Amdur & Bolton:
NEW LAW UPS THE ANTE
New penalties are
becoming more severe. As of September 1, 2005, anyone whose blood or
breath test shows a alcohol concentration of .15 percent or greater
will have an ignition interlock installed in their vehicle for up to
two years at an additional charge of $70.00 a month.
The criminal offense of DWI occurs when a person operates a motor vehicle in a public place while intoxicated.
What does “Intoxicated” mean?
”Intoxicated”
is defined by law in two ways. First, a person is intoxicated when he
does not have the normal use of his mental or physical faculties
through the use of alcohol, a drug, dangerous drug, controlled
substance, a combination of those, or any other substance.
Alternatively, a person is intoxicated when he has an alcohol
concentration of 0.08 or more in his body. It is important to note that
a breath test failure (0.08 or more) some time after having been
arrested does not necessarily mean that the person has an alcohol
concentration of 0.08 or more at the time of driving.
What signs do people exhibit when they are driving while intoxicated?
The
National Highway Traffic Safety Administration is the government agency
credited with developing DWI investigation. Its research indicates that
the following signs will be observed when a person is driving while
intoxicated:
Turning with a wide radius
Straddling center of lane marker
“Appearing
to be drunk” (such as eye fixation, tightly gripping the steering
wheel, slouching in the seat, gesturing erratically or obscenely, face
close to the windshield, drinking in car)
Almost striking another object or vehicle
Weaving
Driving on other than designated roadway
Swerving
Speed slower than 10 m.p.h. below speed limit
Stopping in lane for no apparent reason
Following too closely
Drifting
Tires on center or lane marker
Breaking erratically
Driving into opposing or oncoming traffic
Slow response to traffic signals
Stopping inappropriately
Turning abruptly or illegally
Accelerating or decelerating rapidly
Headlights off at night
Speeding is NOT a recognized sign of intoxication.
What should I say if I am stopped by a police officer and I have been drinking?
Be
respectful and polite. Do not apologize for anything you have done or
admit guilt of any type. You will most likely be nervous, so do not
attempt to talk your way out of the situation. If you tell the officer
that you have had 1 or 2 drinks, that is not incriminating. It will
explain why there is an odor of alcohol on you or in your car. If you
tell the officer how many you have had, you should also indicate over
what period of time you consumed the drinks.
The number of drinks consumed is not as important as the number of drinks consumed over a certain period of time.
If the officer asks me to perform field sobriety tests, do I have to do them?
No.
Texas law does not require you to perform any roadside tests. The
officer, interestingly enough, has no duty to advise you of this right.
If you refuse to perform any field sobriety tests, the officer will
most likely arrest you for DWI. Keep in mind, field sobriety tests are
the basis for an officer’s decision to arrest you. Even if you get
arrested for refusing to perform field sobriety tests, the officer has
very little evidence of actual intoxication , if any at all.
This lack of evidence greatly increases your chances of having your DWI
charge dismissed or reduced to a lesser offense.
Are field sobriety tests accurate?
If
the tests are performed in a controlled environment by a highly skilled
police officer, the tests can be a good indicator of intoxication. The
reality of field sobriety testing is that not all officers correctly
administer the tests and often do so in less than ideal environments.
The
National Highway Traffic Safety Administration developed 3 tests: the
Horizontal Gaze Nystagmus Test (the “eye test”), the Walk and Turn
Test, and the One-Leg Stand Test. Original research shows that the eye
test is up to 77% accurate, the Walk and Turn test is up to 68%
accurate, and the One-Leg Stand test is up to 65% accurate so long as
the tests are administered in the prescribed, standardizedmanner. Any
deviation from the standardized manner compromises the tests’ validity.
Based on this information, with the most experienced officer, under the
most ideal testing environment, the 3 field sobriety tests can
inaccurately label up to 35% of people tested as being intoxicated. The
National Highway Traffic Safety Administration has admitted that not
everyone can perform the field sobriety tests successfully, even when
sober. Moreover, many factors may affect one’s performance on field
sobriety tests.
What can affect my performance on field sobriety tests?
