Brought to you by Colorado DUI Drunk Driving Defense

Fort Worth DWI Lawyers

1. Huston Law Firm: The disastrous consequences that DWI can have on families and innocent victims has been well documented over the years by groups such as M.A.D.D. (Mothers Against Drunk Drivers), and I in no way encourage anyone to drink alcohol and drive a motor vehicle. With that being said, everyone that takes a drink and drives a vehicle is not per se intoxicated. The definition of intoxication in Texas, states: not having the normal use of mental 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 substances into the body; OR not having the normal use of 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 substances into the body; OR having an alcohol concentration of 0.08 or more. As can be seen above, the State can prove DWI by one of three ways: loss of normal mental faculties, loss of normal physical faculties, or an alcohol concentration of 0.08 or more. Without a blood/breath test, a DWI investigation will most likely come down to whether or not it was the police officerÕs ÒopinionÓ that the driver was intoxicated. As you may guess, this provides ample room for argument on the issue of intoxication. As you can imagine, this raises many questions: Why contest DWI charges? What are the penalties related to DWI? What are a personÕs rights in a DWI situation? What the police are required to tell you What the police are not required to tell you Ð but you need to know! What are the Standardized Field Sobriety Tests (SFSTÕs)? How do they work? What do I do when an Officer requests I take them? Why contest DWI charges? Driving While Intoxicated is a serious crime. It may start off being a class ÒBÓ misdemeanor offense but the consequences of a DWI conviction are very severe. In the following paragraphs you will see the potential severity of the DWI punishment ranges, and the DWI surcharges to be levied by the Department of Public Safety. But what you will not see until later is the incredible increase in your automobile insurance premiums and the issues related to regaining your privilege to drive. Also, DWI trials are winnable. Depending of course on the facts of your case and how steadfast you are in protecting yourself, the State may have a very hard time proving beyond a reasonable doubt that someone was driving while intoxicated. (back to the top) What are the penalties related to Driving While Intoxicated? ¯ Driving While Intoxicated (First Offense) This is categorized as a ÒBÓ Misdemeanor and is punishable by a fine not to exceed $2,000 and the possibility of confinement of 3 days to 180 days in jail. There is also a driverÕs license suspension of 90 days to 365 days. ¯ Driving While Intoxicated (Second Offense) This is categorized as an ÒAÓ Misdemeanor and is punishable by a fine not to exceed $4,000 and the possibility of confinement of 30 days to 1 year in jail. There is also a possible driverÕs license suspension of 180 days to 2 years. ¯ Driving While Intoxicated (Third Offense) This is categorized as a Third Degree Felony and is punishable by a fine not to exceed $10,000 and the possibility of confinement of 2 years to 10 years in prison. There is also a possible driverÕs license suspension of 180 days to 2 years. ¯ Driving While Intoxicated With a Child Passenger (Passenger younger than 15 years of age) This is categorized as a State Jail Felony and is punishable by a fine not to exceed $10,000 and the possibility of confinement in the state jail facility from 180 days up to 2 years. ¯ Driving While Intoxicated/Intoxicated Assault This DWI crime involves an accident or mistake that results in the serious bodily injury of another person as a result of driving while intoxicated. This is categorized as a Third Degree Felony and is punishable by a fine not to exceed $10,000 and the possibility of confinement of 2 years to 10 years in prison. ¯ Driving While Intoxicated/Intoxication Manslaughter This DWI crime involves an accident or mistake that results in the death of another as a result of driving while intoxicated. This is categorized as a Second Degree Felony and is punishable by a fine not to exceed $10,000 and the possibility of confinement of 2 years to 20 years in prison. The DWI crimes and punishments listed above indicate the maximum sentences per the Texas Penal Code. There may, however, be potential enhancement provisions that may increase the punishment depending on prior criminal histories. Also a probated sentence, or a probated sentence with a number of days served as a condition of probation, may be an option in your case but there is no guarantee that probation will be offered by a Prosecutor or that a Judge or Jury would probate a jail sentence in your case. Therefore it is in your best interests to contact