Frequently asked questions
Should I perform the field sobriety exercises?
In my professional opinion, you should not. If you have not been driving dangerously, it should not be an issue. Texas law does NOT REQUIRE YOU to do exercises for the police under any circumstances.
Two of the tests involve your balance. In one you stand with one foot immediately in front of the other and walk nine steps, turn in a particular way, and return 9 steps. The other balance test requires you to stand with one leg raised six inches off the ground for 30 seconds. You should consider any physical or balance limitations before you attempt these exercises as any mistakes will be attributable to your drinking.
The standard field sobriety tests consist of an eye test, a heel-toe walk and standing on one leg. These are not simple exercises and difficult to do perfectly on the first try even under the best conditions.
Should I take a breath test?
Definitely never take a breath test at the roadside!!
I am very adamant about THIS advice. All machines used at the roadside are unreliable and inaccurate for truly measuring alcohol concentration. Even the Scientific Director of the Texas Department of Public Safety thinks this is true because none of these devices have been approved or certified for use in Texas. (Do not take one of these tests even if the officer promises you that the results cannot be used against you. That is NOT TRUE!)
The breath test at the station or in the truck trailer are totally different devices and are much better than those used at the scene. My advice for those machines is a little different.
You should only take the "official test" after knowing a little information about those machines.
What you should know before you decide to take a breath test.
· They are used on all suspected DWI suspects in the county.
· They require that you blow into them two times for each test.
· They are used approximately 10,000 times between each cleaning.
· They are located within the Dallas County Jail and are daily maintained by the police at the jail.
· They are not used by hospitals.
· They assume you are a 150 pound male.
· They assume you fit their definition of the average human subject.
· They are computers and sometimes make mistakes.
· They were designed by scientists to determine identity of substances, not their amount. (I.e. qualitative v quantitative devices)
· They have have been known to report false high results on normal people.
You should also know that these four things can cause abnormally high results:
· Atkins Diet
If a person has been a disciplined follower for 90 days or more.
· Dental Work
If you have dentures, capped teeth, missing teeth, braces, retainers or other types of extensive dental work and have been drinking at all.
· Chemical Exposure
If you work around volatile chemicals or have the day of your stop, many substances can cause false high results. All petrochemical products, some household cleaning products, floor strippers and refinishers and oil based paints may affect the reported number.
People who work in oil fields, car body shops and manicurists should be particularly careful with their decision to take a breath test. The substances in these work environments enter the body through the skin and the lungs. They are very harmful if overexposure occurs and will be mislabeled as "alcohol" by the breath test machine.
· Airbag deployment
Some scientists believe and some studies have shown that the substance used in air bags to preserve the bags can be inhaled into the lungs and affect a breath test if still present. These cases are rare, but be advised that if you have been in an accident where an airbag has deployed, the airbag may cause a breath test to report more alcohol than is actually present.
My position is that it is your decision whether or not to take a breath test. I believe that you should not, because you do not have to prove your innocence to anyone. A license suspension is NOT AUTOMATIC if you request your hearing within 15 days of your notice. You have an equal chance of losing your license whether you take a breath test or refuse one.
If you take the test and it reports a number of 0.080 or higher prosecution of your criminal DWI case has become much easier for the government to obtain your conviction.
Note: Be aware that if you don't take a breath test, the State can and will tell the judge or jury. Some people think a person who refuses is guilty. More people believe that a person with an alcohol concentration over 0.08 is guilty.
Note 2: Please be advised that a "refusal" as used for these purposes is defined as the failure to print a breath test result whether you try to give one or not. If you request an attorney to decide is also a "refusal".
What are the "usual" probation conditions?
Most of the conditions are how you have lived your life so far. Don't commit another crime. Avoid bad people. Avoid bad places. Don't use drugs. Keep your job. Pay your fines and court costs. Support your family. Don't move or change jobs without letting the Court know. Those kinds of conditions.
Most probations also require that you complete a DWI education program, attend a Victim Impact Panel, take a substance abuse evaluation and report in person once a month to a "probation officer". In some cases this condition can be eliminated after completion of a portion of the probated sentence.
What "special conditions" go with DWI?
Each state is different. In Texas, "standard" DWI conditions are:
1. Complete a state approved "DWI Education Program". This is an advanced "Defensive Driving" course that also provides more education about drinking and driving. It is a four-hour, three-day course and can be taken on the weekend.
