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For many years, bonds in Tarrant County were set by municipal magistrates throughout the county. This meant individuals in different cities could receive vastly different bond amounts based on where they were arrested and which magistrate was on duty at the time. The process had its advantages – bonds were set quickly, and the bond amounts could be addressed again by a magistrate at the county-level, where bonds were generally set more uniformly. Yet, the process is not without its problems.

2017 study published by the Texas Judicial Council and Texas A&M criticized the methods in place in Tarrant County, noting only 6 percent of accused individuals were released on a personal bond compared to 60 percent of individuals in Travis County, which used a risk-based release system instead of a financial means based release system. (Tarrant and Travis “are the third and fifth most populous jurisdictions in Texas, home to 2.0 million and 1.2 million residents, respectively. Both metro areas are counted among the fastest growing in the state. Travis County has a jail population of approximately 2,600, of whom 75 percent are being held pretrial. Tarrant County jails currently hold about 3,400 defendants, 62 percent of whom are awaiting trial.”)

The study also found that each additional day of detention up to 30 days increased the likelihood of conviction by 2 percent each day.

At the beginning of 2018, Tarrant County’s new sheriff, Bill Waybourn, changed four decades of the county’s “customary practice” of housing arrestees at city jails and began to follow the requirements of Texas law under Article 2.18 of the Code of Criminal Procedure. The Code requires a person jailed on a warrant or court order to go into the custody of the sheriff – not city jails.

Additionally, this year the federal Fifth Circuit Court of Appeals also handed down, ODonnel v. Harris County – the type of case that keeps judges awake at night.

At issue in ODonnel was Harris County’s bail bond process. The Fifth Circuit ruled that the bail bond processes in Harris County violated Equal Protection, Due Process, and Texas law.

Texas Code of Criminal Procedure 17.15 requires judges to make an individualized assessment based on five factors, including the person’s ability to pay, the nature of the charge, and community safety. At the trial level, federal District Court Judge Lee H. Rosenthal wrote an opinion — over 190 pages long — blasting the realities of the Harris County system, where 40 percent of individuals charged with misdemeanors stayed in jail until their cases were resolved. In many of these cases, those accused could go home with “credit for time served” if they entered a guilty plea and accepted conviction – incentivizing pleas for individuals who could not afford to make bond.

Changes in Tarrant County’s Bail Bond Process

As a result of the ODonnel opinion, and the sheriff housing more inmates, the bail bond process in Tarrant County has had a number of changes. The magistrates are making an attempt to more carefully consider the 17.15 factors to make individualized determinations for individuals who have been arrested. These factors include:

  1. Considering whether the bond is set sufficiently high to ensure compliance. (In other words, is the financial consequence significant enough to ensure the accused will show up in court without a warrant being issued for their arrest?)
  2. Establishing that the bond is set low enough that it is not being used as an instrument of oppression. Remember, individuals charged with crimes are cloaked with a presumption of innocence. Bail bonds are not meant to be punitive or punishment, although for the citizen accused, it certainly can seem like everyone is treating them like they are already convicted.
  3. Evaluating the nature of the offense and the circumstances under which it was committed. (The initial arraignment is not an adversarial process, so the nature and circumstances are whatever is included the arrest warrant or probable cause affidavit, which are assuredly one-sided.)
  4. Considering the accused’s ability to make bond. Here the court can hear evidence on the accused’s ability (or inability to pay), but remember this is only one of the factors the court is required to consider.
  5. Ensuring the future safety of the victim and the community.

Tarrant County’s magistrates are requiring accused citizens to complete forms that disclose their ability to pay and to go through “risk assessments” to determine if they are likely to re-offend while on bond.

Why is it taking days to get someone out of Tarrant County custody?

The most common question we get now that Tarrant County has moved to central magistration is, “Why it is taking so long to get someone out of custody?” What used to take hours is now taking days. There are several reasons for this.

  1. As this article explains, the Tarrant County Central Magistration system requires information to be gathered and prepared for the magistrate to consider and this takes time.
  2. Tarrant County has not adapted to the sheer number of people who must be taken in front of magistrates.
  3. Magistration takes place three times a day, and not around the clock.
  4. Arrestees are sometimes only released to CSCD – meaning someone arraigned on Friday may not get out until Monday, even if they can pay the bond.

The Tarrant County Central Magistration: Four Steps

Tim Curry Justice Center

Now that a centralized magistrate system has been implemented by Tarrant County, magistrates are setting a person’s bond based on the alleged facts of the offense, risk, financial assessments, and an individual’s history of appearing in court – not based on recommended guidelines.  They are following four steps:

Step One: The magistrate judge will review the alleged facts of the offense. This review will include the Probable Cause affidavit, any commitment order, and the offense report if one is available. Notice these are all documents prepared by law enforcement. This initial hearing is not adversarial, so the defense attorney is generally unable to submit information for consideration at this initial setting. (The defense attorney may later file a Motion for Reconsideration if they would like to present evidence.)

Step Two: Magistrate staff will administer a risk assessment tool provided by Noble – the Ohio Risk Assessment System – which was highly recommended in the Texas Judicial Council and Texas A&M Study. ORAS has been used with great success through the country and has been in place for years in other jurisdictions in the state.

ORAS in Texas

ORAS is driven by the TCIC/NCIC criminal history and other objective facts such as age, gender, etc. The objective assessment is completed without interviewing the accused. It gives the magistrates a sense of who the client is and the likelihood that they will show up to court when they are supposed to.

ORAS Assessment

The ORAS results are available to Noble, and the judges, but it is not available to defense counsel at this time. In the first part of 2018, out of the approximately 5,600 risk assessments that were run, 3,500 came back as low risk; 1,404 came back as moderate risk; 194 were high-risk to re-offend with a property crime; 483 were high-risk to re-offend with a non-violent crime; and 42 were high-risk to re-offend with a drug crime.

Step Three: Magistrate staff will provide the judge with a “Failure to Appear Score” – which is a review of the last two years’ worth of data on the accused’s compliance with any past court settings. The Failure to Appear Score is based on the number of cases a person has had, the number of settings they missed, and the bond was held insufficient as a result. The Failure to Appear Score gives the magistrate a tool to assess the likelihood of a person showing up in court.

Step Four: The Financial Assessment which is referred to as the FART (Financial Assessment for Rapid Transmission, which could have easily been “Swift” instead of Rapid…) or information available to the magistrate through Tech Share Indigent Defense. The magistrate judges have assured us the information obtained from the citizens-accused is merely biographical and basic financial information and that these individuals will not be questioned without their attorneys.

The terribly-named FART Assessment seeks to provide the magistrate with a sense of the arrestee’s ability to pay for the bond. This assessment is completed by sheriff’s deputies as arrestees are booked-in at the jail. Question areas include:

  • Income
  • Expenses
  • Employment
  • Transportation
  • How long the person has lived in Tarrant County

If a person has asked for court-appointed counsel, the magistrate will also have the responses from that interview.

Once these steps are completed, bond conditions and the bond amount is set by the magistrate. The bond conditions are noted in triplicate with a copy that the accused signs.

As of July 1, 2018, North Richland Hills is the only municipality that is still setting its own bonds. Every other municipality is now using the Central Magistration system, which brings us to the Number 1 criticism of the new system:  The process of being booked in, bonded, and booked-out can now take 4 to 48 hours instead of what could have been done with a walk-through or a 1 to 2 hour process.

Motions to Modify Bonds

As a practical matter, having the bond modified after it is set will take a significant period of time if the modification is referred to magistrate court. After the preliminary bond has been set, a Motion to Reduce Bond may be filed with the court. The Motion may be referred to the magistrate court. If the matter is referred to the magistrate court, take the referral to the mag court coordinator. Let the coordinator know if a court reporter will be necessary. A hearing will be set with notice to both sides.

Motions to Set Revocation Bonds

In the past, when a Motion to Adjudicate or Motion to Revoke a probationer was filed, a hold was generally placed to prevent a bond from being set until the district court judge was willing to set the bond. Additionally, revocation bonds were not set if the court fees and costs were past due. Now, if a “Hold, No Bond” appears on the motion, the magistrate will still not set a bond. However, the district court judges also have the option to now put “Bond to be set by Magistrate” on the face of the Motion to Adjudicate or Revoke. If the motion is so designated, the defense attorney can contact the Mag Court coordinator to begin the Risk Assessment and Failure to Appear score and the magistrate can set a bond. The magistrate can now consider whether the fees are paid, but it is no longer an absolute requirement for bonds to be set. CSCD has now also made the chronological files or “chronos” available to the magistrate and judges to consider when setting a bond. Depending on which court the case is probated out for, the person may be released to “CSCD only” meaning the person could spend a few more days in jail after the bond is posted, just waiting for a probation officer to become available to process them out. (The typical example is someone whose bond is set on a Friday with “release to CSCD” as a condition. Even if the bond is posted, the person will likely not be released from custody until early to mid-morning on Monday.)

Unfiled Case Dockets

Every Tuesday and Thursday afternoon, individuals who are in custody but no case has been filed are brought to court to make bond determinations. An accused cannot be held without a reasonable or personal bond for more than:

  • 90 days on a felony without an indictment
  • 30 days on a Class A misdemeanor
  • 15 days on a Class B misdemeanor
  • 5 days on a Class C misdemeanor.

Warrantless Arrests

In the case of a warrantless arrest, there are special rules involving bail. In the case of an arrest in which there was a warrant, a magistrate has already determined that there is probable cause to believe the accused committed a crime. This is not so in the case of a warrantless arrest and the magistrate will be required to determine probable cause.

If someone is arrested for a misdemeanor, the magistrate must make a probable cause determination within 24 hours of arrest. If that determination is not made, the accused must be released on a bond not to exceed $5,000. But if the accused cannot obtain a surety or deposit the full amount of the bond, they must still be released on a personal bond.

If someone is arrested for a felony, the magistrate must make a probable cause determination within 48 hours of arrest. If that determination is not made, the accused must be released on a bond not to exceed $10,000. But if the accused cannot obtain a surety or deposit the full amount of the bond, they must still be released on a personal bond. (TX CCP Art. 17.033)

Contact our Tarrant County Defense Lawyers

If you or a loved one has been arrested for an alleged offense in Tarrant County, give us a call at (817) 203-2220 or send us a message online.

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In a recent 5-4 decision, the Supreme Court held that police generally need a search warrant to gain access to your cellphone’s location information. Specifically, in Carpenter v. United States, the Court noted allowing the police to access minute-to-minute location information is the type of surveillance the Constitution’s framers sought to protect against without a search warrant. The Court went on to say that giving police this tracking information without a warrant would be akin to making someone wear an ankle-monitor without a judge’s order.

The Fourth Amendment and Cell Site Location Information

The Fourth Amendment protects your property interests and provides for some privacy protections. The text of this amendment states that you are protected from unreasonable searches and seizures, and that you, your home, your papers, and your things are secure and protected from warrantless search. Furthermore, warrants are to be issued only when probable cause is found, supported either by oath or other affirmation, which includes detail on what is to be searched, where it will be searched, and the person or items that need to be seized.

Probable cause is present for a crime when your actions (facts and circumstances) lead to a reasonable suspicion and need for further information. As the Court reiterated, warrants need “some quantum of individualized suspicion.” U.S. v. Martinez-Fuerte, 428 U.S. 543, 560–561 (1976).

The point of the Fourth Amendment is to keep the government from unreasonably intruding into your life and your freedom. This being said, there are exceptions (consent to the search, imminent danger, exigent circumstances, a search incident to arrest, items in plain view, etc. to name a few) to Fourth Amendment protections, so long as the government is doing the searching and so long as the search is reasonable.

Cell Phone Location Data

Cell phones communicate with cell sites, which can be found at cellphone towers, some light-posts, tops of buildings, and many other areas. When you move with your cell phone, the phone connects to these cell sites and when you place a call or send a text, the phone time stamps the activity which can be stored. This time-stamped information is called cell-site location information or CSLI. Cell site location information is often stored by service providers for years.

There are over 300,000 cell sites in the United States. Your cellphone provider takes the information relayed to cell sites and stores the information to improve their service and coverage. Today, CSLI includes location information that is fairly accurate.

cell site data

Carpenter v. United States (2018)

After a string of robberies in 2010 and 2011, police caught several suspects. Ironically, the robberies were for cell phones being taken from stores like Radio Shack and T-Mobile.  One of them confessed to a series of nine robberies and provided details about their leader, Timothy Carpenter. The police then requested an order for 127 days of tracking information from Carpenter’s cellphone provider. Using all the data received, there were 12,898 data points regarding locations that followed Carpenter’s movements. The location on Carpenter’s phone closely matched the places where robberies occurred and this location information was used as evidence in his conviction. Carpenter was convicted of multiple robbery counts and multiple counts of carrying a firearm during a federal, violent crime.

Carpenter appealed arguing that he was protected from a warrantless search of his cell phone records. Instead of getting a warrant, the police had obtained a court order using the Stored Communications Act (18 U. S. C. §2703(d)). This law allows phone companies to give your records to police if there were reasonable grounds to believe that the records needed would move a criminal investigation along. The standard was lower using this law than the requirements for a warrant, since police just needed specific and articulable facts that led to a reasonable belief that information requested would be related and important (relevant and material) to the investigation. The Stored Communications Act requires “specific and articulable facts showing there are reasonable grounds to believe” that electronic data being sought is relevant to an ongoing criminal investigation. The Stored Communications Act, however, did not require a showing of probable cause.

Carpenter argued obtaining his Cell Site Location Information amounted to a Fourth Amendment search. The Supreme Court focused on whether the third-party doctrine applied to cell site location information. The third-party doctrine provides that the Fourth Amendment is not implicated when the police obtain information revealed to third parties (like bank records and call records.)

Expect to see litigation involving cell site simulators to reach the Supreme Court.

What changes with Carpenter v. United States?

Before, police did not need a warrant for a lot of cellphone information because if you were sharing your information with a third party, like your cellphone provider, getting access, for example, to the numbers you called was not protected. However, the justices recognized in this decision how tied we are to our phones, and that being able to track a phone’s location when it is practically always in our pockets, would be a gross violation of our expectation of privacy without first obtaining a search warrant.