an attorney that can use their experience and knowledge to assist you in your case. Additional Surcharges As if that was not enough, other potential pitfalls awaiting a person convicted of DWI include the surcharges from the Department of Public Safety. In order to keep your driverÕs license you will need to pay the required surcharges for 3 years from the date of your conviction. What you pay, in large part, depends on any prior DWI history and if you decided to submit to a blood or breath test and your score. If you had no prior DWI convictions you would be assessed a $1,000 per year surcharge for 3 years from your conviction date. If you have been convicted of DWI within the past 36 month period preceding your current DWI there would be a surcharge of $1,500 per year for 3 years from your conviction date. If you submitted to a breath or blood test and your blood alcohol concentration (B.A.C.) was 0.16 or higher there would be a surcharge of $2,000 per year for 3 years from your conviction date, regardless of any prior DWI history. (back to the top) What are a personÕs rights in a DWI situation? What the police are required to tell you What the police are not required to tell you Ð but you need to know! DRIVING WHILE INTELLIGENT Driving While Intelligent is a paradigm shift for drivers because just trusting the Police may not always be in your best interest. Knowing your rights as a driver suspected of Driving While Intoxicated, is an aspect of driving that can be just as important as knowing how to navigate the streets well enough to pass a Department of Public Safety test. When a person is pulled over and the Police Officer begins the investigation into whether or not the driver is intoxicated, that person needs to be equipped with sufficient knowledge to safeguard their rights then and there. This is because in those couple of hours when the investigation is in full gear a person can make or break their chance to beat the case. Why? The most essential ingredient to the StateÕs case, and this is painfully obvious, is to prove the driver was intoxicated while driving the motor vehicle. I told you it was obvious. The reason for the haste in the Police investigation is because alcohol influences the body for a limited amount of time. Minute by minute the effects of alcohol are wearing off at a rate of approximately one drink per hour, so the State has to act quickly in order to get the evidence that will enable it to have a case. This may explain why in the field of Driving While Intoxicated, the State laws and the Police Officers are so reluctant to provide you with any insight relating to your rights. For example, just ask for an attorney during the investigation phase and see what happens. I would be willing to wager that the Police will not give you the opportunity to consult with an attorney or get his advice. Also hesitate in taking the Standardized Field Sobriety Tests or the Breath Test and see if you are not met with a diatribe about refusing and how it will be part of the StateÕs case. Below is just a sample list of the issues that come up in a Driving While Intoxicated investigation: The Police will not tell you that you have the right to refuse the SFSTÕs. The Police will tell you that you have no right to consult with an attorney during the DWI investigation. The Police will tell you that you have no right to consult with an attorney on whether or not to take or refuse any tests. The Police have the choice of which test to offer either breath or blood. The Police will almost always choose Breath because it is easier on them despite a blood test being more accurate. The Police will most likely never tell you that you have the right to get a blood test after you give a breath test although this is the law. The Police will most likely never tell you about the possibility of getting an occupational license even if your license is suspended. The Police will not tell you that everything you say before you are read your Miranda rights can be used against you. Time is of the essence and there will be no follow-up investigation in the weeks ahead, the work must be done quickly if at all. For instance during a typical written confession scenario, the Police will bend over backwards to make sure that everything is proper and the person waived all of their rights intelligently and voluntarily. In the context of a DWI however, the strategy is to apply pressure in the right places, whether it be the threat of a driverÕs license suspension or simply implying that if you refuse anything you are clearly hiding something and under arrest. They have to get that evidence fast. A person needs to know why the DWI investigation is conducted the way it is, and they need to know what they can and cannot do to help themselves. Why should the State be able to harm you for exerting your rights? So read on if you are interesting in learning how to Drive While Intelligent. (back to the top) What are the Standardized Field Sobriety Tests (SFSTÕs)? How do they work? What do I do when an Officer requests I take them? This is an area of high importance in a DWI investigation and/or case. The following section is devoted to the Standardized Field Sobriety Tests or SFSTÕs and their pitfalls. People are always asking me, ÒShould I take those tests?