DWI FAQ

Denton County Criminal Defense Attorneys

At the Law Offices of Tim Powers, our Denton County DWI lawyers are committed to educating individuals of their charges. Below, we have compiled answers to some of the frequently asked questions we receive.

What is a DWI?

DWI, or driving while intoxicated, in Texas means that someone is operating a motor vehicle while intoxicated in a public place. Intoxicated is legally defined in the state of Texas as either 1) Not having the normal use of one's mental or physical faculties, or 2) having an alcohol concentration of .08% or more.

Alcohol concentration can be measured in three different ways. The most familiar is the breath test, but an officer is authorized to take blood or urine as well. Concentration is defined as:

• The number of grams of alcohol per 100 milliliters of blood
• The number of grams of alcohol per 210 liters of breath
• The number of grams of alcohol per 67 milliliters of urine

What is the significance of .08% alcohol concentration?

The legislature decided to make that the cutoff point. Years ago, the cutoff was .10% but legislators were persuaded by experts, concerned citizens, and lobbyists to lower the level. In theory, a person with an alcohol concentration of this much will have lost his or her ability to safely drive a vehicle. But of course, it's never this simple. A .08% BAC level is more or less a reasonable median.

Some experts claim that the limit should be .06% and there's reason to believe we may see a further lowering of the limit in the years to come.

What is meant by "normal" mental and physical faculties?

The answer to this question is at the heart of most DWI trials. If a person is fully drunk, there is no question that he or she has lost normalcy. However, what if this person is not stumbling drunk, but has visible flaws in physical abilities? In theory, the field tests are supposed to reveal these flaws. The problem with the field tests is that they test for physical abilities not everyone possesses.

Normal mental ability is even more difficult to pinpoint. Any normal person – especially an older person – will vary greatly in mental acuity throughout the day. When placed in stressful situations, such as being accused of committing a crime, a person is likely to be nervous and distracted.

Prosecutors like to tell jurors in a DWI prosecution that any mental and physical mistake justifies a conviction. However, a good defense attorney will point out that "normal" varies from individual to individual. If the prosecutor is arguing that the person who dropped their foot while standing on one leg is thereby intoxicated, it is the prosecution's burden to prove that the person is fully able to stand firmly on one leg in all other instances.

At the firm we like to say, "Only God knows when someone is not normal; all others are taking an educated guess."

What are the penalties for a DWI conviction?

In Texas, if you are convicted of your first DWI offense, you will pay a fine no greater than $2,000 and be sentenced to a jail term of no less than 3 days and no more than 180 days in the county jail. This can be probated.

On a second DWI conviction, the maximum fine increases to $4,000 and the jail sentence must be anywhere from 30 days to one year in the county jail. This can be probated.

A third DWI conviction is a third degree felony. The accused will be sentenced from 2 to 10 years in the penitentiary and pay a maximum fine of $10,000. This also can be probated.

DWI convictions with special findings, such as driving with an open container, causing serious bodily injury or death, or driving intoxicated with a child in the car will carry with it enhanced punishments.

Probation is not guaranteed in any DWI case, but if eligible, a defendant can often negotiate probation by plea bargain. Probation becomes more unlikely for repeat offenders and in cases where the DWI resulted in physical injury to another. Further, a second offender must serve 3 days in jail as a condition of probation and an accused convicted of a felony DWI must serve a minimum of 10 days as a condition.

Are there any special bail requirements for someone charged with DWI?

Yes. Texas Statute requires a judge to order a breath test devise be placed on a defendant's car when the defendant has a prior DWI conviction.

Despite the presumption of innocence, judges have the latitude to order any "reasonable" bail condition in DWI cases. Lately, some judges have been ordering a breath test device on the car if you had an accident or if your breath test result was exceptionally high. More and more judges are requiring DWI defendants to be administered by the county pre-trial agency as a condition of bail. This means the defendant must take drug tests and report on a weekly basis.

A good Denton County DWI lawyer can negotiate these conditions with the judge, but the harsh reality is bail conditions are not getting any easier.

Do I have to take a breath test just because a police officer wants me to?

No. An officer cannot force you to blow into a machine. Of course, the state will attempt to punish you for your refusal. DPS is authorized to suspend your driver's license for 180 days if it's shown that at the time you refused, the officer asking you to take a breath test had reasonable suspicion to stop your car and probable cause to believe you were intoxicated.

Will I lose my driver's license automatically if I refuse or fail a breath test?

Nothing in law is automatic. You have a right to contest the officer's decision to stop your vehicle and arrest you for DWI. You have 15 days after an arrest to request a hearing in front of an Administrative Law Judge to determine these issues. If you don't request a hearing, you will lose your driver's license within 40 days.

Do I have to perform field sobriety tests when a law enforcement officer asks me to?

