>> DWI and DUI Questions
DWI and DUI Questions
If I'm arrested for a DWI or DUI, won't the State suspend my license if I refuse to take a breath test?
Not exactly. What an officer will
do if you refuse a breath test is take your driver's license and provide you with a temporary license that expires in forty days. He can do this because Texas has what is called an "implied consent" law. This means that, when you apply for a driver's license from the State, you automatically agree to provide a specimen of breath or blood if you are arrested for a DWI
. If you refuse to provide the specimen, the State has the right to revoke your license at that time. However, the law also allows you to request a hearing where you can attempt to prevent the license suspension
. This hearing is called an Administrative License Revocation (ALR) Hearing. You have only fifteen day from the day you are arrested to request this hearing. If you do not request an ALR hearing within fifteen days, your license will automatically be suspended. If you do request the hearing, on the other hand, your driving privileges remain in place until the hearing. If you are successful at this hearing, your license never becomes suspended.
Can I get a provisional driver's license to get to work after my license suspension?
Yes. In most cases you can get an occupational driver's license
(ODL), which allows you to drive up to twelve hours a day, seven days a week. Although it is called an "occupational" license, it is not just for getting to work. This license also allows you to drive your kids to school, go to the grocery store, drive to church, and tend to other necessary personal business.
If I can get an ODL, why do I need an ALR hearing?
First, not everyone will be eligible for an ODL. But more importantly, an ALR hearing provides the opportunity to cross examine your arresting officer before a prosecutor has a chance to prepare him. The officer will review his offense report before he testifies but will rarely watch the video or spend any time preparing for the hearing. This means there will be a lot of facts about your case that he does not remember, and he will likely testify as to what he thinks probably happened. This guesswork leads to inconsistencies with the video, with other evidence, and with future testimony. I have won DWI cases based on the testimony I have obtained from ALR hearings. They are the first, and often the most valuable, tool in your DWI defense.
How am I supposed to get anything done without a photo ID?
You can get a State-issued ID from DPS while your license is under suspension. However, before your license suspension takes effect, you have every right to go get a replacement license and I always encourage my clients to do so. Just because the officer took your physical license from you does not mean that your license status is invalid. In fact, if you win your ALR hearing, your license will never become suspended. If you lose the hearing, however, or fail to request one, the fact that you have a physical license does not mean that the suspension does not go into effect. Possession of an actual license and the status of your license are two separate and unrelated things. If you are not sure if your license is valid, call DPS to find out. If you get stopped while driving with a suspended license, the police will arrest you for committing a new offense and the judge will likely hold your bond insufficient on your DWI.
What is the difference between a DUI and a DWI?
Only a minor (person under 21) can be charged with a DUI. However, a person under 21 can also be charged with a DWI. This decision is largely left up to the arresting officer. A DUI is a class C misdemeanor, which means you can be placed on a deferred probation so that the case is dismissed at the end of the deferred period (as opposed to a DWI, which by statute requires a conviction). This also means that the DUI can later be expunged from your criminal record. A minor is guilty of DUI if he has "any detectable amount" of alcohol in his system. The odor of alcohol on his breath or admitting to any drinks at all is sufficient evidence to sustain a DUI case. The State is not required to prove that a minor had a certain blood-alcohol level or even to conduct any field sobriety testing to determine the level of his intoxication.
Can I get deferred probation for my DWI?
No. Most criminal offenses in the State of Texas allow for a deferred probation, which means you never have a conviction for that offense as long as you successfully complete your probation. Unfortunately, deferred is not an option on a DWI
case. This is the main reason so many DWI
cases go to trial. Defendants have little incentive to plea to drinking and driving
when their plea will result in a conviction
. For most defendants, the worst they are facing if they lose a DWI
trial is a conviction and probation—which is usually exactly what the State is offering before trial. Obviously whether or not to go to trial is a case-specific and very personal decision, but in the vast majority of DWI
s, you have nothing to lose and everything to gain by setting your case for trial.
Do I have any chance of winning my DWI case if I took the breath test?