The Court found that the facts of this case put it between two areas of law: your expectation of privacy when it comes to your location and your movements versus your expectation of privacy when you voluntarily give your information over to third parties (i.e. your cellphone provider). This ruling distinguished previous case law, such as giving over records of numbers dialed or business records from location-related records. In previous cases, information sought was more limited. Here, location information is a “comprehensive record” that provides accurate details of where you have been. Additionally, the court analyzed the fact that cell phones can log your location without you actually using the phone other than turning it on. Because of these two important facts, the Court held that unless an exception to the warrant requirement applies, police generally need a warrant supported by probable cause to be able to access location records.

What does Carpenter v. United States cover?

Specifically, the decision covered location information (CSLI). Police need a search warrant to access this location information from your phone.

What does Carpenter v. United States exclude?

Case precedent involving financial, banking, and office-related records still holds. Furthermore, warrantless searches may be performed in cases of emergencies or in cases of threats to national security. The Court specifically stated that the decision was very narrow, and that the decision did not cover real time CSLI or “tower dumps,” which is the process of downloading information about all the devices connected to a specific cell site during a specific time frame.

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Was your cell site location information obtained without a warrant in a criminal case? Give us a call at 817-203-2220.

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Collins v. Virginia

In an 8-1 decision, the Supreme Court decided that the automobile exception does not allow police to enter the curtilage of home to search a parked vehicle. In Collins v. Virginia, the Supreme Court addressed a case where officers conducted a search of a parked vehicle that was believed to be stolen.

The Supreme Court discussed two important aspects of Fourth Amendment. The Court looked at both the automobile exception to obtaining a warrant and a protected area of the home called the curtilage.

The Fourth Amendment provides protection for you, your house, and your property against searches and seizures that are unreasonable. There are exceptions to this rule; the Automobile Exception being one of the most frequently used exceptions to the Fourth Amendment.

The Automobile Exception

The Automobile Exception allows officers to search a vehicle without a warrant if they have probable cause to believe the vehicle has contraband or some other evidence related to a crime.

automobile exception
What is the automobile exception to the Fourth Amendment?

The reasoning behind the Automobile Exception is that vehicles are easy to move. This allows officers to prevent evidence from disappearing or being relocated.

The officer can conduct a search of the vehicle without getting a warrant as long as they have probable cause for the search. For example, if an officer is walking by a vehicle parked on a street and sees through the window what looks like a bag of cocaine on the seat, the officer can conduct a search of the vehicle without getting a warrant.

Probable cause exists when facts and circumstances known to the police officer would lead a reasonable person to believe that a crime has been committed or that property connected to a crime is located in a particular place.

What is a curtilage?

The curtilage is the area directly adjacent to the home or surrounding the home. It is important for searches because both the curtilage and the home are protected by the Fourth Amendment, meaning an officer needs a warrant to search either of these two areas.

curtilage
What is curtilage for Fourth Amendment purposes?

There is a four-factor test for whether an area is a curtilage which was established in United States v. Dunn. Courts consider:

  1. How close the area is to the house;
  2. Whether or not the area is within an enclosure by or around the home;
  3. What the area is used for; and
  4. Whether or not the resident of the home took steps to protect the area from observation or access to passers-by, and what the steps where.

Curtilage and the Automobile Exception

In Collins, Officer McCall of the Albemarle County Police Department in Virginia saw a driver commit a traffic violation on an orange and black motorcycle, but the driver eluded the officer’s attempts to stop. Another officer in the same department, Officer Rhodes, later saw a driver on an orange and black motorcycle speeding, but also was unable to stop the vehicle.

The officers compared notes and determined that the driver of the bike was the same individual on both occasions. After investigating, the officers found out that bike was stolen and in possession of a person named Ryan Collins. The officers then found photos of Collins on Facebook, where he was posing with an orange and black motorcycle at a house, in a driveway.

The officers determined that the home belonged to Collins’ girlfriend and that Collins stayed at the house several nights a week.

Officer Rhodes arrived to check things out. From the street, Officer Rhodes saw what he believed was a motorcycle under a tarp, parked the same way the motorbike in the Facebook photo was parked.

Without obtaining a warrant, Officer Rhodes walked up to the motorcycle, entering the enclosed area of the driveway it was parked in. The officer lifted the tarp covering the bike and, seeing that it was an orange and black motorcycle, took photographs of the vehicle and ran the plate number, which came up stolen. After replacing the tarp, Officer Rhodes went back to his vehicle and waited for Collins to return home.

After Collins came home, Officer Rhodes knocked on the front door and asked to speak to Collins, who agreed to the exchange. After being asked some questions, Collins admitted he bought the motorcycle without title and was arrested.

Collins v. Virginia – Legislative History

The trial court convicted Collins, specifically for receiving stolen property, despite Collins’ argument that Officer Rhodes had trespassed the curtilage of the home and conducted an illegal search without a warrant. After the case went to trial, the Court of Appeals in Virginia held that the officer had probable cause to believe the motorcycle under the tarp was the same as the one that evaded arrest and that the search of the bike without warrant was lawful under the Fourth Amendment because there were numerous exigencies that justified the officer’s entry and lifting of the tarp. The Supreme Court of Virginia reasoned further that the automobile exception to the search warrant requirement applied and that, as a result, the search without warrant was valid. The U.S. Supreme Court took on this case to determine whether the search was valid.

Federal Precedent

In past cases, the Supreme Court held an automobile search could be reasonable even without a warrant. For example, the Court discussed a case where officers had probable cause to think a car they saw traveling down the road had illegal liquor in it. Carroll v. United States, 267 U. S. 132 (1925). The officer stopped the car to search it and found (and seized) the alcohol and arrested the people in the car. Other cases also illustrated that the mobility of vehicles and their ability to quickly move evidence out of the jurisdiction meant that cars had a lesser expectation of privacy than a home. California v. Carney, 471 U. S. 386, 390 (1985); Cady v. Dombrowski, 413 U. S. 433, 441 (1973).

Collins v. Virginia – The Supreme Court Decision

The Court addressed three separate arguments made by the prosecution in Collins v. Virginia.

First, the Court considered whether Virginia’s reliance on Scher v. United States was misplaced. In Scher, officers received a tip that a particular car would be transporting bootleg alcohol at a specific date and time. The officers observed a vehicle that matched the description of the tip turning into a garage within the curtilage of the home. When the driver got out of the car, an officer came up to him and told the driver that a tip had been received about illegal substances in the car. After the driver confirmed the alcohol was in the trunk, the officer opened the trunk and found the liquor—seizing both the contraband and the driver. While the officer lacked a search warrant, the court found the search reasonable.

Unlike the attended car in Scher, here, the motorcycle was unattended and fully parked within the curtilage when the officer found it. The Court reiterated that Scher did not create a blanket rule allowing an officer to enter the curtilage without a warrant. The Court described Scher to be a case more about hot pursuit, rather than the automobile exception. [Hot pursuit falls under the warrant exception of exigent circumstances in criminal procedure and allows a cop to chase a suspect into a private area/home, meaning forcible entry is okay, if the officer saw a felony being committed and had to chase the suspect to prevent the person from hiding or getting rid of evidence.]

Further, the Court discussed that the Scher decision was tied to different facts than the case currently in front of the court.

Second, the Court addressed Virginia’s use of Pennsylvania v. Labron, and found it was also misplaced. In Labron, the vehicle in question was parked in the front driveway of Labron’s father-in-law’s house. However, Labron did not have a property interest in the farmhouse or the driveway himself that he could claim was protected by the Fourth Amendment.

In Collins, the Court held that if the area is curtilage, a parking patio or carport that an officer can see into from the street is just as protected from trespass and warrantless search as a garage that is totally enclosed.

As the last main argument, the Court looked at Virginia’s proposal for a bright-line rule in a socio-economic context. Essentially, the Court reasoned that affording one constitutional protection to people who can afford a covered garage would give them more constitutional rights than those who lack the resources for a garage adjacent to their home. The Court concluded that individualized case-by-case consideration as to whether an area is curtilage provides equal protection regardless of resources.

Collins v. Virginia – In Summary

An officer may not enter the curtilage of a home to conduct a warrantless search for a vehicle that may be parked there, assuming the officer did not follow the vehicle in hot pursuit.

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Is a Prior DWI Conviction an Element of a DWI Misdemeanor Repetition Offense or is it a Punishment Issue?

The Court of Criminal Appeals has ruled that for purposes of misdemeanor DWIs, the fact that a person has been previously convicted of one DWI is an issue to be reserved for punishment and is not an element of the offense that can be brought before a jury in the guilt-innocence phase. The decision handed down by the Court of Criminal Appeals this week could mean that cases tried by the Tarrant County District Attorney’s Office over the last couple of years could be reversed.

The issue before the Court of Criminal Appeals was whether one prior DWI (which enhances the DWI from a Class B misdemeanor to a Class A misdemeanor) is a punishment enhancement or whether the existence of a prior DWI was an element of the offense. This question is crucially important to every DWI-Misdemeanor Repetition (sometimes called DWI-Second) case tried to a jury in the state because the answer tells us whether the jury gets to hear about the prior DWI while they are determining guilt-innocence.

Typically, juries in criminal cases do not hear about prior bad acts or convictions when they are determining whether a person is guilty or not guilty of an alleged offense. There are many exceptions to this rule, but the rule allows the jury to focus on the question of guilt at hand. Those other bad acts and prior convictions are generally reserved for the punishment phase of a trial so the jury can determine what the appropriate sentence is in light of all those facts. The answer from the Court of Criminal Appeals is that for misdemeanors, the fact that there is one prior DWI conviction is a punishment issue and not an element of the offense which can be brought before the jury unless the punishment phase is reached.

[This is different than when a person has two prior DWIs because a third DWI is a felony offense. To get to a felony court, those priors must be proven as a “jurisdictional element” so the jury does get to hear about the jurisdictional priors in a felony DWI.]

Intermediate Court on Prior DWI as an Element vs. Punishment Issue

Defendant Jose Olivia was charged by information with Driving While Intoxicated. The information contained two pertinent paragraphs: one regarding the DWI currently being tried, and a second paragraph alleging a prior DWI conviction. Olivia was found guilty on the current DWI charge without any mention of the prior DWI conviction to the jury.

At the punishment stage of the trial, the State provided the jury with evidence of the prior DWI conviction. The jury found the prior conviction to be true and assessed a punishment of 180 days in jail. The final judgment on Olivia’s current DWI was labeled “DWI 2ND,” indicating that Olivia was convicted of a Class A Misdemeanor DWI.

On appeal, the 14th Court of Appeals in Houston reversed the conviction, reasoning that “a fact that elevates the degree of an offense” is an element of the underlying offense and must be proven beyond a reasonable doubt before the punishment stage. Specifically, the court pointed to the fact that Texas Penal Code §49.09 does not expressly state an individual “shall be punished,” which is significant because “shall” indicates mandatory action required by law. Ultimately, the court determined that introducing the prior conviction at punishment was “legally insufficient” to enhance the current DWI from a Class B misdemeanor to a Class A misdemeanor.

Court of Criminal Appeals on Prior DWI as an Element vs. Punishment Issue

The Court of Criminal Appeals granted a Petition for Discretionary Review to settle the element vs. punishment question for the entire state because there was disagreement among the intermediate court as to whether the one prior DWI conviction is an element of a DWI Misdemeanor Repetition case, or whether it was an enhancement to be proven in guilt-innocence. Notably, both the position of both the prosecutor and the defense before the Court of Criminal Appeals was that the prior DWI was an element of the offense, but the Court of Criminal Appeals disagreed with both sides in rendering its decision.

The Court of Criminal Appeals distinguished between priors that are raised in felony cases at the guilt-innocence phase as elements of the offense because those are necessary for a felony district court to have jurisdiction over the case. In a misdemeanor, although the offense level increases from a Class B misdemeanor to a Class A misdemeanor, it would still be tried in a misdemeanor court. The issue is one of punishment, not of guilt-innocence.

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If you’ve been charged with a DWI, give us a call. We will walk you through what to expect and how to mount your best defense. Call us at (817) 203-2220, or send us a message online:[/vc_column_text][/vc_column][/vc_row][vc_row remove_padding=”no-padding-vc-row”][vc_column]

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What is the Criminal Statute of Limitations in Texas?

The statute of limitations for a criminal case refers to how long prosecutors have to bring a case against a person. The statute of limitations vary for different offenses and are laid out in Article 12 of the Code of Criminal Procedure. By setting statute of limitations, the legislature tries to balance the need for victims to come forward with ability of the accused to have evidence for which to defend themselves. The statute of limitations for a criminal case is the time in which a case must be filed before being barred from prosecution due to delay. In other words, if the state fails to bring a case against a suspect within a certain time period, it loses the right to prosecute the case.

How Long are the Criminal Statutes of Limitations in Texas?

The criminal statute of limitations in Texas varies, depending on the severity of the offense. The statute of limitations for misdemeanors is two years. Unless specified, it’s three years for felonies. However, it’s important to point out that many felonies do carry a specified statute of limitations, usually at five years, seven years or ten years. Some criminal statute of limitations are based on the age of the victim. For some offenses, such as murder and aggravated sexual assault of a child, there is no criminal statute of limitations at all.

