DWI & "INTOXICATION" UNDER TEXAS LAW

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Driving while intoxicated, first offense, is a Class B Misdemeanor that is defined at Texas Penal Code §49.04. That provision states that, " A person commits an offense if the person is intoxicated while operating a motor vehicle in a public place". This definition sets forth the elements that must be proven to sustain a conviction. Those elements are:
- The defendant, on or about a particular date - Was operating a motor vehicle - In a public place (street, highway, beach, parking lot, etc) - In a particular county - While intoxicated.

The Texas legislature has specifically defined the term "intoxication", as that term is used for prosecution of DWI cases {Texas Penal Code §49.01(2)}. There are two definitions to encompass those who do or do not submit to chemical testing:
1) "not having the normal use of mental or physical faculties by reason of the introduction of alcohol, a controlled substance, a drug, a dangerous drug, a combination of two or more of those substances, or any other substance into the body; or 2) "having an alcohol concentration of 0.08 or more."

It is important to note that the law provides for intoxication by the introduction of any intoxicating substance into the body. This is designed to make our roadways safe from dangerous drivers. Typically, proof at trial is restricted to alcohol unless some statements or other indications suggest that the driver has become impaired by some other substance. It is important to note that being on prescription drugs is not a defense to a DWI prosecution. If the label suggests that ingestion will impair one's ability to operate a motor vehicle or machinery, taking such medicine and driving may subject you to DWI arrest and conviction. At trial, the State therefore may prove intoxication in three (3) different ways:
- not having the normal use of physical faculties OR
- not having the normal use of mental faculties OR
- having an alcohol concentration of 0.08 or more.

The jury does not have to be unanimous on the manner and means of intoxication, only that the person was intoxicated. It is also important to note that intoxication must occur and be proven to occur while driving.
Many other States provide for prosecution of a "lesser included" offense other than DWI (i.e. reckless driving, impaired driving, driving under the influence, etc.). Texas however has no lesser included offense of DWI. Some counties offer plea bargain agreements to other charges than DWI, but they are the exception and not the rule.

Classifications & Range of Punishment for DWI Conviction DWI, 1st Offense:
Class B Misdemeanor. Fine: A fine not to exceed $2,000.00. Jail: Confinement in the County Jail for a term of not less than 72 hours nor more than six (6) months.

Open Container:
If there was an open container of alcohol in your car when arrested, the minimum term of confinement is six (6) days in the county jail.

Community Service:
Texas law mandates that a judge order not less than 24 hours nor more than 100 hours.
Absent unusual facts, most persons convicted of a first offense DWI are granted community supervision ("probation") of any confinement ordered. The general length of DWI probation is two years. There are also conditions of community supervision ordered that are fairly standard in most courts. Typical conditions imposed are: Drug/Alcohol Evaluation. A person convicted of DWI will be required to submit to evaluation for probability of committing DWI in the future and/or to disclose a potential problem with alcohol or drug abuse. If a problem is detected, additional terms and conditions of probation are ordered to be administered through the Community Supervision Department.

Attend and complete an approved DWI Education class within 180 days from the date of conviction (Satisfying this requirement will avoid the one (1) year drivers license suspension, unless if you were a minor (under 21) at the time of the offense.) Attend and complete a M.A.D.D. Victim Impact Panel. This is a forum presented by M.A.D.D. that presents victims of drunk drivers to address persons convicted of DWI and warn of the dangers and perils of driving while intoxicated.

Work faithfully at suitable employment, commit no other crimes, remain at the same residence and employment unless notification is given to the community supervision officer, report monthly to the supervision office, pay all fines and costs in a timely manner. Pay a monthly supervisory fee of $25.00 - $40.00. Perform a specified hours of community or volunteer service NOTE: If convicted, you will be given an Order Granting Probation. This Order will be specific and unique to your case and fully sets forth the terms and conditions of your probation which apply to you. It is the blueprint for your probation.

