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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.

 

The post Criminal Statute of Limitations in Texas appeared first on Varghese Summersett PLLC | Fort Worth Criminal Defense Attorneys.

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What are 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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What is the punishment for bringing a gun into an airport?

Picture this: You’re standing in the security line at the airport. You’re late for your flight, the line is long, your phone is ringing and you’ve got less than 30 minutes to be in your seat for takeoff. The last thing on your mind is whether or not you checked your bag for prohibited items, such as a handgun. If you live in Texas, chances are you have a few (or more) guns. Here’s what could happen if you are arrested in an airport with a gun.

If you are stopped in DFW Airport, you will be taken to the DFW Airport Jail and your case will be filed in Tarrant County. If you are stopped in Dallas Love Field, your case will be filed in Dallas County.

It is unlawful for an individual to carry a handgun into a secured area of an airport. Travelers who are found carrying a handgun into the secured area of an airport are subject to immediate arrest and confiscation of the weapon.  The case can be filed either as a misdemeanor or felony in Texas.

Unlawful Carry of Weapon – Prohibited Place (Felony)

Texas Penal Code Section 46.03 states that a person commits an offense if they intentionally, knowingly, or recklessly possess a firearm when going into a secured area of an airport. This means that once you pass that security threshold, even if you accidentally carried a firearm on your person or in your bag, you have committed a crime. It is NOT a defense to the crime that you are licensed to carry a concealed handgun.

Unlawful Carry of Weapon – Prohibited Place CHL/LTC Holders

There is good news for those individuals who would be facing the felony charge or Unlawful Carry of a Weapon – Prohibited Places. The Texas Legislature created an exception that may be applied to CHL (now LTC) holders. Effective September 1, 2015, Section 46.03 of the Penal Code was amended so that instead of placing someone under arrest, TSA agents may ask the individual to exit the secured area. An individual asked to exit the secured area must immediately comply.

How to Fly with a Gun – Legally

This does not mean that you cannot take a gun with you when you fly. In fact, the TSA and Texas laws allow guns to be transported, so long as they are done so properly in a checked bag. Always check TSA regulations before flying with a weapon in a checked bag. You will need to ensure the firearm is not loaded, declare the firearm, transport it in a locked hard-sided case, ensure the destination allows for the weapon to be transported there, and to have the key to the hard-sided case available should the TSA request an inspection of the weapon. (Some states do not allow this and you may be arrested if you try to bring a gun onto a plane even in a checked bag. New York and New Jersey in particular have this law.)

Penal Code Section 46.03 – Places Weapons Prohibited

Before talking about why an attorney is necessary, let’s cover what will happen as a result of bringing a gun through security. 1) You will be arrested. There used to be some discretion to not arrest offenders, but that is not the world we live in anymore. You will be sent to the jail if you bring a gun through security. 2) You are probably going to miss your flight. Being arrested often takes time and even if you did arrive at the airport the recommended two hours early, you still probably will not get back to the gate in time to make your flight. 3) Your gun will be seized. You may or may not get it back. Most judges will not authorize weapons to be released back to individuals who were arrested. 4) Your case will be filed with the Tarrant County District Attorney’s Office for DFW cases and Dallas County for Love Feild cases for prosecution. And most importantly, 5) you will be charged with a third degree felony or a Class A misdemeanor.

A third degree felony potentially carries a prison sentence up to 10 years and up to a $10,000 fine. Additionally, the federal government could seek up to an $11,000 fine. The point is, you could be facing some tough time and a large chunk of your bank account disappearing just because you forgot that you brought a gun with you to the airport. Additionally, if convicted you may lose additional rights. Also relevant is that Texas Penal Code Section 46.04 makes it illegal for a convicted felon to possess a gun. So if you are convicted of this crime, you may not be able to carry a gun in the future. Being charged with bringing a gun through airport security is a very serious matter.

Texas Penal Code Section 46.02 – UCW – Unlawful Carry Weapon (Misdemeanor)

The State can also file the case as an Unlawful Carry of a Weapon under Section 46.02 of the Penal Code. It is illegal to intentionally or knowingly carry a handgun on a premises not owned or controlled the carrier when the person carrying the handgun is not inside or directly en route to his/her motor vehicle. If the State files the case without the Prohibited Places language, it is a Class A misdemeanor. As such the punishment range would be up to one year in jail and up to a $4,000 fine.

Changes in the law: 2015 Airport UCW Amendments

This new law was passed in hopes of differentiating between individuals who intentionally, knowingly, or recklessly bring a firearm into a secured area and CHL holders who simply forgot that they had their handgun at the airport.

What are the TSA penalties for bringing a gun into an airport?

You arrive home after work one day and a pile of mail is awaiting your review. Magazine, toss. Credit Card application, toss. TIME magazine, maybe later. TSA Notice of Violation…wait, what?

