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The Ultimate Guide to DWI Defense in Texas
- What Will Happen To My Driver’s License? Does My DWI Arrest Affect My License?
- What Happens If My License Is Suspended Because of My DWI Arrest? Can I Still Drive?
- Was their reasonable suspicion for the traffic stop or was it a consensual encounter?
- What Did You Say To The Police? Why Are They Asking?
- “What Time Was Your Last Drink?”
- “How Much Did You Have To Drink?”
- Did The Police Take a Sample of Your Breath or Blood?
- How Long Will This Entire DWI Defense Take? A Few Months? Longer?
A DWI Defense in Tarrant County, Texas – A True Story
Have you been arrested for a Driving While Intoxicated (DWI) in Fort Worth or the surrounding cities of Tarrant County, Texas? Upon being released from jail, it is natural to feel overwhelmed and unsure about what to do next. We hope you find the material we created in this manual as a helpful guide to making good decisions about your DWI defense.
After going through what you have experienced being arrested, treated like a criminal and being traumatized by your stay at the Tarrant County jail, it is completely normal to feel the way you may feel right now: Fearful and Frustrated. Afraid you will have to go back to jail. Afraid you may lose your job. Afraid you will have this DWI arrest on your record for the rest of your life. You may be searching the internet right now trying to get answers and you feel frustrated that you cannot seem to get a complete guide of what will happen and what to expect next. We have prepared this guide for you to help calm those fears and give you confidence that with the right attorney and the right plan of defense, you can feel confident your worst fears do not have to come to pass.
First, let us get a few basics out of the way and then I will share a story of a former client I represented and how their story may guide you in your pursuit to win your DWI case. Let me first introduce you to Texas DWI laws:
- DWI (Class B Misdemeanor)
- DWI over.15 (Class A Misdemeanor)
- DWI misdemeanor repetition (DWI 2nd – Class A Misdemeanor)
- DWI with child under 15 years of age (State Jail Felony)
- DWI 3rd or more (3rd degree felony)
- Intoxication Assault (3rd degree felony)
- Intoxication Manslaughter (2nd degree felony)
Five years ago, I received a phone call from a successful young man that had a rough night. He had been arrested for a first time DWI in the Keller, Texas area. This man, we will call him Brandon for anonymity sake, was a highly successful young man. He was a pilot for American Airlines and had a clean criminal record with no prior arrests. He was terrified about what happened at the time of his arrest and needed his questions answered. Brandon was a smart guy because he took the time to read the paperwork that had been given to him by the Tarrant County jail staff at the time he was arrested. His first question was…
What Will Happen To My Driver’s License? Does My DWI Arrest Affect My License?
The short answer is YES. Brandon and I went through his DWI arrest paperwork and I directed his attention to the “Temporary Driving Permit” paperwork he received. I told him to look at the fine print at the bottom of the paperwork and he will see where it tells him he has 15 days from the date of his arrest to request an administrative license revocation hearing. If Brandon failed to make that request within 15 days, his license will be automatically suspended 40 days after the date of his arrest. Many people arrested for DWI are unaware of this and it is rare that the police officers or the jail staff point this information out.
Brandon was frustrated because no one pointed out that his license would be suspended during his DWI arrest. That led to a discussion of the Texas Implied Consent Law. Under Texas law, every citizen impliedly consents to give a sample of his or her breath, blood or urine to a police officer if there is probable cause to believe that citizen is driving while intoxicated. Most people, including Brandon, had never heard of this law. Technically, when the police asked Brandon to give a sample of his breath, blood or urine, if he had consented to this request, his license would still be suspended if his blood alcohol level was .08 or higher.
Brandon informed me that he had refused a DWI breath and blood test. I explained to him that in order for his license to be suspended, the Texas Department of Public Safety attorney will have to prove that there was reasonable suspicion for the police officer to pull him over and probable cause to arrest him. Finally, the officer must have read the “Statutory Warning” paperwork to Brandon explaining his rights to accept or refuse a breath or blood test. If there are any problems proving these elements, Brandon could still avoid his Texas driver’s license from being suspended. Brandon was worried about the worst-case scenario, so he wanted to know,
What Happens If My License Is Suspended Because of My DWI Arrest? Can I Still Drive?
Yes! I explained to Brandon that if his license were suspended, we could help him obtain an Occupational Driver’s License (ODL). He would have to obtain SR-22 insurance, a form of high-risk insurance required for a DWI occupational license, and he may be required to install an Ignition Interlock Device as a condition of his occupational license. Quick Tip: If you are required to obtain SR-22 insurance, it is usually best to call a different insurance carrier. If you call your current insurance company, they are likely to increase your rates or cancel your coverage. I explained to Brandon that we would be happy to help him with this process if it becomes necessary, but we hoped to prevail at his hearing so that he keeps his license.
