Dallas Attorneys Bunger & Bunger | DWI

The best defense for DWI is simply to not drink and drive. However, there are undoubtedly circumstances in which you are stopped for a traffic violation and it elevates to DWI, because the officer suspects that you are driving while intoxicated. This can happen even when there is no alcohol in your system or when the level is so low that it does not impair your functioning. The effects can be devastating however. This section deals with the basic law and practices that Texas incorporates in enforcing its DWI policies.

In Texas intoxication is defined two ways. The state does not have to elect one theory of intoxication over the other for a conviction. In other words, the two methods of showing intoxication work sort of like an "and/or."

The first method that the state may use to prove a person was driving while intoxicated is to show that when he/she was driving and, when, through the use of an alcoholic beverage, drug, controlled substance, or any combination thereof, lost the "normal" use of either his/her "mental" or "physical" faculties.

The second method is the blood alcohol method. Using the Blood Alcohol Level (BAL) taken by either a breath analysis or by blood sample the amount of alcohol in the blood is determined. Under Texas law a person is "intoxicated" when he/she drives a vehicle and has an alcohol concentration of .08 or more in his/her body. Please note that there are factors that can have direct impact on the BAL at the time the specimen is taken. For example having a BAL of .08 an hour or so after the arrest was made is not conclusive that at the time he/she was driving his/her BAL was at or above .08.

"Alcohol concentration" is defined by the statute as:
a. the number of grams of alcohol per 100 milliliters of blood;
b. the number of grams of alcohol per 210 liters of breath; or,
c. the number of grams of alcohol per 67 milliliters of urine.

Of course, it is impossible for a person to be able to determine their BAL while sipping wine at a bar, or having cocktails at a friends house. Depending on the method in which the police collect the specimen, there is also the risk that the method chosen at the time would lead to a conviction, while the other two (listed above) would not. This is because the amount of alcohol in each of the above concentrations is not equal.

Another troubling issue is that even if (for various reasons such as body fat ratio, tolerance, etc.) there is no loss of faculties and the person is otherwise operating the vehicle without any impairment, if the BAL is at or above .08, then the individual is likely to be found guilty of DWI. The reverse is also true in that a person could for whatever reason, be operating the vehicle with limited faculties and not have BAL at or above .08 and yet still be found guilty of DWI.

Timing can also play a dramatic role on a person's BAL and ultimate conviction of DWI. For example, you could be less than ten minutes or so from home finish your third beverage at a local tavern, and then immediately head home. Within the short time of your travel home your BAL is likely to be under .08, and your mental and physical faculties are likely to not be impaired. However, If you are stopped during your short drive home for anything, such as failure to signal, for example, and the officer smells alcohol on your breath, you are likely to be arrested on the spot. The problem here is that the actual taking of a specimen from you, by breath, blood or urine, could be 30 minutes to a full hour and a half later than the time of your arrest, depending on circumstances, such as the distance to the station, etc. Therefore, at the time of the arrest, your BAL may be well below .08, but the delay in taking the specimen results in a BAL concentration level at or above .08 at the station house. This means that you are likely to be convicted of DWI even though at the time you were driving home you were innocent of DWI.

When you get your driver license you are basically agreeing that you will submit to chemical testing upon an arrest for suspicion of DWI. That is, if you are driving on a public roadway and a police officer properly requests you to submit to chemical testing, you have agreed to do so. However, you can refuse to submit to the chemical testing.

Refusing to submit to chemical testing will, however, result in consequences. First, you may have your driving privileges suspended for 180 days if this is your first arrest for suspicion of DWI. Second, you will be subject to a two year suspension for a subsequent arrest within ten years, if you refused to submit to chemical testing on your first arrest. Finally, your refusal will be used as evidence against you at trial on the theory that if you refused to submit to the testing then you must have believed that you were too intoxicated to pass. However, it is our belief that these tests are inaccurate and as mentioned above, other factors, such as timing can play a role in the outcome of the testing. Nevertheless, the jury will hear evidence that you refused to take the test.

If you do submit to the testing and fail, your driver's license privileges can be suspended, and the fact that you failed will likely be used as evidence against you at trial. You can be suspended from driving for 90 days, if your driving record shows no other alcohol related arrests. You can be suspended from driving for one year if you have a prior conviction or suspension within the preceding ten years.

A police officer may never use force on a subject for a breath sample. However, if there has been an accident in which serious bodily injury, death is likely, or death has occurred, then the officer has authority to order a blood sample from an arrested person.

During a valid traffic stop of an adult, if the officer develops probable cause to arrest the person for DWI, by the use of field sobriety tests, smell of alcohol on breath, or other conditions that raise probable cause, the officer will arrest the individual and transport them to the police station.

At the station, the driver is asked to submit to a chemical test to measure his/her alcohol concentration. Usually, the individual is asked to take a breath test, although the officer may request a blood specimen. If the driver refuses to provide a specimen, or provides a specimen with a prohibited alcohol concentration, the officer serves the individual with a Notice of Suspension and confiscates the driver license.

