Driving While Intoxicated (DWI) Part 4: Administrative License Revocation

In the State of Texas,  a DWI arrest actually creates two separate cases: both the original criminal charge as processed through the county or district court system, as well as a separate civil proceeding known as Administrative License Revocation. Any driver arrested when they refuse a breath or blood test -or fail the test- will automatically have their license suspended.
The Administrative License Revocation (“ALR”) program was created by the Texas Legislature in 1993 and became effective on January 1, 1995 with the intent "...to provide a fair and efficient administrative hearing process for determining whether the proposed suspension by the Department of Public Safety (“DPS”) of the driver’s license of a person who has been accused of driving or boating while intoxicated (or in the case of minors, driving or boating with any detectable amount of alcohol in their systems) should be upheld".  

Texas maintains an "implied consent" statute, stating that any person who applies for a license to operate a motor vehicle on a public roadway has consented to provide a specimen of breath or blood if arrested for DWI. The implied consent statute also applies to watercraft in Texas.

If you are arrested for DWI and have a Texas driver's license, the police are required to take possession of it and issue you a temporary driving permit that will expire 41 days later. If you request a hearing to challenge the suspension, that will delay any ALR sanctions until a hearing takes place.

ALR suspension are automatic unless you specifically request a hearing to challenge the suspension, in writing, WITHIN FIFTEEN (15) DAYS after receiving notice of suspension from the arresting agency.

Even thought the notice of suspension states that the suspension will automatically begin 41 days, requesting a hearing postpones the suspension from starting until after the hearing actually takes place and an administrative decision is issued by a judge. Further, in the event of an ALR appeal your suspension can be delayed for an additional 90 days.

Burden of proof in an ALR hearing is on the Department of Public Safety: if you or your attorney have made the request for a hearing within the 15 day time limit, the Department of Public Safety must prove the following elements before a suspension can be imposed:

• There must have been reasonable suspicion to stop or probable cause to arrest the driver,
• The person was driving or in actual physical control of a motor vehicle in a public place while intoxicated,
• The person was placed under arrest and was offered the opportunity to give a specimen of breath or blood after being notified both orally and in writing of the consequences of either refusing or failing a breath or blood test, AND
• That the person either refused to give a specimen on request of the officer, or failed a breath or blood test by registering an alcohol concentration of .08 or greater per 100ml of blood or 210 liters of breath.

If you don't have any prior alcohol or drug related offenses during the previous 10-year period, the suspension is usually 180 days in cases where the driver refuses to submit to the test, or 90 days if the test results are above the legal limit.
If you DO have a prior alcohol or drug related charge within the past 10 years, a refusal will result in a two year suspension and a one year suspension if you take the test and the results are above the legal limit.

If no suspension is imposed at the hearing, DPS must return your license; if a suspension is ordered, either automatically or after a hearing, you must submit a reinstatement fee of $125.00 to TDPS before the license will be reinstated. Because reinstatement of your license will be held up until the fee has been both received and entered on the TDPS computer system, it is usually advised to send your fee to TDPS as soon as you find out that a suspension has been ordered.

If you neglect to request an ALR hearing, your license will DEFINITELY be suspended. By requesting a hearing you have a chance to prevent your license from being suspended.
If you have been arrested for DWI you need an experienced criminal defense lawyer to protect your license. Contact Parnham & McWilliams today at (713) 224-3967 

Depending on the circumstances, we may be able to save your license.

Driving While Intoxicated (DWI) Part 3: DWI vs. DUI -Texas Criminal Attorney

Legal terminology may often be confusing, and this becomes apparent when applied to traffic laws- the ones we most commonly run afoul of. Two terms that are often intermingled are DWI (Driving While Intoxicated) and DUI (Driving Under the Influence). In some states the two terms are both used to describe impaired or drunken driving: in others both terms are used, with DWI referring to driving while intoxicated specifically by alcohol and DUI being used when the driver is charged with being under the influence of other drugs. The drugs don't necessarily have to be illegal narcotics for a DUI to be issued - they can simply be over the counter medication or prescription drugs. In some states DUI is a lesser charge signifies a lower degree of intoxication (as determined by a person's blood alcohol level at the time of arrest). For example, New York differentiates between DWI and DUI by establishing a blood alcohol level of .08 as the legal limit for DWI. If a person has a blood alcohol level of .07, the charges may be reduced to a DUI which carries a lesser punishment.

