Austin DWI Lawyer & Attorney : Jamie Spencer Law Firm : Serving Travis, Williamson and Hays County

Surfing the blogosphere I run across a post entitled “Examination Blanking Out” by Razeet:

Test anxiety is normal and can even help us function well in testing situations. The problem develops when the level of nervousness is so high that it interferes with what one is there to do.

As a result, with two people taking the exact same test, one might be calm, cool and collected, while the other is a pile of perspiration and blanking out.

Now, his post doesn’t have anything to do with Field Sobriety Tests; more likely he’s talking about studying all semester, and cramming for an exam, and still not doing well.

But DWI lawyers should remember that this phenomenon, that ‘some folks do better than others on tests’, and for a variety of reasons, is a well known fact. Indeed, it should be the theme of most DWI breath test refusal trials: starting in jury selection, bolstered by the arresting officer’s own testimony, and repeated in closing.

A series of questions I use at the ALR hearing to set this defense up goes something like this (answers left out – I don’t really care if the officer disagrees):

• Officer, you agree that folks in the general public vary greatly in their ability to perform physical tasks?
• Some people are gifted athletes, and some people are super klutzy?
• Most people are somewhere in between?
• Like most characteristics, there’s probably a bell curve of natural physical abilities?
• And you’d never met my client before that night?
• And you don’t know where on that bell curve he might fall?
• He might be an Olympic athlete, or he might be uncoordinated, you just don’t know?

I say I don’t care what the officer answers, because a jury will know that the truthful answer to all these questions is 'Yes'. If an officer disagrees, or ‘weasels’ on one of these basic truths, you may even be better off. You can certainly argue that he graded too hard in his evaluation of your client.

The basic point is this: everyone knows that ‘some folks do better than others’ on all types of tests…including DWI field sobriety tests.

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The primary student manual “DWI Detection and Standardized Field Sobriety Testing” published in February 2006 by NHTSA spends less than half a page on its subsection “Visual Detection of DWI Motorcyclists”. It’s in Chapter 5, Phase One “Vehicle in Motion” immediately after the section on visual cue descriptions for auto motorists.

However, in March of 2005 NHTSA published a brochure on the subject entitled “The Detection of DWI Motorcyclists”.

From both sources, the list of driving cues that officers are trained to look for in Motorcycle DWI/DUI cases are listed as either excellent (above 50% chance) or good (30-50% chance):

Excellent Cues

• Drifting during turn or curve
• Trouble with dismount
• Trouble with balance at stop
• Turning problems
• Inattentive to surroundings
• Inappropriate or unusual behavior
• Weaving

Good Cues

• Erratic movements while going straight
• Operating without lights at night
• Recklessness
• Following too closely
• Running stop light or sign
• Evasion
• Wrong way

Good fodder for DWI lawyers in motorcycle cases where the defendant is stopped ‘only’ for speeding (which is pretty common)…page 5 of the brochure:

Motorcyclists stopped for excessive speed are likely to be driving while intoxicated only about 10 percent of the time (i.e., 10 times out of 100 stops for speeding). But because motorcyclists tend to travel in excess of posted speed limits, speeding is associated with a large portion of all motorcycle DWI arrests.

In other words, while only a small proportion of speeding motorcyclists are likely to be considered DWI, the large number of motorcyclists who are speeding results in a large number of DWIs, despite the relatively small probability.

In cross examination, this can be used if the stopping officer testifies that speeding is a sign of intoxication (which belies the common sense of the jury as well).

Also, the officer should be crossed on all the things your client did right: no drifting, no trouble dismounting, etc.

DWI lawyers should consider asking the officer whether the dismount itself is a useful sobriety test. Many officers will openly scoff at the notion…that’s fine. Prod him to insist that only the NHTSA field sobriety tests are appropriate for evaluating the likeliness of intoxication or impairment.

Then have him read this paragraph from pp7-8 from the NHTSA brochure:

Trouble with Dismount

Parking and dismounting a motorcycle can be a useful field sobriety test. The motorcyclist must turn off the engine and locate and deploy the kickstand. The operator must then balance his or her weight on one foot while swinging the other foot to dismount. But first, the operator must decide upon a safe place to stop the bike. Problems with any step in this sequence can be evidence of alcohol impairment.

And having absolutely no trouble with the dismount is at least some evidence of a lack of impairment, correct Officer? (Doesn’t matter how he answers; the jury gets the point.)

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If you have been arrested for DWI in Texas, chances are that your Driver’s License was confiscated before you were released from jail. In that case, you should also have been given several other pieces of paperwork, including a form called the DIC-25.

The DIC-25 is titled “Notice of Suspension” and “Temporary Driving Permit”. Your license is not immediately suspended, as many folks think. Instead this piece of paper serves as your temporary driver’s license. (In Austin DWI cases, the forms are usually yellow.)

About halfway down the page, in a box is some text:

If your Texas driver license was confiscated, this document will serve as your temporary dirving permit. It is subject to the same restrictions and endorsements as your Texas driver license. If you hold a commercial driver license, this permit authorizes the operation of commercial motor vehicles. This permit does not provide you with any driving privileges if you do not have a Texas driver license or if your Texas driver license is expired, suspended, revoked, cancelled, or disqualified. This permit is valid for 40 days from the date of service shown below. If you request a hearing, this permit will remain in effect until the administrative law judge makes a final decision in your case.

So this form is a substitute for your Texas DL. But I usually advise clients to run down to DPS and apply for a Texas ID card. It looks virtually identical to a DL, and you don’t want to wait until you need to get on an airplane to figure out that picture ID’s are useful.

Also, it’s common for folks to ask me whether this permit is good beyond the 40 days. The answer is in two parts:

(a) No, it is only good for 40 days, if you did not request a hearing to contest the suspension within 15 days of the arrest.

(b) If you requested a hearing, then, as the text says “the permit will remain in effect until the administrative law judge makes a final decision” in the ALR hearing. If you hired a DWI lawyer within the time limit, they will usually do this for you. (Although, you should probably ask.)

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Police Officers are trained to look for certain ‘common’ signs of intoxication when evaluating a suspect for DWI. Some of these are thought to be so frequently exhibited in DWI cases, that the local police agencies in Austin have pre-printed forms for probable cause affidavits so that they can quickly check off boxes - and, then, presumably, move on to the next arrest.

The Austin Police DWI affidavit form includes checkboxes for:

• Odor of Alcohol: Strong, Moderate, Faint, None
• Eyes: Bloodshot, Watery, Glassy, Dilated, Constricted
• Speech: Mumbled, Slurred, Confused, Not Understandable, Mushmouthed, Stuttered, Fair, Good, Accent, Thick Tongued
• Balance: Wobbling, Falling, Swaying, Unsure, Needed Support
• Attitude: Excited, Hilarious, Talkative, Uncooperative, Profanity, Polite, Sleepy, Combative, Indifferent, Cooperative, Insulting, Cocky
• Walking/Turning: Falling, Swaying, Staggering, Stumbling

Other than “No Odor of Alcohol,” “Fair/Good” speech, and “Polite/Cooperative” attitude, all the others are arguably signs of intoxication. And the more that are checked off, the more the State believes they have a strong case. 

