of
proof is called clear and convincing evidence. This burden applies to child custody cases.
This amount of proof will cause a juror to have a "firm belief" in the matter to be proved. To let
the jury understand just how high this burden is, I find two women on the jury panel. I then will
ask "Ms. Jones, I want you to look over at Ms. Smith sitting next to you. She has children. How much
evidence do you think the government would have to have before they could take Ms. Smiths' children
away from her?" I ask several other jurors the same question. I then ask "Ms. Jones, how much
evidence would the government have to have to take your kids away from you?" I record their answers
and will use them in my final argument. Jurors have told me that the amount of evidence the
government would need to take children away would have ranged from "a whole lot," "tons," "beyond a
shadow of a doubt," to "I don't think the government could ever have enough to take my kids
away!"
font>sup>}
^{font>sup>^{Beyond a Reasonable Doubtis the highest
burden of proof. Although not defined, it is a much higher burden the clear and convincing evidence.
Why? Your freedom is on the line! A jury must have more then "tons" of evidence that you were
intoxicated before they could find you guilty. This is a very simple, yet extremely convincing
manner of making a jury understand just how much evidence is required before they can convict a
person, thus branding them a criminal for the rest of their life. Simply put, if a juror has a
single doubt, based on reason, as to a person being intoxicated, they must follow the law and
find them not
guilty.
font>}
^{Do I have the right to
an attorney before deciding whether to take a breath or blood test?
Texas law does not give
you the right to speak with an attorney prior to making the decision of whether or not to take the
field sobriety tests, the breath test or blood test. Texas law also does not prohibit an officer
from allowing you to call an attorney prior to making the decision on whether to take any field
sobriety tests or the breath or blood test. Additionally, the law does not require you to perform
any field sobriety tests or to take a breath or blood
test.
font>sup>}
^{It has been my experience that
individuals who request to speak with a lawyer prior to taking a breath or blood test are exercising
good, normal judgment. Before asking you to provide a breath or blood specimen, an officer will read
you a form called the DIC-24. This form states the consequences for refusing to provide a sample,
and providing a sample that is above .08. The form DOES NOT state what will happen if you
provide a sample that is below .08! Why? Because the police can still charge you DWI. How can they
do this? The Prosecutor will argue that even though you are below .08, you were not normal. The
police do not want you to speak with a
lawyer!
font>sup>}
^{When does a person
arrested for DWI have an absolute right to the assistance of an attorney ?
Under our
Federal and State Constitutions, persons have an absolute right to the assistance of an attorney at
their criminal trial. However, such is not the case in every pretrial stage which precedes the
trial. Indeed, in some pretrial stages, a person in custody has a right to assistance of an attorney
for one purpose but not for another purpose, i.e., for assistance in answering police interrogation
questions but not for deciding whether or not to take a breath or blood
test.
font>sup>}
^{Generally speaking, any person
who is in custody of a police officer wherein it would objectively be viewed he is under arrest,
even if the person has not been told so, is entitled to be informed of his rights to remain silent,
to have assistance of a lawyer prior to and during any interrogation, to have a free attorney if he
is financially unable to hire one, and, to terminate any such interrogation. However, deliberate or
negligent violations of these rights by police do not mean the person's criminal prosecution will be
dismissed. Rather, the remedy for such violations is merely to declare the use of the person's
incriminating statements illegal and to preclude them from being used against him by preventing
their admission into the prosecution's
evidence.