The distinction for the federal government is also based on severity; A DWI is issued when the blood alcohol content (BAC) is over the 0.08 limit, whereas a DUI (a less severe term) applies when a persons BAC is under 0.08. Because individual states have the power to regulate their own DWI/DUI laws the specifics vary across the country.

In Texas, the distinction is relatively simple: DWI is defined in Sec. 49.04. of the Texas State Penal Code and applies to any person over 21 years of age. In Texas, a person is legally intoxicated and may be arrested and charged with Driving While Intoxicated (DWI) with a .08 BAC (blood or breath alcohol concentration). However, a person is also intoxicated if impaired due to alcohol or other drugs regardless of BAC.
Texas DUI specifically refers to minors (persons under the age of 21) who operate a motor vehicle in a public place while having any detectable amount of alcohol in their system. Generally, an offense under this section is a Class C Misdemeanor.

A conviction of DWI or DUI can have serious effects on your employment, insurance costs and many other aspects of your daily life.
If you have been charged with impaired driving you need an experienced criminal defense lawyer. Contact Parnham & McWilliams today at (713) 224-3967 or visit www.parnhamandmcwilliams.com for more information.
Depending on the circumstances, we may be able to save your license.

Driving While Intoxicated (DWI) Part 2: Should I submit to a Breathalyzer or Blood Test? -Texas Criminal Attorney

One of the most frequently asked questions regarding DWI stops is whether or not a driver should submit to a voluntary breathalyzer or blood test when pulled over by the police. 

 Before you can be convicted of driving while intoxicated in the State of Texas, the prosecution must prove beyond any reasonable doubt that you were operating a motor vehicle in a public place while the alcohol level in your blood was over the legal limit, or that you didn’t "possess normal use of your mental and/or physical faculties".
The police are legally limited in their ability to administer certain types of field sobriety tests, and they must rely on your cooperation when performing these tests. Field tests are not always reliable and usually cannot be forced upon a person; in fact all machines used at the roadside are inaccurate for precisely measuring alcohol concentration.
Even if you have not been drinking, several factors can produce a false positive in a field breathalyzer including recent dental work, chemical exposure, and even the Atkins Diet. People who work in the oil field or car body shops and even manicurists are exposed to substances in their work environments which can be mislabeled as "alcohol" by the machine.

The officer may tell you that the results will not be used in court, but this is not true: if you do consent to the roadside test and it reports 0.080 or higher, prosecution of your criminal DWI case has become much easier.

Despite your constitutional protections against self-incrimination, if you refuse a roadside sobriety test the officer will almost certainly arrest you. At this point you will be required to take further, more accurate tests at the police station. Things now become more complicated legally, and it is strongly suggested that you immediately exercise your right to an attorney.

Because Texas has an implied consent clause (Section 724.011 of the Texas State Transportation Code) stating that anyone who is arrested for DWI in Texas "is deemed to have consented... to submit to the taking of one or more specimens of the person's breath or blood for analysis to determine the alcohol concentration or the presence in the person's body of a controlled substance",  you have automatically agreed to take an alcohol or drug test if a police officer deems it necessary by the simple act of getting arrested. However, you still have the right to refuse the breathalyzer and the blood test. This refusal could lead to a suspension of your driving privileges for 180 days if this is your first DWI.
If you refuse to take the breathalyzer or blood test or you accept and fail, you have 15 days to request a hearing to save your license. If you don’t request this hearing within 15 days, you can’t stop your license from being suspended. Nonetheless, it is much harder for the prosecutor to convict you if you have refused all sobriety tests because they don’t have any evidence to use against you.

Police have also adopted "No Refusal" policies in some jurisdictions; if a driver refuses to give a voluntary sample, the police will seek a warrant from a judge authorizing them to take a blood sample to determine the driver's blood alcohol content (BAC).

