Cameron DWI Lawyers
- Rique Bobbitt:
1. What is DWI?╩
╩╩╩DWI is a criminal offense that says a person may not drive a motor vehicle in a public place while "intoxicated". The DWI statute does not say driving while drunk.
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2. What does "intoxicated" mean ?╩
╩╩╩A person need not be drunk to be "intoxicated" but a person who is drunk must be intoxicated. "Intoxicated" is defined by the DWI statute in two ways. First, a person is "intoxicated" when she drives and, when, through the use of an alcoholic beverage, drug, controlled substance, or any combination thereof, has lost the "normal" use of either her "mental" or "physical" faculties. Second, a person is "intoxicated" when she drives and has an alcohol CONCENTRATION of .08 or more in her body.
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3. Whose "normal mental and physical faculties" are we judged by and "what is normal" ?╩
╩╩╩The "normal mental and physical faculties" the DWI statute refers to are those of the particular person who has been arrested. The term does not refer to the normal faculties of the arresting officer, those of jurors in a DWI criminal trial, or those of a fictitious average person. Indeed, the term "normal" actually refers to a range of measurement of the faculties of the person arrested. For example, "normal" would not be a particular point on a 12" ruler. Rather, it is better explained as the distance between two particular points on the ruler, i.e., between the 3" and 9" marks.
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4. What is .08 alcohol CONCENTRATION ?╩
╩╩╩"Alcohol CONCENTRATION" is defined by the statute as:╩
╩╩╩╩╩╩╩╩╩a) the number of grams of alcohol per 100 milliliters of blood;╩
╩╩╩╩╩╩╩╩╩b) the number of grams of alcohol per 210 liters of breath; or,╩
╩╩╩╩╩╩╩╩╩c) the number of grams of alcohol per 67 milliliters of urine.
Practically speaking, if you've been drinking, unless you╩are a physicist, an engineer, or a chemist, and have a calculator, you will be unable to determine if you have an alcohol CONCENTRATION of .08 or more. Further, it is of interest to note that the amount of alcohol in each of the above statutorily defined CONCENTRATIONs is not equal, and can therefore result in a person being innocent according to one CONCENTRATION but guilty according to another. Moreover, under the two statutory definitions of intoxication, it is also possible for a person to be innocent of being intoxicated because there is no loss of either normal mental or physical faculties but still be guilty of being intoxicated via .08.
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5. Is it .08 or more when I drive or .08 or more at the time I'm tested, or both, that will make me guilty of DWI ?╩
╩╩╩Our law only provides that the crime of DWI occurs when a person drives, and at that time , has an alcohol CONCENTRATION of .08 or more in his body. It is not a per se crime to have an alcohol CONCENTRATION of .08 in the body either before or after one has driven. However, depending on the time the test is conducted, such an alcohol CONCENTRATION may be relevant in determining if the person had a .08 or more alcohol CONCENTRATION when the actual driving occurred.╩
╩╩╩The timing of the particular test in question presents a significant problem for both the prosecution and the defense. This dilemma arises because .08 alcohol CONCENTRATION testing is hardly ever done at or immediately after driving. Rather, an alcohol CONCENTRATION test is usually administered approximately 45 minutes to 1 hour and 15 minutes after driving. In such delayed testing, absent other information about the number of alcoholic drinks consumed, the type of drinks consumed, and knowledge of when the drinks were consumed, it is scientifically impossible to determine if the person was over, or more importantly for the innocent, under a .08 alcohol CONCENTRATION at the time of driving.╩
╩╩╩For example, let's change our earlier scenario somewhat by having the person finish his fourth cocktail at 11:55 p.m. He leaves the smoke filled restaurant at 12:00 a.m. for a 5 minute drive home. However, this time instead of being stopped for speeding, he is stopped at 12:01 a.m. because the light over his license tag has burned out. The officer, having observed a fresh (strong) odor of an alcoholic beverage on the driver's breath and his smoke reddened eyes, arrests him for DWI. The officer then transports him to the station house for an alcohol CONCENTRATION test. The test is given at 12:30 and its result is .08. Here, depending on the timing of the person's earlier consumption of alcoholic drinks, it is equally possible that earlier at 12:01 a.m., the person's alcohol CONCENTRATION was .05, i.e., not guilty, or .15, i.e., guilty. In the final analysis on this point, it may not have been a smart thing for our person to have driven at all, but if he was the .05, he neither committed nor would have committed a DWI offense.
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6. If I decide to submit to chemical testing and my alcohol CONCENTRATION is less than .08, can I still lose my license?
╩╩╩Yes, but this is usually the result of a subsequent criminal conviction for DWI or a related offense. For your driver's license to automatically be suspended as a result of chemical testing, the alcohol CONCENTRATION taken from your blood, breath, or urine must be .08 or more while driving.