font>}
^{In regard to the above
exclusionary rule, two things need to be remembered. First, police do not have to inform arrested
persons of their rights if no interrogation questions will be asked. Second, if police do intend to
ask interrogation questions and intend to use the person's answers as evidence of guilt, they need
to not only make sure the arrested person understands the rights, but also, they need to prove the
person knowingly and intentionally gave the rights
up.sup>}
^{Will I have to have on Ignition
Interlock put in my car as a condition of bond?
For a first offense, conditions of bond are a
matter of discretion for the Court. Most Judges will not put an ignition interlock as a condition of
your bond if it is your 1st DWI. However, if you are charged with Intoxicated Assault, Manslaughter,
or a subsequent DWI (no matter how long ago your 1st DWI was), you are required by law to install an
ignition interlock device on your car. You also are not allowed to drive any vehicle that is not
equipped with an interlock device. If the device determines a certain level of alcohol on your
breath, it will temporarily disable your vehicle. When driving, you have to continuously blow into
the device about every 20 minutes. It becomes extremely difficult to entertain a client, conduct
real estate business, or drive the kids with their friends to school with this device in your
car.
font>sup>}
^{How long will a DWI
arrest stay on my record?
f you are convicted of the DWI, it will be on your record
forever.If you are found Not Guilty, you can have the arrest and DWI charge "expunged"
from your record, thus erasing it. No judge, prosecutor, police officer, friend or employer will
ever be able to find any evidence of the expunged
case.
font>sup>}
^{How will a DWI affect my
insurance?
If you are convicted, you can expect your insurance rates to increase 300-500%
for 3-5 years. Your insurance company also may drop you from coverage, thus forcing you to find
new
insurance.sup>}
^{Is it legal to drink
alcohol while you are driving?
No. It is a class "C" misdemeanor for a driver to have an open
container of alcohol in his/her personal possession. It is also illegal for any passenger to have an
open container of alcohol in their possession. However, if you are a passenger in a bus, taxi,
limousine, or living quarters of a mobile home, you can legally consume alcohol while being driven
around.
font>sup>}
^{If you go to a party and take
wine or bottles of liquor, and then leave with them after the seal has been broken, you potentially
can be ticketed for possessing an open container of alcohol. However, you may legally carry them in
your car under certain circumstances. First, if the seal has not been broken, you may carry them
anywhere in your car (even in your lap). Second, if the seal has been broken, the bottle(s) must be
placed in the trunk of your car, or if in a truck or SUV, behind the last row of seats. Therefore,
you could go to a party where you did not drink a drop, take a bottle with you home that has a
broken seal, put it in the passenger seat beside you and receive a ticket for having an open
container in your possession if stopped by the
police.
font>sup>}
^{font>sup>^{HERE'S THE BOTTOM LINE ...
DWI is a
crime of opinion - the police officer's. It is NOT against the law to drink and drive. It is against
the law to drive if you are intoxicated.
So be smart - if you drink & you must
drive - BE RESPONSIBLE.
No matter what - if you are arrested, call me as soon as you are released
from
jail
font>sup>}
^{font>sup>^{Breath & Blood testing: How
accurate are the chemical testingprocedures?
Texas law provides that DWI suspects can have
their alcohol concentration tested either by a urine, blood, or breath
test.
font>sup>}
^{Urine testing is the least
accurate and is rarely ever performed. In the scientific community, it is thought of as the least
reliable method of
testing.
font>}
^{Blood testing is thought of by
the majority of the scientific community to be the most reliable and accurate method of determining
a persons alcohol concentration. But this is the least desirable method for the police and is the
most inconvenient method for the police. Blood testing also allows for the arrested person to have
their own expert re-test the blood sample for
accuracy.

font>}
^{Breath testing is the most
convenient method for the police. However, the reliability and accuracy of breath testing is debated
in the scientific community. In addition, breath samples are not preserved for a subsequent test to
check the first tests reliability and accuracy. Therefore an innocent person will not be able to
prove the test was faulty with a subsequent test and could be unjustly convicted. The State of
Texas could save each breath sample for less than $2.00, but they choose not
to!
font>sup>}
^{In short, the police like to
use the cheapest, most convenient, non-preserved, scientifically debated chemical test when your
freedom is on the
line!

