DWI TEXAS LAWYER
DWI TEXAS LAWYER

FAQs - Common Texas DWI Questions

1) What is the definition of intoxication in Texas?

2) What is a .08 alcohol concentration?

3) How can I calculate my alcohol concentration?

4) What is the difference between DWI and DUI in Texas?

5) What do police officers look for when searching for drunk drivers on the highways of Texas?

6) If I'm stopped by the police, should I answer any questions regarding drinking?

7) What signs of intoxication do police officers look for after stopping someone on the roadside?

8) Do I have a right to an attorney when I am stopped for a DWI investigation?

9) What should I do if the police ask me to take field sobriety tests?

10) Should I take a blood, breath or urine test?

11) What happens if I refuse or fail to take one of these chemical tests?

12) Can my drivers license also be suspended if I am convicted of Driving While Intoxicated?

13) How long will a DWI arrest stay on my record?

14) Is it legal to drink alcohol while driving an automobile? What about having an open container in the vehicle?

15) Will I have to have an Ignition Interlock Device put in my car as a condition of bond?

16) What is an occupational or restricted license?

17) Is the Order from the court the actual occupational or restricted license?

18) What are the requirements for obtaining the restricted license in a DWI or ALR suspension case?

19) What is an SR-22 and how can I obtain an SR-22?

20) If I do not own a car, can an SR-22 be obtained?

21) Can an insurance card or insurance policy be accepted toward the requirement of filing the SR-22?

22) What happens if my SR-22 is cancelled?

23) Can you drive a commercial motor vehicle with an occupational license?

(24) Someone said I could get " Deferred Adjudication" if I am charged with a DWI is that correct?

(25) Could I receive a probation if I am convicted of DWI?

(26) What is the difference between deferred adjudication and Probation?

(27) Someone mentioned to me that Texas has increased its fines for DWI or that it passed a "Surcharge" for individuals convicted of DWI? Is this some sort of a fine and how does it work?

(28) Can a person be charged with a felony DWI if there is child in the vehicle when they are arrested by the police?


ANSWERS

1) What is the definition of intoxication in Texas?

"Intoxication" under Texas law means:

(A) not having the normal use of [one’s] 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 substance into the body; or

(B) not having the normal use of [one’s] 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

(C) [a person] having an alcohol concentration of 0.08 or more.

It should be noted, that theoretically the prosecutor only needs to prove one of the three ways in order to obtain a conviction. For example, if the jury believes the person has lost their physical faculties, although they have not lost their mental faculties and there is no blood or breath test, theoretically that person could be found guilty. That is not always the case, generally, if the evidence only shows the loss of either the mental or physical faculties, and not both, there is usually a logical explanation for that loss and the result should be they are not intoxicated.

2) What is a .08 alcohol concentration?

Under Texas law "Alcohol concentration" means the number of grams of alcohol per:

(A) 210 liters of breath;
(B) 100 milliliters of blood; or
(C) 67 milliliters of urine.

Unless you are a engineer, chemist, toxicologist or an expert on alcohol and have a calculator, you will not be able to determine whether or not you have an alcohol concentration of .08 or more. The amount of alcohol in each of the above definitions is not equal. Consequently, depending on the test, one test could confirm your innocence while another insinuate your guilt with a .08 or more. A general rule of thumb is that you may have “one beer (12 oz.),” “one glass of wine (4 oz.),” or “one shot of whiskey (1.5 oz.)” per hour. These facts alone should prove the importance of hiring an experienced DWI lawyer who understands the differences.

3) How can I calculate my alcohol concentration?

THE FOLLOWING BAC CALCULATOR IS PROVIDED FOR INFORMATIONAL PURPOSES ONLY. IT IS NOT TO BE RELIED ON FOR THE PURPOSES OF CONSUMING ALCOHOL AND THEN DRIVING.

Estimate your Blood/Breath Alcohol Level.

A general rule of thumb is that you may have “one beer (12 oz.),” “one glass of wine (4 oz.),” or “one shot of whiskey (1.5 oz)” per hour. Also refer to the answer in question number two.

4). What is the difference between DWI and DUI in Texas?

Under Texas law intoxication includes the introduction of alcohol, or a controlled substance, a drug, a dangerous drug, or any combination of two or more of those substances, or any other substance into the body. In other words, Driving While Intoxicated includes all substances including alcohol. While “Driving Under the Influence” or DUI in Texas is an offense that involves minors. To be arrested in Texas for DUI, the person arrested must be a minor (anyone under the age of twenty-one) who operates a motor vehicle in a public place while having any detectable amount of alcohol in the minor’s system. The key words are, “any detectable amount of alcohol.” Generally, an offense under this section is a Class C Misdemeanor. That is the difference between DUI and DWI in Texas. However, there are other states that use these terms differently than we do.

