DWI FAQs

DWI Law FAQs

If, after reviewing the FAQs, you would like to contact Mr. Threadgill to learn more about how he can assist you with a matter you are facing, please call or contact the office immediately. We strongly recommend you take the time to complete the DWI Client Information Form and bring it in when you schedule a meeting with Mr. Threadgill. These FAQs are in no way intended to create an Attorney/Client relationship in and of themselves. You must contact Mr. Threadgill and mutually agree upon representation to create an Attorney/Client relationship.

FAQs

1. What must the State prove to have you convicted for DWI?
   
   
2. What does "intoxicated" mean?
   
   
3. What are "normal mental and physical faculties?"
   
   
4. Is it possible that I was intoxicated at the time I was tested, but not at the time I was driving? And, does this make a difference?
   
   
5. How is breath testing done?
   
   
6. What is the debate over the Intoxilyzer's reliability and accuracy?
   
   
7. Do I have a choice to refuse a breath or blood test?
   
   
8. Do I have a choice to refuse to perform police field sobriety testing and/or a portable breath test?
   
   
9. Do I have a choice to refuse being videotaped?
   
   
10. What are the consequences and penalties that I should be aware of if I were arrested for DWI?
    
    
11. Does the ALR hearing effect my criminal court case for DWI?
    
    
12. What if my license is suspended at the ALR, but I have to drive for work and/or to take care of my family, etc.?
    
    
13. If my driver's license is suspended and I neglect to get an Occupational Driver's License or to appeal the ALR decision, then what are the penalties for driving while the license is suspended?
    
    
14. Are there different DWI laws for minors?
    
    
15. Do I need a lawyer to help me in a DWI/DUI prosecution and an ALR proceeding?

Answers to FAQs

1. What must the State prove to have you convicted for DWI?

• That you (proving your identity),
  
• were operating a motor vehicle,
  
• in a public place (street, highway, beach, parking lot, etc.)
  
• in a particular Texas county,
  
• while intoxicated.

2. What does "intoxicated" mean?

A person need not be drunk to be "intoxicated." "Intoxicated" is defined by the DWI statute in two ways. First, a person is "intoxicated" when, through the use of an alcoholic beverage, drug, controlled substance, or any combination thereof, has lost the "normal" use of either "mental" or "physical" faculties. Second, a person is "intoxicated" when he or she has an alcohol concentration of .08 or more in her body.

3. What are "normal mental and physical faculties?"

The "normal mental and physical faculties" referred to in the DWI statute are supposed to be what is "normal" for the particular person who has been arrested. The term is not supposed to refer to the normal faculties of the arresting officer, those of jurors in a DWI criminal trial, or those of a fictitious average person. However, the field sobriety tests and breath test do ironically judge you by the normal standards of a fictitious person. This disconnect between the law and the tests can help if you have a skilled lawyer such as Mr. Threadgill.

4. Is it possible that I was intoxicated at the time I was tested, but not at the time I was driving? And, does this make a difference?

Shortly put, the answers are "yes" and "yes." Our law only provides that the crime of DWI occurs when a person has an alcohol concentration of .08 or more in his body (or has lost normal use of mental or physical faculties at that time) at the time he or she is driving. So, the timing of the particular test in question can present a significant problem for either the prosecution or the defense (depending upon the circumstances). This dilemma usually arises in connection with breath and/or blood tests 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, a person's alcohol concentration at the time of driving may have been higher, lower or the same.

In order to link the test result to alcohol concentration at the time of driving the prosecution may attempt to present expert testimony. The process the "expert" uses to relate the test result back to the time of driving is known as retrograde extrapolation. Depending upon the facts in your case, Mr. Threadgill may use his knowledge regarding alcohol absorption, distribution, and elimination to have the State's extrapolation evidence excluded or to raise issues of reasonable doubt in connection with that evidence.

5. How is breath testing done?

Breath tests in Texas are done by a machine known as an Intoxilyzer 5000. Breathalyzers are not used.

The Intoxilyzer machine, which costs approximately $7,500.00, is said to work on the principle of infrared spectrometry. 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 comparing that amount to the amount of light originally introduced into the breath sample the difference is the test result.

