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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.

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.

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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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