The following Houston DWI Defense FAQ provides answers to questions frequently asked of our attorneys. To consult with one of our experienced Houston DWI defense attorneys, contact us.

What is Intoxication in Texas?

When a person has lost the normal use of his mental faculties or has lost the normal use of his physical faculties because of the introduction of alcohol, a controlled substance, a drug, a dangerous drug, a combination of two or more of those substances, or any other substance into the body, a person is considered to be intoxicated under Texas law. Additionally, if the person has a blood alcohol concentration of .08 or more, the law presumes that person to be intoxicated. The state prosecutor may prove a person is intoxicated by using either one of the above definitions. In fact the State can allege both definitions and allow the jury to convict under either theory – loss of faculties or BAC (blood alcohol concentration) of .08 or more.

How does the Prosecutor Prove Intoxication?

The prosecutor will use a skilled witness, usually a law enforcement officer, to point out to the court or jury that a defendant is intoxicated. This witness will basically be asserting his or her opinion regarding intoxication. In their training, police officers are taught to recognize certain signs of intoxication to assist them in forming their opinion. Are these opinions sometimes wrong? You bet they are! Very often, outside forces have tremendous effects on personal opinions. Police officers are no different than you or I except when it comes to having more training and experience in recognizing the signs of intoxication. When a person, even a police officer, sets out to substantiate a hunch, their opinions are often justified and influenced in a manner consistent with proving the hunch rather than disproving or neutrally evaluating the hunch. This is how their own opinions can lead them to see otherwise innocent behavior as intoxicated behavior.

Even though police officers have some specialized training, they are usually at a disadvantage when it comes to determining what a particular person’s normal mental and physical faculties actually are. The point being, if you don’t know a person’s actual mental or physical faculties, how can you determine whether that person no longer has their normal use of these faculties? Instead, intoxication is determined by opinion – the arresting officer’s opinion as to whether a person is intoxicated or not. Because they know a DWI or DUI case will come down to their opinion and little more, police officers are trained to be very convincing in their testimony, and prosecutors are skilled in bringing out opinion evidence of intoxication. In fact, police officers receive classroom instruction on how to write their reports, how to testify, and what key words and demeanor to use to ingratiate themselves to the jury. Prosecutors too attend specialized education classes focusing on “convicting drunk drivers.”

What Tools are used by Law Enforcement to Prove Intoxication?

Breath Test
When a police officer believes a person has been drinking an alcoholic beverage or is otherwise under the influence of some drug, they will attempt to obtain a breath sample or some other sample in order to check the alcohol concentration of that sample. Are errors made in determining the level of the alcohol concentration? Absolutely! Law enforcement agencies use machines to determine the level of blood alcohol concentration (BAC), and often these machines can be inaccurate. Have you ever got on a scale to check your weight and realized the scale was wrong? No matter how many times you step back on the same scale for additional measurement of your weight, a scale which is incorrectly calibrated will provide the same inaccurate reading. Calibration and many other factors affect the accuracy of the machines used by law enforcement. Will these machines ever be right? Possibly. Your DWI defense lawyer needs to know what to look for in determining if the law enforcement machine made a mistake.

But consider this point: Why would you take the “breath test” in the first place? Knowing the machine can be inaccurate and knowing whether or not you are charged and convicted of DWI can be based on a possible inaccuracy, why give the breath sample? See the information below regarding driver’s license suspension for failing to provide the breath sample.

Field Sobriety Tests
The other tool used in most DWI/DUI cases is field sobriety testing (FST). This is a series of physical exercises used by law enforcement to substantiate their belief that you are intoxicated. These tests include the walk and turn (walking a straight line while walking heel-to-toe), the one leg stand (standing on one leg while holding the other leg out in front of you), and the HGN (horizontal gaze nystagmus or “pen test” where you follow a pen or other object with your eyes). If you perform these tests, the officer will be marking each time you sway, each time you step too wide, each time you wobble or lose your balance. These tests are supposed to assist the officer, and the jury, in determining whether or not you have lost the normal use of your mental or physical faculties, but do you normally walk a straight line by walking heel-to-toe? Do you normally stand on one leg with the other leg extended out in front of you? Of course not! There are many valid and innocent reasons why a person might fail or do poorly on these tests, and those reasons have nothing to do with intoxication.

Do I have to be “Driving” a Motor Vehicle? What if the Car is Parked?

If the State can meet their burden of showing a person was intoxicated, they also have to prove that person was operating a motor vehicle while he or she was intoxicated. You notice the use of the term “operating a motor vehicle” and not “driving”. The Texas statute on DWI/DUI criminalizes the operation of a motor vehicle. Operation can include sitting on the side of the road or in a parking lot with the engine running and the foot on the brake.

Not only must the State prove intoxication, but also the State must prove a person was operating the motor vehicle while intoxicated. Because alcohol affects different people in different ways and because it takes time for ingested alcohol to begin to affect a person’s mental or physical faculties, it is important for the State to prove the timing of the intoxication. While this may seem rather simple, it is actually difficult to do without additional information call extrapolation.

Because alcohol and other substances take a period of time to make an individual intoxicated, there are extrapolation factors which may show at the time of driving, the person was not intoxicated, but may have become intoxicated after the arrest as the alcohol took its affect. For example, a person may have a 0.08 blood alcohol concentration (BAC) at the time of testing, but it has been over an hour since he was driving. If the person was absorbing the alcohol from the stomach into the blood stream after the arrest and while waiting for the test, then extrapolation might indicate the person was below the legal limit while driving. These types of extrapolation factors may cause the State to dismiss a case without the necessity for a trial. Our Houston DWI defense attorneys are trained in the extrapolation factors and have used their experience to benefit their clients.