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7. How accurate and reliable are the police methods used to determine alcohol CONCENTRATION ?╩
╩╩╩Texas law provides that testing of alcohol CONCENTRATIONs can be performed by analysis of a DWI suspect's urine, blood or breath. All three of these testing methods, however, leave much to be desired.╩
╩╩╩Urine testing is the least accurate and least reliable means of alcohol CONCENTRATION testing. Indeed, there appears to be no debate in the scientific community that this method of alcohol CONCENTRATION testing is the least preferred.╩
╩╩╩Blood testing, unlike that of urine testing, is thought by the majority of forensic scientists to be the most accurate and reliable means of alcohol CONCENTRATION determination. From a police perspective, however, it is also thought to be the least desirable and least convenient method. Further, like the testing of urine specimens, it provides an opportunity for the arrested person to recheck the blood test. If found to be erroneous, the validity of the police test can be attacked by re-testing the exact specimen taken by police.╩
╩╩╩Breath testing, again from a police perspective, is the most convenient means of alcohol CONCENTRATION determination. In regard to the issues of accuracy and reliability of breath testing, however, there continues to be a heated debate among scientists. Moreover, under current procedures for breath testing in Texas, breath samples are not preserved for subsequent checks of the initial test's validity. Indeed, for purposes of breath testing, if you are an innocent person and your breath test results show you to be intoxicated, then the chances of showing error in the prosecution's case against you are literally "gone with the wind".
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8. How is breath testing done ?╩
╩╩╩Police breath alcohol CONCENTRATION testing in Texas is done by a machine named an Intoxilyzer 5000. Breathalyzers are not used. The Intoxilyzer machine, which costs approximately $7,500.00, is said to work on the basis of infrared light absorption by alcohol detected in a person's breath. According to its manufacturer and the Texas Department of Public Safety (DPS), which certifies and writes the rules for its use, the machine determines alcohol CONCENTRATION by subtracting the amount of light absorbed from the person's breath sample and then compares that amount to the amount of light originally introduced into the breath sample -- the difference is the test result.
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9. What is the debate over the Intoxilyzer's reliability and accuracy ?╩
╩╩╩Proponents of the Intoxilyzer say it will only show a result from absorbed breath (deep lung air) alcohol and nothing else. However, opponents say that the Intoxilyzer often misreads other commonly found substances in human breath and erroneously gives high readings saying that they are from alcohol.╩
╩╩╩Of particular importance here are the following facts. First, the DWI alcohol CONCENTRATION law says a person is intoxicated when he has a .08 CONCENTRATION in his breath, but, it does not say .08 by Intoxilyzer. This fact means that no judge or jury is required to believe that an Intoxilyzer result of .08 or more is accurate or reliable.╩
╩╩╩Second, neither the manufacturer nor the DPS will allow anyone, other than law enforcement personnel, to test either the machine's accuracy or its reliability. It is generally understood that for a procedure to be accepted as accurate and reliable in science, that it must be open and available for the scientific community to test and retest the procedure. This is not the case with the Intoxilyzer.╩
╩╩╩Third, the manufacturer says it does not warrant that the Intoxilyzer is fit for any particular purpose. This fact clearly is an implicit admission by the manufacturer that its machine is not even warranted as accurate and reliable for breath testing.╩
╩╩╩Fourth, the Intoxilyzer is capable of breath preservation, however, our DPS purposely fails to require the breath specimens to be saved. The cost of preservation would be less than $2.00 per test and would allow an opportunity for the person charged with DWI to check the accuracy of the sample. And, if found to be inaccurate, attack the validity of the prosecutor's test. Indeed, it is a generally accepted scientific fact that the re-testing of preserved breath specimens, which is done by a method known as gas chromatography, is a more accurate and reliable means of breath alcohol CONCENTRATION testing than that done by the Intoxilyzer.╩
╩╩╩Fifth and last, the Intoxilyzer's working design is premised on the assumption that every person tested is exactly the average person . All persons are not exactly average! Human beings come in all different sizes, weights, ages, muscle tones, lung capacities, alcohol tolerances, temperatures, hematocrit levels (amount of solids in the blood) and blood/breath ratios (the number of times an item appears in the blood vs. the number of times the same item appears in the breath). Automatic and undetected error can be illustrated by simply having the person tested not be exactly average. In this regard, it should be noted that the Intoxilyzer assumes a blood/breath ration of 2100/1 (i.e., 2100 parts of alcohol in the blood for every 1 part of alcohol in the breath) for every person tested. Here, it can be noted that a majority of persons have a blood/breath ration of 2100/1 or greater. Persons with a higher blood/breath ration of 2100/1 will not be prejudiced by the Intoxilyzer's assumption. However, persons with a lower blood/breath ration will be prejudiced because the Intoxilyzer will erroneously read too high of an alcohol CONCENTRATION result, thus potentially causing a person who should test at .04, .05, .06, etc. to actually test out at .08, .11, .12, etc. Of particular import here is the fact that scientists have documented persons with blood/breath ratios as low as 1100/1. This same type of prejudice also occurs where the person tested is not exactly average with respect to other bodily functions: muscle development, temperature, hematocrit level, etc. Moreover, since the machine was built by humans, is serviced by humans, and is operated by humans, it is subject to human error just like all other machines. The above facts conclusively demonstrate that the Intoxilyzer, even if it is properly working and is being properly operated, because the person being tested is not exactly average, can label an innocent person as guilty.