Brandon was ready to get down to the facts of his case. He wanted to know very specifically how his DWI case could be defended. He explained to me that he was pulled over because the officer claimed that his front headlight was not operating, a traffic violation – if true. That brought us to the first point of his defense:
Was their reasonable suspicion for the traffic stop or was it a consensual encounter?
Was this traffic stop that happened with Brandon a legal stop? Did the police have reasonable suspicion to stop him? I explained to Brandon we needed to review the police reports and compare it to the patrol car videos and body camera videos to see if there was proof beyond a reasonable doubt that Brandon’s front headlight was not operating. For instance, police officers will sometimes guess that someone is speeding without using a radar or pacing the vehicle. Officer’s must have more than a hunch or guess that they have a basis to stop someone. There must be reasonable suspicion that a traffic stop has taken place to justify the detention.
If we reviewed the video in Brandon’s case and determined that the headlight appeared to be working properly, it allows us to fight the case on two fronts: (1) we can file a motion to suppress the evidence based upon an illegal stop and/or (2) we can also argue that the stop was illegal directly to the jury at a DWI jury trial to receive a not guilty verdict based solely upon the officer illegally stopping Brandon. I could tell Brandon was understanding all that l I was sharing with him, but he now had a question about one area he felt the police officers were not fair to him on and that was the Standardized Field Sobriety Tests
The Officers Made Me Perform Field Sobriety Tests – Do They Matter? Can You Attack Them?
They can matter but yes, we can also attack them. DWI Field Sobriety Tests are designed to help officers develop probable cause to arrest someone for DWI. These tests become very important if there is not a blood or breath test. Officers know that without a breath or blood test, they must prove that someone does not have the normal use of their mental or physical faculties by reason of the introduction of alcohol or drugs into their body? How do they do this? By their opinion of your performance on Field Sobriety Tests.
The tests are promulgated by the National Highway Traffic and Safety Administration (NHTSA) and must be administrated precisely and in accordance with the rules and protocols for administration. In other words, if the police officers fail to administer the tests properly in accordance with the rules, the test results are unreliable and can be thrown out at court. The first of these tests is:
Horizontal Gaze Nystagmus (HGN) – sometimes people refer to this test as the “pen test.” The officer uses a pen or stylus and are required to hold it 12 – 15 inches away from the subject’s face and slowly move the stylus back and forth to test for the involuntary jerking of the eyes. Everyone naturally has nystagmus but if alcohol or a depressant drug is introduced into the body, it can make the nystagmus more visible for testing. The HGN test is only effective if properly administered. As a result, it is very important that the police officer administer this test correctly. If the officer fails to strictly follow the rules (for instance, move the pen to quickly or fail to ask the screening questions), the HGN test could be thrown out and not allowed to be used in your DWI trial. Additionally, you may have a type of nystagmus that is naturally occurring, or caused by a medical issue, that would invalidate the police officer’s opinion that you are intoxicated based upon the HGN test.
Walk and Turn Test – this is a physical test that is designed to determine if you have lost the normal use of your physical faculties because of alcohol or drugs. The officer is required to give you specific instructions to place one foot in front of the other and stand at attention while he gives you instructions. What people do not realize is that if they do not stand with one foot in front of the other the entire time, the police officer will mark a strike against them on their Field Sobriety Test Scoring Sheet, thereby using it for intoxication. Next, the officer will give you instructions that involve you taking 9 steps down a line with “heel touching toe” and then executing a 3-point turn and walking 9 steps back down the line to your original location. The officer will ask you if you understood the instructions and then he will tell you to begin.
What if you said, “yes” that you understood and then began the test before he said to begin? He will count an additional strike against you for intoxication and you have now failed the test. Literally, before you have even started walking down the line, you could have failed the test. Under the scoring system for the Walk and turn test, you only must score 2 “clues” to fail the test.
As you can see from this example, by itself, this walk and turn test does little to show whether someone is intoxicated. In fact, there can be many reasons people would “fail” this test. Do you have test anxiety? Is it possible someone on the side of the road with a police officer barking orders at them would not perform on a physical test as “normally” as they would in a controlled environment without police threatening their freedom if they fail? Of course! Did the officer fail to show you the test correctly? It happens all the time. Many times, officers will perform a portion of the test as an example of what he wants but then his actions will not match up with his instructions. Failure to provide clear instructions is the fault of the police officer, not the citizen. Was it windy outside? Cold? Rainy? Was the test given on a flat surface? These are just a few of the factors that can invalidate the use of a walk and turn test on a DWI arrest.