Ó I believe the majority of people respect the law and law enforcement personnel in general, and because of this they answer the OfficerÕs questions and they do what the Officer ask of them. The choice is of course yours, but there are a number of reasons to suggest that you should not take those tests, nor should you answer any incriminating questions. First of all if the Police Officer requests for you to take the SFSTÕs you are already under suspicion of DWI and the Officer is trying to gather evidence to further that suspicion. The SFSTÕs are not designed for you to ÒpassÓ. These are tests designed for you to fail. The Walk and Turn and the One Leg Stand tests are SFSTÕs that normal/sober people typically cannot do without showing some clues. Sure, the Officer makes it look so easy, but the Officer has also practiced these tests over and over. Think about the garden variety DWI scenario: it is late, you are driving home, you may have had a couple of beers, but you are by no means intoxicated. You get pulled over and a Police Officer is going to have you do some tests on the side of the road that you probably have never seen or heard of, with other cars zooming by on the roadway. In addition to the inherent distractions and the stress of having someone examining your every move, you have to listen very carefully and do everything the Officer says because if you do anything wrong it will be counted against you. Furthermore, the Officer does not even have to tell you the rules of the game. Sure, the Officer will instruct you and demonstrate the SFSTÕs. But, the Officer will not explain them so that you know what the Officer is looking for, or what will be counted against you. For example, on the One Leg Stand tests the Police Officer will tell the driver in the instructional phase that if you should lower your foot just pick it right back up and continue counting. Well, what the Police Officer did not tell you is that lowering your foot is a ÒclueÓ that is counted against you. And, if you were unfortunate enough to have raised your arms away from your sides when your foot went down, you just picked up clue number two - and you failed the One Leg Stand test. This is high stakes, and it is common sense that you do not play a game that you cannot win. The driver should simply do nothing, say nothing incriminating, ask for an attorney, and be as nice as can be. If the Police Officer thinks you are intoxicated to begin with, you will rarely change those thoughts by being cooperative and handing the Officer more and more evidence to build a case. If you refuse the tests, you may go to jail tonight but you may have also given yourself a much better chance to win when it counts. Subjectivity in the OfficerÕs observations is also of chief concern. If anyone has experience watching sporting events they can attest to the impact that arbitrary decisions and opinions have on an outcome. In addition, there is supposed to be a video camera taping all that transpires at the roadside but the footage will never be able to discern whether or not the driverÕs eyes really jerked during the HGN test or whether the driver really was off by over a 1/2 inch on the heel to toe touch on the Walk and Turn test. Your performance on the SFSTÕs will ultimately be the ÒopinionÓ of an Officer that was looking to find clues of intoxication in the first place. In the ideal situation a driver will be as polite as possible throughout the process. The driver should beware that they are probably being videotaped and that videotape will most likely be crucial evidence in the StateÕs case. One should speak as clearly and coherently as possible, but know not to offer incriminating statements. If the driver has to get out of the car, stand as straight as possible and do nothing. If the driver feels the need for support, then lean against your vehicle and then stand as straight as possible and do nothing. When asked about drinking or other incriminating questions by the Officer, you do not have to answer. You may however admit that you have had one or two beers. This is not that damaging as a couple of beers will rarely be enough to render someone intoxicated and can at the very least explain the odor of alcoholic beverage if noted by the Police