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Texas DWI FAQ

Collin County DWI FAQ


What is the legal definition of intoxication in Texas?

The legal definition of intoxication in Texas is:
• not having the normal use of mental 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 substances into the body; OR
• not having the normal use of 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 substances into the body; OR
• having an alcohol concentration of 0.08 or more.
Remember, the prosecutor only needs to prove one of the three ways to obtain a conviction. If there is no breath or blood test and the person has the normal use of their mental and physical faculties, a jury is required to find the person NOT GUILTY.


By whose "normal mental and physical faculties" are we judged, and just what constitutes "normal"?

A person is charged with not having the normal use of his or her own mental or physical faculties, not those of the Judge, the Prosecutor, or the Jurors. You must also realize that everyone has a "range" of what normal is. It is not one particular point on a scale, and what is normal varies day to day. Some days are better than others. For example, on a scale of 1 to 10, normal is not one particular number, rather it is better described as a range between 3 and 8 for the average person.

What is .08 alcohol concentration?
"Alcohol concentration" is defined by statute as:
a. the number of grams of alcohol per 100 milliliters of blood;
b. the number of grams of alcohol per 210 liters of breath; or
c. the number of grams of alcohol per 67 milliliters of urine.

Does .08 apply to the time of the test or the time of driving?

It is only against the law to drive a car with an alcohol concentration of .08 or greater at the time of driving. If you were above a .08, waited until you were below a .08 and then drove, that does not violate the law. If you are driving below a .08, get stopped and then go above a .08, you did not violate the law. However, depending on when you were tested, the alcohol concentration may be relevant in determining what the actual alcohol concentration was in your body at the time of driving.

The time of the test is a hotly contested issue. It is extremely rare to have a test that was conducted immediately after driving. It is common for a chemical test to be conducted 30, 60, or even 90 minutes after driving. Without knowing how many drinks were consumed, the period of time they were consumed, the type of drinks consumed, and if there was food in the stomach, it is scientifically impossible to determine if the person was over a .08, or more importantly, whether the person was under a .08 and the State's Expert will even admit to this!

What signs do people exhibit while driving under the influence of alcohol?

The following signs listed below are indicators that a person might be driving while intoxicated. This list is based upon research conducted by the National Highway Traffic and Safety Administration (NHTSA):
  • Turning with wide radius straddling center of lane marker
  • Appearing to be drunk
  • Eye fixation
  • Tightly gripping the steering wheel
  • Slouching in the seat
  • Gesturing erratically or obscenely
  • Face close to the windshield
  • Drinking in the car
  • Driver's head protruding from the car
  • Almost striking object or vehicle
  • Weaving
  • Driving on other than designated roadway
  • Swerving
  • Speed slower than 10 M.P.H. below limit
  • Stopping in lane for no apparent reason
  • Following too closely
  • Drifting
  • Tires on center or lane marker
  • Braking erratically
  • Driving into opposing or crossing traffic
  • Slow response to traffic signals
  • Signaling inconsistent with driving actions
  • Stopping inappropriately (other than in traffic lane)
  • Turning abruptly or illegally
  • Accelerating or decelerating rapidly
  • Headlights off at night
Although officers often cite speeding as a "sign of intoxication", speeding is not a recognized indicator by NHTSA. Ironically, the faster you drive, the quicker your reaction time must be and if you are speeding and driving normally, this should be an indicator of sobriety (having the normal use of physical and mental faculties).

Is it legal to drink alcohol while you are driving?

It is a class "C" misdemeanor for a driver to have an open container of alcohol in his/her personal possession. It is also illegal for any passenger to have an open container of alcohol in their possession.

If you are going to a party and take alcohol and subsequently leave with them after the seal has been broken, you potentially can be ticketed for possessing an open container of alcohol. However, you may legally carry them in your car under certain circumstances. First, if the seal has not been broken, you may carry them anywhere in your car (even in your lap). Second, if the seal has been broken, the bottle(s) must be placed in the trunk of your car, or if in a truck or SUV, behind the last row of seats. Therefore, you could go to a party where you did not drink a drop, take a bottle with you home that has a broken seal, put it in the passenger seat beside you and receive a ticket for having an open container in your possession if stopped by the police.

However, if you are a passenger in a bus, taxi, limousine, or living quarters of a mobile home, you can legally consume alcohol while being driven around.

What should I say if I am stopped by a police officer and asked if I have been drinking?

Always be courteous and polite, but do not admit any type of guilt or wrongdoing. Also do not apologize for anything. This is not the time to try and talk your way out of your situation. You will already be nervous enough and the chance of you saying something you do not mean will be greater. Furthermore, Prosecutors are taught to twist and turn everything that you say into an admission and will later argue to the Jury that you were apologizing because you knew you had committed a crime.
At this point the officer has likely already made up his or her mind to have you perform Field Sobriety Tests, so your answers to these initial questions may very well be irrelevant.