The
National Highway Traffic Safety Administration has claimed that even
sober persons may have difficulty performing field sobriety tests! A
person’s ability to perform field sobriety tests can be affected by
factors other than alcohol, including:
Nervousness
Fatigue
Being scared
Traffic
Illness
Wind
Headlights
Red and blue police strobe lights
Weather
Back, leg, knee, ankle, or foot problems
Inner ear disorders
Road or sidewalk conditions
Weight
Age
Footwear
Lack of coordination
What is alcohol concentration?
Alcohol concentration is defined as:
The
amounts of alcohol in the above-defined concentrations are not equal,
which may result in a person being guilty according to one definition,
but not guilty according to another. This fact alone lets you
understand the importance of hiring an experienced DWI attorney.
Is it 0.08 when I drive, or at the time I am tested that matters?
Texas
law provides that DWI occurs when a person drives and at that time has
an alcohol concentration of 0.08 or more. It is not unlawful to have a
0.08 alcohol concentration after or before driving so long as that
person has the normal use of his mental and physical faculties. The
time at which the test is conducted may be relevant in determining if a
person had a 0.08 or more at the time of driving. Generally, unless
there is information about how many alcoholic beverages were consumed,
the type of alcoholic beverages consumed, over what time period they
were consumed, when the first and last alcoholic beverages were
consumed, and whether that person was drinking on an empty or full
stomach, it is scientifically impossible to determine if the person was
under, at, or above 0.08 when driving. If it cannot be determined what
the person’s alcohol concentration would have been at the time of
driving, the breath or blood test score is not relevant in determining
intoxication, and can generally be disregarded.
How reliable are the methods used to determine alcohol concentration?
Texas law allows alcohol concentration analysis to be determined through a breath or blood test.
Breath
testing is the most convenient way of determining alcohol
concentration. There is considerable debate in the scientific community
regarding the reliability and accuracy of breath testing. Unlike blood
testing, breath samples are not preserved for the opportunity for
further analysis of the initial test results.
Blood
testing, on the other hand, is regarded as a more accurate method of
determining alcohol concentration. From a law enforcement perspective,
however, blood testing is the least convenient way of determining
alcohol concentration. It does provide an opportunity for the same
specimen to be re-analyzed.
How is breath testing conducted?
The
Texas Department of Public Safety has determined that alcohol
concentration testing will be performed by the “Intoxilyzer 5000”
machine.
The Intoxilyzer is presumed to work on
the basis of infrared light absorption of alcohol detected in a
person’s breath. According to both CMI, the Intoxilyzer’s manufacturer,
and the Texas Department of Public Safety, the machine determines
alcohol concentration by subtracting the amount of infrared light
absorbed from the person’s breath sample and compares it to the amount
of light originally introduced into the breath sample. The difference
between the two amounts is the test result, measured in the number of
grams of alcohol per 210 liters of breath.
What is the debate over the Intoxilyzer’s reliability?
Law
enforcement claims that the Intoxilyzer will only show a test result
from deep lung air (alveolar absorbed breath) alcohol and nothing more.
Opponents say that the Intoxilyzer often misreads other common
substances in human breath and falsely attributes them to alcohol.
There are several facts to keep in mind.
First, CMI, manufacturer of the Intoxilyzer, does not warrant the machine as fit for any
particular purpose. This is an admission by the manufacturer that its
own machine is not even warranted to be accurate or reliable for breath
alcohol testing.
Second, neither the manufacturer
nor the Department of Public Safety allow anyone other than law
enforcement personnel to test the machine’s reliability or accuracy. It
is a commonly accepted principle that for a procedure to be accepted as
scientifically reliable and accurate, then it must be available for the
scientific community to test and re-test the procedure.
Third,
the Intoxilyzer is capable of preserving breath samples with a
“ToxiTrap;” however, the Department of Public Safety deliberately fails
to require breath samples to be saved, thus allowing an opportunity for
re-testing to determine the accuracy of the test results. If found to
be inaccurate, the defendant could then challenge the validity of the
Prosecutor’s evidence. It is a generally accepted scientific fact that
re-testing preserved specimens, through a process called gas
chromatography, is a more accurate and reliable method of determining
breath alcohol concentration than that done by the Intoxilyzer.