Additional Conditions of Probation that may be Ordered:
If your case presents unusual facts (accident, alcohol problem, prior alcohol contacts, bad driving record etc.), additional conditions may be ordered. Most conditions are designed to address a problem that appears from the facts or alcohol/drug evaluation that is performed on the subject after conviction. Again, a specific order is given after each conviction. The following list is only a general discussion of conditions that have been imposed in some DWI cases in my experience and may not apply to you.

Deep lung air device:
Some counties (Collin & Denton) are requesting this condition for all DWI probations. This provision requires that you install and maintain a device on any car which you intend to drive during probation. The device requires a breath sample before it will allow your car to start. Some devices require periodic breaths while driving. This condition is recommended after a unfavorable drug/alcohol evaluation.

Alcohol Treatment:
Attendance at AA or other counseling programs offered through the probation department. In extreme cases outpatient programs may be ordered. This condition is recommended after a unfavorable drug/alcohol evaluation.
Consume no alcohol: Some courts require that a person not consume any alcohol during probation. This provision is monitored by periodic and random urinalysis at the probation office. This condition is recommended by particular judges in North Texas.

Confinement:
Again, in some extreme circumstances, the Court may order that a DWI offender serve confinement in the county jail as a condition of probation.

Restitution:
If there was an accident followed by a DWI arrest, and if your insurance company has not paid damages to the other party, restitution of any unpaid amounts will be ordered by the Court as a condition of probation.

Enhanced Penalties:
(Prior alcohol or drug related criminal history) Under Texas law, if it is shown that a person has been previously convicted of DWI, the punishment and penalties after conviction are increased or enhanced. The prior DWI conviction must have occurred within ten (10) years of the present arrest for DWI. Additionally, if a person has any prior DWI conviction within the previous ten year period (measured from dates of arrest), the State is then allowed to use any prior DWI conviction since obtaining a drivers license to enhance the accusation to a DWI, third offense.
NOTE: Texas can use prior convictions that have occurred in other states for enhancement of punishment.

DWI, Second Offense:
Class A Misdemeanor Special Condition for Jail Release on Bond: It is important to note that if arrested and accused of a DWI Second or greater offense, Texas law now requires the Court to Order as a CONDITION OF RELEASE FROM JAIL ON BOND, that the person install and maintain a deep lung air device on the car that the person intends to drive and operate while charges are pending. The device requires a breath sample before it will allow you to start your car. They also require periodic breaths while driving to monitor and insure sobriety. New technology has made these devices "user sensitive" so that someone else cannot blow into the device for the driver. Although this provision seems to run afoul of the presumption of innocence, Texas Courts have consistently held that such condition is necessary to protect a legitimate governmental interest in making public roadways safe for the motoring public.
Fine: A fine not to exceed $4,000.00.
Jail: Confinement in the County Jail for a term of not less than 72 hours nor more than one (1) year.
Community Service: Texas law mandates that a judge order not less than 80 hours nor more than 200 hours.
Deep lung air device: Typically deep lung devices are required for all DWI second offenders during probation.
Suspension of license: A person convicted of DWI, Second may have their driving privilege suspended for not less than 180 days or more than two (2) years.

DWI, Third Offense (or greater):
Third degree FELONY
Fine: A fine not to exceed $10,000.00.
Jail: Confinement in the Texas Department of Criminal Justice, Institutional Division (Penitentiary) for a term of not less than 2 year nor more than ten (10) years.
Deep lung air device: Deep lung air devices are generally ordered on all persons convicted of three or more DWI's both as conditions of bond and as conditions of any occupational or provisional licenses that may be awarded after conviction.
Community Service: Texas law mandates that a judge order not less than 160 hours nor more than 600 hours.
Suspension of license: A person convicted of DWI, Second may have their driving privilege suspended for not less than 180 days or more than two (2) years.
Other: A third conviction for DWI indicates a significant problem with alcohol to the Court or jury assessing punishment. Some type of rehabilitative treatment is therefore mandated in punishment if confinement in the penitentiary is to be avoided. In some cases an in-patient, incarceration program (Substance Abuse Felony Probation SAFP) is ordered. This program requires confinement in a State Facility for alcohol rehabilitation. After successful completion of the SAFP program, the person is then released and placed on probation for a term not to exceed ten (10) years.
Another popular condition for habitual DWI offenders is a prescription for a drug named "Antibuse". This drug will make a person violently ill if any alcohol is consumed. The alcohol can be contained in mouthwash or marinated food and will still have the same effect on the user. If a person has any type of liver problems, this drug can cause liver failure and death.
Texas law does not provide for any increased punishment after DWI, third offense. If a person presents a DWI, fourth offense or beyond, the typical punishment is confinement in the penitentiary from two (2) to ten (10) years without probation being granted. In some cases SAFP or "Shock Probation" may be granted upon proper request and showing that it is appropriate.