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10. What is a portable breath test device and if I refuse it, will I lose my license ?╩
╩╩╩A portable breath test device, commonly referred to as a PBT, is an electronic alcohol breath tester. It is generally the size of a cigarette package and is carried by the officer in the field as a tool to help him determine if a driver is intoxicated. These devices are not approved by Texas Department of Public Safety for use in criminal prosecutions or in administrative license revocation proceedings. Moreover, neither the Texas judiciary nor the vast majority of the scientific community have not recognized PBT's as being accurate or reliable devices for the detection of intoxicated drivers. There is no "implied consent" for purposes of compelling a person to submit to a PBT. Accordingly, there is no driver's license suspension where a person refuses to a law enforcement request to submit to a PBT.
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11. Are crimes of DWI and public intoxication different, and if so, how ?╩
╩╩╩Yes, they are very different. Specifically, the statutory definitions of the term "intoxicated" are not equal in regard to the two charges. The DWI intoxication definitions (loss of normal mental or physical faculties and/or .08 or more) require a lesser measure of intoxication than does public intoxication (P.I.). A person is "intoxicated" for purposes of P.I. when he is either a danger to himself or a danger to others. In addition, police officers usually video tape DWI suspects, and persons holding drivers licenses have conditionally pre-agreed to take either a breath or blood test (this is implied consent), upon request, after their arrest for DWI. No such agreement or videotape procedure exists for P.I. Finally, the punishments for DWI, which are discussed in the following section, and P.I. are different. Specifically, P.I. is in the lowest category for criminal offenses, it is a Class C misdemeanor which carries with it the possibility of a fine up to $500.00 -- no incarceration may be assessed upon conviction for this type of misdemeanor.
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12. What are the penalties for DWI ? First, an academic detour on the topic of "what is probation?".╩
╩╩╩Probation can be defined as a suspension of a sentence of jail, a fine, or even a driver's license suspension by the court. Said another way, upon conviction, the judge pronounces a punishment of a jail sentence, a fine sentence, and a driver's license suspension.╩
╩╩╩Example: Judge Dredd says "Mr. Defendant, your sentence is 180 days in jail, a $2,000.00 fine, and a year's suspension of your driver's license."╩
╩╩╩"Holy cow, I can't believe it, I'm going to jail" is the thought you have when all of the sudden the judge speaks again. He says, "however, I'm going to probate this sentence. Your jail is probated for one year, $1,500.00 of your fine is probated, and your driver's license suspension is probated." In layman terms this means that you will not have to do the 180 days in jail if you behave for one year, that you will only pay $500.00 of the fine if you behave for one year, and your driver's license will not be taken from you if you behave for one year.╩
╩╩╩"Wait" you say, what does "behave" mean? It means that the judge has offered you a "deal" you can't refuse. This "deal" is a contract between you and the court. The contractual terms are simple. The judge promises not to put you in jail, not to make you pay the entire fine and not to take away your driver's license. In exchange, if you agree to the probation, you are agreeing generally to do the following:╩
╩╩╩╩╩╩1) report once a month to a probation officer;╩
╩╩╩╩╩╩2) not to commit any further crimes during the term of probation;╩
╩╩╩╩╩╩3) to pay a monthly supervisory fee to the probation office (approximately $40.00);╩
╩╩╩╩╩ 4) to perform a specified number of community service hours during the term of your probation (between 24 and 80 hours) (community service is volunteer work to benefit the community);╩
╩╩╩╩╩╩5) to attend DWI awareness classes dealing with the effects of alcohol or listening to victims of DWI related tragedies;╩
╩╩╩╩╩╩6) to abstain from consuming alcohol for the term of your probation;╩
╩╩╩╩╩╩7) to pay your non-probated fines and court costs;╩
╩╩╩╩╩╩8) to submit to a breath test by law enforcement or court personnel upon request;╩
╩╩╩╩╩╩9) to install an alcohol ignition interlock device on your car and only drive a car equipped with such as device;╩
╩╩╩╩10) to make a $50.00 donation to M.A.D.D. and/or Crime Stoppers;╩
╩╩╩╩11) to remain within the county of your residence unless given permission by the court to leave it; and,╩
╩╩╩ 12) any other requirements the court sets for you.╩
╩╩╩Now, back to the specific penalties for intoxication offenses. DWI, depending on the number of prior convictions you have and when those convictions occurred, can be either a misdemeanor or a felony offense. Generally speaking, the penalties for DWI are as follows:╩
╩╩╩╩╩╩a) first offense : a first-offense conviction includes a fine not to exceed $2,000.00 and/or the possibility of serving jail time from 3 days to 180 days, and a driver's license suspension of 90 to 365 days. (Class B Misdemeanor).╩
╩╩╩╩╩╩b) second offense : the maximum fine increases to no more than $4,000.00 and/or jail from 30 days to one year, and a possible driver's license suspension ranging from 180 days to 2 years. (Class A Misdemeanor).╩
╩╩╩╩╩╩c) third offense : here, you may receive a fine up to $10,000.00 and/or 2 to 10 years of imprisonment, and suspension of your driver's license ranging from 180 days up to 2 years. (3 rd Degree Felony).╩
╩╩╩╩╩╩d) DWI with an open alcohol container (first offense) : In addition to the penalty referenced above you face a minimum 6 days in jail and a fine of no more than $2,000.00. (Class B Misdemeanor).╩