But aren’t there perfectly good reasons why someone could exhibit several or many of these that aren’t reliable indicators of intoxication? Of course.

Some of the reasons other than intoxication include medical conditions, personality traits and physical characteristics/abilities of each individual. I will explore each of these in upcoming posts.

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Texas law allows a person arrested for DWI to request an ALR hearing “in person” or “by phone”. Is it better to conduct an administrative license revocation hearing live/in person or by telephone?

The best practice is to request a conduct a live/in person hearing. Honestly, I can think of no exceptions to this rule.

There are two main reasons to have a hearing: (1) to keep your client’s license from being suspended in the first place, and (2) to gain an opportunity to cross examine the stopping and arresting officers without the criminal prosecutors present.

A substantial portion of ALR wins comes by default; that is, one of the requested and necessary witnesses fails to show up. Allowing DPS to proceed telephonically greatly increases the chances that an officer will be available. Obviously, it’s much easier for a police officer to literally “phone in” his appearance, than it is to come down to court and testify in person.

But even in cases where you know the witness will show up, it is still the best practice to conduct a live cross examination. 

Sometimes a client comes to see me the day or so after their arrest, and I almost immediately know by looking at their paperwork that the officer will show up at the ALR hearing. For example, the officers on the Austin DWI Task Force are known for always appearing. I have personally cross-examined most of them more than 20, 30, and sometimes 40 times.

But, again, it’s still better to request that the hearing be conducted in person rather than over the phone.

Reason #2 for having the hearing in the first place is seriously compromised when a DWI lawyer decides to just “stay in his office” and “do it on the phone”.

One of my jobs at an ALR hearing is to evaluate the strength of the State’s case against my client. The officer’s demeanor, appearance, and overall savvy on the stand can not be effectively gauged over the phone. On many occasions, what I initially suspected was a difficult case for my client to win becomes much better after the ALR. The truth is that some folks make better witnesses than others even if the substance of their testimony is identical.

Cross-examination is at least as much art as science, and only a face to face meeting between the DWI lawyer and the arresting officer will accurately reflect what that same testimony will sound like at trial.

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Article 17.441 of the Texas Code of Criminal Procedure requires a magistrate to order a defendant being released on DWI 2^nd or Felony DWI bond to install an ignition interlock device on any vehicle he owns or has access to.

What’s an ignition interlock device? From the statute:

…a device that uses a deep-lung breath analysis mechanism to make impractical the operation of a motor vehicle if ethyl alcohol is detected in the breath of the operator

The condition will be imposed on anyone arrested for DWI with a prior conviction, whether the defendant is released on personal bond, cash or cash deposit bond, surety or bail bond. In Austin, the judge that orders the condition will require a meeting with the County Pretrial Services office within 24 hours of release. The person is then given 30 days to show proof that the interlock has been installed.

Failure to install the device will result in two consequences. First, the bond will be revoked, which will result in a warrant for the person’s arrest. And second, if DPS does not receive proof of compliance, along with another fee, the person’s license will be suspended until such proof is shown.

(Click for contact information about the 3 companies that Austin DWI defendants can use to install an interlock device on their vehicle.)

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The day after I post about possible quotas in Austin DWI arrests, Lawrence Taylor notes that some officers get rewarded for making arrests, whether they result in convictions or not. Since Lawrence is the guru of DUI/DWI blogging out in California, I like to think great minds think alike, and that we are on the same wavelength. But, sticking to the theme, Skelly takes the cake by finding this example: the officer who makes the most DWI arrests wins a Pizza!

Allen Trapp at Georgia DUI Blog comments on a real life example of the low-carb diet producing false alcohol readings. [Low carb dieters generate increased levels of acetones, which the Intoxilyzer 5000 mistakes for alcohol.]

Allen and his blogging partner DUI Rob both comment on the FDA warning requirement for Ambien, Lunestra, etc in Sleep Driving post 1, and Sleep Driving post 2. And for those who thought my recent posts about Ambien DWI, and the Sleep Driving Defense were figments of a defense lawyer’s imagination…please read a well reasoned prosecutor’s perspective on the same issue. (Maybe DWI lawyers aren’t making it all up.)

Wretched of the Earth talks about voir dire in his first Felony DWI trial, specifically the number of folks on the panel who already had friends and family in the system. [And congrats on the win, as well!]

Orange County DUI Blog points out the ineffectiveness of roadblocks and checkpoints.

Kentucky DUI Lawyer Stephen Isaacs talks about the legislature’s attempts to quantify per se levels for DUI/ driving under the influence of drug cases.

Austin criminal defense attorney Keith Lauerman is often in the news for his high profile cases. Give him credit… first he blogs on the new Austin Police Department policy of taking blood by force in DWI cases. And then he follows it up with a post about the age old question…but how would you feel if you were on the other side?

Penny Umstattd-Cope has been ‘blawging’ for some time now at the Missouri Business Lawyer, and the Missouri Divorce Lawyer. She’s added the Missouri Criminal Defense Lawyer to her repertoire, blogging about, among other things, a recent decision by an appeals court denying a drivers license suspension based on the trial court’s determination of insufficient evidence of DWI.

And finally, let’s welcome Lawrence Koplow of Arizona DUI Central to the blogosphere as he writes his first post about points on Arizona’s Drivers Licenses and suspensions. [And kudos to Kevin and the usual gang of suspects at LexBlog for another good looking and professionally designed ‘blawg’.]

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“Does the Austin DWI Task Force have arrest quotas?”

I get asked this semi-frequently by folks recently arrested for DWI. I can tell you that the officers will testify, under oath, that there is not.

And, depending on the definition of the word “quota”, that may or may not be true.

It’s almost definitely true that individual officers are not told “You need to make X number of DWI arrests tonight,” or “You must average Y number of arrests per week/month,” etc.

But I do remember** former Austin police chief Stan Knee being quoted in an Austin American Statesman article, March 4^th, 2006 as saying:

“This community needs to take seriously driving while impaired…We will make 6,000 DWI arrests in 2006.”

Bear in mind that the article itself had just acknowledged that fewer than 6000 DWI arrests were made in Austin for 2005. I think you can make a pretty good argument that the chief of police was coming pretty close to not just predicting, but mandating an increase in arrests.

What’s the difference between telling one individual officer “You must make an average of 5 DWI arrests per shift,” vs. predicting not only an increase, but a threshold level of expected arrests for the department as a whole? Just a little math and some semantics, I suppose.

[**I usually link to sources, but unfortunately, the Statesman free archive does not go back far enough. Anyone caring to pay a “small fee” to access the article can do so here.]

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David Rauf’s article in today’s Austin American Statesman “Lawmakers seek to curb drunken driving; Opponents worry about racial profiling” highlights 3 pieces of DWI legislation now pending:

#1) DWI Roadblocks/Checkpoints

#2) Ignition Interlock for First Time DWI in Texas, and

#3) Creating a Presumption of Guilt for DWI in Texas

The legislators in Austin are presented with multiple bad ideas on the DWI front – and I’ve had to break them up into 3 separate posts.

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From today’s Austin American Statesman article about an unsuccessful attempt to reverse the presumption of innocence for DWI cases in Texas:

A third proposal would have simplified the method used for determining a person's blood-alcohol content at the time he or she was driving.