5) What do police officers look for when searching for drunk drivers on the highways of Texas?

Police officers are trained to look for the following factors when searching for drunk drivers on the highways in Texas. This list is based on research conducted by the National Highway Traffic and Safety Administration? (NHTSA)

Turning with wide radius
Straddling center of lane marker
Appearing to be “drunk”
Almost striking object or vehicle
Weaving
Driving on other than designated roadway
Swerving
Speed more than “10" miles below speed limit
Stopping without cause in Traffic lane
Following too closely
Drifting
Tires on Center or Lane marker
Braking Erratically
Driving into Opposing or Crossing Traffic
Signaling Inconsistent with driving actions
Slow response to traffic signals
Stopping inappropriately (other than in a lane)
Turning abruptly or illegally
Accelerating or Decelerating Rapidly
Headlights off

Although police officers tend to believe speeding is a factor, speeding is not a recognized sign of Intoxication. The faster you drive, the quicker your reactions and reflexes must be as well as your judgment. Therefore, if you are speeding and appear to be driving normally, that would be indicators of sobriety rather than intoxication.

6) If I'm stopped by the police, should I answer any questions regarding drinking?

You are not required to answer questions that are designed to be incriminating. In a police encounter, a simple request to speak to your attorney before answering questions, would be an appropriate response. However, informing the officer that you had one or two alcoholic beverages should not be harmful since it usually would not cause a person to be impaired. This response may explain away the odor of alcohol on your breath. Always remain calm, and be courteous and respectful at all times. Always remember that after stopping you and approaching your vehicle, the officer is probably already recording your discussion and actions on video without your knowledge.

7) What signs of intoxication do police officers look for after stopping someone on the roadside?

Police officers are taught to look for the following symptoms of impairment. This list is based on research conducted by the National Highway Traffic and Safety Administration (NHTSA).

Flushed face
Red, watery, glassy or bloodshot eyes
Odor of alcohol on breath
Slurred Speech
Fumbling with wallet while trying to get license
Failure to comprehend officer's questions
Unsteady of feet while exiting vehicle
Swaying while standing
Leaning on car for support
Being combative, argumentative or jovial while talking with officer
Disheveled clothing
Lack of awareness in regards to time and place
Unable to follow police instructions

8) Do I have a right to an attorney when I am stopped for a DWI investigation?

The law in Texas provides that persons stopped for DWI initially do not have the right to an attorney. In fact, you do not have a right to speak to a lawyer until after the initial investigation on the street is complete and you have been taken to jail. Most citizens do not understand that after their arrest, they are not entitled to speak to a lawyer when confronted with the decision of taking or refusing a blood, breath or urine test. Keep in mind, that it is still a good idea to request a lawyer when you are first stopped by the police and you want to continue requesting to talk with your attorney before continuing further with any of the police officers other requests.

9) What should I do if the police ask me to take “Field Sobriety Tests”?

Understand the police want you to help them make their case against you stronger. By performing field sobriety tests, you are simply helping the police manufacture evidence against you. Be aware that they fully intend on using this evidence against you in court . Therefore, taking an Horizontal Gaze Nystagmus (HGN) test (the pen test), the Walk and Turn (walk the straight line), the One Leg Stand test, or any other evaluation test on the street is usually not a good idea. Most experts agree that police officers are not trained well enough to accurately interpret the symptoms observed while administering these street evaluations. This doesn't mean that you need to be rude or nasty to an officer if he asks you to do some Field Sobriety Tests. Again, it is much better that you be courteous, respectful and "respectfully decline" all tests.

10) Should I take a blood, breath or urine test?

Most of us who are experienced DWI Attorneys agree that the above tests are not completely accurate and therefore should not be taken. According to most experts of the three tests, the blood test is the most accurate, but it is too time consuming for police officers to use. The Breath test is the easiest for the officer, because the machine is available and already housed at the police station. The urine sample is the least accurate by all accounts.

However, if you agree to take one of these chemical tests for the police, remember that you are then entitled to request your own independent test, so you need to request a blood test also. Most police officers will not provide you with that information. Therefore, calling an experienced DWI lawyer immediately after your arrest is important!

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11) What happens if I refuse or fail to take one of these chemical tests?