╩╩╩╩╩╩e) DWI with an accident where serious bodily injury occurred as a proximate cause of the intoxication : this crime is called intoxication assault, and upon conviction you may serve a minimum of 2 years up to a maximum of 10 years in jail. Additionally, you may be fined up to $10,000.00. (3 rd Degree Felony).╩
╩╩╩╩╩╩f) DWI where a death has occurred as a proximate cause of the intoxication : here, the crime is intoxication manslaughter. Upon conviction you might have to pay a maximum fine of $10,000.00 and/or be imprisoned from 2 to 20 years (Intoxicated Manslaughter or Manslaughter with use of Deadly Weapon are both 2 nd Degree Felonies).╩
╩╩╩╩╩╩g) A prior DWI conviction and a present drag racing charge : drag racing is a Class B Misdemeanor, however, it becomes a Class A Misdemeanor where the person had a prior drag racing conviction, a DWI conviction, or had an open alcohol container while they were driving. h) DWI with a child passenger : A person commits a state jail felony if they drive while intoxicated and there is another person in the vehicle who is under 15 years of age. `Punishment for a non-enhanced state jail felony is by confinement in a state jail for any term of not more than 2 years or less than 180 days and a fine not to exceed $10,000.00. In some of the above minor classifications you may be eligible for probation, but there is no guarantee that you will receive a probated jail sentence or fine. If you are convicted of intoxication assault and wish to receive probation, a minimum of 30 days in jail must be served as a condition of probation. Furthermore, to receive probation upon being convicted of intoxication manslaughter you must serve a minimum of 120 days in jail. However, if you are convicted of Intoxication Assault or Intoxication Manslaughter and the court or jury finds that you committed the offense with a deadly weapon you may be ineligible to receive probation at all.
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13. How can be a motor vehicle be a "deadly weapon" ?╩
╩╩╩A motor vehicle can be a "deadly weapon" where an alcohol related accident results in a death or where a death could have occurred by the manner of driving. The Texas Court of Criminal Appeals has held that intoxicated drivers who are involved in accidents where a death has occurred, can be found to have used a "deadly weapon." Moreover, the Texas Court of Criminal Appeals has held that in a non-death felony DWI case, depending upon how the vehicle was driven, a "deadly weapon" finding may be proper.
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14. What is the significance of a "deadly weapon" finding ?╩
╩╩╩Under Texas law, a "deadly weapon" finding prevents a person who has been sentenced to prison from accumulating any good time credit toward an early release until they have actually served one-half of their sentence.
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15. What special conditions are placed upon bond for DWI?
╩╩╩For a first offense, bond conditions are a matter of discretion for the court. However, if you are charged with a subsequent offense of DWI or a first offense of Intoxicated Assault or Manslaughter, you are required to install a vehicle ignition interlock device on your car and are not allowed to operate a motor vehicle not equipped with an interlock device. This interlock device determines the presence of alcohol in your breath. If the device detects a certain level of alcohol, the vehicle is temporarily disabled.╩
╩╩╩A judge may, however, decide that justice would not be served by installing an interlock device on your vehicle, and can excuse its installation. Conversely, some judges require that all DWI defendants, even 1 st offenders, install an interlock device on their car.
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16. Is a person required to take a breath, blood or urine test when requested by a police officer ?╩
╩╩╩Maybe! Our law deems that all persons who drive with Texas licenses have already conditionally agreed, after their arrest, to take either a breath or blood test upon being properly requested to do so by a police officer. This deemed consent only arises where the person has driven in a public place. Examples of public places are public roads, highways, beaches, parking garages and other places where the public or a substantial part of the public may gain access. There is no such deemed consent, or as it is sometimes called "implied consent" for a urine test.
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17. Does a person have a choice to refuse a required breath or blood test ?╩
╩╩╩Yes! Our law provides that where the implied consent law is applicable, the person arrested for DWI may refuse to take the requested test. Such a refusal, however, can result in the following penalties:╩
╩╩╩╩╩╩1) suspension of your driving privileges for 180 days if this is your first arrest for DWI;╩
╩╩╩╩╩╩2) a two year suspension for a subsequent arrest within ten years if, in the first arrest you refused to submit to testing; and,╩
╩╩╩╩╩╩3) the admission into evidence of your refusal to take the breath test in the subsequent DWI criminal trial. The purpose of this admission, from the prosecution's viewpoint, is to imply to the judge or jury, that the refusal was premised on the belief that the driver thought he was too intoxicated to pass the test.╩
╩╩╩If you do submit to alcohol CONCENTRATION testing and fail, your driver's license privileges can be suspended, and the test result may come into evidence in the criminal trial. The possible suspension periods are as follows:╩
╩╩╩╩╩╩1) 90 days if your driving record shows no prior alcohol related arrests; and,╩
╩╩╩╩╩╩2) one year if you have a prior conviction or suspension within the preceding ten years.
