| Law Office of Paul B. Kennedy, Attorney at Law, PLLC 800 Bering, Suite 208, Houston, Texas 77057 Tel: (832) 606-9432 Fax: (866) 587-2584 DWI Defense, Criminal Defense, Traffic Tickets, Family Law |
Driving While Intoxicated - FAQ
What is DWI?
Driving while intoxicated is a criminal offense that says a person may not operate a motor vehicle in a public place while
intoxicated. The DWI statute does not say "driving while drunk."
What does intoxicated mean?
While a person doesn't have to be drunk to be intoxicated, if a person is drunk he is intoxicated. Intoxicated is defined in
two ways. First, a person is intoxicated if he has lost the normal use of his mental or physical faculties as a result of
consuming alcohol, a drug, a controlled substance, or any combination thereof. A person is also intoxicated if he has an
alcohol concentration of .08 or higher at the time of driving.
Whose normal mental and physical faculties are we judged by and what is normal?
The normal mental and physical faculties referred to by the DWI statute are those of the person who was arrested. The
term does not apply to the normal faculties of the police officer, the jurors or the fictional average person.
What is a .08 alcohol concentration?
The DWI statute defines alcohol concentration 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.
If you've been drinking, unless you're a physicist, an engineer or a chemist and have a calculator, you have no way of
determining whether you have an alcohol concentration of .08 or higher. As a result of these statutorily defined
concentrations not being equal, a person could be innocent in one concentration but guilty in another. Furthermore, it's
also possible for a person to be innocent of being intoxicated because there is no loss of normal use but still be guilty of
having an alcohol concentration of .08 or higher.
Is it .08 or higher at the time of driving or at the time of the test that makes me guilty of DWI?
The DWI statute makes it a criminal offense to have an alcohol concentration of .08 or higher at the time of driving. It is not
against the law to have an alcohol concentration of .08 or higher at the time of the test. But, depending on when the test
was conducted, the alcohol concentration at the time of the test may be relevant in determining the alcohol concentration at
the time of driving.
How accurate and reliable are the police methods used to determine alcohol concentration?
The DWI statute provides that the police can choose to test your breath, your blood or your urine.
Urine testing is the least accurate and least reliable method of determining alcohol concentration.
A majority of forensic scientists believe that blood testing is the most accurate and most reliable method of determining
alcohol concentration. However, from the police perspective, it is the least convenient method, and, unlike breath and urine
testing, the citizen accused of DWI has the opportunity to recheck the test and attack the accuracy and reliability of the police
test.
Breath testing is the most convenient means for the police to determine a person's alcohol concentration but there is great
debate regarding the accuracy and reliability of a breath test result. In Texas, breath samples are not preserved for
retesting.
What is the debate over the Intoxilyzer's accuracy and reliability?
The prosecution will say the breath test machine measures alcohol and nothing else. Others say the machine often
misreads other substances commonly found in human breath and gives false high readings.
The DWI statute says a person is intoxicated if he has a .08 or higher alcohol concentration in his breath, it does not,
however, say .08 or higher as judged by the Intoxilyzer. As a result, neither the judge nor the jury is required or obligated to
believe that an Intoxilyzer result of .08 or higher is either accurate or reliable.
Neither the DPS nor the manufacturer of the Intoxilyzer will allow anyone outside of law enforcement to test the accuracy or
reliability of the breath test machine.
CMI, the manufacturer of the Intoxilyzer, won't warrant the breath test machine to be fit for any particular purpose. In other
words, the manufacturer of the machine won't stand behind its accuracy or reliability for breath testing.
Even though the technology is available to preserve breath samples, the DPS does not require the samples to be saved for
retesting.
The computer program that runs the Intoxilyzer makes the assumption that every person tested is the same average
person. The breath test machine does not take into account that people come in all different sizes, weights, ages, muscle
development, lung capacity, alcohol tolerance, temperature and blood/breath ratio.
Finally, just like any other machine built and operated by people, the Intoxilyzer is subject to human error.
What are the penalties for DWI?
