Driving While Intoxicated Can Cost You a Lot
Driving while intoxicated is the only offense in the entire Penal Code whereby the prosecutor can attempt to secure a conviction against you based solely on the opinion of a single arresting officer. In addition to a term of probation, a hefty fine and possible jail time, the Department of Public Safety imposes a surcharge ranging from $3000 to $6000 for a conviction for driving while intoxicated. An arrest for DWI or DUI may also result in the suspension of your driver's license. You have 15 days from the date of your arrest to request a hearing on the suspension. If you do not request a hearing, your license will automatically be suspended 40 days after the date of your arrest. An attorney may request a hearing on your behalf and the person arrested need not appear.
To check the status of your driver's license click here.
Blood Specimens and Breath Samples
Unless you are arrested for a felony or on a no-refusal day or weekend, you should always refuse the officer’s request to submit to the taking of a specimen of either breath or blood. Although this strategy may result in a slightly longer driver’s license suspension, it may be advantageous to you in the successful defense of the criminal charge of driving while intoxicated.
Submitting a breath sample or specimen that shows a blood alcohol content of 1.6 or higher may also result in the filing of more severe charges, double the surcharge assessed by DPS, exclusion from the Williamson County, pretrial diversion program (PTD), and a mandatory ignition interlock device (IID).
Challenge to State's Case Against You
The goal of the defense attorney is to challenge the state’s case in such a way that the charge will either be dismissed or “reduced” to a lesser charge. A reduction is the refilling of the DWI charge as a non-DWI offense.
"Mandatory" Blood Draws
After being arrested for driving while intoxicated, the police will request that the defendant provide a sample of either breath or blood to test for the presence of alcohol.
The Austin Police Department has designated the following as “no refusal” days or weekends:
- New Year’s Eve or Weekend
- Mardi Gras
- ROT Rally Weekend
- St. Patrick's Day
- Super Bowl Weekend
- ACL Weekend
- SXSW Weekend
- Cinco De Mayo (May 5)
- Memorial Day Weekend
- July 4/Weekend
- Labor Day Weekend
On any of the aforementioned days or weekends, if a blood sample is requested, failure to submit to the taking of a specimen will result in the police officer obtaining a search warrant, a mandatory blood draw, and a lengthier driver’s license suspension.
A police officer will also request a search warrant to draw blood from any individual who is stopped for a DWI that is considered to be a felony, if there is an accident resulting in a death or if someone is taken to the hospital. A DWI reaches the felony level if it is a third DWI or if there is a child passenger in the vehicle who is under the age of 15. If you are arrested on a no refusal day or weekend, if the DWI is a felony, or if a person is killed or seriously injured, the police officer will routinely obtain a search warrant and draw blood if a request to draw blood or breath is refused.
Minors and DUI
Driving under the influence of alcohol (DUI) is a charge involving a person who is a minor under 21 years of age and who operates a motor vehicle while having any detectable amount of alcohol on his or her breath. DUI is a class C offense and carries a less severe punishment than a DWI.
A person under the age of 21 can be charged with either DWI or DUI depending on whether the police officer believes that the person’s mental or physical faculties have been impaired by the use of alcohol.
DWI and Your License
Once a person has been arrested for DWI (or DUI), they have 15 days to request a hearing on the suspension of their driver’s license. The hearing is called an administrative license revocation (ALR) hearing.
The hearing on the suspension of the driver’s license and the criminal charge of DWI or DUI are separate proceedings held in separate courts before different judges. One proceeding is a civil proceeding while the other is a criminal proceeding. Other than a finding of not guilty in the criminal proceeding, a ruling in one proceeding does not have any legal effect on the ruling in the proceeding in the other court.
If the ALR hearing is not properly requested within the aforementioned 15 day period, it is deemed waived and the suspension will begin 40 days after the date of the arrest. If an individual’s license is suspended for a DWI (or DUI), and that person has not had an alcohol-related contact (defined as a suspension for failing or refusing a breath or blood test, or a prior conviction for DWI, Intoxication Assault or Intoxication Manslaughter) within the previous 10 years, the license suspension will be for a period of 90 to 180 days.