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18. Does a person have a choice to refuse being video taped?╩
╩╩╩No! There are, however, quasi exceptions. For example, although a person has no right to refuse being video taped, he does have the right to refuse to perform any police field sobriety exercises and to refuse to answer any questions, the answers to which, might be incriminating. Unlike breath or blood test refusals after arrest, there are no penalties for refusing to perform field sobriety tests or refusing to answer questions while being videotaped.
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19. Does a person have a choice to refuse to perform police field sobriety testing ?╩
╩╩╩Yes! Police officers have many tools that they use to help them determine whether a person is intoxicated for DWI purposes. Many of these tools are the subject of great debate as to whether or not they are accurate and/or reliable indicators of intoxication. The favorite roadside tools of the officer are the portable breath test (PBT) device and standardized field sobriety tests (SFSTs). There is no "implied consent" statute that requires a person to submit to either a PBT or SFSTs so a person may decline the invitation to take them. Many innocent drivers do refuse to submit to a PBT because the specimen given is not preserved and the devices are generally not accepted in the scientific community as be accurate or reliable. Further, many innocent drivers refuse to submit to the SFSTs because they are not very coordinated and are very nervous and that any test results will not accurately reflect their sobriety.
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20. What is a standardized field sobriety test ?╩
╩╩╩A standardized field sobriety test, SFST, is a police tool to help the officer try to identify an intoxicated driver. There are three SFSTs and they are:╩
╩╩╩╩╩╩1) the horizontal gaze nystagmous (HGN) test;╩
╩╩╩╩╩╩2) the one-leg stand test; and,╩
╩╩╩╩╩╩3) the walk and turn test.╩
╩╩╩These three tests were developed by researchers funded by the National Highway and Traffic Safety Administration (NHTSA) and a failure of any of the tests, according to the researchers, means the person has an alcohol CONCENTRATION of greater than .08. Of import is the fact that there is a great on-going debate about the validity, accuracy, and reliability of both the researchers' conclusions and their tests. There is no implied consent requirement that a person submit to a law enforcement officer's request to take these SFSTs or any other police motor skill coordination exercise.
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21. May a police officer force a person to take a breath or blood test ?╩
╩╩╩A law enforcement officer is required to take a specimen of a driver's breath or blood:╩
╩╩╩╩╩╩1) if there is a DWI arrest and an accident;╩
╩╩╩╩╩╩2) the officer has a reasonable belief that any individual has died or will die or another individual (not the person arrested) has suffered a serious bodily injury; and,╩
╩╩╩╩╩╩3) the person driving refused to give a voluntary specimen.
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22. Can a person drink an alcoholic beverage while driving a car ?╩
╩╩╩No! It is a class C misdemeanor for a driver to operate a car and personally possess an open alcoholic beverage container. This penalty, as noted earlier, increases if the driver is arrested for DWI. Additionally, recent legislation also prohibits any passenger from having an open alcoholic container unless the person is a passenger in a limousine, bus, taxi, or the living quarters of a motor home.
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23. Do I have the right to use the telephone to call an attorney for assistance ?╩
╩╩╩Maybe! There is no statute or court decision that provides that the police must allow you access to a telephone in order for you to speak to an attorney for advice and assistance. From a constitutional perspective, however, in the author's opinion, a person arrested for DWI probably has a due process right of reasonable access to a telephone to contact an attorney for the propose of arranging bail, preserving exculpatory evidence, and in deciding to answer interrogation questions asked by police.
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24. When does a person arrested for DWI have an absolute right to the assistance of an attorney ?╩
╩╩╩Under our Federal and State Constitutions, persons have an absolute right to the assistance of an attorney at their criminal trial. However, such is not the case in every pretrial stage which precedes the trial. Indeed, in some pretrial stages, a person in custody has a right to assistance of an attorney for one purpose but not for another purpose, i.e., for assistance in answering police interrogation questions but not for deciding whether or not to take a breath or blood test.╩
╩╩╩Generally speaking, any person who is in custody of a police officer wherein it would objectively be viewed he is under arrest, even if the person has not been told so, is entitled to be informed of his rights to remain silent, to have assistance of a lawyer prior to and during any interrogation, to have a free attorney if he is financially unable to hire one, and, to terminate any such interrogation. However, deliberate or negligent violations of these rights by police do not mean the person's criminal prosecution will be dismissed. Rather, the remedy for such violations is merely to declare the use of the person's incriminating statements illegal and to preclude them from being used against him by preventing their admission into the prosecution's evidence.╩
╩╩╩In regard to the above exclusionary rule, two things need to be remembered. First, police do not have to inform arrested persons of their rights if no interrogation questions will be asked. Second, if police do intend to ask interrogation questions and intend to use the person's answers as evidence of guilt, they need to not only make sure the arrested person understands the rights, but also, they need to prove the person knowingly and intentionally gave the rights up.
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25. What can a knowledgeable attorney do for me immediately after I've been arrested for DWI ?