Fourth,
the Intoxilyzer’s design is based on the presumption that every person
tested is an exact average person. The Intoxilyzer assumes a blood to
breath ratio of 2100:1 for every person tested. Persons who have a
higher ratio will be not be prejudiced by this automatic assumption.
Persons who have a lower blood to breath ratio will be negatively
prejudiced by the Intoxilyzer because the machine will falsely read too
high of an alcohol concentration, thus making a person test out at an
artificially higher level. Muscle development, internal temperature,
weight, age, size, lung capacity, and alcohol tolerance all vary from
one person to the next. All of these can affect how a person tests.
Finally,
since the machine is built by humans, serviced by humans and operated
by humans, it is subject to human error just like any other machine.
These facts indicate that even if the Intoxilyzer machine is properly
working and is properly operated, an innocent person can be labeled
guilty.
Can I choose to have ablood test rather than a breath test?
Texas
law gives the officer the choice of offering either a breath test or
blood test. If the officer requests a breath specimen and you state
that you will only take a blood test, and the officer does not extend
to you the opportunity to take a blood test, then your request to take
a blood test will amount to a breath test refusal, and you will be
arrested accordingly.
However, Section 724.019 of
the Texas Transportation Code provides that a person who submits to the
taking of a breath or blood test at the request of the arresting
officer may, upon request and within a reasonable time (not exceeding 2
hours from the arrest), have a physician, chemist, or nurse selected by
that person, take an additional independent specimen of that person’s
blood for analysis. This law further provides that a person should be
given a reasonable opportunity to contact a physician, chemist, or
nurse.
There are 2 interesting points to keep in
mind. First, the arresting officer is under no obligation to inform a
person about their right to an independent analysis. An arrested person
has no idea, generally, about all of their rights under law when
deciding to give a specimen of breath or blood. Moreover, how confident
can the State of Texas be in the Intoxilyzer 5000’s ability to
accurately measure a person’s alcohol concentration if a person has a
right to an independent blood test?
What are the penalties for DWI?
DWI
can either be a misdemeanor offense or a felony offense, depending on
whether the person has prior convictions within a certain time period,
as well as other factors exist with respect to driving.
Generally, the penalties for DWI are as follows:
First offense
– conviction for first offense DWI includes a fine not to exceed
$2000.00 and confinement in County Jail for a period not to exceed 180
days. A person may be placed on probation for up to two years.
Additionally, the court may impose a driver license suspension for 90
to 365 days.
Second offense
– conviction for second offense DWI includes a fine not to exceed
$4000.00 and confinement in County Jail for a period not to exceed 365
days. A person may be placed on probation for up to two years.
Additionally, the court may impose a driver license suspension for 180
to 365 days.
Third offense (or more)
– conviction for a felony DWI includes a fine not to exceed $10,000.00
and confinement in the penitentiary for a period ranging from 2 to 10
years. A person may be placed on probation for a period ranging from 2
to 10 years. Additionally, the court may impose a driver license
suspension for 180 days to 2 years (effective September 1, 2005, the
probation period for a felony DWI is from 2 to 5 years).
DWI with Child Passenger
– case involves any DWI, with a finding that a child under the age of
15 was present in the vehicle as a passenger at the time of the
offense. Conviction for DWI with Child Passenger includes a fine not to
exceed $10,000 and confinement in a state jail facility from 180 days
to 2 years
(effective September 1, 2005, the probation period for a DWI with Child Passenger is from 2 to 5 years).
Intoxication Assault
– case involves an accident where serious bodily injury occurs because
of intoxication. Conviction for intoxication assault includes a fine
not to exceed $10,000 and confinement in the penitentiary from 2 to 10
years.
Intoxication Manslaughter
– case involves an accident where death occurs because of intoxication.
Conviction for intoxication manslaughter includes a fine not to exceed
$10,000 and confinement in the penitentiary from 2 to 20 years.
