To build a powerful defense, you must first know exactly what you’re up against. The State has to overcome the highest burden of proof in Texas in order to convict for DWI. They must prove every element of Driving While Intoxicated (DWI) as defined in Texas Penal Code Title 10 Chapter 49:
Sec. 49.04. DRIVING WHILE INTOXICATED. (a) A person commits an offense if the person is intoxicated while operating a motor vehicle in a public place.
The law defines “intoxicated” as having lost the normal use of your mental or physical faculties due to the introduction of any substance including alcohol or a drug or a combination of the two or having a blood alcohol concentration (BAC) of .08 or greater.
“Public place” is defined in Section 1.07 of the Texas Penal Code as any place where the public or a significant portion of the public has access. This includes neighborhoods and the parking lot at Whataburger.
The word “driving” does not appear in the definition. That’s because you don’t necessarily have to be driving.
Operation is somewhat broadly interpreted. If the keys are in the ignition, and the vehicle is on, that could be enough.
Your situation is not hopeless. I don’t care how awful you think the evidence against you may be. My first goal is to get your case dismissed outright.
The best place to start is at the beginning. The officer who pulled you over needed a valid reason (reasonable suspicion) to do so. Most law enforcement vehicles are equipped with video, and most officers are either wearing body cameras or have some wireless audio recording device on their person.
This technology is crucial in tracking the consistency (or identifying the inconsistency) between what the officer said they saw you do, and what you did.
Officers are also often wrong about the law. I have had cases dismissed because an officer cited a traffic violation as the reason for a stop, when, in fact, that particular traffic violation does not exist. You could be 5 times the legal limit. If the stop is unconstitutional, your case will be dismissed.
Probable Cause for Arrest
Even if the stop was “good” – i.e., you were speeding, or ran a stop sign, or red light – the officer still must have probable cause to arrest you. It is important to note that probable cause is a much lower standard than the burden of proof the State must overcome to convict you.
Most officers are going to use the traffic stop encounter to begin investigating whether or not you have been drinking and are impaired. Click here for a field guide on what to do if you are pulled over.
Even if an officer had a good reason to pull you over, he or she cannot then simply just arrest you for DWI. Without evidence of impairment, the arrest can be suppressed. If the arrest is suppressed your case will be dismissed.
You can read about more ways to combat a DWI charge here.
Most everyone facing a DWI charge is released on bond. You can be released on a Personal Recognizance (PR) Bond, a Bail Bond through a bail bondsman, or an Attorney Bond.
When facing your first DWI charge, you typically are going to have very few requirements while your case is pending. You’ll be required to check in regularly, update contact information as it changes, and show up to court.
If, however, you are facing an enhanced DWI because of your BAC or otherwise, you will likely have additional, burdensome, expensive requirements.
If you have been charged with an enhanced DWI then you will likely be required to install an ignition interlock device on every vehicle you drive. Alternatively, you could require to have a mobile device, like Smart Start Mobile, or Soberlink.
With an in-vehicle device, you are only required to give a specimen when operating the vehicle. So, to a certain degree, you have some control over when you give a specimen and when you don’t. The mobile devices, on the other hand, require scheduled blows daily.
Daily blow requirements can be an enormous inconvenience as well as a prime opportunity for you to mess up. A mistake can result in a violation. A violation, depending on your judge, can result in your bond being increased, which means you will be re-arrested, and or have additional, more stringent pre-trial conditions added, such as drug testing or the Secure Continuous Remote Alcohol Monitor (SCRAM) device.
Failure at the pre-trial level can negatively impact your pending criminal case outcome as well. Here’s a link to Bexar Co. Pre-Trial Services.
After being arrested for DWI, you will be read the DIC 24 statutory warning. The officer must read this first before requesting a specimen of breath or blood.
When the officer finishes, you immediately have to answer YES or NO.
If you refuse, the officer cannot force you to take a breath test. People often ask if they legally have to submit to testing at all, and if so, which test to do. Remember, as outlined above (link to implied consent) you have a right to refuse, but that refusal may result in a license suspension.
In some Texas counties, a refusal means the State will not obtain a specimen to use against you at trial. Other counties, like Bexar County, for example, have DWI No Refusal policies.
The No Refusal policy means that if a person refuses to give breath and blood, the officer can get a Search Warrant and forcefully withdraw the blood. If you don’t comply with a warrant is signed they will literally hold you down or strap you down and withdraw blood.
Click here to read more about what can go wrong with Blood and Breath tests.
What is a DUI and What is the possible punishment?
Driving Under the Influence (DUI) is a Class C Misdemeanor. In Texas, it is never permissible for minors to have any alcohol in their body. Unlike DWI, DUI does not require proof of impairment.
Minors and DUI Punishment in Texas
A DUI conviction is a class C misdemeanor that may result in a fine up to $500; 20 to 40 hours of community service; and required attendance of an alcohol awareness program, a drug education program, or a drug and alcohol driving awareness program.
Law enforcement is not required to take a minor into custody for DUI, but may issue a citation to the minor that contains written notice of the time and place the minor must appear in court, and the offense charged.