╩╩╩A lot! As a few examples, a knowledgeable attorney can assist an arrested person in being released from jail by arranging for or posting bond. A lawyer's presence with you, either in person or on the telephone, can also deter the police from intentionally violating your rights and by preventing the police from negligent violations of them too. Here, it should be noted that all persons arrested for DWI who have taken the police breath or blood test, and even a few who have not, have a statutory and\or due process constitutional right to a second independent blood test by their doctor if performed within two hours of arrest. Accordingly, a lawyer benefits the arrested person because he has a greater chance of arranging for and coordinating such a blood test than does the person in jail for DWI.╩
╩╩╩As a final example, a lawyer can offer advice as to whether or not it would be of any benefit to answer questions, perform exercises, or to make a statement explaining and proclaiming your innocence while you are being video/audio recorded by the police.
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26. If I refuse a chemical test or if I'm found to have an alcohol CONCENTRATION of .08 or more at the time of vehicle operation, can anything be done to prevent my license from being suspended ?╩
╩╩╩Recent changes in the law allow law enforcement officers to immediately seize the driver's license of a person arrested for DWI if the person either refuses or fails a chemical test. If this happens, the officer should also issue the citizen a temporary driving certificate authorizing the person to drive legally for forty days. Furthermore, although your license has been seized, you have the right to what is called an Administrative License Revocation Hearing (we call them ALR hearings). After you are arrested for DWI and either refuse or fail chemical testing, a peace officer is required to give you written notice that your driver's license will be suspended. After the officer does that, you will have 15 days from that date to request, in writing, a hearing from the Department of Public Safety (DPS) headquarters in Austin. Alternatively, if you fail to request a hearing, you waive that right and your license will be suspended on the 40 th day after receiving notice.╩
╩╩╩If the officer fails to provide you with notice of your license suspension, the DPS will mail a notice to you, via certified mail, that your driver's license is subject to suspension. This is important because instead of the 15 days to file for a hearing from the date of your arrest, you now have 15 days from the date you receive the DPS notice. Notice is presumed to have been received 5 days after it is mailed, triggering the 15 day time limit to request a hearing. Accordingly, do not rely on receiving notice from the Department to request a hearing or you might end up waiving that right. This is also a good time to confirm that the address on your driver's license is correct with DPS, because that is where the DPS will send the notice. For notice by mail purposes, your driver's license address is your mailing address, even if it is the incorrect address. This is because you have a duty to report address changes to the DPS within 30 days of moving. Accordingly, be sure to have your license address changed if you have moved since obtaining your license.╩
╩╩╩When you make your request for an ALR hearing, the suspension of your driver's license is stopped while you await the hearing, although your temporary permit is only initially good for forty days. Should your ALR hearing be scheduled more than 40 days after your arrest, your attorney can ask the DPS to extend your provisional license until your ALR can be heard. Furthermore, if you lose your hearing, you also have the right to appeal. To appeal, you must request the appeal within 30 days after the judgment becomes final. Otherwise, you waive the right to appeal and your driver's license will be suspended on the 40 th day after the judgment becomes final. Again, while you are waiting for the appeal to be heard, your driver's license suspension is stopped, but only for a period of 90 days. Your license will be suspended on the 91 st day, even if your appeal has not been ruled upon. Here, however, if you win your appeal, then your suspension is lifted. Whether your suspension can be prevented is, however, dependent upon whether you have been convicted of an alcohol related offense or had any suspensions imposed against your driving privileges within the past 10 years, or whether your driver's license has been suspended in relation to a drug or alcohol related offense in the past 10 years. If you fit into one of these categories, your driver's license is suspended on the 40 th day after the final judgment during the pendancy of your appeal. Again, however, the suspension is vacated if you win your appeal. Lastly, if you ultimately lose your license to a suspension, you can still have it reinstated if you win your DWI case by being found "not guilty."
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27. Why is it important to request a hearing?╩
╩╩╩There are a number of good reasons to request an ALR hearing. First and foremost, the best reason to request such a hearing is to attempt to save your driving privileges. Second, by requesting an ALR hearing, you force the State of Texas to prove the police officer that stopped and arrested you did so with either reasonable suspicion or probable cause. By litigating these issues, you ensure that your rights are protected. Also, if the State fails to prove that probable cause or reasonable suspicion existed to stop or detain you, it might be prevented from re-litigating the same issues in your subsequent criminal prosecution for DWI. This could result in a dismissal of the criminal charges against you.╩
╩╩╩In the ALR hearing there are two possible theories of prosecution that the State will argue. The first is that you refused to take an alcohol breath-test and the second is that you took such a test and failed it. The DPS must prove the following depending upon the facts of your case:╩
╩╩╩╩╩╩a) Suspension based on a refusal: If you have refused to submit to chemical testing then our law requires the State of Texas to prove the following at an ALR hearing:╩
╩╩╩╩╩╩╩╩╩╩╩╩1) reasonable suspicion or probable cause existed to stop or arrest you;╩
╩╩╩╩╩╩╩╩╩╩╩╩2) probable cause existed to believe you operated a motor vehicle in a public place while intoxicated;╩
╩╩╩╩╩╩╩╩╩╩╩╩3) you were placed under arrest and properly requested to submit to chemical testing; and,╩
╩╩╩╩╩╩╩╩╩╩╩╩4) you refused the test upon proper request of the officer.╩
╩╩╩╩╩╩b) Suspension based on a test failure: The issues are slightly different if you submit to and fail chemical testing. If you fail, the DPS must prove the following two issues:╩
╩╩╩╩╩╩╩╩╩╩╩╩1) that you had an alcohol CONCENTRATION of .08 or more while operating a motor vehicle in a public place and at the time of testing; and,╩
╩╩╩╩╩╩╩╩╩╩╩╩2) that there was probable cause to arrest or reasonable suspicion to stop you. Proof is generally submitted in the form of the arresting officer's written affidavit, but sometimes subpoenas are issued and the officer actually testifies. In either event, a skilled and knowledgeable attorney is a necessity to ensure that your rights are protected.