Basically, If a person refuses or fails a blood or breath test following an arrest for driving while intoxicated, the person may receive a license suspension of 90 days up to 2 years, depending on the number of alcohol related contacts the person has had in the past. More importantly, whether you take a test, or you refuse one that the police offer, you only have 15 days after your arrest to request a hearing to fight to keep your license from being suspended. This is one of the reasons it is important to request a hearing before the State Office of Administrative Hearings to stop the Texas Department of Public Safety (DPS) from attempting to administratively (civilly) suspend your license. Again, calling an experienced DWI lawyer immediately after your arrest is important!

12) Can my drivers license also be suspended if I am convicted of Driving While Intoxicated?

Yes, if a person receives a final conviction that person’s license may be suspended. The license suspension period ranges from 90 days up to 2 years. A conviction for driving while intoxicated under the age of 21 will result in an automatic suspension for one year, unless the person is on probation and required to have an Ignition Interlock Device..

Note: Generally speaking, in Harris County, if you are a first offender, and you represent yourself and plead guilty to Driving While Intoxicated you will more than likely receive a final conviction and lose your license for one year. Remember, the Assistant District Attorney and the Judge do not represent you, one is there to prosecute you; the other is there to preside over the case. The Judge cannot and will not give you legal advice. Again, having an experienced DWI lawyer represent you is very important to your case!

13) How long will a DWI arrest stay on my record?

If you are convicted for the DWI, even if you receive probation, it will remain on your record “FOREVER.” If you are found “Not Guilty” at your trial, you can have the arrest and the DWI charge “expunged” from your record.

14) Is it legal to drink alcohol while driving an automobile? What about having an open container in the vehicle?

No, it is a Class C Misdemeanor for a driver to have an open container of alcohol in his or her personal possession while operating a motor vehicle. It is also illegal for any passenger to have an open container of alcohol in their possession. However, if you are the passenger in a taxicab, limousine, bus, or in the living quarters of a mobile home, you can legally consume alcohol while being driven around.

If you go to a party and take a bottle of wine, beer or liquor, and leave the party with them you can be ticketed for possessing an open container of alcohol. In order to legitimately carry a bottle of wine, beer or liquor, the seal must not be broken. If the seal is broken, the only other legitimate way to carry the bottle is put in the trunk of your car, or if you are in a truck or SUV, then it must go behind the last row of seats. However, my advice is to leave the alcohol at the party when you leave.

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15) Will I have to have an Ignition Interlock Device put in my car as a condition of bond?

For a first offense, conditions of bond are a matter of discretion with the Court. Generally, most judges will not make a an Ignition Interlock Device as a condition of bond for a first offense DWI. However, if you are charged with a subsequent DWI (no matter how long ago your first DWI was), with Intoxication Assault, or with Intoxication Manslaughter you are required by law to install an Ignition Interlock Device on you automobile. In fact, you will not be able to drive any vehicle that is not equipped with an Interlock Device. If the device determines a certain level of alcohol on your breath, it will temporarily disable your vehicle. When driving, you have to continuously blow into the device about every twenty (20) minutes. Please note, that the alcohol in some mouthwashes can even be enough to cause the Ignition Interlock Device to disable the vehicle if you do not wait a certain period of time after its use.

16) What is an occupational or restricted license?

An occupational or restricted license is a special restricted license authorized by a Court, and issued to persons whose license has been suspended or revoked for certain offenses. This restricted or occupational license authorizes the operation of a non-commercial motor vehicle in connection with a person’s occupation, for educational purposes or in the performance of essential household duties.

17) Is the Order from the court the actual occupational or restricted license?

No, this is the order granting the occupational license. The court order and all other required items need to be submitted to the Texas Department of Public Safety (DPS) so an occupational or restricted license can be issued. The court order may be used as a temporary restricted license for 30 days from the date of the judge’s signature while DPS processes the occupational license, and is to be kept in the glove box of the motor vehicle you operate.

18) What are the requirements for obtaining the restricted license in a DWI or ALR suspension case?
You must mail into the Texas Department of Public Safety (DPS), a certified copy of the court order granting the occupational license. Also enclose the following:
  1. An original pink SR-22 certificate of insurance. This is the only proof of insurance acceptable.
  2. A $10 license fee for a one-year license or less. The maximum length of issuance is a 2-year license for $20, provided that the court order grants this length of time.
  3. A $125 statutory reinstatement fee for the Administrative License Revocation (ALR), if required; and
  4. A completed SR-37 form to type the occupational license.

Caveat: The Texas Department of Public Safety (DPS) requires all reinstatement fee(s) be paid prior to the issuance of the occupational or restricted license.

