Getting pulled over on suspicion of driving while intoxicated (DWI) in Texas is a very stressful and unpleasant experience. The most important thing to do in this situation is to try not to panic.
Anything a person says or does during a traffic stop may be used against them in a later trial. That is why it is important for a person to keep their cool, so they can speak with the officer and conduct themselves in the best possible way.
A person is considered legally intoxicated and may be arrested and charged when caught driving with a blood alcohol concentration (BAC) of more than 0.08%.
However, a person is also considered intoxicated if their driving is impaired because they ingested alcohol or other drugs, even if their BAC is lower than 0.08%. In addition, whether a person is a passenger or driver, they can be fined up to $500 in Texas for having an open alcohol container in their vehicle.
It is important to note that impairment begins with a person’s first drink, and the best way to avoid or get out of a DWI is to not drink and drive in the first place. That being said, how does a person know when they have had too much?
A person’s weight, gender, the amount of food they have eaten, the number of drinks they have consumed, and how much alcohol was in those drinks, all these factors, and others, affect their body’s alcohol tolerance and their blood alcohol content.
Two to three drinks in a period of one hour is generally enough to make most people legally intoxicated. In addition, women and smaller people can become impaired with even less alcohol, perhaps as little as one drink. If a person has been drinking, it is best to stop consuming alcohol and wait until the alcohol is out of their system. Or a person can always call a cab to take them home. The cab fare, when weighed against the trouble that a DWI conviction can bring, is minimal.
Here are a few steps that a person may take if the police stop them to avoid doing something that may hurt their case.
When Stopped for a DWI, Should I Be Cooperative With the Officer?
It is important to be polite and helpful to the police officer. A person should do what a police officer tells them to do without argument. Be cooperative. A person does not want to trust the police, no matter how friendly they seem, and share information that may incriminate them.
The police are not there by accident. A person should keep in mind that if the police pulled them over, they might have already decided that the person is impaired. They are most likely hoping to find the additional evidence they need to arrest them.
Keep in mind that if the police do something they should not do, the time to seek a remedy for that will come later in court. It is not the time when a person is standing at the side of the road in the course of a police stop, possibly intoxicated and with their judgment not at its best.
A person is legally required to provide their driver’s license and proof of insurance to the police. However, Texas law does not require a person to tell the officer what they have been doing, especially not that they were drinking with friends for the past few hours.
The police may ask a person how many drinks they have had. A person does not have to answer this question. They may politely state that they do not wish to answer the question before they speak to their lawyer.
Further, unlike many states, Texas law does not require that a person submit to a blood or breath test. Texas law does not require that a person take the police field sobriety tests.
Texas law does not require a person to answer the officers’ probing questions nor take a test while still on the side of the road. Thus, when a person is pulled over, they should politely tell the officer that they do not wish to answer any questions or submit to any tests until they can consult an attorney.
If a person is arrested, again, a person can demand to speak to an attorney before submitting to any chemical testing. An experienced criminal attorney can advise a person as to the chemical test they should take, such as breath, blood, or urine. They can also advise of the potential outcomes of refusing a DWI test.
Of course, keep in mind that the police do not have to provide a person with an attorney for a DWI arrest and testing. The person arrested would have to do that for themselves. Texas law does allow a person to have a private chemical test done within 2 hours of their arrest, which an attorney may help arrange. Of course, this assumes that a person can find an attorney, and the attorney can arrange for testing within 2 hours of their arrest. This might be a big ask, especially if it is 3:00 a.m. Given the implied consent law in Texas, a person may want to submit to a breath or blood test if they are arrested.
Does Texas Have an Implied Consent Law?
Texas has an implied consent law. It provides that a licensed driver must submit to a breath or blood test when lawfully arrested for DWI. If the driver refuses, they can face a mandatory suspension of their driver’s license of up to 180 days, which is about 6 months.
It is important for a person to remember that they can be arrested for DWI even if the police do not have test results showing the person to have a blood alcohol concentration of 0.08% or any other amount. The police can establish probable cause to arrest on the basis of observation of the person’s driving and other factors, e.g., the odor of alcohol about the person, how they move, and how they look.
If a person has been arrested for DWI and refuses the breath or blood test, the arresting officer may take their driver’s license immediately and on the spot. The officer then provides the arrested driver with a written notice informing them that their driver’s license is suspended.
However, the suspension is not effective immediately. The person is given a temporary driving permit when their license is taken. The person then has 15 days from the date of their arrest to request a formal hearing before the Texas Department of Public Safety. The Texas DPS is required to begin a process known as Administrative License Revocation (ALR).
