DWI - Frequently Asked Questions:

Should I perform the field sobriety exercises?

You are not required by Texas law to do exercises for the police under any circumstances. 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. Absent an unusual situation, all of the tests will be recorded on the officer’s in-car video system, which will then be scrutinized and every misstep, stumble, sway and slur will be used in some way against you in court.

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Should I take a “preliminary breath test” (PBT) on the side of the road?

Why would you? Regardless of the result, the officer has almost certainly already decided to arrest you, and s/he is merely looking for more evidence to support your arrest. In other words, the officer is not looking for a reason to let you go.

PBTs are unreliable and inaccurate. 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. You should not take one of these tests even if the officer promises you that the results cannot be used against you. A good prosecutor will consider it during plea negotiations, and find a way to present it during your trial.

Should I take a breath test at the police station?

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. 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 may be used thousands of times between each cleaning.

·       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 been on the day of your stop, you should know that 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 as 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.

Although it’s is your decision whether or not to take a breath test, you probably should not because you don’t have to prove your innocence to anyone. A license suspension is not automatic provided you request Administrative License Revocation hearing within 15 days of your notice. Your odds of losing your license are fairly equal 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.

Notes:

(1) If you don't take a breath test, the State can and certainly will tell the judge or jury about your refusal during a trial. Some people think a person who refuses is guilty. Most people, though, believe that a person with an alcohol concentration over 0.08 is guilty.

(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. Also, if you request an attorney to help you decide whether to take a breath test is also considered a "refusal".

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What are the "usual" probation conditions for a DWI?

Most of the usual conditions of probation are things you’ve done your entire life. These include: 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; and, don't move or change jobs without letting the Court know.

Most probation pleas 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?

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.

What if they never "read me my rights".

Thanks to television and Hollywood, many people have the mistaken belief that in every instance their case must be dismissed if the officer failed to “read them their rights.” The "rights" most people are referring to are commonly known as your "Miranda" rights, and come from a U.S. Supreme Court Decision that said that a suspect must be advised of these rights before being subject to custodial interrogation by police or prosecutors (Miranda v Arizona).

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, and your right to a court appointed attorney to advise you if you can’t afford to hire one to advise you during questioning. Texas law also adds the right to "terminate the interview at any time".

Generally, if you are in custody and interrogated, without first being so warned, your statements are not be used against you.

The "DWI" Exception

The Supreme Court, though, 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 acceptable 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 acceptable for you to know that you have these rights and politely refuse to respond to an officer's questions if you feel you are not free to go.

If you were arrested for DWI, you were probably advised of these rights after being handcuffed and transported to jail. However, you have already answered the questions and the "law" says that those statements are voluntary and it’s okay to use them to prosecute you for DWI.

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 because 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 day deadline your license will automatically be suspended for 180 days beginning on the fortieth (40th) day after your arrest.

I failed the breath test. Is my license suspended?

Not yet because 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 controlled environment, such as a special room 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 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.

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 you have "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" (ODL). 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.

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 ODL is restricted by purpose, hours and region. An ODL may be granted for not less than four (4) hours nor more than twelve (12) hours per day. These hours don’t 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 (IID) on any vehicle operated during the period the Occupational License is in effect. 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 an Occupational License. Without this form, a Court may not grant an ODL.

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. 

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