A Chart of  Statute of Limitations in Texas

Generally, the statute of limitations for criminal cases in Texas can be found under Chapter 12 of the Code of Criminal Procedure. Here’s a look at the statue of limitations for some common offenses:

OffenseLimitationStatute
Murder None12.01(1)
ManslaughterNone12.01(1)
Sexual Assault of a ChildNone12.01(1)
Aggravated Sexual Assault of a ChildNone12.01(1)
Sexual Assaults where DNA was collectedNone12.01(1)
Serial Sexual AssaultNone12.01(1)
Continuous Sexual AssaultNone12.01(1)
Indecency with a Child None12.01(1)
Leaving the scene of an accident resulting in deathNone12.01(1)
Trafficking of childNone12.01(1)
Continuous Trafficking of PersonsNone12.01(1)
Compelling Prostitution of Child under 18None12.01(1)
Theft by Trustee10 Years 12.01(2)
Theft by a Public Servant of Government Property10 Years 12.01(2)
Forgery or passing a forged instrument10 Years 12.01(2)
Injury to Elderly or Disabled (First Degree)10 Years 12.01(2)
Sexual Assault10 Years 12.01(2)
Arson10 Years 12.01(2)
Trafficking of persons 10 Years 12.01(2)
Compelling Prostitution10 Years 12.01(2)
Misapplication of fiduciary property 7 Years 12.01(3)
Securing fiduciary property by deception 7 Years 12.01(3)
Felony violation of Tax Code Chapter 162 7 Years 12.01(3)
False statement to obtain credit 7 Years 12.01(3)
Money laundering 7 Years 12.01(3)
Credit card or debit card abuse7 Years 12.01(3)
Fraudulent use or possession of identifying information 7 Years 12.01(3)
Medicaid fraud 7 Years 12.01(3)
Bigamy (generally)7 Years 12.01(3)
Theft5 years 12.01(4)
Robbery5 years 12.01(4)
Kidnapping (generally)5 years 12.01(4)
Burglary (generally)5 years 12.01(4)
Injury to Elderly or Disabled (Other than First Degree)5 years 12.01(4)
Abandoning or Endangering a Child 5 years 12.01(4)
Insurance Fraud 5 years 12.01(4)
Sexual Performance by a child If the victim was under 17 at the time of offense, 20 years from the victim's 18th birthday12.01(5)
Aggravated Kidnapping with intent to commit a sexual offenseIf the victim was under 17 at the time of offense, 20 years from the victim's 18th birthday12.01(5)
Injury to a Child Ten years from the 18th Birthday of the victim 12.01(6)
Other felonies 3 years12.01(7)
Misdemeanors2 years

What is the Statute of Limitations for a DWI in Texas?

The statute of limitations for a misdemeanor DWI is two years. This includes Driving While Intoxicated; Driving While Intoxicated – Misdemeanor Repetition; Driving While Intoxicated with a BAC >/= .15; and Driving While Intoxicated with an Open Container. The statute of limitations for Driving While Intoxicated with a Child Passenger and Driving While Intoxicated – Felony Repetition is three years. The statute of limitations for Intoxication Assault and Intoxication Manslaughter is three years.

Why Do We Have Statutes of Limitations?

Statutes of limitations exist because the passage of time affects the quality of evidence on both sides. Statutes of limitations protect individuals from having to defend themselves against charges when basic facts and evidence may have become obscured or deteriorated with the passage of time. As mentioned, statutes of limitations vary based on the offense and, for some crimes, there is no statute of limitations at all.  Additionally, the statute of limitations may be tolled, or suspended, under certain circumstances.

Can the Statute of Limitations Clock be Stopped?

The statute of limitations can be tolled (or paused) while the accused is absent from the state, by charging the person by indictment, information, or complaint.

What is “Tolling” of a Statute of Limitations?

Under certain circumstances, the statute of limitations can be tolled, which basically means it is paused. For example, the statute of limitations is tolled for any time period in which the defendant was under indictment for “the same conduct, same act, or same transaction.” Similarly, the statute of limitations can be tolled while the accused is absent from the state. Tolling commonly occurs when a defendant is on the run. Simply put, tolling means the clock stops running for a certain period of time.

 

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The Supreme Court struck down the Professional and Amateur Sports Protection Act (PASPA) in May 2018 in Murphy v. NCAA, holding that PASPA “regulate[s] state governments’ regulation of their citizens,” which is not a power given to congress by the Constitution. As a win for New Jersey and other states seeking to engage in sports betting, the Supreme Court held that PASPA was a violation of the 10th Amendment, which stipulates that powers not given to the federal government or expressly taken away from states are given to the states. Basically, congress is able to regulate sports betting directly, but cannot tell the states how to regulate the industry.

What is PASPA and what did it do?

PASPA made several activities unlawful. Specifically, a state could not “sponsor, operate, advertise, promote, license, or authorize” by law a “lottery, sweepstakes, or other betting, gambling, or wagering scheme based on competitive sporting events.” 28 USC §3702(1) and (2). Sports gambling on its own was not a federal crime, but the Attorney General and professional or amateur sports organizations were legally allowed to sue the state civilly and join violations together. Four states were allowed to continue operations that had existed in those states at the time PASPA was passed. Additionally, New Jersey was allowed to set up a gambling scheme so long as it did so within a year of PASPA becoming law.

Here is what the law prohibited in a chart. The following activities based on competitive sporting events were not allowed:

·      Sponsorship

·      Operation

·      Advertisement

·      Promotion

·      Licensing, or

·      Authorization

 

 

 

 

Of

·      Lottery,

·      Sweepstakes,

·      Or other betting,

·      Gambling, or

·      Wagering scheme

Although New Jersey was allowed to set up a gambling scheme, it failed to do so within the permitted year. The state then decided that it did want to legalize sports gambling. The problem was that New Jersey took years to come to that decision – long after the period of time allowed by PASPA. As a result, the NCAA and several major sports leagues sued New Jersey on a PASPA violation. New Jersey argued that PASPA violated constitutional law, specifically anticommandeering principles, by prohibiting states from changing or striking down laws, in this case laws that pertained to sports betting.

New Jersey passed the law that became the crux of the SCOTUS case in 2014. That law repealed New Jersey’s prohibitions against sports-gambling for individuals over 21 years old, so long as the bets were placed at a casino, gambling house, or horse track in Atlantic City, and only on sporting events. Gambling on college sports or events in the state were not part of the allowed activities.

What were the odds?

Proponents of legalizing sports betting argued that legalizing the activity will generate revenue for states and reduce the strength of illegal betting organizations. Opponents of legalization argued that legalizing sports gambling will push people toward gambling and encourage unreasonable spending and financial practices.

proponents of sports gambling

 

The Supreme Court on Sports Gambling

sports betting legalThe Supreme Court held that anticommandeering is a core right in the Constitution and equates to congress being unable to directly order the states to comply with something. Anticommandeering is just what is sounds like. The doctrine prevents the federal government from imposing restrictions on or “commandeering” state governments, especially in terms of laws that aim to target state activity by controlling or creating mandatory duties for the state legislatures or state officials. The Supreme Court stated that the federal government and the states both have sovereign powers that support our system of “dual sovereignty,” Murphy v. NCAA, (citing Gregory v. Ashcroft, 501 U. S. 452, 457 (1991)).

The Supreme Court held that congress did not have the authority to ban states from regulating sports gambling within their own state. PASPA was found to be a violation of the anticommandeering rule because it gave direct orders to state legislatures and prohibited states from authorization activity. As a result, the Supreme Court did not even need to evaluate whether New Jersey violated the PASPA anti-licensing provision.

Ultimately, the Supreme Court held that while Congress may regulate sports gambling by creating a federal set of guidelines for the industry, it could not force states to regulate their own industry.

Are there larger implications within and outside of sports betting?

Yes. Financially, allowing legal sports betting could bring a huge revenue influx to states that choose to allow it. For example, in Nevada, Las Vegas pulls in several billion dollars a year through sports betting. The illegal sports betting market is estimated at up to $100 billion dollars. By legalizing, this market would shift to legal venues and generate money for the state.

There are also non-gambling implications of the law. For example, Amy Howe, a writer for SCOTUSblog, wrote that supporters of “sanctuary-cities” may use this ruling as a precedent to not follow directions, rules, and laws set forth by immigration officials.

Can Congress do anything to ban or regulate sports betting?

Probably. Even though PASPA has been struck down and is no longer valid law, Congress could create a set of federal rules or guidelines that would give rise to uniformity among states.

So, what exactly does this mean?

SCOTUS struck down the existing sports-gambling restriction that prevented states from regulating their own sports-betting industries. Now, states are free to engage in modifying, creating, or otherwise affecting sports-related gambling in their own state. Congress may move to create legislation to regulate the industry as a whole but lacks the power to dictate how states are to run their own sports-betting industries.[/vc_column_text][/vc_column][/vc_row]

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Let’s face it. When it comes to DWI, there are a lot of myths, misconceptions, half-truths, and exaggerations. Because it’s such a common charge, everyone seems to have a DWI story – or knows someone who does. This has contributed to the spread of a lot of inaccurate information over the years. So how do you know what to believe? Start by reading these 101 DWI facts — and prepare to be surprised.

1. You can be charged with DWI if you haven’t had a drop to drink.

When most people think of Driving While Intoxicated, they think of alcohol. They picture someone who should have their keys taken from them, maybe someone who is slurring, stumbling, or has had the proverbial “one too many.” The reality is it’s also a crime to drive a vehicle when you are not normal, mentally or physically, due to drugs in your system, regardless of whether they are illegal, prescription, over-the-counter or a combination of prescription and illicit drugs.

charged with DWI

2. Officers can’t force you to take field sobriety tests – yet most people consent.

You may have heard that it’s a mistake to perform field sobriety tests – and that is true. I have done a number of presentations where I’ve asked audience members, even fellow attorneys, to come up and perform sobriety tests and an overwhelming majority of them fail even though they were not under the influence. Officers cannot force you to take field sobriety tests, so don’t take them.

DWI field sobriety tests

3. You don’t have to be driving a car to be charged with DWI.

You can be charged with DWI for driving a golf cart, tractor, or four-wheeler, among other things. In Texas, a “motor vehicle” is defined as a device, in, on or by which a person or property can be transported on a highway (excluding trains.) This is a very broad definition which leaves the door open for a wide variety of motorized vehicles.This means if you are impaired and get behind the wheel of just about anything, you are subject to the same DWI rules and penalties as if you were driving a car.

4. You don’t have to answer an officer’s questions – except to ID yourself and provide license and proof of registration and insurance.

When motorists are stopped for suspected DWI, the officer will almost certainly ask where you were coming from, if you had anything to drink, and what time was your last drink. You will be in a much better position if you politely decline to answer any of the officer’s questions. So how do you do this? Here are some suggestions of what to say:

  •  “I respectfully decline to answer any questions.”
  •  “I prefer not to answer any questions without first speaking to an attorney.”
  •  “I have a friend who is an attorney and he told me I should not answer any questions.”

dont answer police questions

5. You are a poor judge of your own intoxication.

The first thing alcohol affects is judgment and as a result, you are a poor judge of your own level of intoxication. While you may have a good idea of what your “tolerance” is, that does not change the fact that the state can prosecute you even if you look completely normal as long as they can prove your blood alcohol concentration was a .08. One way to always find out your level of intoxication is through a portable Blood Alcohol Calculator such as BACtrac, which even offer Smartphone breathalyzers. You can also answer quick online questions at Blood Alcohol Calculator, which will give your estimated BAC based on the quantity and duration of your alcohol consumption.

Blood Alcohol Calculator

6. Americans with DWI or DUI convictions can’t enter Canada – without special permission.

Americans are often shocked to learn that they may be turned away at the Canadian border if they have been convicted of DWI, DUI or another alcohol-related offense. The only way to guarantee entry is to apply for a Temporary Resident Permit (TRP) or Criminal Rehabilitation, according to Canadian Immigration Lawyer Marisa Feil, who specializes in helping Americans with criminal records travel to Canada. Feil explains the entry process in an informative podcast, “Earning Freedom,” with Prison Consultant Michael Santos, of Prison Professors.

7. Your driver’s license may be suspended. Twice.

Many people arrested for DWI in Texas face two potential driver’s license suspensions – one for refusing a breath or blood test and another if convicted of a DWI.

Administrative License Revocation

If you have a DWI conviction, you will lose your concealed handgun license.

A DWI conviction (first) counts as a Class B misdemeanor, and in the state of Texas, you can’t have a concealed hand license for the next five years after a conviction for a Class A or Class B misdemeanor. Additionally, people who have been convicted of two or more alcohol or drug-related misdemeanors offenses within the last 10 years, may not be eligible for a CHL license.

no guns after dwi

9. All 50 states, except Utah, have set .08 BAC as the legal limit for DWI/DUI.

In December 2018, Utah’s BAC will be set at .05, making it the strictest drunk driving law in the country.

BAC limit in Texas

10. All 50 states have some sort of “implied consent” law.

In return for the privilege of driving on the roads in our country, motorists are deemed to have given their implied consent to provide a breath or blood specimen if they are ever arrested for driving while intoxicated. There are penalties for not providing a specimen voluntarily upon request, but fortunately in Texas (unlike some other states) you will not be charged with a seperate criminal offense for failure to consent to a breath or blood test.

DWIs un the USA

11. You CAN refuse to give a breath test in Texas.

Even though Texas is an “implied consent” state, drivers can (and should) refuse to give a breath test. Texas drivers who refuse to give a breath test will have their driver’s license suspended. This is considered an administrative penalty. If you consent to take the breathalyzer, it’s possible that you could incriminate yourself. Do not do the officer’s job for them. If they want evidence to try and prove you are intoxicated, they can get a warrant and draw blood.

dont blow DWI

12. You CAN refuse a blood test in Texas.

Just like with a breath test, drivers can (and should) refuse to give a blood test. Texas drivers who refuse a blood test will have their driver’s license suspended for 180 days, but there are ways to potentially save your license. While risking losing your license is not ideal, it is better than volunteering to give a blood specimen. By refusing to give a specimen, you are forcing the police officer to do his or her job and take the extra steps needed to get a warrant.

dont give a blood test

13. You CAN refuse during “No Refusal” holidays and weekends.

Many people believe if they get stopped for suspicion of DWI during a “No Refusal” holiday or weekend, they do not have the right to refuse to give breath or blood. This could not be further from the truth. What “No Refusal” really means is that your refusal will not keep an officer for seeking a warrant obtain your blood. During “No Refusal” weekends, resources are increased and the process for obtaining a search warrant for a blood draw is expedited. Magistrates are usually readily available to review and sign affidavits for search warrants and blood-draw nurses are on standby. You can (and should) refuse the tests, whether it’s a “No Refusal” weekend or not.

no refusal weekend

14. Officers may ask you (again) back at the station to do field sobriety tests or take a breathalyzer.

The same advice that applied out in the field applies at the station or jail: do not voluntarily perform their tests.

field sobriety tests at the station

15. The police officer gets to choose whether he/she is offering you a breath test or a blood test.

If you consent and the officer asks you for blood and you’d rather give breath, you are stuck with what the officer is offering.

