drinking while driving

Arrested for a DWI?


It’s an important distinction to know that having a drink and then driving is not a crime in the state of Texas. Instead, the law clearly states that a person is only guilty of a crime if they drive while intoxicated. Intoxication is defined in three ways in Texas. First, there is a per se presumption of intoxication if the state can prove at trial that a person was over a .08 on either a breath or a blood test at the time of driving. The other two methods, and the two ways an officer can arrest someone for DWI, is if a person has lost either the normal of use of their mental faculties or the normal use of their physical faculties due to the introduction of an intoxicant.


At the time of driving: The State has the burden to prove beyond a reasonable doubt that a person was intoxicated at the time of driving. Since any tests that are given to a driver are clearly much later in time than the time they were driving, there are some arguments that the state cannot prove what the blood alcohol level was at the time of driving.Driving = Operation: Operation does not necessarily refer to just driving. Operation can mean a person is in the vehicle, a vehicle is not in park, but they are pulled over to the side of the road when an officer spots them. An officer does not have to see someone driving to be able to prove operation. If a key is in the ignition and the vehicle is on, an officer is going to presume operation and a jury just may believe that.Normal Use: An officer observes changes to the normal use of a person’s mental or physical faculties by indicating a person may be slurring their words, stumbling or needing to use something to balance themselves, not being able to answer simple questions, or not following what they say are simple directions. One thing an officer tries to do in every DWI investigation is have a person submit to standardized field sobriety tests (SFSTs). The only purpose of SFSTs is to prove a person lacks the normal use of their physical or mental faculties. The SFSTs consist of three tests.


First and foremost, don’t submit to them. If an officer is asking you to do SFSTs, he probably has already decided you are intoxicated and going to arrest you. All SFSTs do is help the officer prove the case later on. The SFSTs consist of three tests, the Horizontal Gaze Nystagmus (HGN) test, the Walk and Turn test, and the One Leg Stand test. What’s interesting about the latter two tests is they are not really designed for people, even stone cold sober people, to do very well on them. But the officers will definitely, during testimony, make it seem like every minor mistake a person makes proves their intoxication.


The HGN test checks for nystagmus in a person’s eyes. This is the involuntary jerking of one’s eyes, and one way nystagmus is caused is by the introduction of alcohol into a person’s body. An officer will be checking for nystagmus at three different points, and if an officer sees is, they are going to be convinced you are over the legal limit and nothing else matters at that point. You will be going to jail. But that doesn’t stop them from trying to strengthen their case with the next two tests.


In the walk and turn test, an officer first has a person stand in an unnatural position that can take a sober person concentration to stay in while listening to a series of instructions. The officer then gives a brief demonstration and then tells the person to proceed with the test. There is really nothing ‘normal’ in this test, but not following the instructions will be evidence a police officer presents to a jury of intoxication.


The final test given during this part of an officer’s investigation is the one leg stand test. In this test, the officer instructs a person to stand on one leg, with their hands flush to their side, looking at their foot, and counting. The foot should be parallel to the ground. Losing balance while in this unnatural position is further evidence of intoxication to an officer. Again, there is nothing normal about this test.


If an officer pulls you over and smells alcohol, you are likely going to jail for DWI regardless of how well you might perform on the tests. Again, understand, the tests are not designed for anyone to do well on them, so even if you are under the legal limit, you will probably make mistakes on the tests that can be used against you later. You may have heard the phrase “you may beat the charge, but you won’t beat the ride.” That’s exactly what happens if an officer smells alcohol. So, even if you think you are completely sober and will nail the SFSTs, say no. Say as little to the officer as possible. Give them your driver’s license and proof of insurance, and tell them you will consent to nothing and do not wish to speak to them any further, in as few words as possible. Do not argue or be rude to the officer. You are going to jail, and there’s nothing you can do or say to avoid that. Make the case stronger for your attorney, and yourself, by not giving them very much evidence.Do not consent to testing. Force them to go get a search warrant for your blood. When they get the search warrant, submit to the blood draw and do not fight it.Do not talk to anyone about the facts of your case other than your attorney.As soon as you get out of jail, hire an attorney. There is a license revocation process that you only have 15 days from the day of your arrest to request a hearing on. Hiring an attorney immediately will allow your attorney to request that hearing. It’s called an ALR hearing and can be very important to your case. If you don’t request that hearing within 15 days, your license will be suspended and you will have forfeited a discovery opportunity for your attorney.


It may be too late for you to do anything to prevent your suspension, if it’s been more than 15 days. It is also too late for you to not submit to things. But an attorney familiar with how DWIs work in your county could be very beneficial to evaluating your case and putting you on the best course to resolving your case. If it’s been less than 15 days, though, hire an attorney immediately.

the Krause Law Firm practices in Bexar County and surrounding counties. Please contact us for a free consultation about your case.


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