The proposal, House Bill 915, by Rep. Jimmie Don Aycock, R-Killeen, would have specified that if a driver's blood-alcohol content is higher than the legal limit of 0.08 within 90 minutes of being pulled over, the driver would be considered intoxicated.

"Right now, the problem is you have to prove they were intoxicated while driving," Aycock said. [Emphasis Mine]

So it’s a problem that the State has to meet their burden of proving guilt beyond all reasonable doubt? A problem that can be fixed with some legislation?

Fortunately, this bill was voted down by the House Law Enforcement Committee. I’ve written previously about the “Rising BAC defense” that is available to some DWI defendants in Texas. Being over .08 at the time of the breath test does not necessarily mean you were over .08 at the time of driving.

But some lawmakers objected to “forcing” the State to prove their case, so they attempted to create a presumption that any breath test within 90 minutes of driving would automatically do the trick.

David Gonzalez, counsel for TCDLA and also a local Austin DWI lawyer hit the nail on the head when he…

…said the bill would create a presumption of guilt.

"What that really means is, we need to make it easy for convictions, and when science and other things get in the way, let's disregard them," Gonzalez said.

Politicians can’t change the science of breath or blood alcohol testing…and Texans should continue to object to illogical manipulations of DWI statutes.

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From today’s Austin American Statesman:

House Bill 934 by Rep. Linda Harper-Brown, R-Irving, would require first-time offenders in driving while intoxicated cases to use an ignition interlock device in their vehicles. The driver must blow into the device to have his or her blood alcohol content measured. The car will not start if the driver is legally intoxicated.

Under current Texas law, judges are allowed to use discretion in requiring ignition interlock for first-time offenders.

Opponents of the measure say the bill will strip judges of their discretion.

Fellow Austin DWI Attorney Ken Gibson recently commented on this idea on KXAN’s coverage of this bill:

Gibson said it's the repeat offenders who need ignition interlocks, and requiring them for first-time offenders is a result of aggressive lobbying by the manufacturers.

"Ignition interlock is a multi, multi-million dollar business, and to require everybody to have them in their cars is going to increase their business by a thousand times," Gibson said.

Ken’s right, of course, that the folks that make money installing Ignition Interlocks lobby hard for these types of measures.

And I can add this: most of the people that come to my office after an Austin DWI arrest aren’t alcoholics. Putting aside for now those that aren’t guilty of DWI to start off with, many are primarily my clients for making a one time bad judgment.

And don’t forget that the costs and penalties involved for first time DWI convictions in Texas are already punitive. This pending legislation is a classic example of politicians pandering to knee-jerk reactions, rather than real problems.

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From today’s Austin American Statesman:

Senate Bill 59, written by Sen. Judith Zaffirini, D-Laredo, gives police the authority to set up temporary sobriety checkpoints. The roadside barricades haven't been legal in Texas since 1994. A state court of appeals ruled them unconstitutional because the Legislature had not developed guidelines to ensure they were being conducted legally.

The bill would add (literally) a new chapter to the Texas Code of Criminal Procedure entitled “Sobriety Checkpoints”. This sort of legislation often sounds like a good idea at first…I mean, let’s get those drunks off the roads, right?

But make no mistake about though…this bill will authorize the police to stop vehicles without reasonable suspicion or probable cause.  Non legal mumbo-jumbo translation?... The cops will be able to stop you for any reason, or for no reason at all.

They will then be allowed, after the fact, to “develop” probable cause to believe that an offense has been committed.

Unfortunately, the US Supreme Court has long ago ruled that DWI roadblocks can be constitutional, but the Texas Court of Criminal Appeals has so far not allowed them. This is truly a slippery slope folks…be careful what you wish for.  It's not to late to tell your representatives you oppose this.

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Dr. Greg Kane at Med-Mal Experts has published an excellent 3 part series on the flawed math that NHTSA uses to calculate “accuracy rates” for the Field Sobriety Tests. These papers were originally published in the Colorado Trial Lawyer’s Association magazine Trial Talk, and are now reproduced on Kane’s website “The predictive value of the NHTSA’s Standardized Field Sobriety Tests”.

Ultimately, Kane answers the question that all DWI lawyers need to be asking: What does it really mean when the officer testifies that “failure” of the field sobriety tests means there is a 93% chance that the defendant was intoxicated? How did NHTSA come up with that number…and is it meaningful?

From Kane’s site:

Around the country, DUI defense attorneys form organizations, give seminars and share trial strategies to overcome FST evidence. Prosecutors do the same, from the other direction. The two sides bicker about mechanics. Did the officer follow procedure exactly? Did the officer consider medical conditions that cause incoordination?

What no one does, as far as I can tell, is doubt the NHTSA "validation" contractors' analysis of what a mechanically meticulous coordination test actually implies about alcohol impairment. The driver failed the FST. No one asks, "Exactly what does that mean?"

I have to admit that he’s right. DWI defense lawyers and prosecutors tend to argue back in forth about whether the officer administered the tests properly. And any good DWI lawyer better know the NHTSA manual back and forth, so that when he watches the videotape of his client on the scene, he can evaluate the officer’s performance as well as his client’s.

But is it possible that we in the DWI defense bar have been missing the forest for the trees? I’ve digested the first paper thoroughly, and frankly, am truly excited about Kane’s work in these areas. As soon as I make it through the next two, I’ll post more on this subject.

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That depends on whether it’s a misdemeanor or a felony. First and Second Offense DWIs in Texas are Class B, and Class A Misdemeanors, respectively. Third Offense DWI (and above) are Felonies.

Chapter 12 of the Texas Code of Criminal Procedure covers all of the limitations periods for prosecution in Texas. 

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I was arrested for the first time ever last weekend for DWI. The police officer stated I didn't come to a complete stop at a stop sign and that's why he pulled me over. I thought I did OK on the field sobriety tests but was arrested. Scared and nervous, but I did about as well as I could have on the tests.

At the police station I blew a 0.09. Just a fraction over the limit. I personally knew I was OK to drive the two miles home, but the law is the law.

I cooperated with the officer and did what he asked.

I have two questions: First, the officer did not put on my seat belt after I was placed in the cruiser; second, I was never read my rights. Could these two issues help me in my case?

By the way, I have never been in trouble in my life - ever, and I have clean driving record. I am also 44 yrs old. Any thoughts?

I have several thoughts; let me address some of the un-asked questions first.

I recently posted about the “Rising BAC” defense, and it’s possible it could apply in your case. As you acknowledge, barely over the limit is still over the limit…but the State must prove either (a) loss of the normal use of your mental and/or physical faculties, i.e. impairment or (b) having a breath or blood alcohol concentration of .08 or higher at the time of driving.

Depending on how long it was from the time of the stop until the time of the breath test, it may be arguable that you were under .08 at the time of driving (or, as the law phrases it: “while operating a motor vehicle in a public place”).

Polite and cooperative is always a good fact as well. Most police officers will acknowledge that “some people you have arrested for DWI become quite belligerent and rude”. I like to phrase it as “some people” on cross examination, because frankly, that’s probably the best you can get out of the officer, and anyway, a jury will know that not all who are “drunk” will be impolite.