16. If you consent to give a sample and your blood alcohol concentration is over the legal limit, your license will be suspended for three months.

If you are over 21, and you provide a breath or blood sample and it shows you have a Breath/Blood Alcohol Concentration of a .08 or greater, your license will be suspended for 90 days.

90 day license suspension

17. If you consent to a breath test, you can ask for an additional blood test to be performed at your own expense.

Once you have consented to a blood or breath test, you have the right to have a blood test taken within two hours of arrest by a medical professional of your choosing.

18. Police officers cannot get a warrant for a breath test – only a blood draw.

If you refuse to give a specimen of breath or blood, officers can only get a warrant for blood in Texas. Good to know if you are deathly afraid of needles.

dwi blood draws

19. Police officers must obtain a search warrant to draw blood from intoxicated drivers who do not consent to provide a voluntary specimen.

The Supreme Court has ruled that the “exigency” created by the dissipation of alcohol in the blood is not enough to overcome the warrant requirement.

dwi blood draw

20. Officers may use force to take blood to effect a search warrant.

There have been cases where officers strapped a person down and forcibly took their blood after obtaining a warrant. Of course everyone remembers the nurse who got arrested after refusing to draw blood:

using force for a dwi blood draw

21. Imperfect warrants can be attacked.

Police officers sometimes fail to establish probable cause or put in the correct date and time of their observed facts in search warrant affidavits.These flaws could lead to evidence being kicked out by the judge. Remember to be polite at all times during a DWI investigation but insist the officer do their job by obtaining a warrant. Don’t do their job for them by consenting to a breathalyzer or blood draw.

22. Officers don’t always have to read your Miranda Warnings during a DWI arrest.

By law, police are only required to read your Miranda rights when they begin what is known as a “custodial interrogation.” That is, they only have to read you your rights if they question you while you are in police custody. If police have all the evidence they need without questioning you – say from a field sobriety or breathalyzer – they are not required to give you a Miranda Warning. This is also why officers ask you a series of questions when they first walk up to your vehicle, before you are in custody.

23. After a DWI arrest, officers must read you a DIC-24 statutory warning.

This lengthy form asks the driver for a sample of breath or blood and warns that refusal or failure will result in an automatic license suspension.

24. If you refuse to give a breath or blood test, you will receive a DIC-25.

The DIC-25 is a Notice of License Suspension and Temporary Driving Permit. The police will take your driver’s license and give you this piece of paper, which will become your license for the next 40 days or until you’ve had an hearing regarding the license suspension. If you don’t request a hearing, the 180-day license suspension kicks in on the 41st day after your arrest.

25. You only have 15 days to request a hearing on your license suspension.

The clock starts ticking on your driving privileges as soon as you are arrested. If you do not request an Administrative License Revocation (ALR) hearing within 15 days of your arrest, your license will be automatically suspended when you temporary permit expires.

15 days to request an ALR hearing

26. Even if your license suspension is upheld at the ALR hearing, you may be able to get an Occupational License that allows you to drive.

An Occupational License is an order that allows a person to drive legally while their license is otherwise suspended.

27. Hard License Suspensions – Explained.

If you have had a license suspension in the preceding five years due to a DWI, you will have a 180-day hard suspension. If you were convicted of a repeat offense in the last five years, you will have a one-year hard suspension. Despite these hard suspensions, Transportation Code 521.251(d-1) provides a judge can issue an occupational license if the person has an interlock device installed on their vehicle.

27. Hard License Suspensions – Explained.

If you have had a license suspension in the preceding five years due to a DWI, you will have a 180-day hard suspension. If you were convicted of a repeat offense in the last five years, you will have a one-year hard suspension. Despite these hard suspensions, Transportation Code 521.251(d-1) provides a judge can issue an occupational license if the person has an interlock device installed on their vehicle.

28. You may have to put an interlock device on your vehicle as a condition of bond.

After you have been arrested for a DWI offense, you may be required to have an alcohol ignition interlock device installed on your vehicle as a condition of your bond (before your case is heard in court.) This is especially true if you are charged with a DWI with a BAC greater than or equal to .15 or if you have previously been convicted of a DWI. The device tests your level of alcohol consumption and prevents you from driving your vehicle until you can pass a test, according to Smart Start, a nationwide reputable Interlock company. To get an interlock device installed or removed, you must take your vehicle to Interlock company in your area.

Ignition Interlock Device

29. You may have to put an interlock device on your vehicle as a condition of probation.

If you are placed on probation for a DWI in Texas and you are alleged to have had a BAC of a .15 or greater or are a repeat offender, the judge will order you to have an ignition interlock device installed on any vehicle you drive. According to Draeger Inc., a national Interlock company, all 50 states in the U.S. have adopted laws that allow or require the installation of interlock devices to prevent convicted offenders from driving under the influence.

interlock probation texas

30. You may be ordered to put an interlock on your vehicle as a condition of your occupational license.

This is true even if your BAC was lower than .15 and even if this was your first offense.

31. You’re can’t skip the Interlock requirement – even if you don’t own a vehicle.

If you have been ordered to install a breathalyzer but don’t actually own a vehicle, you will still be required to install an interlock device on any vehicle you drive, such as a company vehicle or a friend or family member’s car. If you don’t drive at all, expect the judge to order you to have another way to make sure you don’t drink, such as a SCRAM Monitor.

SCRAM Continuous Alcohol Monitoring®

32. The judge may allow you to have your interlock removed once you have completed half the length of your probation.

If you have not had any interlock violations – and your probation officer supports the removal – there is a chance the judge will go along with removing your interlock device early. Contact an attorney about modifying the terms or your probation by filing a “Motion for Removal of Interlock.

33. The National Highway Traffic Safety Administration Manual is used to train all officer across the country to detect DWI.

The NTSA publishes a course given to law enforcement around the country to administer, detect and document field sobriety tests.

34. Speeding by itself is not a sign of intoxication.

The National Highway Transportation Administration (NHTSA) has a guide that lists suspected drunk driving signs – and just speeding alone is not a clue. The guide, called the Visual Detection of DWI Motorists, lists clues that have been found to predict blood alcohol concentration of .08 percent or greater. The behaviors are presented in four categories:
1) Problems in maintaining proper lane position
2) Speed and braking problems
3) Vigilance Problems
4) Judgment problems
The guide also specifies that when there is weaving plus any other clue, the probability of DWI is more than 65 percent. With any two clues the DWI probability is at least 50 percent.

Percent Chance of IntoxicationDriving Clues
50 to 75 percentProblems Maintaining Proper Lane Position
Weaving
Weaving across lane lines
Straddling a lane line
Swerving
Turning with a wide radius
Drifting
Almost striking a vehicle or other object
45 to 70 percentSpeed and Braking Problems
Stopping problems (too far, too short, or too jerky)
Accelerating or decelerating for no apparent reason
Varying speed
Slow speed (More than 10 miles mph under the limit)
55 to 65 percentVigilance Problems
Driving in opposing lanes or wrong way on one-way
Slow response to traffic signals
Slow or failure to respone to officer’s signals
Stopping in lane for no apparent reason
Driving without headlights at night
Failure to signal or signal inconsistent with action
35 to 90 percentJudgement Problems
Following too closely
Improper or unsafe lane change
Illegal or improper turn (too fast, jerky, sharp, etc.)
Driving on other than the designated roadway
Stopping inappropriately in response to officer
Inappropriate or unusual behavior (throwing, arguing, etc.)
Appearing to be impaired
Greater than 85 percentPost Stop Clues
Difficulty with motor vehicle controls
Difficulty exiting the vehicle
Fumbling with driver’s license or registration
Repeating questions or comments
Swaying, unsteady or balance problems
Leaning on the vehicle or other object
Slurred speech
Slow to respond to officer or officer must repeat
Providing incorrect information, changes answers
Odor of alcoholic beverage from the driver
Greater than 50 percent when combined with any other clue:Driving with no headlights at night
Failure to signal or signal inconsistent with action

35. Many officers administer the HGN (eye test) incorrectly.

Horizontal gaze nystagmus tests the eyes for a particular kind of nystagmus or involuntary jerking of the eyes. If administered correctly, this can be a powerful sign that a person is not normal physically (one of the ways to prove intoxication in Texas.) The test, however, requires the officer to hold and move the stimulus in a very particular manner and at very particular speeds. If the officer does not administer the test correctly, it may affect the validity of the results. Just ask Tony Corroto, a DWI Expert.

36. Labs mess up.

While lab reports can be strong evidence of a person’s BAC, remember the reports have been prepared by people and devices who are not imperfect. We’ve seen accidental mistakes to intentional false reports in labs across the country. We regularly have blood re-tested to see if a lab report is accurate.

37. Prosecutors have three ways to prove you were intoxicated.

  • They can prove your BAC was a .08 or over at the time of driving.
  • They can prove you did not have the normal use of your physical faculties due to the introduction of a substance into your body.
  • They can prove you did not have normal use of your mental faculties due to the introduction of a substance into your body.
    This latter two ways mean a person can be convicted of a DWI with a BAC of less than .08 if the jury believes the person was not normal mentally or physically due to an intoxicant.

38. There is no “legal limit” for drugged driving in Texas.

Unlike alcohol, there is no fixed blood concentration for which a motorist is deemed intoxicated by drugs. That means it’s up to law enforcement to decide whether or not to arrest a driver suspected of drugged driving. Some law enforcement departments have Drug Recognition Examiners or DREs who are trained to recognize and examine drugged drivers. Dr. David J. Hanson, a sociology professor who has been researching the subject of alcohol and drinking for 40 years and operates the website Alcohol Problems and Solutions, said on average DRE’s falsely identify one innocent driver for every eight arrested. “Who would want a doctor who botched over one of every eight heart surgeries? Or an airline pilot who botched over one one of every eight landings?” Hansen asks in an article on his website about detecting drugged driving. When drugged driving cases make it to trial, prosecutors bring in the DRE or other experts to give an opinion about whether or not the accused was intoxicated by drugs and use signs, such as erratic driving or the driver’s attitude, to try and prove their case.

When drugged driving cases make it to trial, prosecutors bring in the DRE or other experts to give an opinion about whether or not the accused was intoxicated by drugs and use signs, such as erratic driving or the driver’s attitude, to try and prove their case.

39. In Texas, the state must prove a defendant was intoxicated at the time of his offense, and not just at the time of the blood draw.

This is significant because sometimes it takes an hour or several hours to get the warrant and then the blood.

retrograde extrapolation

40. DWI and DUI are not the same thing – at least not in Texas.

Many people use the terms DWI and DUI interchangeably but they are not the same thing in Texas. The main difference between DWI and DUI is the age of the driver. In Texas, a motorist who is legally intoxicated – has a BAC of at least .08 – can be charged with DWI. A DUI, however, is issued to motorists under the age of 21 who are caught driving with any amount of alcohol or impairing drug in their system. A DUI is a Class C misdemeanor, while a DWI is a Class B misdemeanor.

41. If you are under the age of 21, you can get charged with Driving Under the Influence (DUI)

If you are younger than 21 years of age, it is illegal to drive with any detectable alcohol in your system. The consequences of a DUI could include a $500 fine, a 60-day license suspension, 20 to 40 hours of community service and mandatory alcohol awareness classes, among other things. The penalties are harsher for those under 21 who blow a BAC of 0.8 or above and may including a $2000 fine, 3 to 180 days in jail, and up to a year license suspension. It’s important to point out that there is a zero-tolerance for underage drinking and driving. Any amount of alcohol in the system of a motorist under the age of 21 is grounds for arrest.

42. If you are sentenced to jail, you must spend at least 72 hours behind bars on a first-time DWI if your BAC was under .15.

Due to a legislative oversight, that 72-hour minimum does not apply if your BAC is .15 or greater.

43. If you are sentenced to jail, you must spend at least 72 hours behind bars on a first-time DWI if your BAC was under .15.

Due to a legislative oversight, that 72-hour minimum does not apply if your BAC is .15 or greater.

jail time for a first time DWI

43. You must serve SOME jail time if convicted of second DWI.

This is because the minimum sentence for DWI-Misdemeanor Repetition is 30 days in jail. Even if you receive probation, you will be required to do jail time as a condition of probation for a second DWI.
DWI Second

44. DWIs are extremely costly.

DWI’s are not cheap, and the costs increases with each offense. These costs include court costs, fines, surcharges, probation fees, attorneys fees, and a host of other costs that get tacked on to DWIs. For your third DWI offense, you could be paying around $27,000 by the end of it.
how expensive is a DWI?

45. If convicted of DWI, you will have to pay a surcharge for three years.

While considered an administrative penalty charged by the Texas Department of Public Safety, surcharges are basically a fee for you to maintain your driver’s license. The surcharge is $1000 per year for three years for a first-time DWI; $1500 a year for second DWI; and $2000 a year for any conviction with a BAC of .16 or greater. Failure to pay surcharges will result in your license being suspended.

46. A person convicted of DWI in Texas will have to pay surcharges, but there may be relief if you are indigent.

Texas Transportation Code Chapter 708 allows Texas to collect surcharges for offenses including DWIs. A surcharge is an administrative fee that is charged based on convictions reported to a person’s driving record. If you are indigent, you should ask your attorney about how to have your surcharges reduced or waived through specific programs.

47. You can request copy of your DWI video

In today’s day and age, almost all police encounters are videotaped, and this includes DWI arrests. Under Article 2.139, a person arrested for DWI has a right to obtain the video from their arrest. This is true even if a case has not been filed.

