Responsible social drinking is not against the law. However, under Texas law, if a driver has lost the use of his/her mental and/or physical faculties OR his/her blood alcohol concentration is .08 or higher, that individual is considered intoxicated. As such, that person should not operate a motor vehicle on a public roadway, operate a watercraft, operate an aircraft or assemble an amusement ride.
There are many downfalls to being convicted of DWI. Obviously, once convicted the citizen will have a criminal record, the citizen's insurance rates are almost certain to rise, The State of Texas will require a fee between $1,000-$2,000 a year for three years to retain a valid driver's license, and DWI is an enhanceable offense.
- The penalty range for a DWI-1st Offense is 0-180 days in jail and/or up to a $2,000 fine.
- The penalty range for a DWI-2nd Offense is 0-365 days in jail and/or up to a $4,000 fine.
- The penalty range for a DWI-3rd Offense is 2-10 years in jail and up to a $10,000 fine.
- The penalty range for a DWI with a passenger under the age of 15 is not less than 180 days in jail or more than 2 years in jail and up to a $10,000 fine.
AS OF SEPTEMBER 1, 2009, THE GOVERNMENT CAN TAKE AN AUTOMATIC BLOOD DRAW OF PERSONS ACCUSED OF DRIVING WHILE INTOXICATED WITH A CHILD PASSENGER UNDER THE AGE OF 15, PERSONS THOUGHT TO HAVE 2 OR MORE PREVIOUS DWI'S AND PERSONS INVOLVED IN AN ACCIDENT.
Officers are trained to detect intoxication. Officers use field sobriety tests to help them determine whether or not they have probable cause to arrest a citizen. As such, just because someone is arrested for an offense does not mean that the citizen is guilty of the offense for which they were arrested. The most commonly used tests by officers are the following:
Horizontal Gaze Nystagmus (HGN) Test (more commonly known as the "Pen-Test")
Many citizens think that because they were able to follow the pen, that they passed the test. That is not necessarily the case. Nystagmus is an involuntary jerking of the eye which has many causes, alcohol only being one of the causes.
Walk and Turn Test
This is a divided attention test where the officer gives instructions, demonstrates the test while the citizen is asked to stand in an awkward position, then the officer asks the citizen to perform the test. The citizen is expected to take nine heel to toe steps and execute a turn with small steps with their hands at their side along an imaginary straight line. This test is graded subjectively by the officer.
One-Leg Stand
This is a divided attention test where the officer gives instructions, demonstrates the test while the citizen is asked to stand in an awkward position, then the officer asks the citizen to perform the test. The citizen is expected to stand with their hands at their side, lift a leg of their choosing in the air approximately six (6) inches off the ground and count aloud. Again, the test is graded subjectively by the officer.
All of the tests are designed for the citizen to lose points and for the officer to detect clues. It is impossible for the citizen to gain points on any of the above tests.
Generally, once the citizen has taken all three of the officer's "Simon Says" tests, the officer will have probable cause and arrest the citizen for DWI. Now is the question of whether or not the citizen will take the breath test.......To Blow, Or Not To Blow...........a simple question and answer ......DON'T BLOW!!
The breath test is not 100% reliable, not always accurate and it has no warranty of any kind. The citizen will not know when the machine was last caliberated or if the person administering the test is certified. When you don't blow, you will probably lose your license for up to 180 days. But, remember, if you blow and blow over .08 your license will be suspended for 90 days, and the government has evidence against you.
A blood draw/test is not 100% reliable either. Alcohol concentration is determined by measuring the number of grams of alcohol per 100 milliliters (g/100mL) of blood. Medical alcohol results in serum and plasma samples are often reported in milligrams of alcohol per deciliter (mg/dL). Milligrams are converted to grams by dividing by 1000 (1 dL = 100 mL). With that, retrograde extrapolation, computations to estimate the blood alcohol content (BAC) at the time of driving, can be helpful evidence and show the actual BAC at the time of the incident. Obviously, a blood test is an intrusive procedure, but we as citizens are stuck with the procedure.
REMEMBER YOU HAVE THE RIGHT TO REFUSE ALL OF THE FIELD SOBRIETY TESTS, INCLUDING THE BREATH TEST. ALSO, YOU HAVE THE RIGHT TO REQUEST THAT YOUR ATTORNEY BE PRESENT DURING ALL QUESTIONING. DO NOT GIVE UP YOUR RIGHTS. PROTECT YOUR RIGHTS AND YOUR FUTURE!
Once arrested for DWI, the citizen will receive some yellow pieces of paper. These are the DIC-24 and DIC-25. The citizen has 15 days from the date of arrest to request a hearing in an attempt to save the citizen's driver's license.
If you have been arrested for DWI, contact Shackelford, Hawkins & Associates, P.C. immediately to protect your rights and your future and have an experienced attorney on your side.
Lubbock- 806-687-4040
Gun Barrel City- 903-887-4878