It is the holidays which calls for holiday parties! If you got carried away with holiday spirits and end up getting stopped by law enforcement, here is what you need to know.
Drinking While Intoxicated - Defined
What does it mean to be “under the influence” in Texas? How many drinks is too many?
In Texas, the offense of Driving While Intoxicated is defined by the Texas Penal Code as:
· a person who is intoxicated while operating a motor vehicle in a public place.
In Texas, you are legally intoxicated when:
· you do not have the normal use of mental or 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 substance into the body; or
· you have an alcohol concentration of .08 or more.
In other words, you are presumed intoxicated if your blood alcohol concentration is higher than .08. However, even if you are under a .08 blood alcohol level, you may still be arrested if a police officer thinks you are intoxicated.
What a police officer is looking for when stopping a drunk driver — the evidence.
Most of the time a police officer knows when they are dealing with a drunk driver and there are protocols and procedures they go through to gather all the evidence the prosecution needs to prove you are, in fact, intoxicated. Usually an officer will ask where you were coming from, where you are going, and inevitably, “ How many drinks have you had tonight partner?” These are questions you can refuse to answer pursuant to your Fifth Amendment right not to incriminate yourself, even though the officer may say otherwise. If the officer asks you to exit your vehicle because he/she claims you are slurring your words, have glassy blood-shot eyes, or smell like alcohol, you should ask for a lawyer and stop talking.
(PLEASE NOTE: YOU HAVE THE RIGHT TO REFUSE TO ANSWER ANY QUESTIONS THE OFFICER MAY ASK YOU!)
The officer should stop questioning you at this point. Nevertheless, they will probably still ask questions and you will probably be arrested but the point is not to give the officer any more evidence to use against you in your criminal case.
Once out of your vehicle, the officer will ask you to submit to a series of tests known as Standardized Field Sobriety Tests (SFSTs). Any good defense attorney will advise you to refuse to submit to these tests if you are intoxicated. However, if you are sober and want to try a crack at it, the tests consist of the following:
· the horizontal gaze nystagums (aka follow my finger test),
· the walk and turn test, and
· the one-legged stand.
From all these tests the officer will gather “clues” about your intoxicated state and it will be used against you in your case. If you fail these tests, the officer will either place you under arrest for DWI or ask you to submit to a breath test. This is where things get tricky.
THE BREATH/BLOOD TEST — to blow or not to blow?
Texas has implied consent laws, which means if you refuse to submit to a breathalyzer test your license will automatically be suspended for 90 days (if it’s your first DWI). However, you have 15 days from the day you receive a notice of suspension of your driver’s license to request an Administrative License Review (ALR) hearing and challenge the suspension. A good DWI attorney will do this for you, so you should hire one as soon as possible if arrested!
These ALR hearings can be really helpful in getting your license reinstated or getting your DWI case dismissed. For more information about license suspension and how to get an occupational license call our office at 956-621-1277 to set up a consultation or email us at email@example.com.
If you submit to the breath test and fail, the test sample will be used against you in court. Even if you refuse a breath test, the police can still get a warrant for a sample of your blood.
Cameron County, Texas is a “No-Refusal” County
In several counties in Texas, local authorities have a “no-refusal” policy where police will automatically get a blood-warrant if you are suspected of drinking and driving. It is important to note that Cameron County, Texas is one of those counties that has a “no-refusal” policy.
However, for a police officer, getting a blood warrant may take several hours. An officer has to:
(1) draft an affidavit of why he/she thinks you are intoxicated;
(2) get a magistrate judge to sign it; and
(3) take you to the hospital where a licensed professional will take your blood.
If you end up getting a blood sample taken from you, you might be sober by then (or drunker) depending on how much alcohol you have consumed! These are all important factors to consider and vary from case to case. Depending on the facts, you may have a defense to challenge the evidence or test results. A good defense attorney will be able to help advise you of possible defenses or challenge a faulty blood or breath sample in a DWI case.
DWI Punishment and Penalties
In Texas, if you are found guilty of DWI, you are subject to mandatory fines starting at a minimum of $3,000 all the way up to $6,000, suspended driver's license, and possible jail time.
If you or someone you know has been arrested for DWI call the Sosa Law Office at 956–621–1277 to set up a free consultation or for inquiries, you can email us at firstname.lastname@example.org.