If the suspension was the result of a second or subsequent alcohol-related contact, the suspension will be for a period of between one to two years. Note that for minors (under 21 years of age) there are special rules that apply if a specimen of breath or blood is provided which may result in a shorter period of suspension. It is recommended that the request for hearing be documented by making the request by facsimile transmittal to the Texas Department of Public Safety.
For more information on a driver's license suspension, click here
A hearing will usually be scheduled within two months of the time that the request for hearing is made to the Texas Department of Public Safety. If a person’s driver’s license is suspended after an ALR hearing, an occupational driver’s license may be obtained. This will allow the individual to drive for up to 12 hours per day in order to go to work, go to school, or to perform essential household duties. If the suspension resulted from an arrest for a DWI which occurred within 5 years of a previous alcohol-related contact, the Department of Public Safety may deny the application for an occupational license for a period of up to one year.
For more information on an occupational driver's license, click here
There are special rules that apply to a commercial driver’s license. An occupational driver’s license will not allow a person to operate a commercial vehicle, even for work. Regarding a commercial driver’s license, the Texas Transportation Code at section 522.081 has set a minimum suspension of one year for a first DWI or DUI conviction. For a second or subsequent DWI conviction, a commercial driver’s could be suspended for life.
DWI and Probable Cause
If it can be shown at a hearing that the arresting officer did not have probable cause to make an initial traffic stop, the criminal case will be dismissed and the driver’s license will not be suspended.
If the judge finds that probable cause for the initial traffic stop exists, the next issue becomes whether the state can establish that the driver was in fact intoxicated at the time that he was operating the motor vehicle or watercraft. It is the policy of the Austin Police Department, that prior to the start of each shift, that the officer assigned to a patrol unit check that the mobile video recording device in the patrol car is working properly, and it is mandatory that it be activated for all pedestrian or traffic stops.
If a person is arrested for driving while intoxicated, a copy of that video can be obtained by the defense attorney. For purposes of contesting the DWI, the video taken at the time of the arrest may be the most important piece of evidence in the case. The defense attorney should also review the probable cause affidavit listing the police officer’s reason for initially stopping the defendant. In addition to the probable cause affidavit, the attorney will also obtain a copy of the police officer’s offense report, the blood or breath test results, a copy of the video, and a copy of the search warrant if applicable.
Each piece of evidence should be carefully reviewed by the defense attorney to determine if there are any inconsistencies that could weaken the state’s case against the person arrested. At the time of the traffic stop, a standard set of field sobriety tests will usually be administered if the police officer detects any odor of alcohol on the driver. Although they may not be a fair assessment of a person’s physical faculties, the National Highway Traffic Safety Administration has formally stated that unless an individual is over 65 years of age or is more than fifty pounds overweight, the standardized field sobriety tests are an accurate indication of intoxication. And, unless a medical or physical exception is established, everyone performing the test is graded on exactly the same scale regardless of age, gender or physical condition.
Regarding the grading of the tests, the officer will often be overly critical when interpreting the results. The officer’s opinion can and in most cases should be challenged by the defense attorney. If a sample of breath or blood was submitted, or if blood was drawn subsequent to admission to a hospital or medical center, the defense attorney should obtain the test results to determine the exact method used and if the proper procedures were followed.
If blood was drawn pursuant to a search warrant, the attorney should obtain a copy of the warrant to determine if the attached affidavit is sufficient and if the proper procedures were followed in obtaining the warrant for the sample. If the warrant is valid, the blood draw may in many instances be challenged by the attorney as unreliable due to a number of different reasons, including contamination of the sample.
If a sample of breath was submitted, failure to follow the proper procedures or guidelines, improper calibration of the simulator, instrument variability or residual mouth alcohol may all affect the reliability of the results.
Just because you have been arrested, you don’t have to settle for a DWI conviction.