There
is no guarantee that probation will be offered or received for
conviction of intoxication assault or intoxication manslaughter,
although you may be eligible. If you are convicted of intoxication
assault and receive probation, you must serve a minimum of 30 days in
County Jail as a condition of probation. If you are convicted of
intoxication manslaughter, you must serve a minimum of 120 days in
County Jail as a condition of probation. If you are convicted of either
intoxication assault or intoxication manslaughter, and the court or
jury determines that you committed the offense with a deadly weapon
(car), you may then be ineligible to receive probation.
Misdemeanor
DWI conditions of probation include monthly reporting to a probation
officer, payment of all fines and costs of court, pay a reporting fee
to the probation department, community service hours, attend DWI
classes, commit no other offenses, and complete any other conditions
imposed by the court.
Are there any conditions of bond for DWI?
Bond conditions are generally within the court’s judgment and discretion for a first offense.
For
a subsequent DWI offense or for intoxication assault or intoxication
manslaughter, you must have an interlock ignition device installed in
your car. You are not allowed to operate a motor vehicle unless it has
an interlock device. This device is designed to determine the presence
of alcohol in your breath. The car will not start if the interlock
device detects a certain level of alcohol. A judge may also, depending
on the facts, require interlock device installation even on the first
DWI offense.
Is a person required to take a breath or blood test upon request by the officer?
Texas
law states that all persons who drive on Texas roads have impliedly
agreed, after being arrested for DWI, to take a breath or blood test
upon request by the police officer who has reasonable belief that the
person was operating a motor vehicle in a public place while
intoxicated. A “public place” is any place where a substantial group of
the public access. Generally, a person is required to take the breath
or blood test.
May a person refuse to take the breath or blood test?
Yes.
Texas law states that while a person is required to submit to a breath
or blood test, he may refuse to take the requested test. A refusal to
submit to the testing may result in:
Suspension
of driving privileges for not less than 180 days for your first DWI
arrest or for 2 years for a subsequent DWI arrest within 10 years (if
you refused to submit to testing); and ,
Admissibility of the person’s refusal at trial.
The purpose of this evidence is for the prosecutor to argue that the person refused the tests because he was intoxicated.
If
a person does submit to the taking of a breath or blood test, and an
analysis of that specimen provided shows an alcohol concentration at or
above 0.08, results may include suspension of driving privileges for
not less than 90 days for your first DWI arrest or for 1 year for a
subsequent DWI arrest within 10 years or driver license suspension
within 10 years.
May a person refuse to be videotaped?
No.
Even though a person cannot refuse to be videotaped, he has the right
to refuse to perform field sobriety tests and to refuse to answer
questions without penalty.
Many times, the videotape may be of great assistance in preparing a defense for the case.
May I consult with a lawyer before or during questioning?
You
may legally refuse toanswer questions before, during, or after you have
been arrested. Once a person has been arrested, he should have access
to a phone to arrange bail and consult with a lawyer.
Currently,
there is no law or court ruling that requires police to provide you
with an opportunity to seek legal advice before taking a breath or
blood test at jail. Once arrested, and before police begin an
investigative interrogation, you will have your “rights” read to you.
If you clearly invoke your right to counsel, all police interrogation must stop.
How can I prevent my driver license from being suspended?
When
you were arrested for DWI, the police officer most likely seized your
driver license and provided you with a temporary driving permit. This
permit lets you drive legally for 40 days from date of issuance. Once
your license has been seized, you may petition the Department of Public
Safety for a hearing on your driver license suspension. These hearings
are called Administrative License Revocations (ALR) that take place at
an Administrative Law Office of the State of Texas. You have 15 days
from the day you receive written notice of your driver license
suspension to request an ALR hearing. The temporary driving permit
issued to you serves as notice of your suspension. The ALR request must
be made by fax or in writing, addressed to the Department of Public
Safety in Austin. If you fail to request an ALR hearing within 15 days
of receiving notice of your suspension, you waive your right to a
hearing and your license will be suspended on the 40th day after
receiving notice of the suspension.
It is very
important to request the ALR hearing within 15 days of your arrest.