Absent an extrapolation issue, in most cases, the police officer will testify he observed the person driving, believed the person might be intoxicated, and detained the defendant. The “driving” testimony will often include that the officer was following the person, the person was weaving or had run a stop light, or the person made a wrong turn. Because most cases involve actual driving, the driving facts will most often include some minor traffic violation: speeding, unsafe lane change, no seat belt, or failure to follow a traffic control device.

Once the officer observes a traffic violation, the officer may pull over the driver and temporarily detain the driver. During this detention, the law enforcement officer will usually articulate they observed “signs of intoxication” or “smelled alcohol”. The smell of alcohol or seeing signs of intoxication gives the officer the right to continue the detention of the driver to determine whether or not the driver might be intoxicated. In any detention, the actual detention must be legal for the officer to continue his testimony regarding the signs of intoxication he observed, thus forming his opinion the individual was intoxicated. If the detention was illegal, there will be very important suppression issues that need to be litigated. If an illegal detention is successfully litigated, the officer is foreclosed from testifying about anything he observed or thought from the illegal detention forward. This means if the stop of the vehicle was illegal, then the officer cannot testify about signs of intoxication that he observed, tests that were performed, and breath samples that were obtained. In short, this means the State has no evidence to present to a jury and must therefore dismiss the charges. Again, this is why you must have the right DWI defense for your case.

Also, it is important to realize that many driving while intoxicated (DWI/DUI) charges are filed after an investigation of an accident where the police did not actually witness a person driving. Sometimes the accident investigation even occurs hours after the actual accident. In many cases the State simply can not produce a witness who can testify that the arrested person was actually operating a motor vehicle. In these cases, the State cannot prevail in their criminal charges.

Will I lose my Driver’s License? (License Suspension)

It is important to understand there are two possible means of losing the privilege to drive that both relate to DWI/DUI cases. First, being convicted of driving while intoxicated or under the influence (DWI/DUI) can cause your license to be suspended. Secondly, not taking the breath/blood test or failing the breath/blood test can cause your license to be suspended. We’ll focus on the second issue here.

When someone is suspected of driving while intoxicated or under the influence, the law provides that person will take a breath or blood test (most common being a breath test). If the person passes the breath test, there is no license suspension. However, the person refuses to take the breath test or takes the breath test and fails, the license can be suspended. In either of these cases, the Department of Public Safety will start a civil proceeding to suspend the persons driving privileges. This suspension is automatic UNLESS the person contests the suspension and asks for a hearing. The hearing must be requested within 15 days of the breath test request, otherwise, the suspension automatically takes effect 45 days after the breath test. This hearing is something your Houston DWI defense lawyer should request immediately. So, even if your court date is sometime later, you will want to consult an attorney immediately after your arrest.

Because the suspension is only effective upon “notice to the driver”, law enforcement officers will usually provide you “notice” of their intent to suspend your license by giving you a DIC-25 form during your arrest. With this form, you are allowed to drive for 45 days from the date of your arrest. Again, if you fail to ask for an administrative hearing within 15 days, your driving privileges will automatically be suspended at the end of this 45 day period. Because your driving privileges are so important, you need an experienced DWI defense attorney to request a hearing and represent you during this administrative hearing. If a hearing is timely requested, you can continue to drive using the DIC 25 form until the hearing is held.

The suspension periods are different depending upon many factors including whether a person refused to take the test or failed the test. Assuming a first offender that is over 21, if the person refused to provide a sample of their breath or some other sample to determine the alcohol concentration, the State may suspend that person’s driving privileges for 180 days. If the person provided a breath sample which showed an alcohol concentration of .08 or more, the State may suspend that person’s license for 90 days. Other factors which may change the suspension period are whether or not the person is over 21, whether or not they have prior alcohol related contacts with the law, and whether or not someone was seriously injured or killed as a result of the driving while intoxicated offense.

What happens at the Civil License Suspension Hearing?

First, your DWI defense lawyer should handle this hearing for you. And, in most instances, you will not and should not be present. You should not be present so that the Department cannot call you as a witness to provide evidence against yourself.

At the administrative hearing the State will want to introduce the peace officer’s sworn report. There are many things that can make this document inadmissible or, even if admissible, not sufficient to prove all the necessary elements needed to suspend one’s driving privileges. Your attorney needs to be experienced in recognizing whether the statement comes into evidence and whether it is sufficient to prove up the State’s allegations. A very necessary element is proof that the individual was driving or in actual control of a motor vehicle or a watercraft powered by an engine of 50 horsepower of above. Yes, a boating while intoxicated charge could cause a driver’s license suspension too!

While not all clients will ultimately prevail during this hearing, many do. And, even those who do prevail will benefit greatly from having their attorney cross-examine the arresting officer regarding your case. This testimony will be invaluable as your attorney prepares to defend the criminal case.

If your lawyer prevails in your administrative hearing regarding the civil suspension of your license, your driving privileges will not be suspended unless you are convicted of the criminal charge or you fall into one of the many other categories that would cause your license to be suspended. Our Houston DWI defense attorneys are well versed in the many provisions of the traffic code that can result in a license suspension. We will protect all of your rights and we will advise you of the many pitfalls you face because of the driving while intoxicated charge.