Absolutely. I routinely fight and win test cases
. First, just because you took a breath test does not mean that score will be admissible at trial. I will review your video, the offense report, and the ALR transcript if you had an ALR hearing to determine whether the proper breath-testing protocols were followed. If they were not, I will demand a hearing to convince the judge that the score should not be admissible at trial. Even if your score is admissible, however, there are still several approaches I have found successful for convincing juries that my client is Not Guilty. For example, I always request the test records for the machine used to take your test, and I scrutinize these records for irregularities that suggest the machine is having problems. I also request the maintenance logs for your machine. I have compiled these test records and maintenance logs over years and always go to trial knowing much more about the history of breakdowns and repairs of your machine than the prosecutor does. I have seen many jurors disregard the breath-test score and find my client Not Guilty.
How can the State prove I was intoxicated if I didn't take the breath test?
The law allows the State three ways to prove intoxication in a drinking and driving
case. The first is a blood alcohol content of over .08; the second is the loss of normal use of your mental faculties; and the third is the loss of normal use of your physical faculties. These second and third ways of proving intoxication are the reason officers conduct the field sobriety tests
. Let me assure you that few people, even those who have had no alcoholic drinks, can pass all of these tests. Your performance on these tests will be used as evidence of intoxication against you. Even if you do not take these tests, the officers will point to your general appearance on the video and say things such as your balance was unsteady, your speech was slurred, your eyes were bloodshot, and your breath smelled of alcohol. The way to overcome these obstacles is with a talented trial attorney
who knows how to tell the story of your case in a way that gives the jurors reasonable doubt about whether you intoxicated.
Why does everyone tell me to say "no" if asked to take a breath test?
Although you certainly can, and should, fight your DWI
even if you take a breath test
, taking a breath test does make your case more difficult to win. Many people take the test because they trust the machine to prove that they are not intoxicated. This is a tremendous mistake. The Intoxilyzer machines used in Texas are riddled with problems and should not be trusted to give accurate results.
What about the breath test on the side of the road?
Some officers carry a PBT (preliminary breath-test device) and ask you to take this test at the location of your traffic stop. The results of this test are not admissible in court, but the officer can testify whether it tested positive for alcohol. On the one hand, if you pass the PBT, the officer may let you go; on the other hand, if you take the PBT but later refuse the breath test at the jail, the prosecutor will know that PBT result and it will affect how he handles your case even though the score is not admissible in court. Again, it is safer to err on the side of caution and refuse the PBT.
Can a person say "no" to the field sobriety tests?
Yes. You do have the right to refuse the field sobriety tests in addition to the breath test. If you refuse these tests, the officer will almost certainly take you to jail in an abundance of caution if nothing else. But ultimately, the State will have virtually no evidence against you at your DWI or DUI trial. Therefore, respectfully exercising your right not to do any of the officer's tests is always the smart thing to do.
Why did the judge order a breathalyzer put on my car—and can you get him to take it off?
In some cases, a judge will order that an Interlock device be placed on your vehicle as a condition of your bond. This is almost always the case if it's not your first DWI and often happens if your score was high or if there was an accident involved. This is completely within the judge's discretion, however, and your lawyer can always ask the judge to remove the device. Whether or not the judge agrees to do this will depend on things such as whether you have had any violations of the device (that is, if it has shown that you have tried to drive after consuming alcohol), how long you have had the device on your car, and whether you even own a car. Certain DWI convictions also require an Interlock to be placed on your vehicle. For example, if you have a breath-test score over a .15, the statute requires the device. The judge does have the discretion to remove the device before the end of your probation.
Are there any alternatives to the Interlock device on my car?
There are alternatives to the Interlock. Two devices are similar to the Interlock but are handheld. One is called Home, and the other is called Sober Link. The biggest difference is that, with Home or Sober Link, you will not be allowed to consume any alcohol. These devices give you a few different windows throughout the day that you have to blow into them so they can test you for alcohol. You only have to blow into the Interlock, on the other hand, if you want to drive your car. So if you want to be able to drink at home or drink elsewhere with a designated driver, you will not want the Home or Sober Link devices.
Another common alternative to the Interlock is a SCRAM device. This is an ankle monitor that detects whether you are consuming alcohol. The SCRAM is considerably more expensive than the Interlock and also means that you will not be allowed to consume any alcohol.
There is also a medication called Antabuse that can be taken on a daily basis. Antabuse, when taken as directed, makes a person extremely ill if she consumes alcohol. Before a judge will order Antabuse, you must get a prescription from a doctor. This assures the judge that there is no physical reason you cannot take the medication. You should also educate yourself to the side effects of Antabuse before asking the judge to order it. The other complication of Antabuse is that, in order to ensure that you take it every day, you must take it in the presence of an authorized person such as a probation officer.