TSA Notice of Violation

When you present yourself to an airport for security inspection, you are subject prosecution under State and Federal law. The Transportation and Security Administration (TSA) has a mission to protection the nation’s transportation systems. Part of that mission is ensuring the Transportation Security Regulations (TSRs) are enforced. TSRs include the prohibition of firearms, regardless of whether they are loaded or not. When you are caught, whether intentionally or unknowingly, with a firearm at an airport, you will receive a civil penalty in the amount of $3,000 from the TSA. When you receive notice of this civil penalty, you have five options to pursue:

  1. Pursue the Proposed Civil Penalty
  2. Submit Evidence for Consideration
  3. Submit Information for Consideration in Support of a Reduction of the Civil Penalty
  4. Request an Informal Conference
  5. Request a Formal Hearing

Paying the Proposed Civil Penalty involves either submitting payment of the $3,000 fine by check, money order, or credit card to the TSA.

Submitting Evidence for Consideration involves demonstrating that the TSA violation did not occur as alleged for that the civil penalty proposed is not warranted considering all of the circumstances.

Submitting Information for Consideration in Support of a Reduction of the Civil Penalty involves submitting a written request for reduction of the $3,000 proposed TSA Civil Penalty due to financial hardship or an inability to pay.

Request for an Informal Conference involves a teleconference hearing with a TSA Agent concerning the facts alleged giving rise to the civil penalty and a production of mitigating facts combined with a request for reduced penalty.

Request for a Formal Hearing involves an Administrative Law Judge and a TSA Agent filing a complaint to commence the adjudication process. In this hearing, the TSA will have the burden of proof and both sides will have the opportunity to present witnesses. If you are not pleased with the outcome of the hearing, you may appeal the TSA Decision Maker and ultimately the U.S. Court of Appeals.

The attorneys at Varghese Summersett PLLC regularly handle the TSA hearings as a part of our representation of individuals charged with carrying a gun into an airport. These cases come up frequently and our experience in this area has not only resulted in exceptional results on the criminal cases as well as against the civil and administrative consequences sought to be imposed by the TSA.

If you have been charged with carrying a gun into DFW Airport, Lovefield, or any other airport in Texas,  call us today at 817-203-2220 for assistance.

What Can an Attorney Do For You on a Possession of Prohibited Weapon Case?

A skilled attorney may be able to negotiate a dismissal of your case or secure a no-bill through the grand jury (which is when the grand jury decides a felony case should not be prosecuted). They may also be able to resolve the case without a criminal conviction. Depending on the outcome, you may also be eligible for an expunction or non-disclosure of the record.

Forgetting a handgun or firearm in carry-on luggage in unfortunately an easy mistake to make in Texas. Individuals from all walks of lives carry guns in Texas for their own protection, and sometimes they forget the piece of luggage they grabbed to use as a carry-on still has a firearm in it. This article addresses what happens when a person has a gun or firearm in their luggage in Texas.

DFW Airport has the largest amount of offenders who try to carry a gun through airport security. In 2014 alone, the TSA seized 120 guns from would-be passengers. In August of 2013, Shemane Nugent, wife of rockstar and gun activist Ted Nugent, was arrested at DFW Airport for attempting to take a Smith & Wesson 38 Special revolver onto a plane. In September of 2014, Eric Laffoon was caught at a security gate with a folding rifle loaded with 15 rounds of ammunition in his carry-on bag. Are these people really looking to smuggle guns onto planes for nefarious purposes? Generally not. Shemane Nugent, Eric Laffoon, and most of the other people arrested all said the same basic thing. “I forgot it was there.”

Most people charged with bringing a gun through airport security are law-abiding citizens of Texas who are not attempting to commit a crime but are so used to carrying their guns that they just forget they have them until it’s too late and they have been arrested. If you know someone in this situation, have them call us at (817) 203-2220 or contact us online:

Contact Us

 

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What is the punishment for bringing a gun into an airport?

Picture this: You’re standing in the security line at the airport. You’re late for your flight, the line is long, your phone is ringing and you’ve got less than 30 minutes to be in your seat for takeoff. The last thing on your mind is whether or not you checked your bag for prohibited items, such as a handgun. If you live in Texas, chances are you have a few (or more) guns. Here’s what could happen if you are arrested in an airport with a gun.

If you are stopped in DFW Airport, you will be taken to the DFW Airport Jail and your case will be filed in Tarrant County. If you are stopped in Dallas Love Field, your case will be filed in Dallas County.

It is unlawful for an individual to carry a handgun into a secured area of an airport. Travelers who are found carrying a handgun into the secured area of an airport are subject to immediate arrest and confiscation of the weapon.  The case can be filed either as a misdemeanor or felony in Texas.