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28. If my driver's license is suspended because I refused a chemical test or because I was convicted of DWI, then what are the penalties for driving while the license is suspended ?
This type offense, known in legal circles as Driving While License Suspended (DWLS), is a misdemeanor and carries with it the possibility of 3 days up to 6 months incarceration and $100.00 to $500.00 fine for each violation, unless it is enhanced to a Class A Misdemeanor. Then the penalties will increase.╩
╩╩╩Fortunately, if your driver's license is suspended you may apply for an Occupational Driver's License. To receive an Occupational Driver's License the law requires that good cause be shown. Examples of "good cause" under our law would be going to and from work, taking children to and from school, going to and from a religious service, traveling to or from a grocery store, or traveling to or from a medical facility for treatment. This license allows you to drive during a 12 hour period per day. This privilege is, however, subject to restrictions.╩
╩╩╩Note, however, you cannot be issued an Occupational License if you already had one in the last 10 years. Also, you might be required to install an alcohol interlock device on your car and fulfill some of the same requirements necessary for probation.
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29. How long will a DWI arrest stay on my record and will it effect my automobile insurance rates ?╩
╩╩╩"It depends" and "absolutely"! If a person receives a final conviction for DWI it will always remain on her record. Our expunction law does, however, allow for the destruction of arrest records if a number of very specific conditions are met. Unfortunately, the records relating to a driver's license suspension or revocation are not subject to expunction, even though the arrest records may be expunged. In reference to insurance rates, if you receive a DWI conviction, the great likelihood is that your insurance rate will at least quadruple.
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30. What is a surcharge ?╩
╩╩╩A surcharge is an administrative penalty charged by the Texas Department of Public Safety as a fee for a person to maintain their driver's license after they have suffered either a DWI conviction or submitted to a chemical test which showed an alcohol CONCENTRATION of .16 or more. The surcharge is assessed for 3 years following either of the aforementioned events. Specifically, the surcharges are:╩
╩╩╩╩╩╩1) $1,000.00 per year for a DWI 1 st conviction;╩
╩╩╩╩╩╩2) $1,500.00 per year for subsequent DWI convictions; and,╩
╩╩╩╩╩╩3) $2,000.00 per year for registering a .16 or more.╩
╩╩╩There is a great deal of controversy that the surcharges are really nothing more than an additional fine charged by DPS. If the surcharge is deemed to be an additional by the Texas judiciary, then they will ultimately be deemed unconstitutional as a violation of a person's double jeopardy rights. If a .16 surcharge is assessed prior to the DWI trial ending and it is paid, then may be possible to assert a double jeopardy bar that would preclude the DWI trial from ever occurring. Clearly, there will be more litigation in the future on surcharges.
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31. Are there different DWI laws for minors ?╩
╩╩╩Yes. Although minors between the ages of 18 and 20 may be charged and prosecuted under the adult DWI laws, the laws for minors differ significantly than those for adults. There, the issue is not whether a minor drove while intoxicated , but rather, a minor need only to have driven while under the influence of alcohol to be convicted (DUI). The law states that a minor commits an offense if he operates a motor vehicle in a public place while having any detectable amount of alcohol in the minor's system. Furthermore, although Texas law prohibits the prosecution and conviction of juveniles for many offenses, the legislature has made special exceptions to prosecute juveniles who drink alcohol and drive.
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32. What is a minor for purposes of DWI and DUI ?╩
╩╩╩A minor is any person under twenty-one years of age. Thus, a minor is not necessarily a juvenile. Persons between 18 and 20 years of age may be classified as minors, but may also be prosecuted as adults.
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33. Can police ask a minor to take the breath test?╩
╩╩╩Yes, the law here is the same as for an adult. Texas law deems that all persons who drive with a Texas license have already conditionally agreed, after being arrested, to take either a breath or blood test upon being properly requested to do so by a police officer. A proper request requires the officer to not only read a required statutory script, but also, to furnish the written script to the arrestee before the test request is made. Again, there is no deemed consent for urinalysis testing.