font>}
^{How is breath testing
done?
The State of Texas uses a machine called the Intoxilyzer 5000, which is commonly
referred to as the
"breathalyzer."
font>}
^{The Intoxilyzer 5000 costs
about $7,500 and can last as long as 10 years. It works on the theory of Infrared Spectrosphopy,
which is the absorption of infrared light. Different compounds will absorb different frequencies
(wavelengths) of light. The machine has a light bulb positioned at one end of a cylinder. There are
filter wheels in the cylinder and on the other side of the filter wheels is a light receiver.
Alcohol is supposed to absorb certain wavelengths of light and the machine is supposed to only
detect wavelengths of light absorbed by
alcohol.
font>}
^{The machine shines a light
through the cylinder and the filter wheels will be turning. The filter wheels are designed to filter
out potential contaminants. The breath sample enters the cylinder and passes through the filter
wheel. The amount of light received at the other end of the cylinder is then recorded. The
difference in the starting and ending amounts of light is the result. Interesting enough, the amount
of light that is absorbed is not alcohol
specific!

font>}
^{The amount of the breath sample
and any reading of alcohol are very minute. The machine must make a multiplication conversion to an
amount great enough for us to understand. The difference in light emitted and received is computed
through a computer program in the machine to come up a value that can be compared to a .08. The
conversion the machine makes on the differences in light would be the equivalent of taking the paper
towel tube and increasing its size to that of a 55 gallon drum! Any error would then be exaggerated
by that
amount.
font>sup>}
^{How reliable is the
breath test?
There is much debate on the intoxicator, a.k.a. the intoxiliar, alias the
intoxilyzer. Proponents of it state that the machine will only read light absorbed by alcohol, while
opponents state the machine often misreads other commonly found substances in the breath as alcohol,
thus giving an inaccurate high
reading.
font>}
^{Neither DPS (Department of
Public Safety) nor the manufacturer of the machine will allow anyone other than law enforcement to
test the machine for its accuracy and reliability. It is generally understood that for a procedure
to be accepted as accurate and reliable in science, it must be open and available for the scientific
community to test and retest the procedure. This is not permitted with the intoxilyzer. What are
they trying to
hide?

font>}
^{font>sup>^{The manufacturer does not warrant the
intoxilyzer for any particular purpose.The machine is not warranted for accurate and reliable
breath testing. Would you buy a car without a
warranty?
font>sup>}
^{The intoxilyzer is capable of
preserving breath samples, but DPS purposefully fails to preserve these samples. The cost of
preserving breath samples would be less than $2.00, and would allow a person the opportunity to have
their breath sample checked for accuracy. If found to be inaccurate, it could prevent an innocent
person from being unjustly convicted. Further, re-testing of the breath sample could be done by a
process know as gas chromatography, which is considered to be a more accurate and reliable method of
testing breath samples for alcohol than the intoxilyzer. Why do they not preserve samples when
your Freedom is on the
line?

font>}
^{The intoxilyzer also assumes
that everyone tested will have a blood/breath ration of 2100/1 (i.e. 2100 parts of alcohol in the
blood for every 1 part of alcohol in the breath). If a person has a higher blood/breath ratio (i.e.
2400/1) the test will not be adversely affected by this assumption. However a person with a lower
blood/breath ratio will be adversely affected because the intoxilyzer will erroneously read too
high, thus a person who should test at .05 or .06 could actually test well above a .10 (i.e. the
intoxicator or the intoxiliar). Additionally, scientists have documented people with blood/breath
ratios as low as 1100/1. Do you want to take the risk the intoxilyzer may falsely hurt you which
could result in a conviction that will be on your record forever and could cost you your
freedom?
font>sup>}
^{A person with a fever will have
a higher breath test reading than an identical person without a fever. Therefore, the temperature of
your body can affect what the intoxilyzer reads, and your body temperature has nothing to do with
the amount of alcohol you may have or have not
consumed.