(a) First offense: Class B misdemeanor with a fine not to exceed $2,000 and/or confinement in jail from 3 to 180 days and a
driver's license suspension from 90-365 days;
(b) Second offense: Class A misdemeanor with a fine not to exceed $4,000 and/or confinement in jail from 30 days to 1
year and a driver's license suspension from 180 days to 2 years. Even if the sentence is probated, punishment may still
require 72 hours of continuous confinement;
(c) Third offense: third degree felony with a fine not to exceed $10,000 and/or imprisonment for a term of not more than 10
years nor less than 2 years and a driver's license suspension from 180 days to 2 years. Even if the sentence is probated,
punishment may still require not less than 10 days of continuous confinement in jail;
(d) with an open container of alcohol: the minimum term is increased to six days;
(e) with an accident where serious bodily injury occurred: the offense is known as intoxication assault and is classified as a
third degree felony. The punishment includes a fine not to exceed $10,000 and/or imprisonment for a term of not more
than 10 years nor less than 2 years. Even if the sentence is probated, punishment requires not less than 30 days of
continuous confinement in jail; and
(f) where a death has occurred: the offense is known as intoxication manslaughter and is classified as a second degree
felony. The punishment includes a find not to exceed $10,000 and/or imprisonment for a term of not more than 20 years
nor less than 2 years. Even if the sentence is probated, punishment requires not less than 120 days of continuous
confinement and a driver's license suspension from 90 days to 1 year.
A DWI conviction in another state can be used to enhance the punishment for a DWI under Texas law.
Is a person required to take a breath, blood or urine test when requested by a police officer?
Maybe. Under Texas law, anyone who drives with a Texas driver's license has already agreed, after their arrest, to take a
breath or blood test when requested by a police officer. This deemed consent only arises when the person has driven in a
public place. The DWI statute defines public place as any place that the public, or a substantial group of the public, has
access and includes, but is not limited to, streets, highways and the common areas of school, hospitals, apartment
buildings, office buildings, transport facilities and shops.
There is no deemed consent for a urine test, however.
What can an attorney do for me immediately after I've been arrested for DWI?
An attorney who is experience in DWI defense can assist the arrested person is being released from jail by arranging for
and posting bond. A lawyer present, either in person or by phone, can prevent and/or deter the police from violating your
constitutional rights.
It is a little known fact that all persons arrested for DWI who have taken the police breath or blood test have a constitutional
right to a second, independent blood test, by their doctor, within two hours of arrest. An attorney has a greater chance of
arranging such a test than the person sitting in jail.
An attorney can also advise you as to whether it would be in your best interest to answer questions, perform coordination
exercises or make any statements explaining and proclaiming your innocence while being video- or audio-taped by the
police.
If I'm stopped for DWI, what advice do you, as an attorney, have for me?
First, don't drink alcohol or use drugs and then drive!
Second, recognize that police officers have a hard and dangerous job. Remember that a police officer has a great deal of
discretion to arrest a person. Showing a lack of manners or being rude to the police officer is the quickest ticket to being
handcuffed and stuffed in the back of a patrol car.
Third, police work is very competitive and some officers receive increased pay as a result of subsequent court
appearances for their arrests.
What should I do if the officer signals me to stop by turning on his emergency lights?
Drive to the right lane and continue until you can park safely on the shoulder or in a parking lot. Next, take your car out of
gear, shut off the engine and radio and turn on your hazard lights. Such actions will demonstrate that your mental faculties
have not been impaired.
If asked, should I admit to drinking an alcoholic beverage?
Generally, yes. Since you will likely have an odor of an alcoholic beverage on your breath it makes no sense to deny you've
had a drink. Should you deny drinking, you will lose your credibility to the officer.
Do I admit to how many, where and when?
Any admission to more than "two" will likely result in your arrest - especially if the officer neglects to ask you "when?" It is
generally not a question of whether you tell the truth or fudge on the truth -- it's whether you tell the truth or don't answer at
all.
If I'm not going to answer, what should I do?
Please remember that you have the constitutional right not to incriminate yourself. Ask the officer (politely) why he stopped
you and whether you are under arrest.
If the officer indicates you are under arrest, inform him immediately of your desire to have an attorney present. Do not
refuse or agree to perform any coordination exercises -- tell him you want the advice of an attorney to help you decide what
to do.
On the other hand, if the officer indicates you are not under arrest ask if he is going to issue a traffic ticket and, if so, if you
will be free to leave after he completes it. If he answers "yes" to both questions, remain polite and remember not to
volunteer any information.
If the officer says that your are not under arrest but that you aren't free to leave either (the typical DWI situation), the best
thing you can do is tell him you would prefer not to answer any more questions without your attorney being present. It's now
up to the officer whether to let you go or to prolong the investigation.
If you find yourself in this typical DWI situation, be polite, invoke your rights to remain silent and to have an attorney present,
don't incriminate yourself and let the officer do the best he can on the evidence he can develop legally.