2. Attend a Mothers Against Drunk Driving "Victim Impact Panel".
3. Submit to a written psychological test to evaluate whether or not you may have a tendency toward drugs or alcohol problems. If indicated, participate in counseling, AA, or other program.
How much will this cost?
Many of the "costs" of a DWI case come with a conviction for DWI. If you are convicted of DWI, either by "plea bargaining" or losing a trial, you will be required to pay court costs and a fine by the Court. If placed on probation, you will pay a monthly probation fee ($40-$60/month). You may be required to pay for any ordered classes or chemical testing ordered in your probation. If there was an accident, you will be required to pay all damages that you caused in the accident. (Approximately $1,620.00)
In addition to these costs, upon conviction you will be subject to a "surcharge" levied by the Texas Department of Public Safety. This fee ranges from $1,000 to $2,000 per year for three years ($3,000-$6,000). You will also be required to keep and file an "SR-22" policy of insurance with TDPS for two years ($3,000).
These costs do not address any costs involved with missing work for court, travel to and from your court appearances, towing fees, bonds posted for jail release and attorney's fees. They also do not address any increases in insurance rates following a DWI conviction.
To sum it up, just to go in admit that you were driving while in intoxicated and accept a conviction for DWI 1st offense will cost you between $7,620-$10,620!!!
NOTE: This is without an attorney!
Will they "reduce" a DWI charge to reckless driving?
That depends. Each county prosecution is run by an elected District or County Attorney. The elected official makes the decision of whether or not this option is offered to defendants in court.
If it is offered, there are still many different outcomes with an alternative crime prosecution. Any attorney working regular in the county criminal courts should know if this option is available, but many may not know the right way to structure the disposition to have the end result of no criminal convictions and no record of a DWI arrest, charge or prosecution.
What if they never "read me my rights".
The "rights" most people are referring to are commonly known as your "Miranda" rights. These rights come from a U.S. Supreme Court Decision that state a suspect must be advised of these rights before being subject to custodial interrogation by police or prosecutors (Miranda v Arizona). If you are not so warned, your statements may not be used against you.
Your "Miranda" rights are your right to remain silent and not answer questions without the advice of an attorney. The fact that anything you say can and will be used against you in Court and at your trial. Your right to a court appointed attorney to advise you if you are too poor to hire one to advise you during questioning. Texas law also adds the right to "terminate the interview at any time".
The "DWI" Exception
That same Supreme Court has held that you are not under "custody" when stopped for a traffic offense and do not have to be told you have these rights. They still apply, the police are however under no duty to tell you and no penalty if they do not tell you. It is therefore legally O.K. for the police to ask you if you have been drinking and how many drinks you have had before telling you that you are suspected of DWI. It is also O.K. for you to know that you have these rights and say no thank you to an officer's questions if you feel you are not free to go, but compelled to stay.
If you were arrested for DWI, you were probably advised of these rights after being handcuffed and transported to jail. You have already answered the questions and the "law" says that its O.K. to use your own voluntary statements to prosecute you for DWI. This exception does not apply in any other criminal case.
How long will a DWI stay on my record?
In Texas, a DWI conviction will remain on your record past your lifetime. It is never removed unless expunged or pardoned.
Can I "expunge" my DWI?
In Texas, only if you were falsely charged or found not guilty can you get a criminal case expunged. Many other states have different rules. If you were arrested in a state other than Texas, you should contact an attorney in that state to learn more.
I did not take a breath test. Is my license suspended?
Not yet if you have found this site within 15 days of your arrest. Texas law grants you 15 days to contest the automatic suspension. If you request a hearing within this time limit your license will not be suspended until a judge orders that it be suspended.
If you missed the fifteen (15) day deadline your license will automatically be suspended on the fortieth (40th) day after your arrest for 180 days.
I failed the breath test. Is my license suspended?
Not yet if you have found this site within fifteen (15) days of your arrest. Texas law grants you fifteen (15) days to contest the automatic suspension. If you request a hearing within this time limit your license will not be suspended until a judge orders that it be suspended.
If you missed the fifteen (15) day deadline your license will automatically be suspended on the fortieth (40th) day after your arrest for 90 days.
I took a blood test. Is my license suspended?
Blood tests results are more time consuming to obtain. Blood tests are done in a laboratory either at a hospital or at a crime lab. If you took a blood test, you should WATCH YOUR MAIL. Within about 60 days, you should receive a letter from the Texas Department of Public Safety informing you of whether you failed the blood test. If you passed, they will not send you a letter.