Intoxication Assault:
Third degree Felony
"A person commits an offense if the person, by accident or mistake, while operating a .... motor vehicle in a public place while intoxicated, by reason of that intoxication causes serious bodily injury to another" {Texas Penal Code §49.07}.
" 'Serious Bodily Injury' means injury that creates a substantial risk of death or protracted loss or impairment of the function of any bodily member or organ".
Fine: A fine not to exceed $10,000.00.
Jail: Confinement in the Texas Department of Criminal Justice, Institutional Division (Penitentiary) for a term of not less than 2 year nor more than ten (10) years.
Community Service: Texas law mandates that a judge order not less than 160 hours nor more than 600 hours.

Intoxication Manslaughter:
Second Degree Felony
"A person commits an offense if the person: 1)...operates a motor vehicle in a public place, and... 2)...is intoxicated and by reason of that intoxication causes the death of another by accident or mistake."
Fine: A fine not to exceed $10,000.00.
Jail: Confinement in the Texas Department of Criminal Justice, Institutional Division (Penitentiary) for a term of not less than 2 year nor more than twenty (20) years.
Community Service: Texas law mandates that a judge order not less than 240 hours nor more than 800 hours.
NOTE: If a person is involved in an accident where there is risk of death or death, a mandatory blood sample will be taken for analysis and use in the prosecution of either Intoxication Assault or Intoxication Manslaughter.
 

THE 14 MOST FREQUENTLY ASKED
QUESTIONS ABOUT DWI DEFENSE

1. What do police officers look for when searching for drunk drivers on the roads?
The following is a list of symptoms in descending order of probability that the person observed is driving while intoxicated. The list is based upon research conducted by the National Highway Traffic Administration:
1. Turning with a wide radius
2. Straddling center of lane marker
3. "Appearing to be drunk"
4. Almost striking object or vehicle
5. Weaving
6. Driving on other than designated highway
7. Swerving
8. Speed more than 10 mph below limit
9. Stopping without cause in traffic lane
10. Following too closely
11. Drifting
12. Tires on center or lane marker
13. Braking erratically
14. Driving into opposing or crossing traffic
15. Signaling inconsistent with driving actions
16. Slow response to traffic signals
17. Stopping inappropriately (other than in lane)
18. Turning abruptly or illegally
19. Accelerating or decelerating rapidly
20. Headlights off
Speeding, incidentally, is not a symptom of DWI; because of quicker judgment and reflexes, it may indicate sobriety.

2. If I'm stopped by a police officer and he asks me if I've been drinking, what should I say?
You are not required to answer potentially incriminating questions. A polite "I would like to speak with an attorney before I answer any questions" is a good reply. On the other hand, saying that you had one or two beers is not incriminating: it is not sufficient to cause intoxication -- and it may explain the odor of alcohol on the breath.

3. Do I have a right to an attorney when I'm stopped by an officer and asked to take a field sobriety test?
As a general rule, there is no right to an attorney until you have submitted to (or refused) blood or breath testing. Of course, this does not mean that you cannot ask for one.

