DWI

For most criminal defense attorneys, Driving While Intoxicated (DWI) represents the largest percentage of their cases. It is for this reason that DWI is treated separately here from the other FAQs.

Q: What should I do if I am stopped by a police officer and I have been drinking?

A: There is no uniform answer as to what is best to do, because every situation is different. The best guide is to use good common sense. You should always remain polite and courteous with the arresting officer, but this does not necessarily mean you should submit to all of his or her requests. You will be able to deal with such an encounter more easily if you know what to expect, what choices you will have, and the potential consequences of your decisions.

Q: What should I expect in that situation?

A: You should expect to be arrested for DWI if the officer can smell alcohol on your breath. The officer's biggest fear is that he or she allows you to drive away and you later kill someone. That officer would not only lose his or her job but would be subjected to civil suits and possibly criminal prosecution. Therefore, if the officer detects any alcohol on your breath, expect to go to jail.

If you are detained under suspicion of DWI, you will be questioned on the roadside about your recent alcohol consumption. The officer may request that you perform sobriety tests and submit to a breath test. You have the right to refuse these tests, though that refusal may later be used as evidence of your guilt. If the law enforcement officer has reason to believe that you are guilty of an offense, he or she can arrest you. You will then be handcuffed and transported to a jail.

Q: Should I submit to roadside Field Sobriety Tests?

A: The stop will likely be videotaped by the officer. You do not have the right to refuse to be videotaped, but you may refuse to perform the sobriety tests. You are legally required to answer any questions about your name, age and identification, but you are not required to answer any other questions. If you believe that you can preserve evidence favorable to your case by complying with the officer's requests, you should do so. That is, if you believe that you can complete the tests as instructed, then you should do so. If you have any doubts, you should request to speak with an attorney before answering any questions. If proper procedure is followed, the arresting officer will terminate the interview whenever you request to speak with an attorney. If the officer fails to do so, continue to request permission to speak with an attorney first. Do not lie to the officer. You have the right to silence, except as noted above. You do not have the right to lie.

Q: Should I submit to a breath test?

A: At the jail, you will probably be asked to submit to a breath test. If you refuse to submit to a breath test, the officer may again request you to perform the field sobriety tests. The officer may also ask you questions regarding your alcohol consumption and your physical condition. Although you must answer questions pertaining to identification, you may refuse to answer any other questions. You may refuse to perform field sobriety tests.

The reliability of the instruments used to measure breath specimens to determine body alcohol concentration is doubtful. While state-paid experts routinely testify that the Intoxilizer 5000 is accurate and reliable, several independent experts have expressed contrary opinions. Consequently, the results may be inaccurately high or inaccurately low. In my experience, unless you have only had one drink, you ought not to submit to the breath test.

If you submit to a breath test and "pass" it, you stand a much better chance of winning your case. Sometimes, in fact, charges are not filed at all. If you submit to a breath test and fail it, you can later challenge the accuracy of the device at trial. However, you should realize that a trial in which a breath test is challenged tends to be much more expensive than one which does not involve a breath test because it is often necessary to hire private scientific experts to assist at trial.

Q: What if I refuse the breath test?

A: If you refuse to submit to the breath test, the officer may get a warrant to require you to submit to a blood test. You should not resist the taking of blood, but you also should not agree to it. If you agree to something, then you have waived the opportunity to complain about it later. Therefore, you should not thrash about when the nurse takes your blood, but you should also never say that the taking of blood is "O.K." with you.

Q: Do I have the right to a blood test?

A: The officer determines which type of test to offer. If you provide a breath specimen that is over the legal limit of 0.08 then he is not required to give you a blood test. You ought to ask for one, but it is not required that the officer accede to your request.

Q: What should I do when I get out of jail?

A: The first thing you should do is to make sure to request a hearing on the suspension of your driver's license. (You may make the request or your attorney may do so). The Texas Department of Public Safety has the right to suspend the license of anyone arrested for DWI if that person does not request a hearing. That request must be made within 15 calendar days of the arrest. If it is not made within that time, then the suspension automatically takes effect 40 days from the date of arrest.

Q: Why is the ALR hearing so important?

A: The Administrative License Revocation hearing is the hearing where DPS will try to suspend your license. It is important for two reasons. First, if DPS fails to prove its case, then your license will not be suspended. Second, this is an opportunity to question the police officer regarding the arrest. The officer must testify under oath, therefore the testimony he or she gives in this hearing must be the same as he or she will give at trial. It is similar to seeing someone's hand in poker. If you know what they are holding, then you have a better idea as to how you should play.

Q: What if my license gets suspended?

A: If your license gets suspended, then I may be able to get you an essential needs license. This type of license will allow you to drive to work and to take care of household necessities. It will not allow you to drive whenever and wherever you want, but it will allow you to take care of most needs.

Q: I was arrested for DWI and broke every rule listed above. What should I do?

A: You still need to preserve your rights as best you can. The best way to do this is to retain an attorney as soon as practicable. If it has been less than 15 days since the arrest, an attorney can request an ALR hearing on your behalf to contest the suspension on your driver's license. If that time has passed, then the attorney can assist you in obtaining an occupational license, if you qualify for one.

While not following the guidelines above may make it more difficult to win your case, that does not mean the situation is necessarily hopeless. All aspects of the case should be evaluated by an attorney experienced in defending DWI charges. Even if you are eventually convicted of DWI, you will have the peace of mind that you explored all possible avenues of defense. I have had countless clients on their second or third DWI's who regret that they hired a cheap lawyer to "plead them out" on a DWI charge. Given the lifelong and potentially serious consequences of being convicted of even one DWI, one should always have his or her case evaluated by an attorney experienced in DWI defense.