As I said in the previous post, doing reasonable well on the field sobriety tests is a prerequisite to getting a dismissal, reduction of charges, or not guilty on an “over .08 breath test DWI” case. Sounds like you may have done well on them – obviously, will have to wait to see the video of the tests to know for sure.

The video will also show whether the officer asked questions about when your first and last drink were consumed, when your last meal was, and other questions potentially necessary for the State to prove “over .08 at time of driving”.

As for your actual questions, I don’t think either of those will provide you with a defense. Not seat-belting you in properly sounds like a bad idea; perhaps it’s an indication that he might be a rookie, maybe it shows that he’s sloppy, and that sloppiness might carry over into his grading of your performance on the FSTs. But that’s (1) a bit of stretch, and (2) definitely not the kind of technicality that would make a judge grant a Motion to Suppress the Evidence, or throw your case out.

I’ll post later about DWI officers not reading Miranda warnings to those arrested for DWI (it deserves a post of its own). But suffice it to say here that most officers don’t read DWI defendant’s their rights, nor do they need to.

Statements made by a defendant in response to questioning from an officer after they have been placed under arrest for any offense, without the Miranda warnings are potentially suppressible. But, in most DWI cases, all the evidence gathered against you is taken in the “investigation phase” (most of what you told the officer was before he even administered the tests to you – never mind cuffed you and stuck you in the back of his car).

Thus, the Miranda warnings do not usually apply in DWI cases.

As for never being in trouble before? The prosecutors don’t so much give you credit for lack of a prior record, as they give you grief (and enhanced penalties, fines, jail time, etc.) for it being the second time around.

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Dennis Paxinos, the chief prosecutor for Yellowstone County, Montana, wrote a Guest Opinion column in the Billings Gazette this week entitled “Scientific Test would disprove DUI myth of ‘few drinks’.”

Outraged by the suggestion of legislators in his area that a “few drinks” might accidently put them over the legal limit of .08, he issues a challenge to any two legislators to have drinks and dinner with him with these conditions:

• We all agree to take a breath test on a Portable Breath Test Instrument (PBT) first to make sure we are all starting with a 0.00 BAC.

• The lawmakers, myself and a member of the press will order dinner and drinks and we chat as we would normally for an hour and a half.

• I would then ask everyone to estimate their BAC as well as the BAC of their dining companions.

• We would then be given a preliminary breath test from an officer on stand-by. And, to demonstrate how accurate the PBT tests are, we would then all be driven to the DUI processing center to have our breath analyzed on the Intoxilizer 5000. [sic]

He finishes his challenge by insisting that since the breath test machine will inevitably show them to be “under .08”, they will have to make a statement on the floor of the House or Senate that “having a couple of drinks with dinner is perfectly legal”. (Presumably, he means driving after a few drinks at dinner is legal.)

Ignoring for now his implication that being under .08 would automatically make someone not guilty, let’s analyze what’s wrong with his so called scientific challenge…

He assumes that the Intoxilyzer 5000 gives an accurate result. (Of course, the PBT that he offers first is so unscientific, that it doesn’t even meet the low threshold for admissibility.) If the machine is so “scientific”, why doesn’t CMI, the manufacturer, allow independent (read: non law enforcement) folks to buy the machine and test it out?

The basis of modern science is peer review; and yet CMI refuses to let their machine be independently tested? Does that sound like science to you?

One last point about his op-ed piece. Paxinos writes:

…having a couple of drinks with dinner is perfectly legal. However, consuming a lot of drinks with or without dinner coupled with driving is against the law and should not be condoned or accepted by anyone.

Thanks for highlighting the problem with DWI/DUI legislation everywhere. Something is fishy when even the prosecutor can’t enunciate a clear cut rule for “how much is too much”. 

If you’re going to write an article mocking the idea that folks don’t always know when they’ve exceeded a .079 breath alcohol content, shouldn’t you yourself be able to define it better than “more than a few drinks, but less than a lot”? Science indeed.

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My boyfriend was recently charged with DWI with a Child Passenger in Midland, TX. When he was pulled over, he performed several field sobriety tests and submitted to a breath test.

The arresting officer didn't state whether he passed or failed and stated he "refused to blow" in his final report. And, an additional breath test was not administered at the jail.

He's in the process of retaining a lawyer referred to him by (someone he knows). The lawyer isn't a DWI lawyer and I've researched him to find most of his cases are trial cases. Is this the lawyer to have?

Actually, I would look for a lawyer that does have trial experience. Prosecutors know which lawyers will and won’t try cases, and, all other things being equal, probably offer better plea bargains to lawyers who they know can try a case well. Also, I think personal referrals are always a good source for finding a lawyer.

Criminal defense is very different from civil law practice however. You will want to know how much criminal defense, and DWI work any lawyer you hire has under his belt.

Does the state have a case?

This is the basic question everyone wants to know, of course, when they first come to see me as well. Unfortunately, there’s no pat answer to the question. If he did reasonably well on the FSTs, and didn’t provide a breath or blood specimen over the limit, then there’s always room for a valid defense.

Does he, my boyfriend, need to prove he complied with the breath test?

Based on your scenario, he probably took a portable breath test at the scene. For ALR driver’s license suspension purposes, refusing a request to take an Intoxilyzer test at the police station counts as a refusal, whether or not he took a PBT on scene. (And, of course, he doesn’t have to prove he took a breath test – they have to prove he was properly offered a test after the arrest, and that then he refused.)

Should he plead not guilty or try for deferred adjudication?

Unfortunately, there’s no deferred adjudication for DWI in Texas. There are, of course, other negotiable non-DWI options however, even for State Jail Felony DWI arrests.

The lawyer has also told him he may be able to keep this off his record. Is this truthful?

If the case is dismissed, or he is acquitted at a bench or jury trial, he can seek to expunge the arrest from his record.

[From an email I received; names deleted, and my answers in bold.]

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DWI lawyers know that most times their defense will be “the State can’t prove my client was intoxicated”. This usually comes up in breath or blood test refusal cases, where the defendant does well enough (not perfectly, just well enough) on the field sobriety tests.

Sometimes, the defense is that the State can’t prove that my client drove or operated a motor vehicle. This might involve the police arriving on scene after a collision, or after the driver is pulled over on the side of the road.

But the least common DWI defense is what I call the “while defense”. Yes, the state can prove my client was legally intoxicated (at some point). And yes, they can prove he was operating a motor vehicle. But they can’t put both of them together at the same time, and therefore, he wasn’t Driving While Intoxicated.

This defense is realistically possible when the defendant provides a breath or blood specimen where the analysis shows that the alcohol concentration is over .08, but is for example, under .10.

Of course, the defendant didn’t actually provide that specimen while driving, but instead, some time after the fact. I’d estimate that in most Austin DWI cases, my client’s breath or blood sample is taken somewhere between 30 minutes to 2 hours after the arrest. 

Why so long?

Well, there’s sometimes a delay while the original stopping officer waits for an Austin Police Department DWI task force officer to arrive on the scene. That officer then conducts an interview, and administers field sobriety tests. The officer might conduct an inventory of the vehicle, and will certainly read the DIC Statutory Warning to the defendant, asking for a specimen of breath.