Unlawful Carry of Weapon – Prohibited Place (Felony)

Texas Penal Code Section 46.03 states that a person commits an offense if they intentionally, knowingly, or recklessly possess a firearm when going into a secured area of an airport. This means that once you pass that security threshold, even if you accidentally carried a firearm on your person or in your bag, you have committed a crime. It is NOT a defense to the crime that you are licensed to carry a concealed handgun.

Places Weapons Prohibited – Generally

There are certain places wherein firearms are prohibited in the state of Texas.  This prohibition extends to people who are otherwise lawfully licensed to carry a concealed handgun.  Disregard for the prohibition against weapons in certain areas is a third-degree felony.  However, the person must intentionally, knowingly, or recklessly possess a firearm, illegal knife, club, or other prohibited weapon to be guilty of this offense.

The state of Texas prohibits weapons in the following places:

  • Schools and other educational institutions;
  • The grounds or buildingschool-sponsoredponsored activities are occurring;
  • At polling places on election day or during early voting;
  • At court, or court offices, unless the weapon is possessed with written court authorization or other written regulations;
  • On racetrack premises;
  • Within the secured portion of the airport. The exception to this is when the firearm is checked as baggage, consistent with both federal and state laws, before the firearm enters the secured area;
  • Within 1,000 feet of a location where an execution is to take place under Article 43.19 of the Code of Criminal Procedure on the day the execution is scheduled, provided the person has received prior notice being within 1,000 feet of the premises is prohibited.  The exception to this is where a person is in lawful possession of a firearm in their residence or at their job, or in a car being driven on a public road within 1,000 feet of the premises.

Certain people are exempt from the prohibition on weapons in certain places.  It bears repeating that those with a license to carry a concealed handgun are not exempt from these rules.  Exempt persons include:

  • Those traveling to or from a person’s workplace as a member of the national guard;
  • A member of the armed forces;
  • A prison guard;
  • A security officer of the Texas Private Security Board if they are in uniform and the firearm is in plain view;
  • Security officers in uniform with the weapon in plain view, or out of uniform with the firearm concealed.

Third-degree felonies are punishable by a minimum of two years in prison, and a maximum of 10 years.

Unlawful Carry of Weapon – Prohibited Place CHL/LTC Holders

There is good news for those individuals who would be facing the felony charge or Unlawful Carry of a Weapon – Prohibited Places. The Texas Legislature created an exception that may be applied to CHL (now LTC) holders. Effective September 1, 2015, Section 46.03 of the Penal Code was amended so that instead of placing someone under arrest, TSA agents may ask the individual to exit the secured area. An individual asked to exit the secured area must immediately comply.

How to Fly with a Gun – Legally

This does not mean that you cannot take a gun with you when you fly. In fact, the TSA and Texas laws allow guns to be transported, so long as they are done so properly in a checked bag. Always check TSA regulations before flying with a weapon in a checked bag. You will need to ensure the firearm is not loaded, declare the firearm, transport it in a locked hard-sided case, ensure the destination allows for the weapon to be transported there, and to have the key to the hard-sided case available should the TSA request an inspection of the weapon. (Some states do not allow this and you may be arrested if you try to bring a gun onto a plane even in a checked bag. New York and New Jersey in particular have this law.)

Penal Code Section 46.03 – Places Weapons Prohibited

Before talking about why an attorney is necessary, let’s cover what will happen as a result of bringing a gun through security. 1) You will be arrested. There used to be some discretion to not arrest offenders, but that is not the world we live in anymore. You will be sent to the jail if you bring a gun through security. 2) You are probably going to miss your flight. Being arrested often takes time and even if you did arrive at the airport the recommended two hours early, you still probably will not get back to the gate in time to make your flight. 3) Your gun will be seized. You may or may not get it back. Most judges will not authorize weapons to be released back to individuals who were arrested. 4) Your case will be filed with the Tarrant County District Attorney’s Office for DFW cases and Dallas County for Love Feild cases for prosecution. And most importantly, 5) you will be charged with a third degree felony or a Class A misdemeanor.

A third degree felony potentially carries a prison sentence up to 10 years and up to a $10,000 fine. Additionally, the federal government could seek up to an $11,000 fine. The point is, you could be facing some tough time and a large chunk of your bank account disappearing just because you forgot that you brought a gun with you to the airport. Additionally, if convicted you may lose additional rights. Also relevant is that Texas Penal Code Section 46.04 makes it illegal for a convicted felon to possess a gun. So if you are convicted of this crime, you may not be able to carry a gun in the future. Being charged with bringing a gun through airport security is a very serious matter.

Texas Penal Code Section 46.02 – UCW – Unlawful Carry Weapon (Misdemeanor)

The State can also file the case as an Unlawful Carry of a Weapon under Section 46.02 of the Penal Code. It is illegal to intentionally or knowingly carry a handgun on a premises not owned or controlled the carrier when the person carrying the handgun is not inside or directly en route to his/her motor vehicle. If the State files the case without the Prohibited Places language, it is a Class A misdemeanor. As such the punishment range would be up to one year in jail and up to a $4,000 fine.