4. What is the officer looking for during the initial detention at the scene?
The traditional symptoms of intoxication taught at the police academies are:
1. Flushed face
2. Red, watery, glassy and/or bloodshot eyes
3. Odor of alcohol on breath
4. Slurred speech
5. Fumbling with wallet trying to get license
6. Failure to comprehend the officer's questions
7. Staggering when exiting vehicle
8. Swaying/instability on feet
9. Leaning on car for support
10. Combative, argumentative, jovial or other "inappropriate" attitude
11. Soiled, rumpled, disorderly clothing
12. Stumbling while walking
13. Disorientation as to time and place
14. Inability to follow directions

5. What should I do if I'm asked to take field sobriety tests?
There are a wide range of field sobriety tests (FSTs), including heel-to-toe, finger-to-nose, one-leg stand, alphabet recitation, modified position of attention, fingers-to-thumb, hand pat, etc. Most officers will use a set battery of three to five such tests. Unlike the chemical test, where refusal to submit may have serious consequences, you are not legally required to take any FSTs. The reality is that officers have usually made up their minds to arrest when they give the FSTs; the tests are simply additional evidence which the suspect inevitable"fails"; Thus, in most cases a polite refusal may be appropriate.

6. Why did the officer make me follow a penlight with my eyes to the left and right?
This is the "horizontal gaze nystagmus" test. The officer attempts to estimate the angle at which the eye begins to jerk ("nystagmus" is the medical term for eye jerking); if this occurs sooner than 45 degrees, it theoretically indicates an excessive blood-alcohol concentration. The smoothness of the eye's tracking the penlight (or finger or pencil) is also a factor, as is the jerking when the eye is as far to the side as it can go. This field sobriety test has proven to be subject to a number of different problems, not the least of which is the non-medically trained officer's ability to recognize nystagmus and estimate the angle of onset. However, it continues to be widely used by Texas law enforcement.

7. Should I agree to take a chemical test? What happens if I don't?
In Texas, there are two main potential adverse consequences of refusing to submit to a blood or breath test:
1. Your driver's license will be suspended for a period of time, commonly three, six or twelve months. This is true even if you are found not guilty of the DWI charge.
    2. The fact of refusal can be introduced as evidence of your awareness of guilt. Of course, the defense is free to offer other reasons for the refusal. Thus, the decision is one of weighing the likelihood of a high blood-alcohol reading against the consequences for refusing.
 
NOTE: If a person is involved in an accident where there is risk of death or death, a mandatory blood sample will be taken for analysis and use in the prosecution of either Intoxication Assault or Intoxication Manslaughter.
 
8. Do I have a choice of chemical tests? Which should I choose?
In Texas, you may have a choice, depending on the arresting agency, -- usually, of breath or blood.  Analysis of a blood sample is potentially the most accurate. Breath machines are susceptible to a number of problems rendering them often unreliable. Thus, if you are confident that you are sober, a blood sample is the wise choice.

9. The officer never gave me a Miranda warning: Can I get my case dismissed?
No. The officer is supposed to give a 5th Amendment warning after he arrests you. Often, however, they do not. The only consequence is that the prosecution cannot use any of your answers to questions asked by the police after the arrest. Of more consequence in most cases is the failure to advise you of the state's "implied consent" law that is, your legal obligation to take a chemical test and the results if you refuse. This can effect the suspension of your license.

10. Can I represent myself? What can a lawyer do for me?
You can represent yourself -- although it is not a good idea. "Drunk driving" is a very complex field with increasingly harsh consequences. There is a minefield of complicated procedural, evidentiary, constitutional, sentencing and administrative license issues. What can a lawyer do? Nothing (or worse) if he is not qualified in this highly specialized field -- A qualified attorney, however, can review the case for defects, suppress evidence, compel discovery of such things as calibration and maintenance records for the breath machine, have blood samples independently analyzed, negotiate for a lesser charge or reduced sentence, obtain expert witnesses for trial, contest the administrative license suspension, etc.

11. What is a sentence "enhancement"?
in Texas the punishment in drunk driving cases may be enhanced if certain facts exist. The most common of these is an earlier conviction for the same or a similar offense -- usually within ten years of the current offense.

12. What is a "rising BAC defense"?
It is unlawful to have an excessive blood-alcohol concentration (BAC) at the time of DRIVING -- not at the time of being TESTED. Since it takes between 45 minutes and 3 hours for alcohol to be absorbed into the system, an individual's BAC may continue to rise for some time after he is stopped and arrested. Commonly, it is an hour or more after the stop when the blood or breath test is given to the suspect. Assume that the result is .11%. If the suspect has continued to absorb alcohol since he was stopped, his BAC at the time he was driving may have been only .07%. In other words, the test result shows a blood-alcohol concentration above the legal limit -- but his actual BAC AT THE TIME OF DRIVING was below.