Generally speaking, the attorneys at Parnham and McWilliams advise clients to refuse a roadside breathalyzer test and immediately exercise your right to an attorney unless you are 100% certain that the test will be clean. 

A conviction of DWI or DUI can have serious effects on your employment, insurance costs and many other aspects of your daily life.
If you have been charged with impaired driving you need an experienced criminal defense lawyer. Contact Parnham & McWilliams today at (713) 224-3967 or visit www.parnhamandmcwilliams.com for more information.
Depending on the circumstances, we may be able to save your license.

 

Driving While Intoxicated (DWI): Texas Criminal Attorney

In Texas the legal limit for intoxication is .08% Blood Alcohol Concentration (BAC) as set out in Title 10, Chapter 49 of the State Penal Code. For commercial drivers the limit is .04%, and no detectable amount is allowed for minors. However, if an officer even suspects your driving is impaired you can still be stopped and arrested for DWI regardless of your BAC. In most cases the suspicion of DWI also gives the police a probable cause to search your vehicle.
It is also illegal to have an open container of alcohol in the passenger area of your vehicle if you’re driving or parked on a public highway. A simple open container violation results in a maximum $500 fine and a Class C misdemeanor, but if you’re arrested for DWI and open container, you’ll get a Class B misdemeanor and a minimum of 6 days in jail.

If you are signaled to stop by police, do your best to pull over immediately. Do not wait to find a parking lot or side street unless the location is immanently hazardous: the police may interpret it to mean that you were trying to avoid them and it will immediately raise suspicion. Come to a complete stop, roll down your window, and stop your engine. Make sure you have your seatbelt fastened. Give the police your driver's license, registration and insurance information as quickly as possible.

•  Don’t talk unless spoken to.
  Answer questions in short, truthful statements. You do not have to speak directly into the officer's face or look the officer in the eyes. The less you say, the less opportunity the police will have to interpret the smell of your breath or speech.
•  If the police ask you to step out of the car do not lean against your car for support or make any physical motions that would cause the police to believe that you may be impaired. Assume that the entire traffic stop is being video taped. Remain where the camera will follow your actions and don't give the prosecution any video evidence that can be used against you.
•  If the police ask you to take a field sobriety test do not argue with them on constitutional grounds: the act of accepting a driver's license automatically grants implied consent for the police to administer tests.
  If you have some underlying medical condition that may prevent you from performing a field sobriety test or may adversely affect the outcome of such a test, inform the officer clearly and politely. The police cannot physically force you to take the test.
  You may refuse to take the field sobriety test, but if you choose to do so immediately exercise your right to an attorney. If you you refuse they will be required to read your rights and warn you of the consequences. At this point you will most likely be arrested.
•  If the police ask you to take a roadside breath test:
  The handheld breath tester is inaccurate and not admissible in court, but police officers will use the test to determine if they can arrest you and proceed with further testing. If you have any suspicion that the test will not come out 100% clean it is advisable to refuse this test and immediately exercise your right to an attorney. The officer will likely urge you to take it, but in most cases they have already made the decision to arrest you at this point and you will still be required to take more accurate tests at the police station.

At the police station, you will be asked to submit to a breath test and a blood test to determine your blood alcohol content. If you fail either of these tests the prosecutor will use the test results against you. If you refuse to take the tests, you should invoke your right to an attorney immediately.

Penalties for DWI in Texas are based on several factors such as age, your license type and circumstances such as passengers in the vehicle or additional violations. A first offense for even basic DWI can result in fines up to $2,000, 3 days to 6 months in jail, license suspension for up to 2 years and mandatory educational programs. Additional offenses are very severe.

Any conviction of DWI can have serious effects on your employment, insurance costs and other aspects of your daily life.
If you have been charged with impaired driving you need an experienced criminal defense lawyer. Contact Parnham & McWilliams today at (713) 224-3967 or visit www.parnhamandmcwilliams.com
Depending on the circumstances, we may be able to save your license.