font>}
^{The experts continue to testify
that the intoxilyzer was "functioning properly and capable of giving accurate results." This
sounds good, but what do they mean by capable? (If I buy a ticket, I too am capable of
winning the
lottery...)
font>sup>}
^{The bottom line is that the
intoxicator/intoxilair/intoxilyzer is fast and cheap. Further, if a person passes a breath test,
some police agencies will release the individual arrested and not file any charges. It is much
easier to do this than file a DWI, request a blood test, and later have to explain why they arrested
a person whose blood test came back under the legal
limit.
font>sup>}
^{This is not an all-inclusive
list, but it is obvious that there are many problems with the
machine.
font>}
^{Should I agree to take a
chemical test? What happens if I don't?
If you do not want to take the test, or are unsure
whether to take it or not, ask the officer for permission to call a lawyer before you make your
decision. They most likely will not give you the opportunity. I have only had 1 police officer who
has ever honored this
request.
font>}
^{Being that the officer will not
give you this opportunity, the debate will be on. You have not refused to take the test. You need to
be polite and courteous and just stand firm with your request to talk to a lawyer before deciding
whether to, or not to, take a test. The officer will continue to tell you that you are not entitled
to a lawyer at this point in time, and that the decision is yours and yours alone. Just keep
requesting to speak to a lawyer. The officer will eventually tell you that if you do not agree to
take the test, he will consider your actions to constitute a refusal. That is his job, but you will
have set the stage for a jury trial. First of all, the prosecutor cannot argue that you refused to
take the test because you knew you would fail. Secondly, the majority of jurors I have spoken with
have sympathized with my clients who have made this request. Jurors have told me that if they were
arrested, they would want the opportunity to talk with a lawyer
too.
font>sup>}
^{The reality is that even if you
pass the chemical test, you could still be charged with DWI. You were arrested because the officer
formed the opinion that you had lost the normal use of your physical faculties and/or mental
faculties when he stopped you. At this point, the officer did not know what, if any, the alcohol
level was in your body. Even if you pass the chemical test, the officer can still charge you with
DWI. However, if you pass the test, you will not lose your driver's
license.
font>}
^{If you fail the test, you will
be charged with DWI. Depending upon the outcome of the ALR (Administrative License Revocation)
hearing, you may or may not lose your driver's license. If you fail, the officer shall immediately
take your driver's license from you and issue you a temporary driving permit. It is important to
request an ALR
hearing.
font>sup>}
^{If you refuse to take the
chemical test, you will be charged with DWI. The officer already formed the opinion that you
had lost the normal use of your physical faculties and/or mental faculties when he stopped you. If
you refuse, the officer shall immediately take your driver's license from you and issue you a
temporary driving permit. Again, depending upon the outcome of the ALR (Administrative License
Revocation) hearing, you may or may not lose your driver's
license.
font>}
^{Finally, most police
officers I know would not take a breath
test.

font>}
^{font>sup>^{Can I choose to have a blood test rather
then a breath test?
Texas law gives the officer the choice of which test to offer. If the
officer asks you to take a breath test and you say you will only take a blood test and they do not
give you the opportunity to take a blood test, they will count your blood test request as a breath
test refusal. The officer will then confiscate your drivers license, and your drivers license will
be subject to being suspended. However, if this happens, the officer does not look fair if they do
not give you a blood test. Simply put, a blood test requires more work for the officer. (Why would
the officer work harder if they do not have
to?)
font>sup>}
^{However, Section 724.019 of
the Transportation Code states:
(a) A person who submits to the taking of a specimen of
breath, blood, urine, or another bodily substance at the request or order of a peace officer may, on
request and within a reasonable time not to exceed two hours after the arrest, have a physician,
qualified technician, chemist, or registered professional nurse selected by the person take for
analysis an additional specimen of the person's blood.
(b) The person shall be allowed a
reasonable opportunity to contact a person specified by Subsection (a).
(c) A peace officer or
law enforcement agency is not required to transport for testing a person who requests that a blood
specimen be taken under this section.
(d) The failure or inability to obtain an additional
specimen or analysis under this section does not preclude the admission of evidence relating to the
analysis of the specimen taken at the request or order of the peace officer.
(e) A peace officer,
another person acting for or on behalf of the state, or a law enforcement agency is not liable for
damages arising from a person's request to have a blood specimen
taken.
font>sup>}
^{Do you find it interesting that the
State of Texas has so much "confidence" in the breath machine that they give you the right to an
independent blood test?
Do you find it interesting that the law does not require the officer
to inform you of this right?