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34. Can a minor accused of DUI refuse to take the breath test ?╩
╩╩╩Yes, however, a minor's refusal to submit to a properly requested breath test will result in the following penalties:╩
╩╩╩╩╩╩1) suspension of your driving privileges for not less than 120 days if this is your first arrest for an alcohol related driving offense. If you were arrested but do not have a license, the state will not issue one to you for 120 days; and,╩
╩╩╩╩╩╩2) a 240 day suspension of your driving privileges if your record reflects one or more drug or alcohol related offense during the five year period preceding your arrest.
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35. What if a minor takes the breath test and it shows .08 at the time of driving ?╩
╩╩╩Texas law states that if a minor has any detectable amount of alcohol in his system, the minor's driving privileges will be automatically suspended for not less than 60 days, even when the minor takes a breath test and the result shows an alcohol CONCENTRATION less than .08 at the time of driving. Furthermore, if the test result confirms the presence of alcohol or any other drug in the minor's system, that evidence will be used against the minor a subsequent criminal prosecution for DWI or DUI.
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36. Does a DWI or DUI conviction affect a minor's driving privileges ?
╩╩╩The Department of Public Safety will automatically suspend the license of any minor convicted of an alcohol related driving offense for one year. Furthermore, if the Department can show that the minor is addicted to the use of alcohol, then the minor becomes ineligible to keep or obtain a driver's license.
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37. Can a juvenile minor go to jail for an alcohol related driving offense ?╩
╩╩╩The Juvenile Justice Code classifies first-offense DUI and other alcohol-related driving offenses as delinquent conduct indicating a need for supervision. What this means is that a juvenile convicted of first offense DUI can be placed on probation or committed to the Texas Youth Commission for confinement and rehabilitation. Furthermore, a minor above the age of 17 can be sentenced to up to 180 days jail on the third conviction for DUI or the first conviction for DWI. Interestingly, however, a police officer who charges a minor with DUI is not required to take the minor into police custody, but may merely issue the minor with a citation and court summons.
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38. What are the penalties for DUI and minors ?╩
╩╩╩Generally speaking, the penalties for Driving Under the Influence of alcohol as a minor, in addition to suspension of your driving privileges, are as follows:
╩╩╩╩╩╩a) First Offense: Class C misdemeanor. If you are under age 18 the court will require your parent or guardian to be present with you at every court appearance. Furthermore, the parent or guardian can be forced to attend by the court. Upon conviction, a minor may be fined, and will be required to complete a minimum of 20 and a maximum of 40 hours community service related to education about or prevention of misuse of alcohol. Additionally, the minor will be required to attend an alcohol awareness program sponsored by the Texas Commission on Alcohol and Drug Abuse within 90 days. Furthermore, if the minor is under age 18, the court may require the minor's parent or guardian to attend the program with the minor. If the minor fails to complete the alcohol awareness course within the 90 day period the court may impose an additional license suspension up to six months. For a first offense the minor may receive deferred adjudication, however, an order of deferred adjudication for DUI is considered a conviction. If the minor receives only one conviction for DUI (while a minor), that conviction may be expunged from his record after his 21 st birthday.╩
╩╩╩╩╩╩b) Second Offense: Everything for a first-offense conviction applies to a second conviction, with the following exceptions: The minor will be required to complete a minimum of 40 and a maximum of 60 hours community service related to education about or prevention of misuse of alcohol. Furthermore, a second or any subsequent conviction may not be expunged from your record, however, the minor may still receive deferred adjudication for a second offense.╩
╩╩╩╩╩╩c) Third Offense: Class B misdemeanor. For a third offense the minor will still be required to complete between 40 and 60 hours of community service, however deferred adjudication is no longer an option. As with the first two offenses the minor will be required to attend an alcohol awareness program within 90 days of your conviction, and if the minor is under age 18 a parent or guardian will be required to attend both the minor's court appearances and the alcohol awareness program. If, on the other hand, the minor is 18 years of age or older at the time of his third offense, the penalty is much higher. Specifically, the minor will receive a fine ranging from $500.00 to $2,000.00; confinement in jail for up to 180 days; or both a fine and some jail time in addition to a license suspension.
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39. Can Texas suspend my license if I received it in another state ?╩
╩╩╩No! Texas can, however, prevent you from applying for a Texas license during the period of suspension that would apply to you if you did have a Texas license. Further, because Texas and most states belong to the Interstate Compact on Driver's Licenses (kind of a treaty amongst the states) , you may still suffer a license suspension in your own state if Texas notifies it of the suspension you were supposed to have here.
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40. Do I need a lawyer to help me in a DWI prosecution and an ALR proceeding ?╩
╩╩╩Absolutely! You need not just an ordinary lawyer, but rather, one skilled in representing persons charged with DWI. There are many lawyers that take DWI cases, however, there are only a few lawyers who actually try motion hearings, litigate jury trials and ALR proceedings. You should take the task of finding a good lawyer very seriously because it really will adversely affect your life and your future if make the wrong choice. No matter how smart you may think you are, you simply cannot defend yourself as well as a skilled, knowledgeable and experienced DWI/ALR trial lawyer.