One Leg Stand Test – this physical test is designed to do exactly what it says: test your ability to hold out one foot for 30 seconds while counting out loud. The officer is required to explain the instructions of standing with your feet together and hold out one foot while looking down at it (with your hands to your side) and counting out loud to 30 or until told to stop. Although this test has fewer moving parts than the walk and turn test, it is still critical that the police officer give clear and thorough instructions for this test to be effective. Additionally, if you start the test too early or fail to count out loud or pause for a question, the officer will mark you as being intoxicated.
Brandon interrupted after I had gone on for a while and asked me, “Can’t people fail these tests for other reasons other than being intoxicated?” Absolutely! Brandon was right to notice that 2 out of the 3 tests were physical tests that someone could fail for a variety of reasons: recent injury or physical limitation, lack of coordination, scared to death because you are on the side of the road with cars speeding by and a police officer barking orders at you. How many people have test anxiety? What about testing conditions? What if it is cold outside? What if it is windy? What if the ground is not level where the tests are being performed? There can be a variety of conditions that could affect the officer’s opinion of your performance on a test.
Brandon also seemed frustrated because he felt like the testing sheets the police use are not always fair. I explained to Brandon that his feelings were valid. Simply because an officer marks you down for a sign of intoxication, it does not mean you were intoxicated. In fact, many times, a review of the police video or body camera can show that Brandon may look perfectly sober but misunderstood the instructions. Unfortunately, you can fail most of these tests and be completely sober. I reminded Brandon we needed to look over his videos and pick apart everything the officer did to show Brandon was not intoxicated. I then asked Brandon, “Did you say anything to the officers that night about if you had been drinking or about anything else?”
What Did You Say To The Police? Why Are They Asking?
To Incriminate You! Although it was too late to do anything about it at that minute, I reminded Brandon that the reason the officers ask him questions during the DWI arrest was to try to obtain information from him to incriminate him and try to make him look guilty in any way possible. Brandon sounded disappointed while he was talking because he knew he had spoken to the officers when they asked him questions. I told Brandon not to be too hard on himself because he had no idea what his rights were at the time he was under such pressure by the police.
If he had known his rights, he could have politely informed the police officer that he would be happy to assist with any questions the officer had as soon as he had an opportunity to speak to his criminal lawyer. Officers may tell you that you do not have a right to a criminal attorney at this time but the reality of it is you are not a lawyer or a police officer and you do not know what the right thing is to do so you would only feel comfortable doing anything if you first spoke to a criminal defense lawyer so that you could be informed of your legal rights. One of the questions the officer’s asked Brandon that night was
“What Time Was Your Last Drink?”
Brandon said he expected the police officer to ask him how many drinks he had but he was surprised by this question and did not understand why it mattered. I explained the police officer’s primary goal was to have him incriminate himself. However, the police are trained to ask this specific question for a particular reason: they want to take the answer to this question, along with other information, and attempt to “extrapolate” back in time to estimate what your blood alcohol level would have been at the time you were driving.
This confused Brandon and he asked for me to please clarify. In order to prove Driving While Intoxicated (DWI), you must prove that someone was operating a motor vehicle in a public place while intoxicated. In other words, the government must prove you were intoxicated at the time of driving, not at the time you gave a breath or blood test. How do they do this? By attempting to gather information from you at the time of the arrest and combine that with the blood alcohol level and equip a toxicologist to take the witness stand and attempt to “extrapolate” back in time with an estimate of intoxication. Otherwise, it is less accurate to say for sure what your blood alcohol level would have been at the time of driving. Remember, the state of Texas must prove beyond a reasonable doubt that you were intoxicated AT THE TIME OF DRIVING, not at the time you took a breath or blood test.
Brandon then asked, “how do we attack their attempt at retrograde extrapolation?” It may all depend upon how long it took for them to draw your blood. If it took 3, 4 or even 5 hours for them to draw your blood, the blood alcohol level becomes less reliable and less of an indicator of your condition at the time of driving. It may seem strange, but the government’s ability to go back in time and try to get this fuzzy math into evidence depends entirely upon your answer to the question, “What time was your last drink?”
“How Much Did You Have To Drink?”
Brandon informed me that the police asked him this question and he was afraid at what he said because did not remember. Does it matter? Why ask this question? Well, the main reason the police ask this question is because they want you to admit you were drinking and then they look to see if you give an amount of drinks that will be inconsistent with your blood alcohol level so that the prosecutor can claim you were lying to the police at the scene.
After a short break for Brandon to gather something out of his car, he wanted to talk about what happened when he made it to the police station or jail. He said he does not remember all the specifics about what happened, but he wanted me to run through the basics of what the police should have done and to make sure his rights were not violated.
Did The Police Take a Sample of Your Breath or Blood?