font>sup>^{These shortcomings are not meant to be
exhaustive. But this illustrates the need to hire a qualified attorney who is knowledgeable in all
aspects of DWI
law.
font>sup>}
^{May a police officer
force me to take a breath or blood test?
The police can never compel a breath test. An
officer can compel a blood test only if there has been an accident where a death has resulted or is
likely to
occur.
font>sup>}
^{Does a person have the
option not to take a breath or blood test?
Yes. Even though Texas has the implied consent
law, a person arrested for DWI may refuse the test
requested.sup>}
^{This refusal can result in the
following
penalties:sup>}
^{font>sup>^{· 1.a 180-day suspension of your driving privilege if this is
your first DWI arrest,

font>sup>}
^{font>sup>^{· 2.a 2-year suspension of
your driving privileges for a subsequent arrest within 10 years if you refused to submit to a test
in your first arrest, and

font>sup>}
^{font>sup>^{· 3.the
prosecutor can admit your refusal into evidence in your DWI trial. The prosecutor will then argue
that you refused the test because you knew you were intoxicated and that you would fail the
test.
font>sup>}}}}
^{If you submit to a test and fail, your driving
privileges can be suspended and the following penalties may
occur:
font>sup>}
^{font>sup>^{· 1.a 90-day suspension of your driving privilege if your driving record shows
no prior alcohol related arrests,

font>sup>}
^{font>sup>^{· 2.a 1-year suspension of your driving privilege if you have a
prior conviction or suspension with the preceding 10 years, and

font>sup>}
^{

font>sup>^{·
3.the prosecutor can admit the results of the
test into evidence at your DWI
trial.
font>
sup>}}}} ^{If you do not want to take a test, it is better to tell the officer that you
want to talk to a lawyer before making the decision, as opposed to

just refusing. Again, they most likely will not give you the opportunity to talk to a lawyer, and no
test will be
given.
font>sup>}


font>sup>ALR
hearing: An ALR (Administrative License Revocation hearing) is a win-win situation - for you and
for me as your lawyer - but it is TIME SENSITIVE!!! - so read
on.sup>
^{

font>}WHAT IS
IT?
An ALR hearing is a civil action separate from the criminal case where the
Department of Public Safety attempts to suspend your license for your refusal or failure of the
offered test. The suspension time periods vary depending on several factors. Refer to your "Notice
of Suspension" for the one that applies to
you.
font>sup>


font>}WAS I TOLD
ABOUT THIS?
When you were arrested for DWI, the officer should have asked you whether
you wanted to submit to providing a specimen of your breath or blood. You should have also been
advised of your right to take or refuse the offered test and the consequences of each. The Officer
should have given you a piece of paper called a
DIC-24.
font>sup>


font>}SHOULD I
REQUEST THIS HEARING? ABSOLUTELY!
WHY IS THE ALR SO IMPORTANT?
It gives us both
a mini-preview of how your case will play out at trial by allowing me to gain invaluable discovery
(like our own copy of the police report) and depose the police officer (the benefits of this alone
are too great to go into
here).
font>sup>

^{The results of this hearing along with our review of your DWI videotape will go along way
towards helping you decide whether to plea or try your
case.
font>sup>}

^{As an added bonus - if the attorney for DPS cannot prove their case against you, there will
be NO license
suspension.
font>
sup>}
^{
font>}HOW DO I
REQUEST THIS HEARING?
If you come in and hire me immediately - that is, within the
fifteen (15) day time period - I will do all the work for
you.
font>sup>


font>}WHAT IF I
DON'T REQUEST IT OR I MISS THE DEADLINE?
If you fail to request this hearing, your
license will be suspended automatically upon the fortieth (40) day from the date you received the
"Notice of
Suspension".
font>
sup>

font> 
font>}}}}

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