6. What is the debate over the Intoxilyzer's reliability and accuracy?

The potential reliability flaws debated are too numerous to cover them all here. However, of particular importance are:

• 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 re-test the procedure. This is not the case with the Intoxilyzer.
• The manufacturer 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.
• The Intoxilyzer is capable of breath preservation. However, our DPS purposely fails to require the breath specimens to be saved. So, while re testing of preserved breath specimens could be done by a more accurate and reliable method known as gas chromatography, those accused are prevented from doing so.
• The Intoxilyzer's working design is premised on the assumption that every person tested is exactly the same. All persons are not the same! This is especially important here with regard to 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). Persons with a lower blood/breath ratio than that assumed by the Intoxilyzer will be prejudiced because the Intoxilyzer results will be artificially high. Thus, such a person whose blood alcohol concentration may be only .04, .05, .06, etc. will actually test out at .08, .11, .12, etc.

7. Do I have a choice to refuse a breath or blood test ?

Yes! 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.

But, even 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 here 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.

There is one more point about refusals to be aware of, however, a police officer may force you to submit to testing if:

1) there is 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.

8. Do I have a choice to refuse to perform police field sobriety testing and/or a portable breath test?

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 any test results will not accurately reflect their sobriety. Please feel free to review a more thorough review of SFSTs by clicking [insert link here].

9. Do I have a choice to refuse being videotaped?

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.

10. What are the consequences and penalties that I should be aware of if I were arrested for DWI?

First, from being arrested (and before any conviction), your license may be suspended if you refused to submit to alcohol concentration testing (usually breath), or if you submitted to the test and failed. In order to keep your license from being automatically suspended, you must hire a lawyer as soon as possible because your lawyer will usually have only 15 days from the date of your arrest to request an Administrative License Revocation (ALR) hearing to contest DPS's contention that there was probable cause for your arrest. Also, besides giving your lawyer an opportunity to potentially save your license, the ALR is a valuable tool for your lawyer to make the State's witnesses (police officers, breath test technicians, etc.) commit to their story. This is important to minimize the risk of being ambushed by new supposed facts or circumstances when the State's witnesses testify at trial.

Second, if convicted, the general jail, fine, and license suspension penalties are:

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. (3rd 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. (3rd 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 2nd 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.

It is important to note, however, that many of these penalties can be probated, especially on a first offense DWI without any accident. Generally, this means that the judge may allow you to stay out of jail and pay a lower fine if you "behave" for some period of time (usually a year) after the conviction. To "behave" you may be required to do any or all of 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.

Finally, a DWI conviction (probated or not) subjects you to surcharges and substantial insurance premium increases (often quadruple your current premium). 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 first DWI conviction;

2) $1,500.00 per year for subsequent DWI convictions; and,

3) $2,000.00 per year for registering a .16 or more.

11. Does the ALR hearing effect my criminal court case for DWI?

Generally, no. DPS will try to suspend your license independent of anything that is happening with your case in court. Additionally, upon a final conviction of DWI, the criminal court judge can suspend your license for anywhere from 6 months to one year depending on your age and the circumstances of your case, prior convictions, etc. If you are acquitted at trial, however, your DPS suspension may be lifted. Note, however, that if DPS has already suspended your license and you thereafter plea to lesser charge or the State dismisses your case, your suspension will remain. Once the suspension is imposed, the only way it will ordinarily be lifted is upon going to trial and getting an acquittal.

12. What if my license is suspended at the ALR, but I have to drive for work and/or to take care of my family, etc.?

Depending upon the circumstances, it may be best to apply for an "Occupational Driver's License" and/or to appeal the ALR finding.

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 privilege is, however, subject to restrictions. And, you cannot be issued an Occupational License if you already had one in the last 10 years.

On the other hand, it may be best to appeal the ALR decision. An appeal must be requested within 30 days. Otherwise, your license will be suspended on the 40th day after the ALR decision becomes final. 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 91st day, even if your appeal has not been ruled upon. Here, however, if you win your appeal, then your suspension is lifted. Note, however, that like the Occupational Driver's License, the extra 90 days for appeal will not be given to you if your license has already been suspended in the last 10 years.

13. If my driver's license is suspended and I neglect to get an Occupational Driver's License or to appeal the ALR decision, then what are the penalties for driving while the license is suspended?

This type offense, known 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. See number 12 above to avoid this by getting an Occupational Driver's License and/or appealing the ALR decision.

14. 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 whether a minor drove while under the influence of alcohol (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.

15. Do I need a lawyer to help me in a DWI/DUI prosecution and an ALR proceeding?

Definitely! There are many lawyers that take DWI cases out there. However, there are only a few lawyers like Mr. Threadgill 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 will harmfully affect your life and your future if you make the wrong choice.

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Law Office of J. Michael Threadgill
12 Greenway Plaza - Suite 1100
Houston, Texas 77046
Tel: 713-425-4958
Fax: 713-425-4999
mthreadgill@threadgill-law.com