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DWI (Driving While Intoxicated)

   It is not illegal for you to consume alcohol and drive a motor vehicle or operate a boat or airplane in Texas if you are over twenty-one (21) years of age. It is illegal to operate a motor vehicle or boat or airplane if you are intoxicated which means that you do not have the normal use of your mental or physical faculties by reason of the introduction of alcohol or a drug or some combination therein. An arresting officer, in determining whether you have lost your mental or physical faculties as a result of drinking alcohol or using drugs, is often subjective. Often the officer is quick to arrest, against his better judgment, because of pressure from his supervisors or department policy leading to innocent persons being arrested and charged with driving while intoxicated (DWI). It is important to hire an zealous DWI lawyer immediately after being arrested to assist you in all aspects of your case. Critical evidence and information need to be gathered as soon as possible to preserve your case.

    The laws concerning DWI and impaired driving are constantly changing as a result of powerful lobbying by groups such as Mothers Against Drunk Driving (MADD). That same pressure is often felt by county and district attorneys in many counties to prosecute questionable DWI cases. No one wants drunk or impaired drivers on the road, but by the same token, no one wants innocent drivers arrested because an arresting officer was overzealous. Whether you are innocent or not, you immediately need a competent DWI attorney to help protect your rights.

DWI vs. DUI

    In Texas, if you are an adult or minor and arrested for driving while impaired, it is called Driving While Intoxicated (DWI). The charge can range from a Class B misdemeanor to a Third Degree felony depending on the number of prior arrests. If you are a minor (under 21 years of age) and you have any detectable amount of alcohol you can be charged with Driving Under the Influence (DUI). The arresting officer may issue a citation just for smelling the odor of alcohol on the breath of the minor. DUI is a Class C misdemeanor (fine only) but can also result in a driver’s license suspension. The attorneys with Carroll & Hinojosa, PLLC can assist you through every step of the process from arrest to posting bond, to a decision whether to accept a plea bargain or go to trial.

ALR

    If you are arrested for DWI or given a ticket for DUI you must request an Administrative License Review (ALR) hearing within 15 days or your license will automatically be suspended in forty (40) days.

Penalties

    When arrested for DWI or DUI the penalty comes in two distinct parts. The criminal case and the driver’s license suspension which is civil. The penalties for DWI can result in severe penalties with extreme repercussions that can last for years and even a lifetime. Having an experienced trial lawyer can be the deciding factor in your case. Call today for a Free Telephone Consultation (210) 714-2427.

Criminal law punishment for DWI varies depending on the number of convictions:

First Offense (Class B Misdemeanor):

  • A fine of up to $2,000
  • Three days to 180 days in jail
  • Loss of driver’s license up to a year
  • Annual fee of $1,000 or $2,000 for three years to retain driver license
First Offense with Open Container (Class B Misdemeanor):
  • A fine of up to $2,000
  • Six days to 180 days in jail
  • Loss of driver’s license up to a year
  • Annual fee of $1,000 or $2,000 for three years to retain driver license
First Offense with alcohol concentration of .15 or more (Class A Misdemeanor):
  • A fine of up to $4,000
  • One month to a year in jail
  • Loss of driver’s license up to a year
  • Annual fee of $1,000, $1,500 or $2,000 for three years to retain driver license
Second Offense (Class A misdemeanor):
  • A fine of up to $4,000
  • One month to a year in jail
  • Loss of driver license up to two years
  • Annual fee of $1,000, $1,500 or $2,000 for three years to retain driver license
For the Third Offense (3rd degree felony):
  • A $10,000 fine
  • Two to 10 years in prison
  • Loss of driver license up to two years
Driving While Intoxicated with Intoxicated with Child Passenger (under 15 years of age):
  • A $10,000 fine
  • 180 days to 2 years in prison
  • Loss of driver license up to two years
Intoxication Assault:
  • A $10,000 fine
  • Two to 10 years in prison
  • Loss of driver license up to two years
Intoxication Manslaughter:
  • A $10,000 fine
  • Two to 20 years in prison
  • Loss of driver license up to two years

Case Review

   Upon retaining your legal team at Carroll & Hinojosa, PLLC, we immediately begin to review and evaluate your case. We look at the reason for the stop. Did the arresting officer have a legal reason to make the initial stop? Did the arresting officer have probable cause to arrest you after the stop for DWI? The review, in part, determines if the arresting officer correctly administered the field sobriety testing.