If the person does not ask for a DPS hearing, they waive their right to have one, and the DPS enters a judgment suspending the person’s driver’s license. They lose their driving privileges for 180 days.
If a person does request a hearing, the hearing takes place before a DPS administrative judge. This judge considers only 2 issues: whether the police had probable cause to arrest the person for DWI and whether the person refused a valid police request for a blood or breath test. The DPS does not have to establish that a person is guilty of DWI. They must only show that the police had probable cause to arrest the person and the person refused the tests.
If I Fail the Chemical or Breath Tests, Should I Just Plead Guilty?
Finally, if a person has submitted to any of the above tests, they should not automatically plead guilty simply because the test shows they were over the legal limit. This is a common mistake.
Even if a person fails a chemical test, there are numerous reasons that they may not be criminally responsible. The breath, blood, or urine tests may have been faulty; the officer may not have followed the correct arrest protocol, e.g., if the person was driving properly, the officer may not have had the right to pull them over.
Once again, an experienced criminal defense attorney can assist a person through this process as they know the system, the judges, and the ins and outs of the law.
What Is the Punishment for DWI in Texas?
The severity of the punishment that a person faces for a DWI conviction in Texas is determined on the basis of whether this is their first, second, third, or subsequent offense.
What Is the Punishment for a First DWI Offense?
A first offense for DWI is punishable by suspension of a person’s license for a minimum of 90 days, with a possibility for a maximum of 180 days.
Further, if a person is convicted of a DWI, they serve a minimum of 3 days in jail and a maximum of 180 days. They have to pay a fine of up to $2,000. Finally, the person must pay a DWI surcharge of $1,000 yearly for the next 3 years if they want to keep their driver’s license.
These penalties and fines may increase if the person had a minor in the car, their BAC was 0.16% or higher, or other factors are present in the case. For example, if a person’s DWI resulted in an injury to another person, they face more serious charges and more harsh punishment.
What Is the Punishment for a Second DWI Offense?
The punishment for a second DWI charge is more harsh than the punishment for a first offense. For instance, the fine may double to $4,000, and a person may be sentenced to as much as 1 year in jail.
Further, their driver’s license can be suspended for 2 years instead of a maximum of 180 days, and their annual DWI surcharge fee rises to $2,000. Further, after a second DWI, a court is likely to order a person to install an ignition interlock device in their vehicle.
This would mean that a person must blow into the device before they can start the car. It detects whether there is any alcohol on their breath. If there is alcohol on the person’s breath, the vehicle cannot be started. A person must also participate in a DWI education program.
What Is the Punishment for a Third or Subsequent DWI Offense?
The punishment for a third DWI charge is still more harsh. First, the initial fine may be up to $10,000. A person can be sentenced to a minimum of 2 to a maximum of 10 years in prison. A person’s driver’s license may be suspended for 2 years, and they have to pay a $2,000 DWI surcharge annually to maintain their license even while they may not use it.
Finally, a person is likely to be required to install an ignition interlock device in their vehicle. They may have to attend a court-ordered DWI education program as well.
Is My License Suspended Immediately After I Am Stopped for a DWI?
The police can immediately seize a person’s driver’s license if the police determine that the person has a blood alcohol concentration of 0.08% or above. Also, as noted above, if the person refuses to submit to a breath or blood test after they have been arrested, the person’s license may be seized.
Note that the person must be arrested before they have to take a breath or blood test to avoid a license suspension.
The police do give a person a temporary driving permit when they confiscate their driver’s license after a DWI stop or arrest. Additional procedures follow.
How Do I Get My DWI Dismissed?
A person can mount a defense to a charge of DWI. They can attack the validity of any tests that showed they were intoxicated. They can challenge a police officer’s testimony regarding evidence that the person’s driving was impaired.
They can claim that the officer did not have reasonable suspicion to stop them in the first place. They could claim the alibi defense and say they were never driving their car in the location of the stop at the time and on the day in question.
A person’s lawyer might negotiate a dismissal after exchanging evidence with the prosecutor. Or they might have to make a motion to dismiss to achieve the dismissal.
Do I Need an Attorney if I Am Facing a DWI Charge in Texas?
As can be seen, Texas takes DWIs very seriously. All of the above punishments may be reduced or minimized with the help of a knowledgeable criminal defense lawyer. If you have been charged with DWI, you want to consult a local Texas DWI lawyer.
A lawyer can advise you so that you do not incriminate yourself. The lawyer can speak on your behalf so you do not do anything wrong. Remember, anything said to an officer can and will be used against you in court. A lawyer will make sure that all your rights are respected and that you get the best possible outcome.