Then there’s the trip to the police station, where there may be an additional wait. (The recent addition of the BAT-Mobile, or Breath Alcohol Testing Mobile Unit has cut down that wait – but that’s fodder for another post.) And depending on where in Austin the client was stopped, the trip to the station or the DWI mobile unit can take quite some time as well.

The point is that having a BAC of .085, for example, 30 to 45 minutes after the driving, does not in and of itself prove that the defendant was driving while intoxicated. Depending on various factors, primarily the particular drinking pattern that night and the stomach contents, it is possible for the Defendant’s BAC to be higher at the time of the test, than it is at the time of driving. It is also effected by variations in human physiology as well.

This is most likely in scenarios where the defendant’s last drink was very near the time of driving; which given what happens at closing time, is not an unlikely scenario at all.

This isn’t just some crazy DWI defense lawyer theory here either – it’s both basic common sense, and basic science. So basic, that even the CMI manual for the Intoxilyzer 500 (used for breath tests here in Austin) admits that the defendant’s actual breath alcohol content at the time of the test may be “higher than, lower than or the same as” the BAC at time of driving.

[Last Note: in explaining this over the years, I really have come to label this the “while defense”, because it seems to make sense when I explain it in this context. I should note, however, that the more formal term for it is the “rising BAC defense”, meaning that if the defendant’s BAC was still rising at the time the vehicle was pulled over, then it’s likely that it was below the test measurement at the time of driving.]

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Texas Penal Code § 49.04 DWI carries a special penalty provision, which on its face seems to carry a higher penalty than normal for a Class B Misdemeanor:

…an offense under this section is a Class B misdemeanor, with a minimum term of confinement of 72 hours…

Indeed, “regular” Class B misdemeanors have a punishment range of 0 to 180 days, not 72 hours to 180 days. And I often get asked by potential clients, who have done some DWI research online before coming to see me, doesn’t this mean there’s at least some mandatory jail time for a first offense DWI in Texas, even if the defendant is granted probation?

But the answer is still no. The quickest explanation here is that the statute is referring to the minimum amount of time that can be probated by a judge; but as we will see, that is virtually meaningless.

When someone is convicted of any offense in Texas, and then placed on probation, they have a jail sentence “hanging over their head” as a possible penalty in case they violate their probation. (Think of it as the carrot and the stick.)

And in a DWI probation situation, it’s true that the statute requires the judge to sentence the defendant to 72 hours, or 3 days, as a minimum term of the probated sentence.

Now, in theory, a judge could sentence someone to 2 days in jail, but suspend the sentence, and not require it to be served unless the defendant violated the terms and conditions of their probation, for a regular non-DWI Class B offense. But no sane judge would ever do that. Why?

Well, we’re back to the carrot and the stick. If a defendant were sentenced to 2 days in jail probated for any length of time, they would actually have an incentive to violate their probation. Their “penalty” for violating would entail being taken off probation, and sentenced to a maximum of 2 days.

But they would, by statute, be credited with at least one day for the night they were arrested. And, at least in Austin, they would be given 2 for 1 towards their sentence (the Travis County Jail, like most county jails in Texas, gives 2 days credit for every day actually served). In other words, they would be off probation, and given back time for the time they had already served. That’s not exactly a punishment for violating their probation.

The practical truth is this: whether it’s a shoplifting, possession of marijuana, DWI, or any other Class B misdemeanor, a judge is likely to “sentence” the defendant to something on the higher range of the punishment ladder (like 120 to 180 days) when probating a sentence. This is to ensure that the judge actually has a stick, when they grant that carrot of probation.

(One final quick lawyer caveat as I re-read my entry before posting: I am not saying that probation is mandatory in the first place. Simply that folks shouldn’t read the statute to mean that they are definitely going back to jail, if they end up convicted for DWI.)

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In my last post, “Ambien, Sleep Driving and DWI,” I commented on the FDA’s push to label various sleep medications with warnings about the potential dangers of “sleep driving”. I also mentioned that this lent some validity to the recent spate of sleep driving defense claims we have heard on DWI cases.

But wait, in Texas, intent is not an element of DWI. Section 49.11 says there is no mental state necessary for the State to convict on DWI charges. And Section 49.10 precludes the defense of entitlement to use a drug, whether prescription, over the counter or alcohol. (That means that even though a physician prescribed you the medication, if you knowingly took it and then unintentionally became intoxicated, you have no defense.)

So how is it that the use of Ambien, or any other sedative-hypnotic, could provide a defense to DWI under Texas Law?

After all, the reason there is no intent required for a DWI conviction becomes clear upon reflection… If folks charged with DWI were allowed to, they could argue they had no intent to drive while intoxicated. And in fact, there proof might lie in their very intoxication itself.

(Testimony from the person arrested for DWI: Yes, I drove to the bar. And yes, I knowingly ordered the drinks and consumed them. But after I became intoxicated, I lost the normal use of my mental faculties [the very definition of intoxication for DWI], and plum forgot my original plan to take a cab ride home.)

But the Ambien sleep driving defense does not assert a lack of intent as its basis…but a lack of voluntariness instead. Here’s the difference:

Assault can be loosely defined in Texas as bodily contact that causes the slightest amount of pain to another individual. Yes, pushing and shoving, when someone says ouch, can technically meet the definition of Assault. But the defendant need not intend the harm, only the pushing and shoving.

But say for example someone takes some medication, and has a bad reaction to it, perhaps violently flailing their arms around in some sort of an epileptic like fit. Perhaps they come into contact with someone else, who is injured by this. The reason (in my admittedly unlikely hypothetical) that they would not be guilty of assault is that they did not voluntarily cause the contact in the first place.

Well, that’s also the basis for the sleep driving defense. The new warning labels being required by the FDA on sleeping pills, show us that taking the drug can make a person involuntarily drive their vehicle. 

And while the State need not prove a person intentionally or knowingly became intoxicated, they still must show that the act of operating the motor vehicle in a public place was voluntary.

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The Food and Drug Administration announced today that it was requesting drug companies to include new warnings on some sleeping pill bottles about “complex sleep-related behaviors, which may include sleep-driving. Sleep driving is defined as driving while not fully awake after ingestion of a sedative-hypnotic product, with no memory of the event.” (FDA press release here.)

You may have noticed the recent advertising blitz trumpeting the various benefits of certain sleeping pills, all to help you induce or maintain a good night’s sleep.

You probably also remember last year’s news about Congressman Patrick Kennedy’s low speed car accident, where he claimed…

…that he was apparently disoriented at the time of the crash after taking the prescribed amounts of a sleep aid and an anti-nausea drug.

"I am deeply concerned about my reaction to the medication and my lack of knowledge of the accident that evening." he said.

As Anderson Cooper on CNN noted the next day:

Some people are probably skeptical that a popular drug like Ambien can trigger the kind of behavior attributed to Patrick Kennedy.

What behavior was that?

The report said when the officer approached Kennedy he noticed his "eyes were red and watery, speech was slightly slurred, and upon exiting his vehicle, his balance was unsure."

Those are the classic signs of DWI, found in almost every police report.

And now we find out that it’s not just anecdotal. There is so much scientific evidence now that this can and actually does happen that the FDA wants drug manufacturers to provide warnings for consumers to that effect. 