Changes in the law: 2015 Airport UCW Amendments

This new law was passed in hopes of differentiating between individuals who intentionally, knowingly, or recklessly bring a firearm into a secured area and CHL holders who simply forgot that they had their handgun at the airport.

What are the TSA penalties for bringing a gun into an airport?

You arrive home after work one day and a pile of mail is awaiting your review. Magazine, toss. Credit Card application, toss. TIME magazine, maybe later. TSA Notice of Violation…wait, what?

TSA Notice of Violation

When you present yourself to an airport for security inspection, you are subject prosecution under State and Federal law. The Transportation and Security Administration (TSA) has a mission to protection the nation’s transportation systems. Part of that mission is ensuring the Transportation Security Regulations (TSRs) are enforced. TSRs include the prohibition of firearms, regardless of whether they are loaded or not. When you are caught, whether intentionally or unknowingly, with a firearm at an airport, you will receive a civil penalty in the amount of $3,000 from the TSA. When you receive notice of this civil penalty, you have five options to pursue:

  1. Pursue the Proposed Civil Penalty
  2. Submit Evidence for Consideration
  3. Submit Information for Consideration in Support of a Reduction of the Civil Penalty
  4. Request an Informal Conference
  5. Request a Formal Hearing

Paying the Proposed Civil Penalty involves either submitting payment of the $3,000 fine by check, money order, or credit card to the TSA.

Submitting Evidence for Consideration involves demonstrating that the TSA violation did not occur as alleged for that the civil penalty proposed is not warranted considering all of the circumstances.

Submitting Information for Consideration in Support of a Reduction of the Civil Penalty involves submitting a written request for reduction of the $3,000 proposed TSA Civil Penalty due to financial hardship or an inability to pay.

Request for an Informal Conference involves a teleconference hearing with a TSA Agent concerning the facts alleged giving rise to the civil penalty and a production of mitigating facts combined with a request for reduced penalty.

Request for a Formal Hearing involves an Administrative Law Judge and a TSA Agent filing a complaint to commence the adjudication process. In this hearing, the TSA will have the burden of proof and both sides will have the opportunity to present witnesses. If you are not pleased with the outcome of the hearing, you may appeal the TSA Decision Maker and ultimately the U.S. Court of Appeals.

The attorneys at Varghese Summersett PLLC regularly handle the TSA hearings as a part of our representation of individuals charged with carrying a gun into an airport. These cases come up frequently and our experience in this area has not only resulted in exceptional results on the criminal cases as well as against the civil and administrative consequences sought to be imposed by the TSA.

If you have been charged with carrying a gun into DFW Airport, Lovefield, or any other airport in Texas,  call us today at 817-203-2220 for assistance.

What Can an Attorney Do For You on a Possession of Prohibited Weapon Case?

A skilled attorney may be able to negotiate a dismissal of your case or secure a no-bill through the grand jury (which is when the grand jury decides a felony case should not be prosecuted). They may also be able to resolve the case without a criminal conviction. Depending on the outcome, you may also be eligible for an expunction or non-disclosure of the record.

Forgetting a handgun or firearm in carry-on luggage in unfortunately an easy mistake to make in Texas. Individuals from all walks of lives carry guns in Texas for their own protection, and sometimes they forget the piece of luggage they grabbed to use as a carry-on still has a firearm in it. This article addresses what happens when a person has a gun or firearm in their luggage in Texas.

DFW Airport has the largest amount of offenders who try to carry a gun through airport security. In 2014 alone, the TSA seized 120 guns from would-be passengers. In August of 2013, Shemane Nugent, wife of rockstar and gun activist Ted Nugent, was arrested at DFW Airport for attempting to take a Smith & Wesson 38 Special revolver onto a plane. In September of 2014, Eric Laffoon was caught at a security gate with a folding rifle loaded with 15 rounds of ammunition in his carry-on bag. Are these people really looking to smuggle guns onto planes for nefarious purposes? Generally not. Shemane Nugent, Eric Laffoon, and most of the other people arrested all said the same basic thing. “I forgot it was there.”

Most people charged with bringing a gun through airport security are law-abiding citizens of Texas who are not attempting to commit a crime but are so used to carrying their guns that they just forget they have them until it’s too late and they have been arrested. If you know someone in this situation, have them call us at (817) 203-2220 or contact us online:

Contact Us

 

The post Unlawful Carry of Weapon – Prohibited Place | Airport Gun Cases appeared first on Varghese Summersett PLLC | Fort Worth Criminal Defense Attorneys.

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.

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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300 Throckmorton Street, Suite 1650
Fort Worth, TX 76102
Phone
817-203-2220

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