19) What is an SR-22 and how can I obtain an SR-22?

An SR-22 insurance policy is a certificate of insurance that shows the Texas Department of Public Safety (DPS) proof of insurance for the future, as required by law. SR-22 insurance is not necessarily "high risk" insurance. It is motor vehicle liability insurance which requires the insurance company to certify coverage to DPS, and the insurance company must notify DPS anytime the policy is cancelled, terminated or lapses. You may contact an insurance agent/company of your choice who is authorized to write liability insurance for the State of Texas.

20) If I do not own a car, can an SR-22 be obtained?

You do not need to own a car to buy this kind of insurance. If you do not own a car, please contact an insurance agent/company of your choice and talk to them about a non-owner SR-22.

21) Can an insurance card or insurance policy be accepted toward the requirement of filing the SR-22?

No, when proof of financial responsibility is required, form SR-22 must be filed to meet the compliance requirements with the DPS.

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22) What happens if my SR-22 is cancelled?

Once the Texas Department of Public Safety (DPS) receives notification from the insurance company that the policy is cancelled, terminated, or lapses appropriate enforcement action may be taken. If the SR-22 is still required and there is not a valid SR-22 on file, you again face the possibility that your driving privilege and vehicle registration will be suspended. Additionally, the Court may withdraw its original court order granting you the restricted license.

23) Can you drive a commercial motor vehicle with an occupational or restricted license?

No, if a person’s driver license or the privilege to drive is suspended, revoked, cancelled, or denied under any law in this state, the person may not be granted an occupational, restricted or “essential need” license to operate a commercial motor vehicle.

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(24) Someone said I could get " Deferred Adjudication" if I am charged with a DWI is that correct?

No. DWI is one of a few of crimes in Texas where Deferred Adjudication is not available under the law as a punishment option.

(25) Could I receive a probation if I am convicted of DWI?

Yes, depending on your prior criminal history, the facts surrounding your case, etc. and whether you meet the minimum requirements under Texas law — for "community service" or "probation:" Those minimum requirements are: 1) That you have never been convicted of a felony offense in this State, another state or the United States; and you have never been given adult "community service" or "probation" for a felony offense in this State, another state or the United States.

(26) What is the difference between deferred adjudication and Probation?

First, Texas classifies both of these punishments as "community service," — one is called "Deferred Adjudication Community Service" and the other is called just "Community Service" or what we used to call "probation." Second, Deferred Adjudication is a punishment that an individual can only receive from the Judge and never a jury, whereas probation can be received from either a Judge or a Jury. Third, in a Deferred Adjudication situation, the Judge defers a finding of guilty against an individual and places that person on community service without entering judgment of guilty. On the other hand, under the punishment known as "probation", the person is found or judged "guilty" and sentenced, but the sentence is then probated. With probation the individual is actually convicted, but the sentence is probated, whereas with the "Deferred Adjudication" the person is not convicted, but is placed on community service. However, as stated in Question 24, Deferred Adjudication is not a punishment option in a DWI case in Texas. If some attorney mentions to you that it might be available or tells you that it is, then you are not talking with a DWI Attorney.

(27) Someone mentioned to me that Texas has increased its fines for DWI or that it passed a "Surcharge" for individuals convicted of DWI? Is this some sort of a fine and how does it work?

Contrary to media reports, the 78TH Texas Legislature did not increase fines. However, the Legislature did pass a "Surcharge" or an administrative fee under a law known as the "Driver Responsibility Act," that took effect on September 1, 2003. The fees under this law are strictly administrative in nature, and are above and beyond, any fines, court costs, probation fees or filing fees that the State already receives in a DWI case. The law basically requires any person convicted after September 1, 2003 of a first offense DWI to pay the State of Texas a "surcharge" in the amount of $1,000.00 per year for three years to keep their drivers license; or any person convicted of a second offense DWI to pay the State of Texas a "surcharge" of $1,500.00 per year for three years to keep their drivers license; or any person convicted of an offense of DWI, that has a test result of .16 or higher with a breath or blood test, to pay $2,000.00 per year for three years to keep their drivers license. These fees are paid to the Department of Public Safety and if not paid within the designated time allowed, the person will automatically lose their driver’s license or the privilege to obtain a driver's license until the money is paid.

(28) Can a person be charged with a felony DWI if there is child in the vehicle when they are arrested by the police?

Yes. Effective September 1, 2003, the 78TH Texas Legislature passed a law that makes a DWI punishable as a felony, if there is a child younger than fourteen (14) years old in the vehicle when a person is stopped and arrested.


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