If you receive a letter informing you that you failed a blood test, you have fifteen (15) days to contest the suspension. If you request a hearing within this time, your license will not be suspended until a judge orders it suspended.
IMPORTANT: Texas DPS will send this letter to the address listed on your drivers license. If you move, change your address as quickly as possible. If this letter is mailed to your last address, Texas laws states that "received it" and should know that your license is suspended.
What am I supposed to do if my license is suspended?
If your license has never been suspended before, you can request and obtain an "Occupational Drivers License". This is a license granted by a judge that can allow you to drive twelve (12) hours every day for your work, your school and your household duties. These hours do not have to be continuous nor do they have to be the same every day. They cannot exceed 12 hours in any 24 hour period and your Order must specify the counties you need to drive in. These licenses can generally be obtained within 48 hours to 6 weeks depending on the rules of the local court.
What is an "Occupational License".
When a person's drivers license has been suspended for reasons other than physical or mental disability, a Texas citizen may request and be granted an "Occupational License". This is typically what people do when their license is suspended for refusing or failing a breath test.
An Occupational License is a restricted license. It is restricted by purpose, hours and region. An Occupational License may be granted for not less than four (4) hours nor more than twelve (12) hours per day. These hours do NOT have to be continuous and they may be different for every day of the week.
In most DWI cases, Occupational Licenses are granted for twelve hours each day for the purpose of work related, school related or household need related driving. These hours only apply to hours physically driving a car. They are also limited by the counties in which these driving activities are anticipated.
Occupational licenses for persons with multiple DWI offenses may contain more stringent restrictions. In some cases, the Petitioner is required to install and maintain a deep lung ignition interlock device on any vehicle operated during the period of Occupational License. In some cases hours may be restricted to less than twelve (12) hours. Some driving times may also not be available depending on the particular facts of each individual case.
What is an "SR-22"?
The SR-22 is a Texas Department Public Safety form that establishes the existence of insurance coverage for a driver. This form is used in most types of license suspensions and more so in DWI cases.
If a license is suspended for failure or refusal of testing, the SR-22 is required to be filed with a Petition (or request) for Occupational License. Without this form, a Court may not grant an Occupational License.
A person convicted of a DWI offense is also required to file with the DPS an SR-22 form for two years following the date of conviction.
All insurance companies furnish SR-22 forms. Most people in DWI cases however choose an alternate insurer for periods of suspension to avoid an increase in their insurance rates. Once the period of suspension has been lifted, the alternate insurance policy is allowed to lapse.
I was just arrested for a DWI & the officer took my driver’s license. Does this mean I can’t drive?
If you were arrested and refused chemical testing or blew over a .08, the officer probably took your license & issued a Notice of Suspension/Temporary Driving Permit (DIC-25). The good news is that your license is not suspended YET ….. However, this form is only good to drive on 40 days. So, you MUST read this form & the Statutory Warning (DIC-24) completely. Together, they will tell you that you have a right to request a hearing on the suspension of your driver’s license within 15 days from the date you were given these documents.
You may request this hearing by phone, fax or through the DPS website. Your best bet is to requesting it by fax (be sure to get a fax confirmation sheet) or through the DPS website at http://www.txdps.state.tx.us/DriverLicense/customer_service/alr.aspx (then print the on-line confirmation).
What if I do end up with a suspension on my driver’s license?
Call us right away so we can help you get an Occupational Driver’s License (ODL). This type of license will allow you to drive for essential needs during certain times and in certain areas.
DPS will also require money and some other documents to legitimize your ODL but we will provide you with all that information.
The officer never read me my rights, isn’t that illegal?
A: The "rights" most people are referring to are commonly known as "Miranda" rights. These “rights” come from a U.S. Supreme Court Decision called Miranda v. Arizona. This case states that a suspect must be advised of their rights before any custodial interrogation by police or prosecutors. If you are not warned, your statements made to their questions while you are in custody may not be used against you.
However, that case also states that you are not in "custody" if you are merely stopped for a traffic offense and questioned prior to being arrested. That means the police can ask you almost anything prior to arresting you and they are under no duty to warn you or give you these Miranda rights.
Once you are arrested, however, things change. When this happens, the officer cannot question you any further about the facts of the case without advising you of your “rights”.
If you were arrested for DWI, you may or may not have been advised of these rights after being handcuffed and transported to jail. But the officer is not required to read them to you unless he is continuing to question you and gather evidence against you post arrest.