48. Your DWI charge could be changed to obstruction of a highway.

In rare circumstances, a DWI may be “reduced” to Obstruction of a Highway. This usually occurs through plea bargain negotiations when a skilled defense attorney points out problems or issues that shake the prosecutor’s confidence in obtaining a guilty verdict at trial. While DWI and Obstruction of a Highway are both Class B misdemeanors, a DWI has more severe consequences than Obstruction of a Highway charge. For example, deferred adjudication is not a punishment option for a DWI, but it is with Obstruction of a Highway.

obstruction of highway

48. Your DWI charge could be changed to obstruction of a highway.

In rare circumstances, a DWI may be “reduced” to Obstruction of a Highway. This usually occurs through plea bargain negotiations when a skilled defense attorney points out problems or issues that shake the prosecutor’s confidence in obtaining a guilty verdict at trial. While DWI and Obstruction of a Highway are both Class B misdemeanors, a DWI has more severe consequences than Obstruction of a Highway charge. For example, deferred adjudication is not a punishment option for a DWI, but it is with Obstruction of a Highway.

obstruction of highway

49. The only cure for being drunk is time, nothing else will “sober” you up.

All of the home remedies you have heard over the years to “sober” you up, are just myths. No amount of coffee, cold showers, or fatty food will be able to lower your BAC. Time is the only sober remedy after a night out.

time to sober

50. You may get a DWI while you’re trying to “sleep it off” in your car.

In Texas and several other states, you can be convicted of a DWI even in a parked car. What is considered a motor vehicle is clearly defined by Texas law but it does not define what is means to be operating one. This lack of definition allows for the court to interpret what is considered operating a motor vehicle. Texas courts have regularly found that anything beyond sitting in a running car is operation, including facts as small as having your foot on the brake pedal or having the car in neutral. People can – and do – get charged with DWI when found sleeping it off in their vehicle.

Operation of a Vehicle

51. You can still be charged with DWI if you BAC is below .08.

While it is obvious that if you provide a sample of breath or blood that shows you were a .08 or greater at the time of driving you are going to be charged with a DWI, it may surprise you to know that motorists get charged with DWIs when the results are lower. This is most commonly because the state believes they can prove the BAC was at or higher than .08 at the time of driving through “retrograde extrapolation.”

52. Texas law allows retrograde extrapolation testimony.

Retrograde extrapolation is a calculation that allows the State to put on evidence of what your BAC was at the time of driving based on a number of known facts including the time of last drink, the time the vehicle was being operated, the time of the blood test, and the blood test result. You can see why our advice is to always politely decline to answer questions rather than risking a casual response such as “a couple of drinks an hour ago” being taken as the absolute truth and being held against you in court.

53. It is not illegal to have a drink and drive.

The billboards that read, “Drink, Drive, Go to Jail” are technically not true. It’s perfectly legal to have a beer, glass of wine, or even a shot, and drive a car – as long as you aren’t legally intoxicated.

Varghese Summersett

Let’s face it. When it comes to DWI, there are a lot of myths, misconceptions, half-truths, and exaggerations. Because it’s such a common charge, everyone seems to have a DWI story – or knows someone who does. This has contributed to the spread of a lot of inaccurate information over the years. So how do you know what to believe? Start by reading these 101 DWI facts — and prepare to be surprised.

1. You can be charged with DWI if you haven’t had a drop to drink.

When most people think of Driving While Intoxicated, they think of alcohol. They picture someone who should have their keys taken from them, maybe someone who is slurring, stumbling, or has had the proverbial “one too many.” The reality is it’s also a crime to drive a vehicle when you are not normal, mentally or physically, due to drugs in your system, regardless of whether they are illegal, prescription, over-the-counter or a combination of prescription and illicit drugs.

how to avoid a DWI

ACTION TIP #1

Don’t make any admissions or statements. Provide your license and proof of insurance but politely decline to answer any questions.

2. Officers can’t force you to take field sobriety tests – yet most people consent.

You may have heard that it’s a mistake to perform field sobriety tests – and that is true. I have done a number of presentations where I’ve asked audience members, even fellow attorneys, to come up and perform sobriety tests and an overwhelming majority of them fail even though they were not under the influence. Officers cannot force you to take field sobriety tests, so don’t take them.

DWI field sobriety tests

ACTION TIP #2

Politely decline to do field sobriety tests.

3. You can get a DWI in a golf cart, tractor…or just about anything.

You can be charged with DWI for driving a golf cart, tractor, or four-wheeler, among other things. In Texas, a “motor vehicle” is defined as a device, in, on or by which a person or property can be transported on a highway (excluding trains.) This is a very broad definition which leaves the door open for a wide variety of motorized vehicles.This means if you are impaired and get behind the wheel of just about anything, you are subject to the same DWI rules and penalties as if you were driving a car.

4. You don’t have to answer an officer’s questions – except to ID yourself and provide license and proof of registration and insurance.

When motorists are stopped for suspected DWI, the officer will almost certainly ask where you were coming from, if you had anything to drink, and what time was your last drink. You will be in a much better position if you politely decline to answer any of the officer’s questions. So how do you do this? Here are some suggestions of what to say:

  •  “I respectfully decline to answer any questions.”
  •  “I prefer not to answer any questions without first speaking to an attorney.”
  •  “I have a friend who is an attorney and he told me I should not answer any questions.”

dont answer police questions

5. You are a poor judge of your own intoxication.

The first thing alcohol affects is judgment and as a result, you are a poor judge of your own level of intoxication. While you may have a good idea of what your “tolerance” is, that does not change the fact that the state can prosecute you even if you look completely normal as long as they can prove your blood alcohol concentration was a .08. One way to always find out your level of intoxication is through a portable Blood Alcohol Calculator such as BACtrac, which even offer Smartphone breathalyzers. You can also answer quick online questions at Blood Alcohol Calculator, which will give your estimated BAC based on the quantity and duration of your alcohol consumption.

Blood Alcohol Calculator

6. Americans with DWI or DUI convictions can’t enter Canada – without special permission.

Americans are often shocked to learn that they may be turned away at the Canadian border if they have been convicted of DWI, DUI or another alcohol-related offense. The only way to guarantee entry is to apply for a Temporary Resident Permit (TRP) or Criminal Rehabilitation, according to Canadian Immigration Lawyer Marisa Feil, who specializes in helping Americans with criminal records travel to Canada. Feil explains the entry process in an informative podcast, “Earning Freedom,” with Prison Consultant Michael Santos, of Prison Professors.

7. Your driver’s license may be suspended. Twice.

Many people arrested for DWI in Texas face two potential driver’s license suspensions – one at the time of the breath or blood test and another if convicted of a DWI.

Ways your license can be suspended:

  • Refusing to provide a specimen of breath or blood: 180 days
  • Providing a specimen of breath or blood over the limit: 90 days
  • Receiving a jail sentence for a DWI: up to two years.

Administrative License Revocation

ACTION TIP #3

Ask your attorney about getting an occupational license which will allow you to drive while your license would otherwise be suspended.

8. If you have a DWI conviction, you will lose your concealed handgun license.

A DWI conviction (first) counts as a Class B misdemeanor, and in the state of Texas, you can’t have a concealed hand license for the next five years after a conviction for a Class A or Class B misdemeanor. Additionally, people who have been convicted of two or more alcohol or drug-related misdemeanors offenses within the last 10 years, may not be eligible for a CHL license.

no guns after dwi

9. All 50 states, except Utah, have set .08 BAC as the legal limit for DWI/DUI.

In December 2018, Utah’s BAC will be set at .05, making it the strictest drunk driving law in the country.

BAC limit in Texas

10. All 50 states have some sort of “implied consent” law.

In return for the privilege of driving on the roads in our country, motorists are deemed to have given their implied consent to provide a breath or blood specimen if they are ever arrested for driving while intoxicated. There are penalties for not providing a specimen voluntarily upon request, but fortunately in Texas (unlike some other states) you will not be charged with a seperate criminal offense for failure to consent to a breath or blood test.

DWIs un the USA

11. You CAN refuse to give a breath test in Texas.

Even though Texas is an “implied consent” state, drivers can (and should) refuse to give a breath test. Texas drivers who refuse to give a breath test will have their driver’s license suspended. This is considered an administrative penalty. If you consent to take the breathalyzer, it’s possible that you could incriminate yourself. Do not do the officer’s job for them. If they want evidence to try and prove you are intoxicated, they can get a warrant and draw blood.

dont blow DWI

12. You CAN refuse a blood test in Texas.

Just like with a breath test, drivers can (and should) refuse to give a blood test. Texas drivers who refuse a blood test will have their driver’s license suspended for 180 days, but there are ways to potentially save your license. While risking losing your license is not ideal, it is better than volunteering to give a blood specimen. By refusing to give a specimen, you are forcing the police officer to do his or her job and take the extra steps needed to get a warrant.

dont give a blood test

13. You CAN refuse during “No Refusal” holidays and weekends.

Many people believe if they get stopped for suspicion of DWI during a “No Refusal” holiday or weekend, they do not have the right to refuse to give breath or blood. This could not be further from the truth. What “No Refusal” really means is that your refusal will not keep an officer for seeking a warrant obtain your blood. During “No Refusal” weekends, resources are increased and the process for obtaining a search warrant for a blood draw is expedited. Magistrates are usually readily available to review and sign affidavits for search warrants and blood-draw nurses are on standby. You can (and should) refuse the tests, whether it’s a “No Refusal” weekend or not.

no refusal weekend

ACTION TIP #4

Don’t volunteer to give a specimen of breath or blood. Ever.

14. Officers may ask you (again) back at the station to do field sobriety tests or take a breathalyzer.

The same advice that applied out in the field applies at the station or jail: do not voluntarily perform their tests.

field sobriety tests at the station

15. The police officer gets to choose whether he/she is offering you a breath test or a blood test.

If you consent and the officer asks you for blood and you’d rather give breath, you are stuck with what the officer is offering.

16. If you consent to give a sample and your blood alcohol concentration is over the legal limit, your license will be suspended for three months.

If you are over 21, and you provide a breath or blood sample and it shows you have a Breath/Blood Alcohol Concentration of a .08 or greater, your license will be suspended for 90 days.

90 day license suspension

17. If you consent to a breath test, you can ask for an additional blood test to be performed at your own expense.

Once you have consented to a blood or breath test, you have the right to have a blood test taken within two hours of arrest by a medical professional of your choosing.

18. Police officers cannot get a warrant for a breath test – only a blood draw.

If you refuse to give a specimen of breath or blood, officers can only get a warrant for blood in Texas. Good to know if you are deathly afraid of needles.

dwi blood draws

19. Police officers must obtain a search warrant to draw blood from intoxicated drivers who do not consent to provide a voluntary specimen.

The Supreme Court has ruled that the “exigency” created by the dissipation of alcohol in the blood is not enough to overcome the warrant requirement.

dwi blood draw

20. Officers may use force to take blood to effect a search warrant.

There have been cases where officers strapped a person down and forcibly took their blood after obtaining a warrant. Of course everyone remembers the nurse who got arrested after refusing to draw blood:

using force for a dwi blood draw

21. Imperfect warrants can be attacked.

Police officers sometimes fail to establish probable cause or put in the correct date and time of their observed facts in search warrant affidavits.These flaws could lead to evidence being kicked out by the judge. Remember to be polite at all times during a DWI investigation but insist the officer do their job by obtaining a warrant. Don’t do their job for them by consenting to a breathalyzer or blood draw.

22. Officers don’t always have to read your Miranda Warnings during a DWI arrest.

By law, police are only required to read your Miranda rights when they begin what is known as a “custodial interrogation.” That is, they only have to read you your rights if they question you while you are in police custody. If police have all the evidence they need without questioning you – say from a field sobriety or breathalyzer – they are not required to give you a Miranda Warning. This is also why officers ask you a series of questions when they first walk up to your vehicle, before you are in custody.

the miranda warning myth

23. After a DWI arrest, officers must read you a DIC-24 statutory warning.

This lengthy form asks the driver for a sample of breath or blood and warns that refusal or failure will result in an automatic license suspension.

24. If you refuse to give a breath or blood test, you will receive a DIC-25.

The DIC-25 is a Notice of License Suspension and Temporary Driving Permit. The police will take your driver’s license and give you this piece of paper, which will become your license for the next 40 days or until you’ve had an hearing regarding the license suspension. If you don’t request a hearing, the 180-day license suspension kicks in on the 41st day after your arrest.

25. You only have 15 days to request a hearing on your license suspension.

The clock starts ticking on your driving privileges as soon as you are arrested. If you do not request an Administrative License Revocation (ALR) hearing within 15 days of your arrest, your license will be automatically suspended when you temporary permit expires.

15 days to request an ALR hearing

26. Even if your license suspension is upheld at the ALR hearing, you may be able to get an Occupational License that allows you to drive.

An Occupational License is an order that allows a person to drive legally while their license is otherwise suspended.

27. Hard License Suspensions – Explained.

If you have had a license suspension in the preceding five years due to a DWI, you will have a 180-day hard suspension. If you were convicted of a repeat offense in the last five years, you will have a one-year hard suspension. Despite these hard suspensions, Transportation Code 521.251(d-1) provides a judge can issue an occupational license if the person has an interlock device installed on their vehicle.

28. You may have to put an interlock device on your vehicle as a condition of bond.

After you have been arrested for a DWI offense, you may be required to have an alcohol ignition interlock device installed on your vehicle as a condition of your bond (before your case is heard in court.) This is especially true if you are charged with a DWI with a BAC greater than or equal to .15 or if you have previously been convicted of a DWI. The device tests your level of alcohol consumption and prevents you from driving your vehicle until you can pass a test, according to Smart Start, a nationwide reputable Interlock company. To get an interlock device installed or removed, you must take your vehicle to Interlock company in your area.

Ignition Interlock Device

ACTION TIP #5

Every judge handles interlock as a condition of bond individually. Some judges may allow affidavits of non-driving in lieu of an interlock device, others will require wearable or portable devices. Ask you lawyer about the interlock requirements for your case.

29. You may have to put an interlock device on your vehicle as a condition of probation.

If you are placed on probation for a DWI in Texas and you are alleged to have had a BAC of a .15 or greater or are a repeat offender, the judge will order you to have an ignition interlock device installed on any vehicle you drive. According to Draeger Inc., a national Interlock company, all 50 states in the U.S. have adopted laws that allow or require the installation of interlock devices to prevent convicted offenders from driving under the influence.

interlock probation texas

30. You may be ordered to put an interlock on your vehicle as a condition of your occupational license.

This is true even if your BAC was lower than .15 and even if this was your first offense.

31. You’re can’t skip the alcohol monitoring requirement – even if you don’t own a vehicle.

If you have been ordered to install a breathalyzer but don’t actually own a vehicle, you will still be required to install an interlock device on any vehicle you drive, such as a company vehicle or a friend or family member’s car. If you don’t drive at all, expect the judge to order you to have another way to make sure you don’t drink, such as a SCRAM Monitor.