Officer. When asked about SFSTÕs you do not have to take them. Instead just refuse them, be polite, and request an attorney. If and when you are arrested be calm. When placed in the patrol car be quiet, sit upright with good posture, and be aware that the interiors of patrol cars may be videotaped as well. When you are taken to the police station be polite, and once again stand as straight as possible. Do not perform any SFSTÕs at the station for the aforementioned reasons, and DO NOT SUBMIT TO A BREATH TEST. There is a certain stigma already attached to DWI cases, so why give the State more evidence than the facts pertaining to the traffic stop, the smell of alcoholic beverage, and you refusing the tests based upon your rights to do so. I will end this with, you do not have to take any tests or answer any questions that you do not want to. This is a fact that the Police Officer will not tell you, so know your rights beforehand. You do not have to provide evidence against yourself, regardless of their requests. If the Officer thinks you are intoxicated, you will most likely be arrested for DWI, but you will be arrested with as little evidence as possible for the State to use against you. Let me be clear, if you do choose to refuse the SFSTÕs and the Breath Test the State will use that fact against you, but it is better to assert your rights than to possibly incriminate yourself. In my experience, the State is always more than happy to point out that a citizen could have asserted their rights but chose not to, when in the context of search and seizure and/or confession law. Therefore it is greatly troubling to me that in the context of DWI, the State will attack a citizen with such zeal for merely asserting their rights. Maybe if the State had more than an OfficerÕs opinion of intoxication they would not have to rely so heavily on the mere specter of some perceived wrong doing.
2. Reed, Leon: traffic tickets, criminal law matters, family law issues, wills, and car wrecks
3. Paul Previte: Frequently Ask Questions 1. What is DWI Driving While Intoxicated is defined by the Texas Penal Code. It does not mean drinking and then driving unless you are intoxicated when operating the vehicle. Ê 2. How soon must I act to contest my DWI? You only have 15 days from the date of your arrest to request an administrative hearing to contest your license suspension. If you refused the breath/blood/urine test you face a possible suspension of your license for at least one hundred eighty days. If you submitted to a test which yields a result of .08% or above, you face a possible suspension of your license for at least 90 days. Ê 3. What does intoxicated mean? It can mean two things. 1. Having an alcohol concentration of .08 or more; or 2. Not having the normal use of mental and/or physical faculties because of the ingestion of alcohol, drugs, controlled substances, or any combination thereof. Ê 4. What does an alcohol concentration of .08 mean: ÒAlcohol ConcentrationÓ is defined as follows: ¥ The number of grams of alcohol per 100 milliliters of blood; ¥ The number of grams of alcohol per 210 liters of breath; ¥ The number of grams of alcohol per 67 milliliters of urine. 5. 6. Contrary to popular belief, alcohol testing is not an exact science. Many factors can affect the tests used to measure Òalcohol concentrationÓ; accordingly, it is possible to be guilty if tested by one method yet innocent if measured by another method (i.e. breath test vs. blood test). The State of Texas gives you the right to a blood test, if you have first submitted to a breath test; however, they do not advise you of this right. In practice, you will generally be looking at a breath test measurement taken by the use of an Intoxylizer 5000. However, the statute does mandate testing by the 5000; therefore, judges and juries are not mandated to rely on these test results. 7. 8. Further, you could have the normal use of your mental and physical faculties and yet still test with a concentration that equals or exceeds the .08 threshold. This may be the result of a high tolerance for alcohol or from an inaccurate test. 9. Ê 10. Are the methods used to determine alcohol concentration accurate? The short answer is no; however, some are better than others. Blood testing is considered to be the most accurate and reliable; urine testing is considered to be the least accurate and reliable; and breath testing falls somewhere in between. All three methods are subject to errors. Errors may result from instrument failure, failure to follow testing protocols, and contamination among other causes. Breath tests cannot be checked by independent examination, although the Intoxilyzer 5000 is designed to preserve a sample. Blood tests results are subject to independent examination. Ê 11. What