What should I do if asked to take Field Sobriety Tests?

If you know that you can pass these tests at the time you are asked to perform them, taking into account all the circumstances surrounding the request, I would suggest attempting them. If you pass them, the officer should let you go on your way. The difficult decision arises when you have never attempted any of these tests before. Are you nervous and scared about being stopped and asked to exit your car? How do you know if you can pass these tests, especially when the officer will not tell you what they are looking for? Further, the National Highway Traffic Safety Administration has admitted that not everyone can successfully perform these tests even when sober!

If you are not sure what to do, respond by stating "Officer, I would like to contact a lawyer before deciding whether or not to take the tests." They most likely will not give you the opportunity, but at this point, you have not refused to perform them. There is a huge difference between refusing to attempt the tests, and asking to talk to a lawyer before deciding what to do. Prosecutors like to argue that the only reason you refused to do the tests is because you knew you could not perform them due to your intoxication level versus our argument that you are making a sound and logical decision by exercising your normal mental faculties in wanting legal advice. Another approach to take is to ask the officer if you are required to perform the field sobriety tests. The answer is no.

The initial research conducted by the National Highway Traffic Safety Administration concluded that the Horizontal Gaze Nystagmus (Eye Test) is 77% accurate, the Walk & Turn is 68% accurate, and the One Leg Stand is 65% accurate, only when administered in the prescribed, standardized manner. Any deviation from the standardized manner will compromise the tests validity. Therefore, even with the most experienced officer and under ideal conditions, these tests will inaccurately label 23% - 35% of the people tested as intoxicated. And remember, these were the best DWI officers under strict surveillance, and that is the best they could do!

The reality is that the officer most likely has already made up his mind to arrest you and the request for field sobriety tests is simply made to get additional evidence against you. Remember, regardless of how well you actually perform the field sobriety tests, it is the officers' opinion on how you performed them that will be held against you.

Am I required to take Field Sobriety Tests?

No! The law does not require that you perform any type of test. You have the right to refuse Field Sobriety Tests. They are merely requests. Interestingly enough, the officer is not required to tell you this.

However, keep in mind that if you refuse to attempt these tests, the officer will likely arrest you. Further, the National Highway Traffic Safety Administration has admitted not everyone can successfully perform these tests even when sober!

The reality is that the officer most likely has already made up his mind to arrest you and the request for field sobriety tests is simply made to get additional evidence against you. Remember, regardless of how well you actually perform the field sobriety tests, it is the officers' opinion on how you performed them that will be held against you.

Are Field Sobriety Tests very accurate?

In a word, NO! See our other post on the reliability of SFSTs. The initial research conducted by the National Highway Traffic Safety Administration concluded that the Horizontal Gaze Nystagmus (Eye Test) is 77% accurate, the Walk & Turn is 68% accurate, and the One Leg Stand is 65% accurate only when administered in the prescribed, standardized manner. Any deviation from the standardized manner will compromise the tests validity.

What can affect my performance on Field Sobriety Tests?

The National Highway Traffic Safety Administration has admitted that even SOBER people can have difficulty with these tests! One's ability to perform the Field Sobriety Tests can be affected by many factors other than alcohol, including;

• Nervousness
• Fear
• Fatigue
• Illness / Allergies
• Traffic
• Wind
• Dust in your eyes
• Head lights
• The police officers strobe lights
• Weather conditions
• Back problems
• Leg and/or Knee injuries
• Inner ear disorders
• Ankle and/or Foot problems
• Road or sidewalk conditions
• Weight
• Age
• Footwear
• Lack of coordination

Why was I arrested when I passed my Field Sobriety Tests?

DWI is an opinion crime and if, in the officer's opinion, you did not pass the field sobriety tests, he or she will arrest you. Another reason is that, because of the society we live in, most officers would rather be safe than sorry and are more apt to arrest people who have alcohol on their breath, regardless of their facilities, which is why you need to hire an experienced DWI lawyer.

Can I refuse to be videotaped?

Although the law does not mandate that a person has to be recorded, if you do refuse to be videotaped, several things may occur. First, the officers may try and forcefully put you in front of the camera because some officers believe they have to videotape you. Second, without being on tape, all a jury will be able to consider is the officer's opinion as to your mental and physical faculties. It has been our experience that arrested people look better on the videotape than what the officers describe in their offense report. If you do not want to do anything on tape, simply inform the officer that you want to speak to your lawyer before doing anything. You will most likely not be given this opportunity to do this, but by making the request you are not refusing to cooperate or do any tests; you are just asking the advice of a lawyer before making a decision. Many jurors have told us in the past that if arrested, they too would want to talk to a lawyer before deciding what to do or not do. This type of decision is also indicative of a person having the normal use of their mental faculties.