SCRAM Continuous Alcohol Monitoring®

32. The judge may allow you to have your interlock removed once you have completed half the length of your probation.

If you have not had any interlock violations – and your probation officer supports the removal – there is a chance the judge will go along with removing your interlock device early. Contact an attorney about modifying the terms or your probation by filing a “Motion for Removal of Interlock.

33. The National Highway Traffic Safety Administration Manual is used to train all officer across the country to detect DWI.

The NTSA publishes a course given to law enforcement around the country to administer, detect and document field sobriety tests.

ACTION TIP #6

Don’t give up hope. If you are reading this guide after you were arrested for DWI, it is likely that you already performed the field sobriety tests. All hope is not lost. An experienced DWI defense attorney can look for weaknesses in the State’s case including the officer’s administration of the test.

34. Speeding by itself is not a sign of intoxication.

The National Highway Transportation Administration (NHTSA) has a guide that lists suspected drunk driving signs – and just speeding alone is not a clue. The guide, called the Visual Detection of DWI Motorists, lists clues that have been found to predict blood alcohol concentration of .08 percent or greater. The behaviors are presented in four categories:
1) Problems in maintaining proper lane position
2) Speed and braking problems
3) Vigilance Problems
4) Judgment problems
The guide also specifies that when there is weaving plus any other clue, the probability of DWI is more than 65 percent. With any two clues the DWI probability is at least 50 percent.

Percent Chance of IntoxicationDriving Clues
50 to 75 percentProblems Maintaining Proper Lane Position
Weaving
Weaving across lane lines
Straddling a lane line
Swerving
Turning with a wide radius
Drifting
Almost striking a vehicle or other object
45 to 70 percentSpeed and Braking Problems
Stopping problems (too far, too short, or too jerky)
Accelerating or decelerating for no apparent reason
Varying speed
Slow speed (More than 10 miles mph under the limit)
55 to 65 percentVigilance Problems
Driving in opposing lanes or wrong way on one-way
Slow response to traffic signals
Slow or failure to respone to officer’s signals
Stopping in lane for no apparent reason
Driving without headlights at night
Failure to signal or signal inconsistent with action
35 to 90 percentJudgement Problems
Following too closely
Improper or unsafe lane change
Illegal or improper turn (too fast, jerky, sharp, etc.)
Driving on other than the designated roadway
Stopping inappropriately in response to officer
Inappropriate or unusual behavior (throwing, arguing, etc.)
Appearing to be impaired
Greater than 85 percentPost Stop Clues
Difficulty with motor vehicle controls
Difficulty exiting the vehicle
Fumbling with driver’s license or registration
Repeating questions or comments
Swaying, unsteady or balance problems
Leaning on the vehicle or other object
Slurred speech
Slow to respond to officer or officer must repeat
Providing incorrect information, changes answers
Odor of alcoholic beverage from the driver
Greater than 50 percent when combined with any other clue:Driving with no headlights at night
Failure to signal or signal inconsistent with action

35. Many officers administer the HGN (eye test) incorrectly.

Horizontal gaze nystagmus tests the eyes for a particular kind of nystagmus or involuntary jerking of the eyes. If administered correctly, this can be a powerful sign that a person is not normal physically (one of the ways to prove intoxication in Texas.) The test, however, requires the officer to hold and move the stimulus in a very particular manner and at very particular speeds. If the officer does not administer the test correctly, it may affect the validity of the results. Just ask Tony Corroto, a DWI Expert.

36. Labs mess up.

While lab reports can be strong evidence of a person’s BAC, remember the reports have been prepared by people and devices who are not imperfect. We’ve seen accidental mistakes to intentional false reports in labs across the country. We regularly have blood re-tested to see if a lab report is accurate.

ACTION TIP #7

Talk to your attorney about re-testing blood evidence. There may be times when it may be prudent to re-test the blood evidence. This includes if you have reason to believe the test results are wrong, your result was right above the .15 enhancement, or the lab is untrustworthy. An experienced DWI defense attorney will know there are many reasons not to re-test evidence, including potentially strengthening the State’s case when a cross-examination would have been more effective. It is important to consider the pros and cons of this course of action before proceeding.

37. Prosecutors have three ways to prove you were intoxicated.

  • They can prove your BAC was a .08 or over at the time of driving.
  • They can prove you did not have the normal use of your physical faculties due to the introduction of a substance into your body.
  • They can prove you did not have normal use of your mental faculties due to the introduction of a substance into your body.
    This latter two ways mean a person can be convicted of a DWI with a BAC of less than .08 if the jury believes the person was not normal mentally or physically due to an intoxicant.

38. There is no “legal limit” for drugged driving in Texas.

Unlike alcohol, there is no fixed blood concentration for which a motorist is deemed intoxicated by drugs. That means it’s up to law enforcement to decide whether or not to arrest a driver suspected of drugged driving. Some law enforcement departments have Drug Recognition Examiners or DREs who are trained to recognize and examine drugged drivers. Dr. David J. Hanson, a sociology professor who has been researching the subject of alcohol and drinking for 40 years and operates the website Alcohol Problems and Solutions, said on average DRE’s falsely identify one innocent driver for every eight arrested. “Who would want a doctor who botched over one of every eight heart surgeries? Or an airline pilot who botched over one one of every eight landings?” Hansen asks in an article on his website about detecting drugged driving. When drugged driving cases make it to trial, prosecutors bring in the DRE or other experts to give an opinion about whether or not the accused was intoxicated by drugs and use signs, such as erratic driving or the driver’s attitude, to try and prove their case.

39. In Texas, the state must prove a defendant was intoxicated at the time of his offense, and not just at the time of the blood draw.

This is significant because sometimes it takes an hour or several hours to get the warrant and then the blood.

retrograde extrapolation

ACTION TIP #8

Do not tell the officer your time of last drink. If you take nothing else away from this article, remember this. Do not make any statements about the time of your last drink. There are a number of problems if you do. First, it is an admission of consuming alcohol. Second, they will use whatever you say as the gospel in their retrograde extrapolation calculation. For example, if you say you had a couple of drinks about an hour ago, that will be used against you to come up with your BAC at the time of driving based on other known factors including your BAC at the time of driving. Three, most people give an imprecise time of last drink which can make them appear significantly more intoxicated through retrograde extrapolation than they otherwise would.

40. DWI and DUI are not the same thing – at least not in Texas.

Many people use the terms DWI and DUI interchangeably but they are not the same thing in Texas. The main difference between DWI and DUI is the age of the driver. In Texas, a motorist who is legally intoxicated – has a BAC of at least .08 – can be charged with DWI. A DUI, however, is issued to motorists under the age of 21 who are caught driving with any amount of alcohol or impairing drug in their system. A DUI is a Class C misdemeanor, while a DWI is a Class B misdemeanor.

41. If you are under the age of 21, you can get charged with Driving Under the Influence (DUI)

If you are younger than 21 years of age, it is illegal to drive with any detectable alcohol in your system. The consequences of a DUI could include a $500 fine, a 60-day license suspension, 20 to 40 hours of community service and mandatory alcohol awareness classes, among other things. The penalties are harsher for those under 21 who blow a BAC of 0.8 or above and may including a $2000 fine, 3 to 180 days in jail, and up to a year license suspension. It’s important to point out that there is a zero-tolerance for underage drinking and driving. Any amount of alcohol in the system of a motorist under the age of 21 is grounds for arrest.

driving under the influence

42. If you are sentenced to jail, you must spend at least 72 hours behind bars on a first-time DWI if your BAC was under .15.

Due to a legislative oversight, that 72-hour minimum does not apply if your BAC is .15 or greater.

ACTION TIP #9

Hire the right DWI defense attorney. Most people who are arrested for a first-time DWI have never been in the criminal system before. They never imagined they would be arrested. Their life is flashing before their eyes as they think of how they will explain this to their loved ones, whether they will lose their job, what will happen to their license and most of all, whether they will go to jail as a result of this. For most, the 2-48 hours they were in custody at the time of their arrest was enough to ensure they never want to be back inside a jail cell again. Our attorneys have an exceptionally high rate of keeping people out of jail on first-time DWIs. Be sure to find an attorney who has handled cases in your county, in front of your judge, and has gone to trial – and won – DWIs in your jurisdiction. We have -time and time again – and we are here to help.

43. If you are sentenced to jail, you must spend at least 72 hours behind bars on a first-time DWI if your BAC was under .15.

Due to a legislative oversight, that 72-hour minimum does not apply if your BAC is .15 or greater.

jail time for a first time DWI

43. You must serve SOME jail time if convicted of second DWI.

This is because the minimum sentence for DWI-Misdemeanor Repetition is 30 days in jail. Even if you receive probation, you will be required to do jail time as a condition of probation for a second DWI.
DWI Second

ACTION TIP #10

You may be able to stay out of jail – even on a DWI Second. We have successfully kept individuals out of jail on repeat DWI offenses both by winning at trial and by negotiating pleas to lesser offenses.

44. DWIs are extremely costly.

DWI’s are not cheap, and the costs increases with each offense. These costs include court costs, fines, surcharges, probation fees, attorneys fees, and a host of other costs that get tacked on to DWIs. For your third DWI offense, you could be paying around $27,000 by the end of it.
how expensive is a DWI?

ACTION TIP #11

Cheap attorneys cost more in the long run. One of the advantages of choosing a firm that is not competing on cost is that your attorney will have the time to giving you the best representation possible. Obviously winning at trial is going to save you thousands in court costs, fees, license suspension etc, but did you know an experienced DWI attorneys can shave thousands off fines, possibly help you avoid probation fees, keep you out of jail, and help save your professional license? While you will spend thousands on a competent DWI attorney, even without a trial, the reality is it is money well spent – even from a purely financial standpoint.

Varghese Summersett

Let’s face it. When it comes to DWI, there are a lot of myths, misconceptions, half-truths, and exaggerations. Because it’s such a common charge, everyone seems to have a DWI story – or knows someone who does. This has contributed to the spread of a lot of inaccurate information over the years. So how do you know what to believe? Start by reading these 101 DWI facts — and prepare to be surprised.

1. You can be charged with DWI if you haven’t had a drop to drink.

When most people think of Driving While Intoxicated, they think of alcohol. They picture someone who should have their keys taken from them, maybe someone who is slurring, stumbling, or has had the proverbial “one too many.” The reality is it’s also a crime to drive a vehicle when you are not normal, mentally or physically, due to drugs in your system, regardless of whether they are illegal, prescription, over-the-counter or a combination of prescription and illicit drugs.

how to avoid a DWI

ACTION TIP #1

Don’t make any admissions or statements. Provide your license and proof of insurance but politely decline to answer any questions.

2. Officers can’t force you to take field sobriety tests – yet most people consent.

You may have heard that it’s a mistake to perform field sobriety tests – and that is true. I have done a number of presentations where I’ve asked audience members, even fellow attorneys, to come up and perform sobriety tests and an overwhelming majority of them fail even though they were not under the influence. Officers cannot force you to take field sobriety tests, so don’t take them.

DWI field sobriety tests

ACTION TIP #2

Politely decline to do field sobriety tests.

3. You can get a DWI in a golf cart, tractor…or just about anything.

You can be charged with DWI for driving a golf cart, tractor, or four-wheeler, among other things. In Texas, a “motor vehicle” is defined as a device, in, on or by which a person or property can be transported on a highway (excluding trains.) This is a very broad definition which leaves the door open for a wide variety of motorized vehicles.This means if you are impaired and get behind the wheel of just about anything, you are subject to the same DWI rules and penalties as if you were driving a car.

4. You don’t have to answer an officer’s questions – except to ID yourself and provide license and proof of registration and insurance.

When motorists are stopped for suspected DWI, the officer will almost certainly ask where you were coming from, if you had anything to drink, and what time was your last drink. You will be in a much better position if you politely decline to answer any of the officer’s questions. So how do you do this? Here are some suggestions of what to say:

  • “I respectfully decline to answer any questions.”
  • “I prefer not to answer any questions without first speaking to an attorney.”
  • “I have a friend who is an attorney and he told me I should not answer any questions.”

dont answer police questions

5. You are a poor judge of your own intoxication.

The first thing alcohol affects is judgment and as a result, you are a poor judge of your own level of intoxication. While you may have a good idea of what your “tolerance” is, that does not change the fact that the state can prosecute you even if you look completely normal as long as they can prove your blood alcohol concentration was a .08. One way to always find out your level of intoxication is through a portable Blood Alcohol Calculator such as BACtrac, which even offer Smartphone breathalyzers. You can also answer quick online questions at Blood Alcohol Calculator, which will give your estimated BAC based on the quantity and duration of your alcohol consumption.

Blood Alcohol Calculator

6. Americans with DWI or DUI convictions can’t enter Canada – without special permission.

Americans are often shocked to learn that they may be turned away at the Canadian border if they have been convicted of DWI, DUI or another alcohol-related offense. The only way to guarantee entry is to apply for a Temporary Resident Permit (TRP) or Criminal Rehabilitation, according to Canadian Immigration Lawyer Marisa Feil, who specializes in helping Americans with criminal records travel to Canada. Feil explains the entry process in an informative podcast, “Earning Freedom,” with Prison Consultant Michael Santos, of Prison Professors.

7. Your driver’s license may be suspended. Twice.

Many people arrested for DWI in Texas face two potential driver’s license suspensions – one at the time of the breath or blood test and another if convicted of a DWI. Here are the ways (and duration) of license suspensions for a first-time DWI.

  • Refusing to provide a specimen of breath or blood: 180 days suspension
  • Providing a specimen of breath or blood over the limit: 90 days suspension
  • Receiving a jail sentence for a DWI: up to two years suspension

Administrative License Revocation

ACTION TIP #3

Ask your attorney about getting an occupational license which will allow you to drive while your license would otherwise be suspended.