The drugs include Ambien, Halcion, Lunestra, Seconal and Sonata as well as the lesser known Butisol Sodium, Carbrital , Dalmane, Doral, Placidyl, Prosom, Restoril, and Rozerem.

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Every good DWI lawyer is familiar with the last section in Chapter 8 of the NHTSA DWI Detection and Standardized Field Sobriety Testing Manual that states:

If any one of the standardized Field Sobriety Test elements is changed, the validity is comprised. (***)

Indeed, one of the bedrocks of DWI defense is being able to grade not only the defendant’s performance on the FSTs, but being able to grade the officer’s administration of the tests. In some situations, improper instructions or grading can actually make an individual test or even the entire battery of tests inadmissible.

Unfortunately, for all NHTSA’s efforts to the contrary, there are many problems with these roadside tests – even when administered by the book.   They do not, in fact, allow police officers to accurately determine whether someone is over a .08 blood or breath alcohol content.

Furthermore, most of the better trained officers will admit under cross examination that there is no correlation between some of the tests and “impairment” – I know most of the specialized Austin DWI task force officers will testify to that, because I’ve asked them under oath. 

To the extent that “science” is involved here at all, the only real measurement is between performance on the tests, and being above or below a certain BAC.  Which means there’s an inherent argument for defense lawyers in many DWI breath test refusal cases that the client’s performance on the field sobriety tests is not sufficient proof of intoxication.

(*** Every NHTSA Manual I’ve ever seen actually has this section in ALL CAPS AND BOLD – emphasizing that even NHTSA acknowledges how important this is.)

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Practicing DWI defense in Austin, Texas, I concern myself primarily with the accuracy of the Intoxilyzer 5000, the machine Austin Police Department uses, not the Breathalyzer or Alcotest machines. But I ran across this article about pending litigation in New Jersey regarding use of the Alcotest 7110 in DWI cases, and wondered if anyone else had a similar reaction to the first paragraph:

Police departments in dozens of North Jersey communities could soon begin using a new machine to determine drunkenness among drivers, following a judge's recommendation Wednesday that the device -- although not entirely accurate -- is fairly reliable.

“Fairly Reliable” – is that the standard now? 

I’m trying to see if I can track down the 268 page report that the retired judge submitted to the New Jersey Supreme Court. If and when I find it, I’ll have more later on this subject.

But from what I can tell from the newspaper reports, there appears to be at least an acknowledgment in the report that false high readings can be caused by variables in body temperature. This is also a known problem in some Intoxilyzer breath test results as well.

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Grits for Breakfast comments on a new bill recently filed in the Texas Legislature that would increase the punishment for Intoxication Manslaughter from a second degree felony to a first degree felony, if the victim was an on duty police officer or firefighter.

In layperson terms, that means the maximum punishment would increase from 20 years in prison, to 99 years or life, again, if the victim was a police officer or firefighter.

The punishment for Intoxication Assault would increase from a third degree felony (max 10 years) to a second degree felony (20 years). Intoxication Assault means committing a DWI and causing serious bodily injury, but not death. Again, the increased penalty is for police and firefighters. From Grits’ piece:

If you think a police officer's life is more important than every other citizen and want to exact maximum vengeance, which is all this bill accomplishes, fine ... say so.

But to claim boosting sentences in these rare cases will reduce drunk driving is a politically motivated lie, plain and simple. It will do no such thing.

Some of the proof is in the bill itself. Why is it limited to on-duty police officers and firefighters? Is their life “worth less” when they take off the uniform?

One of the aggravating factors that can increase murder to a capital offense is the victim being an on duty fireman or police officer, but even that requires an element of intent. From Section 19.03 of the Texas Penal Code:

the person murders a peace officer or fireman who is acting in the lawful discharge of an official duty and who the person knows is a peace officer or fireman;

So “plain” murder becomes capital murder, when it is shown that the Defendant knew the victim was a police officer or fireman.

And that illustrates exactly what is wrong with this new piece of legislation. The Texas DWI statutes in Chapter 49 of the Penal Code specifically do away with the typical requirement in criminal cases that there be any intent. Section 49.11(a):

§ 49.11. Proof of Mental State Unnecessary.

(a) Notwithstanding Section 6.02(b), proof of a culpable mental state is not required for conviction of an offense under this chapter.

So we explicitly acknowledge that DWI and related offenses are crimes without intent...so what is the increased penalty for? The random chance that the victim is an on-duty police officer or fireman.

And how can it logically be argued that increasing the penalty for some categories of victims will reduce the rate of DWI, when there is no underlying intent to commit the crime in the first place?

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Ran across a new blog for lawyers that I’m really looking forward to reading from now on. It’s published by Charles Perez and subtitled “Preparation and Presentation of Visual Exhibits at Trial or in Pre-Litigation”.

Having used Power Point in DWI trials before, I was interested in his post on “The (All Too Common) Power Point Presentation”, as well as his observation in another post that when it comes to technology in the courtroom, often less is more.

If you are an attorney practicing DWI defense on a regular basis then this blog should be added to your RSS. I know that here in Austin, the prosecutors have definitely stepped up the quality of their presentations to juries in DWI cases over the last several years.

DWI defense lawyers need to (at least) keep up with the competition.

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Today’s Austin American-Statesman article “Warrants for blood tests in DWI cases increasing” focuses on a growing trend in Travis County Driving While Intoxicated cases.

From small Texas towns to big cities such as Austin and Fort Worth, the practice of using search warrants — traditionally reserved for entering homes and businesses or seizing private property — to obtain the blood of drunken driving suspects is sweeping the state.

In recent months, some law enforcement agencies have begun taking blood in cases in which a suspect is thought to have caused an accident and refused to take a Breathalyzer exam. Others have started doing it when drivers have previous DWI convictions.

Austin Police Department started this practice sometime in the middle of last year:

Austin police Lt. Craig Cannon said officials in the department's highway enforcement division began looking into the practice last year and started using it a couple of weeks later in certain drunken driving cases.

The handful of officers at the department who primarily handle DWI enforcement might seek search warrants for cases in which drivers are suspected of felony drunken driving, which would include driving with children in the car or instances in which a person has been convicted of DWI in the past five years and when drivers caused an accident. Supervisors must sign off on the warrants.

Suspects' blood is drawn by a nurse at the Travis County Jail and taken to the Austin police forensic center, where it is tested. Results are quickly sent back to the DWI team and included in information sent to prosecutors.

I have to agree with David Frank, a fellow Austin DWI lawyer who is quoted as saying:

It seems like an overly invasive procedure to obtain evidence. The invasion into the body is a much more significant invasion than what we usually think of in terms of searching for evidence.

Since this warrant procedure for forcing blood draws from DWI suspects who choose to exercise their right to refuse a breath test is fairly new, I think it’s fair to say that we will be seeing more and more of these cases litigated in the appellate courts in the near future.

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Section 524.021 of the Texas Transportation Code provides that a person’s license will be suspended on the 40th day after receiving the Notice of Suspension, which is, in almost all cases, the night of the DWI arrest. If a hearing is requested within 15 days of the arrest, Section 724.041 provides that the suspension is stayed until a final decision is issued by the judge in the case.