   Field Sobriety Tests (FST’s) are the roadside tests administered by the police officer in investigating whether you were operating your vehicle under the influence of alcohol. Field sobriety tests are specific tests and were developed and sponsored by the National Highway Traffic Safety Administration (NHTSA). The standardized field sobriety tests, if given in the prescribed manner in a standardized setting, generally demonstrate valid indicators or clues of a person’s impairment. When the tests are administered in the form required by the NHTSA and an officer observes these clues, it allows him to establish probable cause to believe a driver is impaired and arrest that person for DWI. Most of the time, the officer does not or can not correctly administer the Field Sobriety Testing. The following are the three standardized field sobriety tests that are approved by NHTSA:

1 – Horizontal Gaze Nystagmus
2 – Walk and Turn
3 – One Leg Stand

HORIZONTAL GAZE NYSTAGMUS
In the performance of this test, the officer asks the suspect to follow a pen or small flashlight, tracking left to right with his eyes. A person’s involuntary eyeball jerking (nystagmus) is magnified by the amount of impairment due to alcohol. There is a study that indicates that the tests, when done properly in a controlled environment, have an accuracy of 77% in identifying intoxicated drivers. Police officers conducting tests roadside regularly utilize this test in the formation of probable cause to place a suspect under arrest for DWI. Most officers do not accurately follow NHTSA training in performing these tests which mean that they are invalid.

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WALK AND TURN

    The walk and turn test is a two-part examination. The first part is the instruction phase. The officer conducts observations of the driver during the course of the instruction phase of this test. During this time, the officer is verbally instructing and physically demonstrating how he wishes this test to be performed. The driver is told to stand still, feet together, and hands at his sides during the instruction phase. He is also instructed not to start the test until all of the instruction and demonstration phases are complete. The second phase is the performance of the test. What is required in the physical performance of the test is that the subject walk on a straight line, one foot in front of the other, touching heel to toe, keeping his arms to his side, counting the steps out loud. The subject is required to take nine steps out, turn and take nine steps back in the same manner. During the performance of this test the officer is watching for eight clues of impairment:

1. Loses balance during instruction
2. Starts test before instructions are finished
3. Stops during performance of test to steady self
4. Fails to touch heel to toe
5. Steps off of line
6. Uses arms for balance
7. Loses balance or turns improperly
8. Takes the wrong number of steps

    If a suspect demonstrates two of these eight clues at any time during the performance of this test, the subject is deemed to have failed this test. There is a study that indicates that the tests, when done properly in a controlled environment, demonstrate a 68% probability that the subject is under the influence of alcohol and has a BAC of .10 or more.

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ONE LEG STAND

    Like the walk and turn test, the one leg stand also is a two-part test: instruction and performance. During the instruction stage, the suspect is required to stand with his feet together and his arms at his side. The officer will verbally instruct and demonstrate the performance of this test for the subject. The performance part of this test requires that the subject stand with one foot of their choice approximately 6 inches off the ground, straight out in front of them and count out loud by thousands for 30 seconds. The suspect is advised not to hop on the one foot or to use his arms for balance. During this test, the officer is trained to look for four clues of impairment:

1. Swaying while balancing
2. Using arms for balance
3. Hopping to maintain balance
4. Putting foot down before completion of test

    If an officer observes two or more of the above clues the subject is deemed to have failed this test. There is a study that indicates that the tests, when done properly in a controlled environment, demonstrate a 65% probability that the subject has a blood alcohol content of .10 or more.

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CONDITIONS

    There are numerous conditions under which the tests should be administered as required by the NHTSA but are not always followed by the arresting officer. The tests are to be administered on a hard, dry, clean, non-slippery surface in a well-lighted area. Tests that are administered in less than standardized conditions diminish the results that an officer might obtain. These tests mentioned above are the only tests that are scientifically validated for use by an officer in detecting intoxication in a driver. Oftentimes, you will see or hear about tests such as touching finger to nose, picking up coins, and counting backwards being utilized by officers as field sobriety tests. There is no scientific validation for these tests and their reliability to accurately detect impairment is questionable. Remember, if any element of the standardized field sobriety test is altered or compromised, then the validity and reliability of the tests is compromised. The compromises can work in your favor.

    In Texas, a driver has a right to refuse to perform field sobriety tests. By performing field sobriety tests, you are providing evidence to the officer in forming his DWI case against you. A driver is advised to exercise their right to refuse the performance of field sobriety tests. In the typical administration of field sobriety tests, a police officer will not describe to the subject the criteria he is looking for in the performance of this test, nor will he describe the number of clues necessary for the driver to fail the test. In a typical stop, the officer will ask the driver to perform several field sobriety tests. At the conclusion of those tests, the officer will simply inform the driver that he is placing the subject under arrest without any investigation or discussion with the driver about any deficiencies observed during the performance of the tests. It is the officer’s subjective determination that you failed the test that gives him probable cause to arrest you. Often the in-car-video does not support what the officer alleges.

    Remember, everything you say and everything you do can and will be used against you in a court of law. Be smart and protect yourself.

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DISCLAIMER

    This article is intended as an overview of basic field sobriety tests administered by local police departments as instructed by the NHTSA. The foregoing is provided for information purposes only. For a more encompassing discussion regarding field sobriety testing, you should consult in person with The Law Offices of Carroll & Hinojosa, PLLC, qualified criminal defense specialists.

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