is the Inoxilyzer 5000? This is the instrument used to measure breath alcohol concentration in Texas. The instrument works on the theory of infrared spectrometry, by measuring the absorption of infrared light absorbed by the alcohol on a personÕs breath. Ê 12. Is this machine reliable? The underlying mathematical formula is proprietary in nature and has not been released by the manufacturer. However, the manufacturer will not warrant their product is fit for any particular purpose; this means they do not promise it is fit for use as a breath testing device. Moreover, the particular machine used to test a personÕs breath is not subject to independent testing for accuracy and reliability. Moreover, although the breath sample could be preserved by using a $2.00 accessory, Texas does not utilize this meager method of quality control. Additionally, although the machine is equipped with some safeguards, there are common substances that may be misidentified as alcohol by the Inoxilyzer 5000. If these ÒcontaminantsÓ are not flagged by the machine, they will produce a false high reading. Also, residual alcohol or other substances in your mouth may cause the Intoxylizer to produce a false high result. Finally, the Intoxylizer is designed to paint with a very broad brush and it makes the erroneous assumption that all persons being measured are the same. Obviously, we come in all shapes and sizes with different constitutions, metabolisms, weights, ages, lung capacities and temperatures; the Intoxylizer does not take this into account. Worse, its assumptions can result in a breath test score .08 when the true number should be .04. Ê 13. What will happen to me if I am convicted of DWI? First Offense (Class B Misdemeanor): Fine ranging from $0 to $2000.00, a jail sentence of not less than 3 days but not more than 180 days, and a license suspension ranging from 90 days to one year. - With Open Container your minimum jail sentence jumps to 6 days. Second Offense (Class A Misdemeanor): Fine ranging from $0 to $4000.00, a jail sentence of not less than 30 days but not more than 365 days, and a license suspension ranging from 180 days to 2 years. Third Offense (3rd Degree Felony): Fine ranging from $0 to $10,000.00, a jail sentence of not less than 2 years but not more than 10 years, and a license suspension ranging from 180 days to 2 years. Intoxication Assault (3rd Degree Felony) (if you are accused of DWI with an accident that caused serious bodily injury): Fine ranging from $0 to $10,000.00, a jail sentence of not less than 2 years but not more than 10 years. Intoxication Manslaughter (3rd Degree Felony) (DWI and accident causing death): Fine ranging from $0 to $10,000.00, a jail sentence of not less than 2 years but not more than 20 years. DWI with child passenger (3rd Degree Felony) (DWI and child in car who is less than 15 years of age): Fine ranging from $0 to $10,000.00, a jail sentence of not less than 180 days but not more than 2 years. Ê 14. Will I go to jail if I am convicted? If this is your first offense, then you probably will not go to jail. However, at a minimum you would be placed on probation. If you fail to abide by the conditions of probation, then you could be placed in jail. For subsequent offenses and felonies, your chances of incarceration increase. Of course, every case is fact specific and you may or may not be looking at jail time based on your circumstances. Even if a jail sentence is imposed, we have some options to minimize the impact of the sentence. For example, we may be able to convince the judge to let you work for the county in lieu of serving actual jail time, or we may be able to convince the judge to let you serve your sentence after work or on the weekends, so you can keep your job. Ê 15. What does probation generally entail? Ê ¥ Report at least once per month to a probation officer ¥ Do not commit any further offenses ¥ Pay a monthly probation fee (generally around $50) ¥ Perform community service (generally 24 to 80 hours) ¥ DWI classes dealing with the effects of DWI ¥ DWI Victim Impact Panel (victims of DWI tell you how DWI has destroyed their lives) ¥ No drinking ¥ No drug use ¥ Pay all fines and costs ¥ Random drug testing ¥ Installation of an interlock device on your car (makes you take a breath test before the car will start) Ê 16. If my license is suspended, how will I get to work? If you drive with a suspended license, you will go to jail. However, we may petition the court for an occupational driverÕs license. This type of license will allow you to drive to and from work and for duties related to your employment. You will also be allowed to drive to perform essential needs of your household. You will be able to drive for at least four hours per day, but not for more than 12 hours per day.