8. If you are convicted of DWI, you will lose your concealed handgun license.

A DWI conviction (first) counts as a Class B misdemeanor, and in the state of Texas, you can’t have a concealed handgun license for the next five years after being convicted of a Class A or Class B misdemeanor. This includes DWI cases that were dismissed after the completion of deferred adjudication probation. Additionally, people who have been convicted of two or more alcohol or drug-related offenses within the last 10 years are considered “chemically dependent” and are disqualified from obtaining a license to carry.

no guns after dwi

9. All 50 states (except Utah) have set .08 BAC as the legal limit for DWI/DUI.

In December 2018, Utah’s BAC is expected to be changed to .05, making it the strictest drunk driving law in the country.

BAC limit in Texas

10. All 50 states have some sort of “implied consent” law.

In return for the privilege of driving on the roads in our country, motorists are deemed to have given their implied consent to provide a breath or blood specimen if they are ever arrested for driving while intoxicated. There are penalties for not providing a specimen voluntarily upon request, but in Texas (unlike some other states) you will not be charged with a separate criminal offense for failure to consent to a breath or blood test.

DWIs un the USA

11. You CAN refuse to take a breath test in Texas.

Even though Texas is an “implied consent” state, drivers can (and should) refuse to take a breath test. Texas drivers who refuse to give a breath sample will have their driver’s license suspended. This is considered an administrative penalty. If you consent to take the breathalyzer, it’s possible that you could incriminate yourself. Do not do the officer’s job for them. If they want evidence to try and prove you are intoxicated, they can get a warrant and draw blood.

dont blow DWI

12. You CAN refuse a blood test in Texas.

Just like with a breath test, drivers can (and should) refuse to give a blood test. Texas drivers who refuse a blood test will have their driver’s license suspended for 180 days, but there are ways to potentially save your license. While risking losing your license is not ideal, it is better than volunteering to give a blood specimen. By refusing to give a specimen, you are forcing the police officer to do his or her job and take the extra steps needed to get a warrant.

dont give a blood test

13. You CAN refuse during “No Refusal” holidays and weekends.

Many people believe if they get stopped for suspicion of DWI during a “No Refusal” holiday or weekend, they do not have the right to refuse to give breath or blood. This could not be further from the truth. What “No Refusal” really means is that your refusal will not keep an officer for seeking a warrant obtain your blood. During “No Refusal” weekends, resources are increased and the process for obtaining a search warrant for a blood draw is expedited. Magistrates are usually readily available to review and sign affidavits for search warrants and blood-draw nurses are on standby. You can (and should) refuse the tests, whether it’s a “No Refusal” weekend or not.

no refusal weekend

ACTION TIP #4

Don’t volunteer to give a specimen of breath or blood. Ever.

14. Officers may ask you (again) back at the station to do field sobriety tests or take a breathalyzer.

The same advice that applied out in the field applies at the station or jail: do not voluntarily perform their tests.

field sobriety tests at the station

15. If you consent, the police officer gets to choose which test to administer: breath or a blood.

If you consent and the officer asks you for blood and you’d rather give breath, you are stuck with what the officer is offering.

16. If you consent to take a breath or blood test and your BAC is over the legal limit, your license will be suspended for three months.

If you are over 21 and you provide a breath or blood sample that shows you have a Breath/Blood Alcohol Concentration of a .08 or greater, your license will be suspended for 90 days.

90 day license suspension

17. If you consent to the officer’s test, you can ask for an additional blood test to be performed at your own expense.

Once you have consented to a blood or breath test, you have the right to have a blood test taken within two hours of arrest by a medical professional of your choosing.

18. Police officers cannot get a warrant for a breath test – only a blood draw.

If you refuse to give a specimen of breath or blood, officers can only get a warrant for blood in Texas. Good to know if you are deathly afraid of needles.

dwi blood draws

19. Police must obtain a search warrant to draw blood from suspected intoxicated drivers who refuse to voluntarily provide a specimen – unless there are exigent (emergency) circumstances.

Police cannot order a blood test on a suspected drunk driver who refuses to voluntarily provide a specimen without first obtaining a warrant – except under exigent, or emergency, circumstances.The Supreme Court has ruled that the “exigency” created by the dissipation of alcohol in the blood is not enough to overcome the warrant requirement.

dwi blood draw

20. Officers may use reasonable force to take blood if they have a search warrant.

There have been cases where officers strapped a person down and forcibly took their blood after obtaining a warrant. Of course, many remember the nurse who got arrested after refusing to draw blood.

using force for a dwi blood draw

21. Imperfect warrants can be attacked.

Police officers sometimes fail to establish probable cause or put in the correct date and time of their observed facts in search warrant affidavits. These flaws could lead to evidence being kicked out by the judge. Remember to be polite at all times during a DWI investigation but insist the officer do their job by obtaining a warrant. Don’t do their job for them by consenting to a breathalyzer or blood draw.

22. Officers don’t always have to read your Miranda Warnings during a DWI arrest.

By law, police are only required to read your Miranda rights when they begin what is known as a “custodial interrogation.” That is, they only have to read you your rights if they question you while you are in police custody. If police have all the evidence they need without questioning you – say from a field sobriety or breathalyzer – they are not required to give you a Miranda Warning. This is also why officers ask you a series of questions when they first walk up to your vehicle, before you are in custody.

the miranda warning myth

23. After a DWI arrest, officers must read you a DIC-24 statutory warning.

This lengthy form asks the driver for a sample of breath or blood and warns that refusal or failure will result in an automatic license suspension.

24. If you refuse to give a breath or blood test, you will receive a DIC-25.

The DIC-25 is a Notice of License Suspension and Temporary Driving Permit. The police will take your driver’s license and give you this piece of paper, which will become your license for the next 40 days or until you’ve had an hearing regarding the license suspension. If you don’t request a hearing, the 180-day license suspension kicks in on the 41st day after your arrest.

25. You only have 15 days to request a hearing on your license suspension.

The clock starts ticking on your driving privileges as soon as you are arrested. If you do not request an Administrative License Revocation (ALR) hearing within 15 days of your arrest, your license will be automatically suspended when your temporary permit expires.

15 days to request an ALR hearing

26. Even if your license suspension is upheld at an ALR hearing, you may be eligible for an Occupational License that allows you to drive.

An Occupational Driver’s License (ODL) is a permit issued by a judge that gives a person limited driving privileges while their license is otherwise suspended.

Occupational Drivers Licenses

27. A second (or repeat) DWI within a five-year period will result in a “hard” license suspension

A “hard suspension” refers to a period of time in which a person’s driving privileges are suspended and they cannot drive for any reason. If you have had a license suspension in the preceding five years due to a DWI, you will have a 180-day hard suspension . If you were convicted of a repeat offense in the last five years, you will have a one-year hard suspension. Despite these hard suspensions, Texas Transportation Code 521.251(d-1) says a judge can issue an occupational license if the person has an interlock device installed on their vehicle.

28. You may have to put an interlock device on your vehicle as a condition of bond.

After you have been arrested for a DWI offense, you may be required to have an alcohol ignition interlock device installed on your vehicle as a condition of your bond (before your case is heard in court.) This is especially true if you are charged with a DWI with a BAC greater than or equal to .15 or if you have previously been convicted of a DWI. The device tests your level of alcohol consumption and prevents you from driving your vehicle until you can pass a test, according to Smart Start, a nationwide reputable Interlock company. To get an interlock device installed or removed, you must take your vehicle to Interlock company in your area.

Ignition Interlock Device

ACTION TIP #5

Every judge handles interlock as a condition of bond individually. Some judges may allow affidavits of non-driving in lieu of an interlock device, others will require wearable or portable devices. Ask you lawyer about the interlock requirements for your case.

29. You may have to put an interlock device on your vehicle as a condition of probation.

If you are placed on probation for a DWI in Texas and you are alleged to have had a BAC of a .15 or greater or are a repeat offender, the judge will order you to have an ignition interlock device installed on any vehicle you drive. According to Draeger Inc., a national Interlock company, all 50 states in the U.S. have adopted laws that allow or require the installation of interlock devices to prevent convicted offenders from driving under the influence.

interlock probation texas

30. You may be ordered to install an interlock on your vehicle in order to obtain an occupational driver’s license.

This is true even if your BAC was lower than .15 and even if it was your first offense.

31. You’re can’t skip the alcohol monitoring requirement – even if you don’t own a vehicle.

If you have been ordered to install a breathalyzer but don’t actually own a vehicle, you will still be required to install an interlock device on any vehicle you drive, such as a company vehicle or a friend or family member’s car. If you don’t drive at all, expect the judge find another way to make sure you don’t drink, such as ordering a SCRAM Monitor to ensure you are abstaining from alcohol 24/7.

SCRAM Continuous Alcohol Monitoring®

32. The judge may allow you to have your interlock removed once you have completed half the length of your probation.

If you have not had any interlock violations – and your probation officer supports the removal – there is a chance the judge will go along with removing your interlock device early. Contact an attorney about modifying the terms or your probation by filing a “Motion for Removal of Interlock.

33. The National Highway Traffic Safety Administration Manual is used to train all officers across the country to detect DWI.

The NHTSA publishes a course given to law enforcement around the country to administer, detect and document field sobriety tests.

ACTION TIP #6

Don’t give up hope. If you are reading this guide after you were arrested for DWI, it is likely that you already performed the field sobriety tests. All hope is not lost. An experienced DWI defense attorney can look for weaknesses in the State’s case including the officer’s administration of the test.

34. Speeding by itself is not a sign of intoxication.

The National Highway Transportation Administration (NHTSA) has a guide that lists suspected drunk driving signs – and just speeding alone is not a clue. The guide, called the Visual Detection of DWI Motorists, lists clues that have been found to predict blood alcohol concentration of .08 percent or greater. The behaviors are presented in four categories:
1) Problems in maintaining proper lane position
2) Speed and braking problems
3) Vigilance Problems
4) Judgment problems
The guide also specifies that when there is weaving plus any other clue, the probability of DWI is more than 65 percent. With any two clues the DWI probability is at least 50 percent.

Percent Chance of IntoxicationDriving Clues
50 to 75 percentProblems Maintaining Proper Lane Position
Weaving
Weaving across lane lines
Straddling a lane line
Swerving
Turning with a wide radius
Drifting
Almost striking a vehicle or other object
45 to 70 percentSpeed and Braking Problems
Stopping problems (too far, too short, or too jerky)
Accelerating or decelerating for no apparent reason
Varying speed
Slow speed (More than 10 miles mph under the limit)
55 to 65 percentVigilance Problems
Driving in opposing lanes or wrong way on one-way
Slow response to traffic signals
Slow or failure to respone to officer’s signals
Stopping in lane for no apparent reason
Driving without headlights at night
Failure to signal or signal inconsistent with action
35 to 90 percentJudgement Problems
Following too closely
Improper or unsafe lane change
Illegal or improper turn (too fast, jerky, sharp, etc.)
Driving on other than the designated roadway
Stopping inappropriately in response to officer
Inappropriate or unusual behavior (throwing, arguing, etc.)
Appearing to be impaired
Greater than 85 percentPost Stop Clues
Difficulty with motor vehicle controls
Difficulty exiting the vehicle
Fumbling with driver’s license or registration
Repeating questions or comments
Swaying, unsteady or balance problems
Leaning on the vehicle or other object
Slurred speech
Slow to respond to officer or officer must repeat
Providing incorrect information, changes answers
Odor of alcoholic beverage from the driver
Greater than 50 percent when combined with any other clue:Driving with no headlights at night
Failure to signal or signal inconsistent with action

35. Many officers administer the HGN (eye test) incorrectly.

Horizontal gaze nystagmus tests the eyes for a particular kind of nystagmus or involuntary jerking of the eyes. If administered correctly, this can be a powerful sign that a person is not normal physically (one of the ways to prove intoxication in Texas.) The test, however, requires the officer to hold and move the stimulus in a very particular manner and at very particular speeds. If the officer does not administer the test correctly, it may affect the validity of the results. Just ask Tony Corroto, a DWI Expert.
HGN done incorrectly during DWI investigation

36. Labs mess up.

While lab reports can be strong evidence of a person’s BAC, remember the reports have been prepared by people and devices that aren’t perfect. We’ve seen accidental mistakes to intentional false reports in labs across the country. We regularly have blood retested to see if a lab report is accurate.

101 DWI Facts

ACTION TIP #7

Talk to your attorney about re-testing blood evidence. There may be times when it may be prudent to re-test the blood evidence. This includes if you have reason to believe the test results are wrong, your result was right above the .15 enhancement, or the lab is untrustworthy. An experienced DWI defense attorney will know there are many reasons not to re-test evidence, including potentially strengthening the State’s case when a cross-examination would have been more effective. It is important to consider the pros and cons of this course of action before proceeding.

37. Prosecutors have three ways to prove you were intoxicated.

  • They can prove your BAC was a .08 or over at the time of driving.
  • They can prove you did not have the normal use of your physical faculties due to the introduction of a substance into your body.
  • They can prove you did not have normal use of your mental faculties due to the introduction of a substance into your body.
    The latter two ways mean a person can be convicted of a DWI with a BAC of less than .08 if the jury believes the person was not normal mentally or physically due to an intoxicant.

 

38. There is no “legal limit” for drugged driving in Texas.

Unlike alcohol, there is no fixed blood concentration for which a motorist is deemed intoxicated by drugs. That means it’s up to law enforcement to decide whether or not to arrest a driver suspected of drugged driving. Some law enforcement departments have Drug Recognition Examiners or DREs who are trained to recognize and examine drugged drivers. Dr. David J. Hanson, a sociology professor who has been researching the subject of alcohol and drinking for 40 years and operates the website Alcohol Problems and Solutions, said on average DRE’s falsely identify one innocent driver for every eight arrested. “Who would want a doctor who botched over one of every eight heart surgeries? Or an airline pilot who botched over one one of every eight landings?” Hansen asks in an article on his website about detecting drugged driving. When drugged driving cases make it to trial, prosecutors bring in the DRE or other experts to give an opinion about whether or not the accused was intoxicated by drugs and use signs, such as erratic driving or the driver’s attitude, to try and prove their case.

39. In Texas, prosecutors must prove a defendant was intoxicated at the time of the offense, and not just at the time of the blood draw.