13. What is "mouth alcohol"?
"Mouth alcohol" refers to the existence of any alcohol in the mouth or esophagus. If this is present during a breath test, then the results will be falsely high. This is because the breath machine assumes that the breath is from the lungs; for complex physiological reasons, its internal computer multiplies the amount of alcohol by 2100. Thus, even a tiny amount of alcohol breathed directly into the machine from the mouth or throat can have a huge impact. Mouth alcohol can be caused in many ways. Belching, burping, hiccuping or vomiting within 20 minutes of taking the test can bring vapor from alcoholic beverages still in the stomach up into the mouth and throat. Taking a breath freshener can send a machine's reading way up (such products as Binaca and Listerine have alcohol in them); cough syrups and other products also contain alcohol. Dental bridges and dental caps can trap alcohol. Blood in the mouth from an injury is yet another source of inaccurate breath test results: breathed into the mouthpiece, any alcohol in the blood will be multiplied 2100 times.

14. What defenses are there in a DWI case?
Potential defenses in a given drunk driving case are almost limitless due to the complexities of the offense. Roughly speaking, however, the majority can be broken down into the following areas:

1. Driving. Intoxication is not enough: the prosecution must also prove that the defendant was driving. This may be difficult if, as in the case of accidents, there are no witnesses to his being the driver of the vehicle.

2. Probable cause. Evidence will be suppressed if the officer did not have legal cause to (a) stop, (b) detain, and (c) arrest. Sobriety roadblocks present particularly complex issues.

3. Miranda. Incriminating statements may be suppressed if warnings were not given at the appropriate time.

4. Implied consent warnings. If the officer did not advise you of the consequences of refusing to take a chemical test, or gave it incorrectly, this may affect admissibility of the test results -- as well as the license suspension imposed by the motor vehicle department.

5. "Under the influence". The officer's observations and opinions as to intoxication can be questioned -- the circumstances under which the field sobriety tests were given, for example, or the subjective (and predisposed) nature of what the officer considers as "failing". Too, witnesses can testify that you appeared to be sober.

6. Blood-alcohol concentration. There exists a wide range of potential problems with blood or breath testing. "Non-specific" analysis, for example: most breath machines will register many chemical compounds found on the human breath as alcohol. And breath machines assume a 2100-to-1 ratio in converting alcohol in the breath into alcohol in the blood; in fact, this ratio varies widely from person to person (and within a person from one moment to another). Radio frequency interference can result in inaccurate readings. These and other defects in analysis can be brought out in cross-examination of the state's expert witness, and/or the defense can hire its own forensic chemist.

7. Testing during the absorptive phase. The blood or breath test will be unreliable if done while you are still actively absorbing alcohol (it takes 45 minutes to three hours to complete absorption; this can be delayed if food is present in the stomach). Thus, drinking "one for the road" can cause inaccurate test results.

8. Retrograde extrapolation. This refers to the requirement that the BAC be "related back" in time from the test to the driving (see question #12). Again, a number of complex physiological problems are involved here.

9. Regulation of blood-alcohol testing. The prosecution must prove that the blood, breath or urine test complied with state requirements as to calibration, maintenance, etc.

10. License suspension hearings. A number of issues can be raised in the context of an administrative hearing before the State's department of motor vehicles.

Licensed by the Supreme Court of Texas. Licenciado por el Corte Supremo de Texas.
Not Certified by the Texas Board of Legal Specialization.
No Estan Certificados por la Mesa Directiva de Especializaciones
Legales del Estado de Texas.

The information you obtain at this site is not, nor is it intended to be, legal advice. This has been prepared by Andrew M. Chatham for informational purposes only. We do not intend to create an attorney-client relationship between our firm and the recipient of the information contained on the pages that follow. You should consult an attorney for individual advice regarding your situation.