What is DWI?
Driving while intoxicated is a criminal offense that says a person may not operate a motor vehicle in a public place while
intoxicated. The DWI statute does not say "driving while drunk."
What does intoxicated mean?
While a person doesn't have to be drunk to be intoxicated, if a person is drunk he is intoxicated. Intoxicated is defined in
two ways. First, a person is intoxicated if he has lost the normal use of his mental or physical faculties as a result of
consuming alcohol, a drug, a controlled substance, or any combination thereof. A person is also intoxicated if he has an
alcohol concentration of .08 or higher at the time of driving.
Whose normal mental and physical faculties are we judged by and what is normal?
The normal mental and physical faculties referred to by the DWI statute are those of the person who was arrested. The
term does not apply to the normal faculties of the police officer, the jurors or the fictional average person.
What is a .08 alcohol concentration?
The DWI statute defines alcohol concentration 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.
If you've been drinking, unless you're a physicist, an engineer or a chemist and have a calculator, you have no way of
determining whether you have an alcohol concentration of .08 or higher. As a result of these statutorily defined
concentrations not being equal, a person could be innocent in one concentration but guilty in another. Furthermore, it's
also possible for a person to be innocent of being intoxicated because there is no loss of normal use but still be guilty of
having an alcohol concentration of .08 or higher.
Is it .08 or higher at the time of driving or at the time of the test that makes me guilty of DWI?
The DWI statute makes it a criminal offense to have an alcohol concentration of .08 or higher at the time of driving. It is not
against the law to have an alcohol concentration of .08 or higher at the time of the test. But, depending on when the test
was conducted, the alcohol concentration at the time of the test may be relevant in determining the alcohol concentration at
the time of driving.
How accurate and reliable are the police methods used to determine alcohol concentration?
The DWI statute provides that the police can choose to test your breath, your blood or your urine.
Urine testing is the least accurate and least reliable method of determining alcohol concentration.
A majority of forensic scientists believe that blood testing is the most accurate and most reliable method of determining
alcohol concentration. However, from the police perspective, it is the least convenient method, and, unlike breath and urine
testing, the citizen accused of DWI has the opportunity to recheck the test and attack the accuracy and reliability of the police
test.
Breath testing is the most convenient means for the police to determine a person's alcohol concentration but there is great
debate regarding the accuracy and reliability of a breath test result. In Texas, breath samples are not preserved for
retesting.
What is the debate over the Intoxilyzer's accuracy and reliability?
The prosecution will say the breath test machine measures alcohol and nothing else. Others say the machine often
misreads other substances commonly found in human breath and gives false high readings.
The DWI statute says a person is intoxicated if he has a .08 or higher alcohol concentration in his breath, it does not,
however, say .08 or higher as judged by the Intoxilyzer. As a result, neither the judge nor the jury is required or obligated to
believe that an Intoxilyzer result of .08 or higher is either accurate or reliable.
Neither the DPS nor the manufacturer of the Intoxilyzer will allow anyone outside of law enforcement to test the accuracy or
reliability of the breath test machine.
CMI, the manufacturer of the Intoxilyzer, won't warrant the breath test machine to be fit for any particular purpose. In other
words, the manufacturer of the machine won't stand behind its accuracy or reliability for breath testing.
Even though the technology is available to preserve breath samples, the DPS does not require the samples to be saved for
retesting.
The computer program that runs the Intoxilyzer makes the assumption that every person tested is the same average
person. The breath test machine does not take into account that people come in all different sizes, weights, ages, muscle
development, lung capacity, alcohol tolerance, temperature and blood/breath ratio.
Finally, just like any other machine built and operated by people, the Intoxilyzer is subject to human error.
What are the penalties for DWI?