The law allows police officers to immediately seize the license of a person arrested for DWI if that person refuses to submit to the chemical testing or fails the test. The police officer should then issue the person a temporary driving certificate that allows the person to drive legally for forty days. Additionally, you have the right to an Administrative License Revocation Hearing (ALR Hearing). Following your arrest for DWI and you either refused or failed the chemical test, the officer is required to give you written notice that your driver's license will be suspended. You then have fifteen days from the date of the notice to request in writing a hearing from the DPS. If you do not request a hearing, you waive the right and your driver's license will be suspended after the fortieth day has elapsed. The notice of your right to a hearing is likely to be on your citation or arrest documentation. It is probably easy to over look, and many people end up waiving their right to a hearing because they did not know that they must request it, in writing within fifteen days of the date in which you received the notice. It is important that you or your lawyer request the hearing within the fifteen days.

If the police officer fails to provide you with notice that your license will be suspended, the DPS will mail a notice to you, by certified mail, informing you that your driver's license is subject to suspension. If this occurs, the fifteen days is now triggered by the date in which you receive the notice from the DPS by mail instead of the date of your arrest. It is presumed that you received the notice five days from the date that it was sent from the DPS. Reliance on receiving notice from the DPS could have devastating consequences. This is because the address on your driver's license may not be your current address, resulting in the letter going somewhere other than to you. Also, things do get lost in the mail. If you do not receive the letter, you still waived requesting the hearing, if you do not do so within the fifteen day period.

At the time you make your request for an ALR Hearing, the suspension on your driver's license is lifted, while you wait for the hearing to occur. If your ALR is scheduled more than forty days after your arrest, you need to have your attorney request the DPS to extend your provisional license until the ALR hearing has been concluded.

If you lose the ALR hearing, you have the right to an appeal. You must request an appeal within 30 days after the judgment becomes final. If you do not request an appeal within thirty days, you have waived your right to an appeal and your driver's license will be suspended.

It is almost always a good idea to request an ALR hearing. The most obvious reason is that if you don't request a hearing and defend yourself, then you waive the right and you will lose your driving privileges. When you do request an ALR hearing, you are now placing the burden on the State to prove that the officer stopped and arrested you with either reasonable suspicion or probable cause. If the State fails to prove reasonable suspicion or probable cause existed at the time of your arrest, the State might be prevented from presenting the same issues at the subsequent criminal trial. This could result in a dismissal of the charges.

At the hearing the State may come at you with either of two possible theories. One being that you refused to submit to the chemical testing and the other, that you did submit to the testing and failed. The case must prove one of the following, depending on whether you refused or failed the chemical testing.

If you have refused to submit to chemical testing then our law requires the State of Texas to prove the following at an ALR hearing:

2) probable cause existed to believe you operated a motor vehicle in a public place while intoxicated;

3) you were placed under arrest and properly requested to submit to chemical testing; and

The issues are slightly different if you submit to and fail chemical testing. If you fail, the DPS must prove the following two issues:

1) that you had an alcohol concentration of .08 or more while operating a motor vehicle in a public place and at the time of testing; and

Generally, proof at the hearing is introduced by way of a sworn written affidavit from the arresting officer. However, it is possible to subpoena the officer and require that he/she testify. It cannot be stressed how important it is to have a lawyer to represent you in this matter so that your rights are being fully protected.

The ALR hearing is conducted at a location designated by SOAH in either the county of arrest (if the arrest occurred in a county with a population in excess of 300,000) or within 75 miles of the county seat of the county of arrest. Alternatively, both parties may agree to hold the hearing by teleconference. The hearing is conducted by an Administrative Law Judge (ALJ) employed by SOAH and the DPS has the burden of proof by a preponderance of the evidence. If the judge makes an affirmative finding on all the relevant issues, the license is suspended.

If the driver failed the breath or blood test, the ALJ must determine whether (1) the person had an alcohol concentration of 0.08 or greater while operating a motor vehicle in a public place; and (2) reasonable suspicion to stop or probable cause to arrest the person existed.

Refused to provide a specimen following an arrest for an offense prohibiting the operation of a motor vehicle or watercraft while intoxicated, while under the influence of alcohol, or while under the influence of a controlled substance:

180 days	First offense
2 years	If previously suspended for failing or refusing a specimen test or previously suspended for a DWI, Intoxication Assault or Intoxication Manslaughter conviction during the 10 years preceding the date of arrest

Provided a specimen with an alcohol concentration of 0.08 or greater, following an arrest for an offense under Section 49.04, 49.07, or 49.08, Penal Code, involving the operation of a motor vehicle:

90 days	First offense
1 year	If previously suspended for failing or refusing a specimen test or previously suspended for a DWI, Intoxication Assault or Intoxication Manslaughter conviction during the 10 years preceding the date of arrest

180 days	First offense
2 years	If previously suspended for failing or refusing a specimen test or previously suspended for a DWI, Intoxication Assault or Intoxication Manslaughter conviction during the 10 years preceding the date of arrest

Provided blood or breath specimen with an alcohol concentration of 0.08 or greater, (or any detectable amount of alcohol) or was not requested to provide a specimen following an arrest for an offense under Section 106.041 Alcoholic Beverage Code or Sections 49.04, 49.07, or 49.08, Penal Code, involving the operation of a motor vehicle:

60 days	First offense
120 days	If previously convicted of an offense under Section 106.041, Alcoholic Beverage Code or Sections 49.04, 49.07, or 49.08 Penal Code, involving the operation of a motor vehicle
180 days	If previously convicted twice or more of an offense under Section 106.041, Alcoholic Beverage Code or Sections 49.04, 49.07, or 49.08 Penal Code, involving the operation of a motor vehicle

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