Every year, thousands of Texans are stopped and investigated for DWI. The safest course of action is to never drink and drive. But if you choose to drink alcohol before driving, which is perfectly legal, it is important to understand the basics of DWI in Texas, what you can expect during a traffic stop, and how to best protect your rights.
What is the offense of driving while intoxicated (DWI)?
Driving While Intoxicated is one of the most common criminal offenses in the State of Texas. It involves driving a motor vehicle while “intoxicated.” Intoxication is a defined term, which has a specific meaning in Texas. Under the law, you are intoxicated if you have a blood alcohol concentration above .08 or have lost the “normal use” of your mental or physical faculties (those under 21 can be convicted of DUI if they have any detectable amount of alcohol). The loss of “normal” use is not defined under Texas law but the State of Texas will normally try to prove that a person lost the normal use of their mental or physical faculties by evidence of a person’s driving, appearance, performance on field sobriety tests and any statements the person may have made.
What can you expect during a DWI traffic stop?
Most DWIs begin with routine traffic stops for things like speeding, running red lights, or turning illegally. Police must always have a valid reason to stop and detain you. Once the stop is made, officers are trained to observe a driver for any signs of alcohol consumption or impairment from drugs. If an officer suspects this based on an odor or a driver’s appearance, the officer will typically ask questions about the substance that may have been consumed. Officers are also trained to judge a driver’s responses to so-called “divided attention tasks,” which involve asking a driver to do two things at once, like provide license and registration.
If the officer suspects a person may be intoxicated, at this point, the officer may ask a driver to exit his vehicle to undergo what are known as Standardized Field Sobriety Tests (SFSTs). These are tests that are used by the police throughout the nation to investigate DWIs. Although the officer will not say so, a driver is free to refuse SFSTs (although that will probably cause the officer to arrest the driver and for a breath or blood test). The three standardized tests in a DWI investigation are the horizontal gaze nystagmus test, the walk and turn, and the one-leg stand. The horizontal gaze nystagmus test is a neurological test that looks for involuntary jerking of the eye that the police claim is present when alcohol has been consumed. The walk and turn and one leg stand tests are divided attention and balance tests that evaluate a driver’s ability to do the tests exactly as instructed while maintaining balance.
The question of whether or not to undergo SFSTs is complicated. As noted above, you will likely be arrested if you do not consent to do the SFSTs during a DWI investigation. On the other hand, the horizontal gaze nystagmus test is frequently not administered or interpreted reliably (or frankly, honestly) by the police and will likely be used as evidence of your intoxication whether you are intoxicated or not. A person’s performance on the walk and turn and one leg stand tests are more difficult for the police to misinterpret or misrepresent. If you’ve been drinking, the best advice is probably to always refuse the horizontal gaze nystagmus test but perform the other two tests if you think you can perform them well. Remember, the tests must be done exactly as instructed!
If I am arrested, should I agree to give breath or blood?
If you are arrested for DWI, you will be read a statutory warning that lays out the consequences of refusing a breath or blood test, and what the consequences are if a breath or blood test is higher than .08. In short, for first time DWIs, if you refuse, you are facing a 180-day administrative suspension of your Texas driving privileges. If you blow or give blood but that result is higher than .08, you are facing a 90-day administrative suspension (there could also be a suspension due to the criminal case).
There is a split of opinion among DWI lawyers as to whether or not one should agree to a test. In our opinion, the wise thing to do is to consent. In Harris County, if you refuse, the police will almost always get a warrant for your blood. On the other hand, if you consent, most of the time the police will ask for your breath. The breath test machine is notoriously problematic and inaccurate so it is preferable to give the police less accurate and reliable evidence. Additionally, if your case goes to trial, your attorney will be able to argue that you cooperated and had nothing to hide, rather than the prosecutor arguing that you were hiding evidence of your intoxication.
What else do I need to know about my rights in a DWI traffic stop?
It is critical that you understand that you do not need to say anything during a DWI investigation other than your name and provide your driver’s license. In general, it is a good idea to be polite and say as little as possible. If truthful, you may wish to admit to having consumed a small amount of alcohol. It is never in a person’s best interest to admit to drinking large amounts of alcohol (even if the drinks were spaced out over several hours).
If you are arrested and charged with DWI anywhere in the Greater Houston area, Jose Ceja from Ceja Law Firm is an excellent choice to fight your case. Mr. Ceja has undergone extensive training in all aspects of a DWI case and can help you obtain the best result. Please call for a free consultation.