If NO, it is important to know that the police are compelled by the law to do so by obtaining a warrant from a judge to approve the blood draw. Failure to obtain a breath or blood result turns your arrest into nothing more than an opinion. Nothing more than the subjective opinion of the police officer. Can be opinions be wrong? Absolutely! In fact, one of the primary elements that must be proven beyond a reasonable doubt at trial is whether or not you had lost the normal use of your mental or physical faculties by reason of the introduction of alcohol into your system. What is normal for you? What is normal for anyone? I would have to know you well to be able to know what is physically or mentally normal for you. It becomes nothing more than an opinion.
Did you consent? If you consented, you more than likely gave a breath test. The Tarrant County police departments use the Intoxilyzer machine to take breath specimens from people who consent to give a sample. As you can imagine, any machine tends to break down and if not maintained, it can become unreliable. The same holds true for Breath Test machines.
One of the first things that should be considered are the maintenance records of the machine. Has it been maintained? For instance, during the COVID-19 Pandemic of 2020, it was learned that most of the Tarrant County breath test machines were not physically maintained or inspected to determine if they were operating correctly.
Secondly, you can also attack certain procedures involved with the collection of a breath test. Did the Intoxilyzer Operator (the person administering the test) comply with the 15-minute observation period? Texas Administrative Code, Title 37, Rule 19.3(a)(1) says an operator SHALL remain in the continuous presence of the subject at least 15 minutes immediately before the test and should exercise reasonable care to ensure that the subject does not place any substances in the mouth. I wanted Brandon to understand what I was getting at, so I gave him a few examples: we had a client that had chewing gum in his mouth and the operator never checked to make sure his mouth was clear. We had another client that had serious indigestion and needed to clear his mouth. Why did this matter? Because having something in your mouth, especially vomit or substance from the digestive tract, might include the presence of alcohol that would artificially raise the breath alcohol volume level on the machine. I reminded Brandon that failure to follow these protocols could result in the breath test being excluded from evidence.
Did you refuse a test, or did you consent to a blood draw? There are two ways a blood draw can take place – by consent or by refusing a breath test and the officers seek a search warrant from a judge. If the police officers obtained a search warrant to draw blood, there are several things that can be done to attack the warrant. First, you can examine the warrant to see if the officers were sloppy in the preparation of the warrant. Looking at the four corners of the search warrant affidavit, you must have articulated facts sufficient to establish probable cause, not just conclusory statements that prove nothing. Sometimes officers are not thorough in the search warrant affidavit and fail to be specific and articulate these facts. When this happens, it is possible you could get your blood draw thrown out of court.
Brandon then interrupted me and asked me if there were any other way we could attack the blood draw itself. Absolutely! I explained that we needed to investigate who drew the blood specimen. Texas law requires that the person who drew the blood be a qualified technician. If the person who drew the blood does not meet the specific requirements of a qualified technician, the blood draw can be ruled invalid and not useable in court. Additionally, it is important to examine the lab that tested the blood. Did the lab follow the proper testing protocols in testing the blood? Were the blood vials properly preserved? Was the integrity of the samples compromised in any way? Was the lab that tested the blood certified? If there are doubts regarding the reliability of the blood testing, I explained to Brandon that he may be able to retest the blood at another more reputable lab to establish a defense against the Government’s blood samples. Brandon had one final question for me…
How Long Will This Entire DWI Defense Take? A Few Months? Longer?
This was an important question because many people have the idea that you show up to your first court date for a DWI in Tarrant County and you will decide to plea or take it to trial in a single court setting. Unfortunately, it does not work that way. I explained to Brandon that I was a former prosecutor that worked at the Tarrant County District Attorney’s Office for over 5 ½ years and I had a pretty good idea how the prosecutor would be dealing with a DWI case. Normally, prosecutors have a large caseload to manage and have spent very little time on any one case for the first few months after an arrest.
Brandon needed to understand that in order to get the best result on his DWI case, he would likely have to push the prosecutor closer to a trial setting before all the options available to him will be made available. This requires an aggressive attorney that will push the case as far as it needs to go in order to get the desired result. I assured Brandon we would be here for him to aggressively push the case as far as it needs to go – even to trial if that is what it takes.
How did this true story end? Brandon took our advice and pushed his case all the way to a trial docket. We thoroughly reviewed his DWI videos and discovered that the basis for the DWI traffic stop was illegal. From the video, it appeared that light was coming from the front lights of his car. As a result, we argued to the judge and then to the jury that the officer stopped Brandon illegally, requiring Brandon to be found NOT GUILTY. Brandon was relieved to know that he had been exonerated and was excited to start the process of getting his DWI arrest expunged from his criminal record.
Brandon’s story is not unlike anyone else who has been arrested in Texas for a DWI. Unfortunately, many people are not provided the information they need in order to make good decisions after their arrest. We hope this information has clarified how the criminal justice system works, as it relates to DWI cases.
If you have additional questions about your specific circumstances, we want to help you immediately with the answers to those questions.
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