In Austin, final ALR hearings are often not held until several months after the arrest for DWI. During that time period, the defendant is free to drive 24/7 – assuming, of course, that there are no other suspensions in place at the time.

The arresting officer physically confiscates the license from the defendant, usually on scene, and it is not returned with the rest of the person’s belongings when they are released from jail. 

Instead, they get several pieces of paperwork…including a yellow sheet of paper called the DIC-25, which reads “Notice of Suspension – Temporary Driving Permit” at the top. This should be kept in a wallet or purse, and used in lieu of your regular physical license.

If for some reason you, or your lawyer, did not request the ALR hearing to contest the suspension, you will want to start gathering the necessary documents for preparing an Occupational Driver’s License well before the 40th day after the arrest.

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Along with a new look over at the California DUI Blog, Lawrence Taylor shows us ways the State has shifted the burden of proof to the defendant when proving actual BAC at time of driving became too difficult.  

Stephen Isaacs writes an excellent post on some of the inaccuracies of the HGN test.

Allen Trapp has started a series he calls the Top 50 DUI arrests of all time. 

San Diego DUI Info writes about potential immigration consequences for DWI.

John Tarantino reprints his 1998 article about the best strategies for Opening Statements on the National College of DUI Defense Blog. He describes several sample opening themes – good stuff.

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Chapter 724 of the Texas Transportation Code is entitled “Implied Consent” and this law covers the rules regarding driver’s license suspension hearings for Texas DWI breath test refusal cases.

The basic legal premise justifying a DL suspension in refusal cases is that every person that has a Texas driver’s license already agreed to submit to a breath (or blood) test by virtue of applying for the license itself.

724.011 “Consent to Taking of a Specimen” reads in part:

If a person is arrested for …[DWI]… the person 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, drug, dangerous drug, or other substance.

Since, therefore, you already agreed to take a breath test if you were arrested for DWI, the law says that if you refuse, they can suspend your driver’s license. For 180 days.

It’s one of those things that sounds good, but let’s examine it further.

Google defines “logical fallacy” as: “a misconception resulting from incorrect reasoning”, and that sounds good to me. Why then do I call the concept known as “implied consent” a logical fallacy?

“…the person is deemed to have consented…” [emphasis added]

If a person actually, intentionally and knowingly consents to submitting a breath or blood specimen on demand at the time of applying for a Texas driver’s license, then it would logically follow that they have forfeited their 24/7 driving privileges if they subsequently refuse to follow through on that promise.

But that’s not what happens. No one knows that this law exists. Nor is anyone told this when they apply for a license. In fact, most Texans know that it is not a crime to refuse to take a breath test (as it is in some states).

The law merely states that everybody is “deemed” to have consented…which is just legal mumbo jumbo for saying “we presume you have consented, even though you didn’t know you did…”

It might make sense to suspend a privilege such as the right to drive, if a person refused to live up to their end of their bargain; that is, what they knowingly agreed to do when they asked for the license. 

But pretending that everyone knowingly agreed to give a sample of breath, and punishing them for breaking a promise they didn't know they made...well, that's why it's called "Implied" not "Actual Consent".

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Hello Mr. Spencer,

I had a question about an "open container" charge. My wife and I came to visit Dallas, Tx from Oklahoma. We wanted something fun to do so we went to a club. 

When we arrived, we saw two cops on bicycles. They flashed the light on us and did the regular cop thing. All they saw was a small Styrofoam cup. They asked for it and I gave it to them. 

One cop asked what it was. I did not answer because they did not let me answer. So she assumed it was liquor. 

She said it smelled like coke mixed with rum. This cup was only like 1/4 full (3/4 empty). Still unable to say anything they told me to poor it out. So I did. 

Then they wrote me a ticket for "open container-plastic cup w/mixed drink." No one said it was liquor in the cup but the accusing cop. 

All I was able to say was "Yes, the cup was mine", and, "Yes, I do still live in Oklahoma." That's it. Then they left. 

I want to know is this even a valid charge under these circumstances? Does this affect my insurance? Can I beat this?

Dave (Last Name Withheld)

[This was originally a comment left on the Open Container entry. I decided to answer it fully in this new post.]

Dave:

You’re actually asking several good questions. Let me break them down.

What evidence does an officer need to write me a ticket for an Open Container violation?

Well, whatever the officer thinks is justification for the ticket. The legal term here is “reasonable suspicion”, which is an awfully low standard. Not to be silly, but for example here in Austin, they don’t have to convene a jury, or summon a judge out on Sixth Street to merely issue you a ticket.

Most folks who have gotten traffic tickets have heard the officer say that their signature on the copy of the ticket is not an admission of guilt, just a promise to show up in court and take care of it. Basically, a ticket is just a piece of paper, stating the officer’s belief that a crime has been committed.

What evidence does the prosecutor need to convict me, if I take this case to jury trial?

This, of course, is the much higher and more familiar standard of “beyond a reasonable doubt”. In the example you describe, a full litigation of the facts would include filing a Motion to Suppress the Evidence before a trial was even called. 

While there might eventually be enough “evidence” for a Municipal Court judge to allow the case to reach the trial stage, the best lawyers will use this hearing to fully cross examine the officer about her memory, her version of events, and even litigate the issue of preservation of evidence.

Would an Open Container conviction affect my insurance?

I doubt it. But I don’t know. If this was an Open Container in vehicle charge, where the allegation was that you had it in your car, then perhaps – but I don’t really know. Probably depends on your insurance company. 

If this was merely an Open Container ticket for possessing alcohol in a prohibited place, not having anything to do with a car, then I think it’s even less likely. I can’t tell from the information in your email. Still, you don’t want the conviction either way.

Can I beat this charge?

Never any guarantees, but your basic options here are to work out some sort of deferred disposition with a prosecutor, or take it to trial. Most Class C prosecutors aren’t interested in hearing your defense, believing your version over the officer’s, and giving you an outright dismissal. (See this post.)

Deferred Dispositions in Texas are expungeable if successfully completed, and that may be your ultimate goal here.

One more problem for your situation is that living out of State will make it more difficult to “fight” the case, in terms of litigation. That usually takes several trips to Court, and that can become impractical for what is essentially, a traffic ticket level offense, punishable by a maximum of $500.

There may be information on the back of your ticket about how to enter into a deferred by mail (I’m not familiar with Dallas Class C ticket procedures). If not, you may want to contact a criminal defense lawyer there who can help you out.

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I had a DWI client who was initially stopped for making a U-Turn at an intersection in Austin where there was a posted “No Left Turn” sign. Never having seen this exact situation before, I decided to do a little research to find out whether the detention was valid.

Oddly, it turns out that the Texas Transportation Code is nearly silent in terms of laws regulating U-Turns in Texas. Finally I stumbled across something I thought might help in the Austin City Code.

Austin City Code, Title 12, Traffic Regulations, Chapter 12-1 Traffic Regulation and Administration, Section 12 – 1 – 30. That Austin City Code provision says:

§ 12-1-30  U-TURNS RESTRICTED.