When you do request an ALR hearing, your driver license suspension is
delayed until the hearing date. It is important to note that your
temporary driving permit is good for 40 days only. If your ALR is
scheduled outside of the 40 day provisional period, you may ask the
Department of Public Safety to extend your temporary permit until the
ALR hearing is conducted.
If you lose the ALR
hearing and the Department of Public Safety is authorized to suspend
your driver license, you may appeal that decision. To appeal, you must
file a request for appeal within 30 days after the ALR judgment becomes
final. While your appeal is waiting to be heard, your driver license
suspension is delayed again, but only for 90 days. Your license will be
suspended on the 91st day, even if your appeal has not been ruled on;
however, if you are successful on appeal, the suspension is lifted
altogether. If you have had a previous alcohol or drug-related
suspension in the preceding 10-year period, your license will be
suspended on the 40th day during the period your appeal is pending.
Your suspension is lifted if you are successful on appeal.
If
you are found “not guilty” by the court or by a jury, you may have your
license reinstated if you lose your license to a suspension.
Why have an ALR hearing?
It
cannot be emphasized enough how important an ALR hearing is to the
defense of your DWI case. There are several reasons to request an ALR
hearing. First, it gives you the best opportunity to protect your
driving privileges. Secondly, you force the State of Texas to prove
that the officer who stopped you and arrested you had probable cause to
do so. If the State cannot prove these issues, it may be prevented from
re-litigating these same issues in your criminal trial for DWI,
possibly resulting in a dismissal of the criminal charges.
During
the ALR, the officer will be called as a witness by the Department of
Public Safety and gives testimony, under oath, as to the details of the
traffic stop, his observations of you and his DWI investigation. This
is a wonderful opportunity for your lawyer to gain valuable discovery
information about your pending criminal case. Many times, officers are
caught during cross examination making mistakes about facts in your
case and about proper DWI investigation techniques. This information
allows your lawyer to better defend your case, possibly resulting in a
dismissal of the criminal charges against you.
At
the ALR hearing, the Department of Public Safety will have one of two
theories to request a driver license suspension: you refused a breath
or blood test, or you took a test and failed it.
For a suspension based on a refusal, the Department of Public Safety must prove that:
Reasonable suspension existed to stop you or that there was probable cause to arrest you; \
Possible cause existed to believe you operated a motor vehicle in a public place while intoxicated;
You were placed under arrest and offered an opportunity to provide a breath or blood specimen; and,
You refused to provide a specimen on request of the officer.
For a suspension based on a breath or blood test failure, the Department of Public Safety must prove that:
Reasonable suspicion existed to stop you or that there was probable cause to arrest you; and,
You had an alcohol concentration of 0.08 or more at the time of driving and at the time of testing.
A
skilled attorney who is knowledgeable about police procedures and DWI
investigation techniques is necessary to protect your rights.
If my license is suspended for conviction of DWI, what are the penalties for driving with a suspended license?
This
criminal offense, known as driving while license suspended (DWLS), is a
misdemeanor and includes a fine not to exceed $500.00 and confinement
in County Jail for a period not to exceed 180 days. If there is a
previous DWLS offense, it may be enhanced to a Class A misdemeanor,
wherein the penalties will increase.
In many
cases, if your driver license has been suspended, you may obtain an
occupational driver license upon demonstrating “good cause.” “Good
cause” includes driving to and from work and essential household
duties. This license permits you to drive during a 12-hour period, per
day. The court may impose restrictions or conditions on the
occupational license. Your driving record will, in large part,
determine if and when you may have an occupational driver license
granted by the court and issued by the Department of Public Safety. The
occupational license is valid until the suspension is lifted by the
Department of Public Safety, or until a date set by the court.
How long will a DWI stay on my record and will it affect my insurance rates?
A
final conviction for DWI will always remain on your record. It will
never go away. If you are found not guilty by the court or by a jury,
you may be eligible to have the arrest and prosecution records
destroyed through an expunction.
Regarding
insurance, a DWI conviction will generally raise your rates from 300%
to 500% for 5 or more years. Your insurance provider may cancel your
coverage, forcing you to find a new insurance provider.
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