Questions and Answers: DWI

Additional Information on DWIs


What is DWI?

DWI is a criminal offense that  says a person may not drive a motor vehicle in a public place while  "intoxicated". The DWI statute does not say driving while drunk or  “drunk driving.” 

What is the legal definition of intoxication?

The legal definition of intoxication in Texas is:

  • Having an alcohol concentration of 0.08 or more 
  • Not having the normal use of  physical faculties by reason 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 substances into the body. 
  • Not having the normal use of  mental faculties by reason 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 substances into the body

The State only needs to prove one of the three ways beyond a reasonable doubt in order to obtain a conviction.

What does ‘normal’ mean?

According to the law, the  definition of the word normal is the average person. The problem is how  do we determine the average person? The law is vague in this subject,  which lends itself for good argument to a jury that everyone is  different and each has his own normal.

What is 0.08-alcohol concentration?

"Alcohol concentration" is defined by statute as:
a. the number of grams of alcohol per 100 milliliters of blood;
b. the number of grams of alcohol per 210 liters of breath; or
c. the number of grams of alcohol per 67 milliliters of urine.

A 0.02 equals one drink. A drink  is 1-¼ ounces of liquor, 1 12oz beer, or 1 glass of wine. It takes one  hour for the body to burn off a 0.02 down to a 0.00. Thus, to reach a  0.08 a person must consume four drinks in one hour.

Am I required to answer any questions, take Field Sobriety Tests, or take a breath test?

Under criminal law, you are not  required to perform any type of test or answer any questions to the  police officer. You have the right to refuse any tests and request an  attorney. However, if you refuse to attempt these tests, the officer  most likely is going to arrest you. Further, the civil law, which your  driver’s license falls under, does not protect you. In fact, when you  applied for your driver’s license you unknowingly consented to any  future tests, if to which you refused you would lose your driver’s  license for a period of six months. The decision is yours and there is a  civil risk (your license), but you do have rights, and should not waive  them. Always request your lawyer and don’t cooperate with anything if  you wish to exercise your rights.

Does a person have a choice to refuse being videotaped?

No. However, although a person has  no right to refuse being videotaped, he does have the right to refuse  to perform any police field sobriety exercises and to refuse to answer  any questions, the answers to which, might be incriminating. Unlike  breath or blood test refusals, there are no penalties for refusing to  perform field sobriety tests or refusing to answer questions while being  videotaped.

Are Field Sobriety Tests very accurate?

If performed in a controlled  environment in the exact proscribed standardized manner, the tests can  be a likely indicator of intoxication. This is hardly done in the  street.

The research conducted by the  National Highway Traffic Safety Administration, the designers of the  tests, concluded the Horizontal Gaze Nystagmus is 77% accurate, the Walk  & Turn is 68% accurate, and the One Leg Stand is 65% accurate only  when administered in the prescribed, standardized manner. Any change  from the standardized manner will compromise the tests validity and make  any result inaccurate. When not conducted properly it becomes an  opinion test of the officer.

Therefore, these tests will  inaccurately claim 23% - 35% of the people tested as intoxicated. Which  when done incorrectly, which is the norm, can drop the accuracy to a  frightening level.

What can affect my performance on Field Sobriety Tests?

Even SOBER  persons can have difficulty with these tests, as stated by The National  Highway Traffic Safety Administration. The reason is as the NHTSA has  admitted, are several factors that affect every person, such as:

  • Age 
  • Being ill 
  • The distraction of traffic 
  • The police car’s strobe lights 
  • Fatigued 
  • Footwear 
  • Lack of coordination 
  • Gusts of wind 
  • Weight 
  • Road or sidewalk conditions 
  • Allergies 
  • Scared 
  • Head lights of traffic 
  • Weather conditions 
  • Being nervousness 
  • Back problems 
  • Leg or knee problems 
  • Inner ear disorders

What is the State's burden of proof to prove me guilty?

The State of Texas must prove your  guilt "beyond a reasonable doubt", which is the highest burden of proof  in the justice system. It is not defined, by Texas law, but can be  easily explained to a jury.

The lowest burden of proof is probable cause. That is how an officer can start an arrest.

The next highest burden of proof is preponderance of the evidence.  This is the amount of proof needed in civil courtrooms involving civil  suites. A preponderance of the evidence is proof amounting to 51% or who  can move the scales of justice.

The next highest burden of proof is clear and convincing evidence.  This is amount of proof that will cause a juror or judge to have a  "firm belief" in the matter to be proved. This is used in custody cases.  Most juries when they hear that the burden of proof is higher than that  to take their kids away from them understand the high level of proof.

Beyond a Reasonable Doubt  is the highest burden of proof. A jury must have more than that  necessary to take your kids away in evidence that you were intoxicated  before they could find you guilty. This is very simple, if a juror has a  single doubt, based on reason, as to a person being intoxicated, they  must follow the law and find them not guilty.

Do I have the right to an attorney before deciding whether to take a breath or blood test?

Texas law does not give you the  right to speak with an attorney prior to making the decision of whether  or not to take the field sobriety tests, the breath test or blood test.  However, the law does not require you to perform any field sobriety  tests or to take a breath or blood test so continue to ask for an  attorney and refuse to cooperate and the likely chances of being found  NOT GUILTY can increase!

How long will a DWI arrest stay on my record?

If you are convicted of the DWI, it will be on your record for life.  Furthermore, a DWI conviction can be used for ten years to enhance your  punishment of you are arrested for DWI again. If you are found Not  Guilty, you can have the arrest and DWI charge "expunged" from your  record.



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