(a) First offense: Class B misdemeanor with a fine not to exceed $2,000 and/or confinement in jail from 3 to 180 days and a
driver's license suspension from 90-365 days;
(b) Second offense: Class A misdemeanor with a fine not to exceed $4,000 and/or confinement in jail from 30 days to 1
year and a driver's license suspension from 180 days to 2 years. Even if the sentence is probated, punishment may still
require 72 hours of continuous confinement;
(c) Third offense: third degree felony with a fine not to exceed $10,000 and/or imprisonment for a term of not more than 10
years nor less than 2 years and a driver's license suspension from 180 days to 2 years. Even if the sentence is probated,
punishment may still require not less than 10 days of continuous confinement in jail;
(d) with an open container of alcohol: the minimum term is increased to six days;
(e) with an accident where serious bodily injury occurred: the offense is known as intoxication assault and is classified as a
third degree felony. The punishment includes a fine not to exceed $10,000 and/or imprisonment for a term of not more
than 10 years nor less than 2 years. Even if the sentence is probated, punishment requires not less than 30 days of
continuous confinement in jail; and
(f) where a death has occurred: the offense is known as intoxication manslaughter and is classified as a second degree
felony. The punishment includes a find not to exceed $10,000 and/or imprisonment for a term of not more than 20 years
nor less than 2 years. Even if the sentence is probated, punishment requires not less than 120 days of continuous
confinement and a driver's license suspension from 90 days to 1 year.
A DWI conviction in another state can be used to enhance the punishment for a DWI under Texas law.
Is a person required to take a breath, blood or urine test when requested by a police officer?
Maybe. Under Texas law, anyone who drives with a Texas driver's license has already agreed, after their arrest, to take a
breath or blood test when requested by a police officer. This deemed consent only arises when the person has driven in a
public place. The DWI statute defines public place as any place that the public, or a substantial group of the public, has
access and includes, but is not limited to, streets, highways and the common areas of school, hospitals, apartment
buildings, office buildings, transport facilities and shops.
There is no deemed consent for a urine test, however.
What can an attorney do for me immediately after I've been arrested for DWI?
An attorney who is experience in DWI defense can assist the arrested person is being released from jail by arranging for
and posting bond. A lawyer present, either in person or by phone, can prevent and/or deter the police from violating your
constitutional rights.
It is a little known fact that all persons arrested for DWI who have taken the police breath or blood test have a constitutional
right to a second, independent blood test, by their doctor, within two hours of arrest. An attorney has a greater chance of
arranging such a test than the person sitting in jail.
An attorney can also advise you as to whether it would be in your best interest to answer questions, perform coordination
exercises or make any statements explaining and proclaiming your innocence while being video- or audio-taped by the
police.
If I'm stopped for DWI, what advice do you, as an attorney, have for me?
First, don't drink alcohol or use drugs and then drive!
Second, recognize that police officers have a hard and dangerous job. Remember that a police officer has a great deal of
discretion to arrest a person. Showing a lack of manners or being rude to the police officer is the quickest ticket to being
handcuffed and stuffed in the back of a patrol car.
Third, police work is very competitive and some officers receive increased pay as a result of subsequent court
appearances for their arrests.
What should I do if the officer signals me to stop by turning on his emergency lights?
Drive to the right lane and continue until you can park safely on the shoulder or in a parking lot. Next, take your car out of
gear, shut off the engine and radio and turn on your hazard lights. Such actions will demonstrate that your mental faculties
have not been impaired.
If asked, should I admit to drinking an alcoholic beverage?
Generally, yes. Since you will likely have an odor of an alcoholic beverage on your breath it makes no sense to deny you've
had a drink. Should you deny drinking, you will lose your credibility to the officer.
Do I admit to how many, where and when?
Any admission to more than "two" will likely result in your arrest - especially if the officer neglects to ask you "when?" It is
generally not a question of whether you tell the truth or fudge on the truth -- it's whether you tell the truth or don't answer at
all.
If I'm not going to answer, what should I do?
Please remember that you have the constitutional right not to incriminate yourself. Ask the officer (politely) why he stopped
you and whether you are under arrest.
If the officer indicates you are under arrest, inform him immediately of your desire to have an attorney present. Do not
refuse or agree to perform any coordination exercises -- tell him you want the advice of an attorney to help you decide what
to do.
On the other hand, if the officer indicates you are not under arrest ask if he is going to issue a traffic ticket and, if so, if you
will be free to leave after he completes it. If he answers "yes" to both questions, remain polite and remember not to
volunteer any information.
If the officer says that your are not under arrest but that you aren't free to leave either (the typical DWI situation), the best
thing you can do is tell him you would prefer not to answer any more questions without your attorney being present. It's now
up to the officer whether to let you go or to prolong the investigation.
If you find yourself in this typical DWI situation, be polite, invoke your rights to remain silent and to have an attorney present,
don't incriminate yourself and let the officer do the best he can on the evidence he can develop legally.
 |
| |
 |
| |
 |
| |
 |
| |
 |
| |
 |
| |
 |
| |
 |
| |
 |
| |
 |
| |
 |
| |
 |
| Check out my blog |