Frequently Asked Questions for Driving While Intoxicated (DWI) and Driving Under the Influence (DUI)

Will I have to go back to jail?

You will probably not have to go back to jail for your first DWI charge unless you chose to. You will not have to go back to jail if I am able to convince the State to dismiss your case or you are found “not guilty” after a trial by judge or jury. Even if convicted for your first DWI, it would be unusual for your sentence to include any jail time. Instead, you can almost certainly get probation. However, I have had clients who chose to complete a short jail term rather than attempting to comply with the terms of a lengthy DWI probation and risk being revoked by the court for violating probation and getting a much longer jail term.

Will a DWI be on my record?

If you are charged with DWI, there are three ways that will  prevent the DWI from being on your record:
(1) Have the case dismissed;
(2) Get the charges  reduced to a lesser  included  offense ike reckless driving;
(3) Win  a  trial  by  judge  or  jury.

There is no deferred adjudication for DWI which is a type of probation that provides an opportunity  to ultimately keep numerous criminal offenses off of your record.

What is DUI?

DUI stands for driving under the influence and is a law that applies to minors or individuals under the age of 21. A minor commits an offense if they operate a motor vehicle in a public place while having any detectable amount of alcohol in their system even if they are not intoxicated. Individuals between the ages of 18 and 20 may also be charged and prosecuted for DWI.

Is it legal to drink an alcohol beverage while driving so long as I am not intoxicated?

No. It is a Class “C” Misdemeanor offense for an individual to operate a motor vehicle and possess an open alcoholic beverage container. The penalty for this offense is enhanced if the driver is arrested for DWI. Moreover, it also illegal for a passenger in a motor vehicle to have an open container unless that individual is a passenger in a limo, bus, taxi or motor home.

Is it legal to drink an alcoholic beverage and then drive without an alcoholic beverage in the vehicle?

Yes – as long as you are not intoxicated.

What does 0.08 mean?

0.08 alcohol concentration  is  defined by the Texas legislature as follows: 0.08 grams of alcohol per 100 milliliters of blood;  0.08 of grams of alcohol per 210 liters of breath;  or 0.08 grams of alcohol per 67 milliliters of urine. You may have realized that it would be possible for an individual to have an alcohol concentration at or above 0.08 when testing from one source (ie. blood) while at the same time have an alcohol  concentration  below 0.08 when testing from another source (ie. breath).   Thus,  for  example, you could have “guilty” blood  and  “not guilty”  breath.

Should I refuse a breath test?

Yes,  you should refuse  the  breath test  unless  you  have  not  had  anything to drink.  The  breath  test machine (Intoxilyzer 5000) makes mistakes as do the people who operate this machine. If the machine is not working properly it may read your breath alcohol concentration at or above the legal limit of 0.08 in error

Can I refuse to take the field sobriety tests?

Yes, you have a choice to refuse to take these tests.  There  are no penalties for exercising this  choice. However, you may still go to jail if the cop  determines  that  he  or  she  has probable  cause  to  arrest  you for  DWI.  Moreover, the police officer may consider your refusal as an admission of guilt.

Should I refuse to take the field sobriety tests?

Yes, you should always refuse to take the field sobriety  tests  even if you have not had alcohol to drink. Quite  simply,  often times the only way to pass the field sobriety tests is to not take them. Even under ideal laboratory conditions, these tests have been proven to be inaccurate at predicting whether or not an individual has a blood alcohol concentration of 0.08  or  higher.  Such  inaccuracies can be magnified  under more realistic roadside conditions meaning that the chances of you being incorrectly  identified as an individual who is intoxicated increase. It is important to note, however, that a refusal of these tests may result in your arrest.

Can a police officer force me to take breath, blood or urine tests?

The general rule  is  that a police officer may not force or compel you to submit to breath, blood or urine tests.  However,  an officer  is  required  by  law to take a specimen of your breath or blood if:  There is a DWI  arrest  and an accident;  The officer has a reasonable belief  that  any  individual  has  died or will die  as a result  of  the  accident or  another individual other  than  the  person  arrested  has  suffered  serious  bodily  injury;  and  the individual arrested for DWI refused to give a specimen voluntarily.

How does the Texas legislature define “intoxicated”?

The Texas legislature defines “intoxicated” in two ways: Not having the normal use of your mental or physical faculties by reason of the introduction of alcohol or drugs (legal and illegal) into your body; or Having and alcohol concentration of 0.08 or more in your body.  A prosecutor  only  needs  to  prove  one  of these definitions along with the other elements of DWI to get a “guilty” finding.

Do I have a choice to refuse to take the breath test, and if so, should I refuse this test?

Yes, you have a choice to refuse to take the breath test as well as blood and urine tests. However, by refusing,  you  violate the implied consent law which states that by driving a motor vehicle  on a Texas roadway,  you have already  implied consented to chemical testing. Thus,  exercising  this choice may result in the suspension of your driver’s license and  the  assessment of  surcharges against you.  Moreover,  your refusal can be used as evidence against you at a criminal DWI trial.

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