This is significant because sometimes it takes an hour, or even several hours, for police to get a warrant to draw blood.

retrograde extrapolation

ACTION TIP #8

Do not tell the officer your time of last drink. If you take nothing else away from this article, remember this. Do not make any statements about the time of your last drink. There are a number of problems if you do. First, it is an admission of consuming alcohol. Second, they will use whatever you say as the gospel in their retrograde extrapolation calculation. For example, if you say you had a couple of drinks about an hour ago, that will be used against you to come up with your BAC at the time of driving based on other known factors including your BAC at the time of driving. Three, most people give an imprecise time of last drink which can make them appear significantly more intoxicated through retrograde extrapolation than they otherwise would.

40. DWI and DUI are not the same thing – at least not in Texas.

Many people use the terms DWI and DUI interchangeably but they are not the same thing in Texas. The main difference between DWI and DUI is the age of the driver. In Texas, a motorist who is legally intoxicated – has a BAC of at least .08 – can be charged with DWI. A DUI, however, is issued to motorists under the age of 21 who are caught driving with any amount of alcohol or impairing drug in their system. A DUI is a Class C misdemeanor, while a DWI is a Class B misdemeanor.

41. If you are under age 21 and drive with any amount of alcohol in your system, you could be charged with Driving Under the Influence (DUI).

If you are younger than 21 years of age, it is illegal to drive with any detectable alcohol in your system. The consequences of a DUI could include a $500 fine, a 60-day license suspension, 20 to 40 hours of community service and mandatory alcohol awareness classes, among other things. The penalties are harsher for those under 21 who blow a BAC of 0.8 or above and may including a $2000 fine, 3 to 180 days in jail, and up to a year license suspension. It’s important to point out that there is a zero-tolerance for underage drinking and driving. Any amount of alcohol in the system of a motorist under the age of 21 is grounds for arrest.

driving under the influence

42. If you are sentenced to jail, you must spend at least 72 hours behind bars on a first-time DWI if your BAC was under .15.

Due to a legislative oversight, that 72-hour minimum does not apply if your BAC is .15 or greater.

jail time for a first time DWI

ACTION TIP #9

Hire the right DWI defense attorney. Most people who are arrested for a first-time DWI have never been in the criminal system before. They never imagined they would be arrested. Their life is flashing before their eyes as they think of how they will explain this to their loved ones, whether they will lose their job, what will happen to their license and most of all, whether they will go to jail as a result of this. For most, the 2-48 hours they were in custody at the time of their arrest was enough to ensure they never want to be back inside a jail cell again. Our attorneys have an exceptionally high rate of keeping people out of jail on first-time DWIs. Be sure to find an attorney who has handled cases in your county, in front of your judge, and has gone to trial – and won – DWIs in your jurisdiction. We have -time and time again – and we are here to help.

43. You must serve SOME jail time if convicted of second DWI.

This is because the minimum sentence for DWI-Misdemeanor Repetition is 30 days in jail. Even if you receive probation, you will be required to do jail time as a condition of probation for a second DWI.
DWI Second

ACTION TIP #10

You may be able to stay out of jail – even on a DWI Second. We have successfully kept individuals out of jail on repeat DWI offenses both by winning at trial and by negotiating pleas to lesser offenses.

44. DWIs are extremely costly.

DWI’s are not cheap, and the costs increases with each offense. These costs include court costs, fines, surcharges, probation fees, attorneys fees, and a host of other costs that get tacked on to DWIs. For your third DWI offense, you could be paying around $27,000 by the end of it.
how expensive is a DWI?

ACTION TIP #11

Cheap attorneys cost more in the long run. One of the advantages of choosing a firm that is not competing on cost is that your attorney will have the time to giving you the best representation possible. Obviously winning at trial is going to save you thousands in court costs, fees, license suspension etc, but did you know an experienced DWI attorneys can shave thousands off fines, possibly help you avoid probation fees, keep you out of jail, and help save your professional license? While you will spend thousands on a competent DWI attorney, even without a trial, the reality is it is money well spent – even from a purely financial standpoint.

45. If convicted of DWI, you will have to pay a surcharge for three years.

While considered an administrative penalty charged by the Texas Department of Public Safety, surcharges are basically a fee for you to maintain your driver’s license. The surcharge is $1000 per year for three years for a first-time DWI; $1500 a year for second DWI; and $2000 a year for any conviction with a BAC of .16 or greater. Failure to pay surcharges will result in your license being suspended.
Texas DPS Driver Responsibility Surcharge Relief

 

46. There is relief from DWI surcharges if you are indigent.

Texas Transportation Code Chapter 708 allows Texas to collect surcharges for offenses including DWIs. A surcharge is an administrative fee that is charged based on convictions reported to a person’s driving record. If you are indigent, you should ask your attorney about how to have your surcharges reduced or waived through specific programs.

47. You can request copy of your DWI video.

In today’s day and age, almost all police encounters are videotaped, including DWI arrests. Under Article 2.139, a person arrested for DWI has a right to obtain the video from his or her arrest. This is true even if a case has not been filed.

ACTION TIP #12

You can get some of the evidence even if your case hasn’t been filed. The Statute of Limitations on a misdemeanor DWI is two years. Occasionally cases don’t get filed for months after the arrest. An experienced DWI defense attorney can help you obtain the video from your arrest, and lab reports through requests to the police department. This information can, in turn, help you prepare the best defense for your case before it is even filed.

48. Your DWI charge could be changed to obstruction of a highway.

In rare circumstances, a DWI may be “reduced” to Obstruction of a Highway. This usually occurs through plea bargain negotiations when a skilled defense attorney points out problems or issues that shake the prosecutor’s confidence in obtaining a guilty verdict at trial. While DWI and Obstruction of a Highway are both Class B misdemeanors, a DWI has more severe consequences than Obstruction of a Highway charge. For example, deferred adjudication is not a punishment option for a DWI, but it is with Obstruction of a Highway.

obstruction of highway

49. The only cure for being drunk is time; nothing else will “sober” you up.

All of the home remedies you have heard over the years to “sober” you up, are just myths. No amount of coffee, cold showers, or fatty food will be able to lower your BAC. Time is the only sober remedy after a night out.

time to sober

50. You can get a DWI while trying to “sleep it off” in your car.

In Texas and several other states, you can be convicted of a DWI even in a parked car. What is considered a motor vehicle is clearly defined by Texas law, but it does not define what it means to be operating one. This lack of definition allows for the court to interpret what is considered operating a motor vehicle. Texas courts have regularly found that anything beyond sitting in a running car is operation, including facts as small as having your foot on the brake pedal or having the car in neutral. People can – and do – get charged with DWI when found sleeping it off in their vehicle.

Operation of a Vehicle

ACTION TIP #14

If you have to sleep it off, do not sit in the driver’s seat. We have represented individuals arrested in parking lots and on side streets who were asleep in their vehicles. While we vigorously defend these changes, it is far easier to sit in the passenger seat or, better yet, the back seat to sleep it off and not get arrested.

51. You can still be charged with DWI if you BAC is below .08.

While it is obvious that if you provide a sample of breath or blood that shows you were a .08 or greater at the time of driving you are going to be charged with a DWI, it may surprise you to know that motorists get charged with DWIs when the results are lower. This is most commonly because the state believes they can prove the BAC was at or higher than .08 at the time of driving through “retrograde extrapolation.”Tarrant County DWI Lawyer

52. Texas law allows retrograde extrapolation testimony.

Retrograde extrapolation is a calculation that allows the State to put on evidence of what your BAC was at the time of driving based on a number of facts including the time of last drink, the time the vehicle was being operated, the time of the blood test, and the blood test result. You can see why our advice is to always politely decline to answer questions rather than risking a casual response such as “a couple of drinks an hour ago” being taken as the absolute truth and being held against you in court.

retrograde extrapolation

53. Two to four drinks could easily get you to a .08 – but driving may be affected before that.

Everyone absorbs and metabolizes alcohol differently and many factors can affect blood alcohol concentration, including a person’s size, gender, and the alcohol content of their preferred drink. Generally, one drink is equal to 1.5 oz of 80 proof liquor, 12 ounces of beer, or a 5 ounce glass of wine. The Texas Alcoholic Beverage has a BAC Chart that estimates how many drinks it takes men and women to reach a .08 BAC in an hour. Depending on body weight, this level can be reached by some people after consuming just two drinks. Drivers Ed Hub has some great information about alcohol’s effect on driving, including a chart that breaks down how different BAC levels impact driving behavior. For example, a BAC of .05 (about three drinks) can result in a reduced ability to track moving objects, difficulty steering and a delayed response to emergency driving situations.

54. A prior DWI conviction can be used against you regardless of how long ago it was.

If you’ve been to convicted for a DWI in Texas, that can be used to enhance any future DWI arrest. An allegation of a third arrest is a felony.

55. A probated DWI before 1/1/84 is not a conviction for enhancement purposes.

While DWI convictions of any age can be used to enhance another DWI allegation, DWIs that were probated in Texas before January 1, 1984 were not considered convictions and, as a result, cannot be used to enhance you. This is something many lawyers miss.Easy to Remember DWI Probation

56. A DWI can take over a year to be resolved.

While our attorneys are proactive and regularly resolve cases in a matter of months when appropriate, it is not unusual for a case in Texas to take a year or longer to be resolved.

57. The statute of limitations for a misdemeanor DWI in Texas is two years.

The statute of limitations refers to the period of time the prosecutor has to file a case against you. There are circumstances that allow the statute of limitations to be tolled (or for the State to have more time) including if a person is out of the state for a period of time.

criminal statute of limitations in texas

58. The statute of limitations for a felony DWI in Texas is three years.

 

59. A third DWI is a felony DWI.

Once you have been convicted of a DWI offense, subsequent DWI convictions come with more serious consequences, especially your third offense. Prosecutors often charge a third offense as a felony. This can result in up to a $10,000 fine, 2 to 10 years in prison, and up to a two-year driver’s license suspension.
DWI Felony Repetition

60. A DWI can be enhanced from a Class B to a Class A misdemeanor if your BAC is .15 or greater.

This doubles the punishment range from six months in jail to up to a year in jail.
Class A Misdemeanor

61. You can’t be stopped for a DWI based on anonymous tip alone; the tip must be “reliable.”

Have you ever wondered what happens if you call in a suspected DWI driver? It depends. If you identify yourself, an officer can initiate a stop. If you don’t give your contact information, the officer needs some way to show the call information was reliable and this generally means the officer needs to observe corroborating information before initiating a stop.

62. Health problems can affect the performance of field sobriety tests.

This is because inner ear infections or inflammation can cause loss of balance, which in turn can adversely affect your performance on the field sobriety tests.

63. DWI roadblocks and sobriety checkpoints are illegal in Texas.

DWI checkpoints are police roadblocks set up to stop every vehicle passing through a specific location in order to check the drivers’ sobriety. DWI roadblocks and sobriety checkpoints are illegal in Texas. The state of Texas has not authorized police officers to conduct roadblocks, much less sanctioned their enforcement techniques.

Fort Worth DWI Checkpoints

64. Driving while intoxicated with a child in the car is a state jail felony.

Driving while intoxicated with a minor in Texas is a serious offense that can impact your life in unforeseen ways. Not only will you potentially have to serve jail time and pay expensive fees, but you may also lose custody of your children, put your professional licenses in jeopardy (doctor, nurse, teacher, etc.) and have a permanent criminal felony record.
dwi child passenger

65. CPS may open a case against a parent charged with DWI with kids in the car.

Varghese Summersett
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FORT WORTH — Defense Attorney Leticia “Letty” Martinez, a former state and federal prosecutor who is now a partner at the law firm of Varghese Summersett, has been appointed by Lt. Gov. Dan Patrick to the Child Fatality Review Team Committee.

Patrick appointed Martinez last month to the committee, which works to understand causes and incidents of child deaths in Texas and identifies procedures to prevent them. The committee also promotes public awareness and makes recommendations to the governor and the legislature.

“I am honored to have been appointed by Lt. Gov. Patrick to the State Child Fatality Review Team Committee,” Martinez said. “I look forward to working with the committee to identify and curb preventable dangers, such as distracted driving, drug overdoses, child suicide, unsafe firearm storage, and abuse and neglect.”

Martinez is a Board Certified Criminal Law Specialist who has extensive experience handling state and federal criminal cases, including allegations of abuse, intoxication-related offenses and violent crimes.

Prior to becoming a partner at the Fort Worth criminal defense firm of Varghese Summersett, Martinez began her service as a misdemeanor prosecutor at the Tarrant County District Attorney's Office, but quickly moved up the prosecutorial ladder. Over the next decade, she served in almost every unit and division within the District Attorney's Office, including Juvenile, Crimes Against Children, Gang and Family Violence.

In 2004, Martinez accepted an invitation by the United States Attorney’s Office to join their force of federal prosecutors for the Northern District of Texas.

Martinez later returned to the District Attorney’s Office, where she was responsible for supervising and training prosecutors in the Misdemeanor Unit. She was also tapped to head the Crimes Against Children Unit, a highly-respected division within the DA’s Office and the community.

During this time, she was appointed by then-Gov. Rick Perry to serve on the Protect Our Kids Commission, which studies child abuse and neglect fatalities and makes recommendations concerning prevention.


Martinez is frequently called upon to speak to other lawyers and law students on topics that include child sexual and physical abuse. She is also outspoken advocate for children with autism. 

“Letty’s expertise in child deaths and her dedication to protecting our youth makes her the perfect selection for the Child Fatality Review Team,” said firm partner Benson Varghese. “She is widely known and respected for her extensive knowledge of the law and for being a fierce advocate. Because she has served as both a prosecutor and defense attorney, she will bring a unique perspective to the committee and make a great addition to the team.”

Read more about Letty Martinez at the firm’s website, www.versustexas.com.

 

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Varghese Summersett PLLC
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Varghese Summersett is a premier criminal defense firm based in Fort Worth, Texas. Our attorneys focus exclusively on criminal law and represent clients charged with crimes at both the state and federal level. We handle everything from DWI to capital murder to white collar crime. Collectively, our attorneys bring together more than 100 years of criminal law experience and have tried more than 550 cases before Texas juries. All of our senior attorneys served as former state or federal prosecutors and four are Board Certified in Criminal law, the highest designation an attorney can reach. We are the firm people turn to when the stakes are high and they are facing the biggest problem in their lives.
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Fort Worth, TX 76102
Phone
817-203-2220

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