No. Despite the urgency by which the officer addresses you, they are only requesting that you take field sobriety tests. Nothing in the law requires you to stand on one leg or look at a penlight. Of course, if you refuse the tests, the officer may be likely to assume you are guilty. We have represented many people who were assumed to be guilty despite their excellent performance on the officer's field tests!

Can I refuse being videotaped?

No. Unfortunately Texas requires all departments to videotape if the equipment is available and functioning. Some portions of the video may not be admissible. Please remember you are on video.

What is the difference between a field test and a "standardized" field test?

An officer who stops an individual on the side of the road and suspects intoxication can give any number of field tests believed to help make the decision to arrest. The problem with allowing officers to choose their favorite test is twofold. First, it may not be all that effective in determining whether someone has lost his or her normal physical or mental abilities. Second, the scoring on each test is left up to the officer's discretion.

The National Highway Traffic Safety Administration (NHTSA) sought to readdress these problems by developing "Standardized" Field Tests. Three tests were chosen as the most reliable:

• Horizontal Gaze Nystagmus(HGN)
• One-leg stand
• Walk and turn

NHTSA then developed a standard way to give and score each test so that the discretion of each officer was limited.

Officers are taught how to give these tests in service schools certified by NHTSA. An officer becomes certified to give these tests when he or she completes the 40-hour course and gives a certain number of correct HGN tests out on the street.

One goal of developing these tests was to tame the jungle of differing tests and opinions that had developed out on the street. However, law enforcement officers and prosecutors mistakenly imply at trial that these tests are scientific and wholly accurate. Nothing could be further from the truth. Having a person stand on one leg is still just having a person stand on one leg! Calling it "standardized" doesn't imbue it with extra evidentiary value. It is the job of the DWI defense attorney to express this point to the jury.

When do I get to talk to an attorney after being arrested for DWI?

Typically, not until you are arraigned out the next day. Keep our number with you and call us at the first available opportunity. Say as little as possible to the officer or any other members of law enforcement.

How long does a DWI conviction stay on your record?

Currently, forever.

Are there any additional costs other than fines attached to a DWI conviction?

Probation fees and related expenses on a standard one-year probation can total well over $500. Currently, court costs in Denton County for a first DWI is over $ 300. More fees will apply in the event your driver's license is suspended at an Administrative License Revocation hearing or if you are required to obtain an Occupational License. A first time DWI conviction can conservatively cost you more than $6,000, and that doesn't even take into account the increase in your auto insurance!

Is there any difference in the DWI laws for juveniles?

Yes. Anyone under the age of 21 will be judged under a different standard than adults. The law states that a minor commits an offense if he operates a motor vehicle in a public place while having any detectable amount of alcohol in his or her system. This is commonly referred to as a DUI offense. A first conviction for this offense is punishable by a fine up to $500.

A minor between the ages of 17 and 21 doesn't have to be prosecuted for DUI if the officer believes the minor is intoxicated as that term is defined by the penal code. If the minor has demonstrated a loss of normal mental or physical ability or has registered over .08% alcohol concentration, they will be facing the same punishment as an adult.

Driver's license suspension laws are different for minors as well. If a minor takes a breath test and any detectible amount of alcohol is present, DPS is authorized to suspend his or her driving privileges for no less than 60 days for a first alcohol-related driving offense and no less than 120 days suspension for a minor with one previous alcohol related offense.

If my license is suspended in Texas, will it affect me in other states?

It could. Most states have reciprocal agreements which may affect the validity of your driver's license if you are licensed out of state. If you have a Texas driver's license and it is suspended, it is no longer legally valid until you either reinstate your driver's license or obtain an Occupational Driver's License for the suspension period.

If I have priors in other states, can this affect me in Texas?

Yes. First, Texas will recognize suspensions from other states and prevent you from applying for a Texas driver's license during this period. Secondly, if you have a conviction for an alcohol related offense in another state, Texas prosecutors can use this conviction to enhance your punishment for any alcohol related offense committed.

Do I need a lawyer for my DWI case?

If you still have to ask the question, you haven't been paying attention. A DWI charge is not comparable to a traffic ticket. You can lose your driver's license, livelihood, and liberty. A criminal record will haunt you for many years and there is no way to expunge or non-disclose a DWI conviction.

In some courts, the judge will let you discuss your case with a prosecutor on your own. They will gladly allow you to waive your rights to a lawyer. Keep in mind, however, that the prosecutors do not represent you, and they won't necessarily be fair. Justice for them may simply be the harshest penalty you agree to accept.

Irrespective of whether you hire an attorney at our firm, we urge you to find legal help from a lawyer you feel comfortable with to represent you in your DWI case. Representing yourself will likely cost you much more over the course of a lifetime than the money you save.