The Officer never read me my Miranda rights. Can we get my case dismissed?

Miranda rights only apply to statements made when an officer tries to question you once you are under arrest or " not free to leave". Once this occurs, the officer must read you your Miranda rights prior to asking you any incriminating questions or interrogating you. Texas Courts have ruled, however, that requests to perform Field Sobriety Tests are non-testimonial. Therefore, your response to being asked to count backward or recite the alphabet is admissible. But remember, these are requests, and you are not required to do these tests.

If an officer does ask you questions when you should have been read your Miranda rights, the Court will suppress the questions and your answers, meaning the jury will never hear them and the Judge will order the prosecutor to redact or mute these parts of the video.

What is the State's burden of proof to prove me guilty?

The State of Texas must prove your guilt "beyond all reasonable doubt," which is the highest burden of proof in the justice system. There is no legal definition, so you may wonder how it is explained to the Jury.

The lowest burden of proof is called Reasonable Suspicion. This is level of proof required for an officer to stop or detain you. The officer must be able to state "specific articulable facts" which amount to more than his "hunch" that a crime or traffic violation was occurring or about to occur.

The next burden of proof is called Probable Cause which is "a reasonable belief that a person has committed a crime". The United States Supreme Court has even said that to make a legal arrest, an officer need only testify that there was a "substantial chance" or "fair probability" that a crime or traffic violation has occurred. This low burden explains why many innocent people can be arrested and charged with DWI and why it's very important to hire an experienced DWI lawyer.

The next highest burden of proof is called a Preponderance of the Evidence. This amount of proof occurs in civil courtrooms where people are suing each other for money. A Preponderance of the Evidence is proof amounting to you being 51% correct.

The next highest burden of proof is called Clear and Convincing Evidence. This burden applies to child custody cases. This amount of proof will cause a juror to have a "firm belief" in the matter to be proved. To let the jury understand just how high this burden is, I find a mother on the panel and ask her "Ms. Smith, how much evidence would the government need to have to take your kids away from you?" The answer is typically a lot! I then ask this question to other persons on the Jury and record their answers to use in my closing argument. Jurors have told me that the amount of evidence the government would need to take children away would have ranged from "a whole lot," "tons," "beyond a shadow of a doubt," to "I don't think the government could ever have enough to take my kids away!"

Beyond a Reasonable Doubt is the highest burden of proof. Although not defined, by statute, it is a much higher burden than Clear and Convincing Evidence. Why? Because our freedom is on the line! A jury must have more than "tons" of evidence that you were intoxicated before they could find you guilty. This is a very simple, yet extremely convincing manner of making a jury understand just how much evidence is required before they can convict a person, thus branding them a criminal for the rest of their life. Simply put, if a juror has a SINGLE DOUBT, based on reason, as to a person being intoxicated, the juror is required to follow the law and find the defendant NOT GUILTY.

Do I have the right to an attorney before deciding whether to take a Breath or Blood Test?

Texas law does not give you the right to speak with an attorney prior to making the decision of whether or not to take the Field Sobriety Tests, the Breath Test or Blood Test. Texas law also does not prohibit an officer from allowing you to call an attorney prior to making the decision on whether to take any Field Sobriety Tests or the Breath or Blood Test. Additionally, the law does not require you to perform any Field Sobriety Tests or to take a Breath or Blood Test.

It has been our experience that individuals who request to speak with a lawyer prior to taking a breath or blood test are exercising good, normal judgment. Many jurors have told us in the past that if arrested, they too would want to talk to a lawyer before deciding what to do or not do. This type of decision is also indicative of a person having the normal use of their mental faculties.

Instead of just refusing to take a Breath or Blood Test, you should tell the officer that you are NOT refusing to take the test, only that you want to talk to a lawyer before making that decision. This answer demonstrates you have the normal use of you mental faculties and most of the jurors will be thinking that is what they would want to do if they were under arrest for DWI. After all, most officers , and prosecutors for that matter, would not take the Breath Test either!

How long will a DWI arrest stay on my record?

If you are convicted of the DWI, it will be on your record forever. If you are found Not Guilty, you can have the arrest and DWI charge " expunged" from your record, thus erasing it. No judge, prosecutor, police officer, friend or employer will ever be able to find any evidence of the expunged case.

How will a DWI affect my insurance?

If you are convicted, you can expect your insurance rates to increase 3-5 times over the following years. Your insurance company also may drop you from coverage, thus forcing you to find new insurance.


If you have been arrested for a DWI, FIGHT BACK! Contact a Plano DWI defense attorney at the Zendeh Del Law Firm today.

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