The driver of a vehicle may not turn the vehicle to proceed in the opposite direction at:

(1)  an intersection or median opening on a divided street where a posted traffic sign prohibits turning in the opposite direction; or

(2)  a location where the turn is not prohibited, unless the turn can be made safely and without interfering with other traffic.

My argument therefore was that the statute specifically provided that a person may not U-Turn (1) if there’s a “No U-Turn” sign, or (2) if it can’t be done safely.

My client was fortunate that the officer testified at the ALR that there were no other traffic violations besides making a U-Turn where there was a “No Left Turn” sign, that there was not a “No U-Turn” sign, and that the maneuver wasn’t a danger to other traffic around him. 

At the pretrial hearing on the Motion to Suppress, I led the officer through the prior testimony. The judge initially took the case under advisement, asked for briefs and re-argument, and eventually ruled in my client’s favor, granting the Motion to Suppress. All evidence gathered after the detention was “thrown out” (as they say on TV), and it left the State with literally no evidence against my client.

By the way, the State’s argument - and it makes for a pretty good one on a common sense level - is that a U-Turn is necessarily two left turns.

Finally, I should probably point out that this is not only a very specific situation that doesn’t come up very often, and that it only applies in Austin – or other Texas cities with similar Code provisions.

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While the State is allowed to criminally prosecute people arrested for DWI who blow under the .08 limit, the ALR statutes provide that a person’s driver’s license may not be suspended in that situation, if the defendant is 21 or older.

Texas Transportation Code Section 524.012 (c) (1) specifically states:

(c) The department may not suspend a person's driver's license if:

(1) the person is an adult and the analysis of the person's breath or blood specimen determined that the person had an alcohol concentration of a level below that specified by Section 49.01(2)(B), Penal Code, at the time the specimen was taken.

However, for those under 21 who provide a breath specimen above .00 and below .08, the Department of Public Safety will seek the shorter 60 day suspension period for DUIM, driving under the influence by a minor.

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There are 4 basic types of felony DWI in the Texas Penal Code.

The most common of these is probably DWI third, that is, a new DWI charge with two prior convictions. It used to be the law in Texas that if ten years passed from the date of the last DWI conviction, that the new charge was “only” a Class B Misdemeanor, and treated like a DWI first. Then the legislature made it 10 years from the date the person was released from confinement, or probation or parole. More recently, the ten year requirement was abolished, and any prior DWIs are usable for enhancement. This includes out of state DWIs.

The newest type of felony DWI charge is listed in the DWI Chapter of the Penal Code at Section 49.045, DWI with Child Passenger. This statute elevates even a first DWI charge to the level of State Jail Felony, if there is a child under 15 years old in the car. Very often, the State has the same problems proving intoxication that they would in a “regular” DWI charge. However, there are rarely substantive issues regarding the age of the passenger. No prior convictions are required for this to be indicted as a felony.

A third type of Felony DWI in Texas is Intoxication Assault. Section 49.07 is essentially a DWI, with the additional element that the defendant “by accident or mistake…and by reason of …intoxication causes serious bodily injury to another”. There are three basic defenses here: (1) the Defendant was not intoxicated, (2) the injury does not fall into the legal category of “serious bodily injury”, and (3) the intoxication did not cause the injury or accident. No prior convictions are required.

The fourth and final type of Felony DWI is Intoxication Manslaughter. Section 49.08 covers DWI is similar to 49.07, except that the intoxication causes death instead of serious bodily injury. Fortunately, this is the probably the least common type of DWI charge. Both Intoxication Assault and Manslaughter cases usually involve forced blood draws, and are therefore more difficult to defend than other cases. (Blood tests over .08, while not unassailable, are more reliable than breath tests from the intoxilyzer, at least in my opinion.)

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The law in Texas does not say that it’s legal to drive with a breath or blood alcohol concentration of under .08. 

There are two alternate definitions of intoxication in Texas when it comes to DWI. The first, everyone is somewhat familiar with: the .08 BAC per se limit.

The second however, is the alternate definition of intoxication: not having the normal use of your mental and/or physical faculties due to the introduction of alcohol, a controlled substance, a drug, a dangerous drug, a combination of two or more of those substances, or any other substance into the body.

The second definition is what the State uses as their theory every time they prosecute someone in Texas without a breath, blood or urine sample. Or, when the person provides a specimen and it’s under .08.

The law does not say that it is legal to drive if your BAC is under .08; it only gives the State more ways to attempt to prove your guilt if you provide a sample over .08.

Think of it this way: A sixteen year old, weighing about 120 pounds, drinks 2 beers, never having consumed alcohol before. Depending on several factors (size of beer, alcohol content of beer, stomach contents, etc.) it’s very likely that our hypothetical teenager is not over “the legal limit” of .08.

However, since this is his (or her) first time having a beer, he (or she) may indeed be impaired, which is essentially the alternate definition of intoxication for DWI.

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In Texas, the answer is a pretty clear “no” (although the prosecutors will argue that it is).

I’ve written before on the legal theory called “consciousness of guilt”, and in some instances, it makes sense.  However, when it comes to refusing to provide a breath or blood sample after a DWI arrest, the theory is logically useless.

In Texas, you are only asked to provide that evidence after you have already been arrested. After you have been arrested. And you won’t be let go even if the result is under .08 BAC.

When folks blow “under the legal limit”, the State proceeds on the alternate theory that you had lost the normal use of your mental and/or physical faculties - despite being under the “per se” limit of .08.

So, you’ve been arrested and you will be charged with DWI, no matter your response to “Will you take a breath test?”

If you blow over the per se .08 BAC limit, you have just made it more likely that you will be convicted. If you blow under, you don’t get to go home. You are booked into jail and prosecuted anyway.

When you think about it that way, why would anyone submit (unless they’ve literally had nothing to drink in the last twelve to twenty four hours)?

Given the above scenario, isn’t refusing to take the intoxilyzer actually evidence that you have not lost the normal use of your mental faculties?

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Some recent good stuff about DWI and DUI defense around the web that I’ve been meaning to catch up with:

Lawrence Taylor discusses an important random variable in the DWI arrest decision process: the officer himself.

Stephen Isaacs writes about problems correlating standardized field sobriety tests and actual impairment.

Anthony Colleluori educates on the differences between “drinking and driving” and DWI. (The back and forth comment section is as good as the original post – that’s one of the great things about lawyer blogging.)

Pete Guthier posts about a recent news story involving marijuana and driving while intoxicated.

Ken Gibson updates us on the most recent bars the Austin DWI Task Force is targeting. (Also see my past comments on how this practice becomes a self fulfilling prophecy.)

And Matthew Guilfoil starts his recently launched Missouri DWI Blog off with a flurry of posts, including an impressive article on the Missouri requirement that the State prove BAC at time of driving to sustain a driver’s license suspension, and the rising breath alcohol content defense. (Sadly, Texas has no such retrograde extrapolation requirement for its ALR suspensions.)

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Chapter 49 of the Texas Penal Code, known mostly for the Texas DWI statutes, includes the Texas “Open Container” law. When most folks talk about the Open Container law, they are referring to whether or not it is legal to have an open alcoholic beverage (beer, wine, or liquor) in the passenger area of a car.

I usually see two areas of confusion regarding the public’s awareness of this particular charge. These are covered in Section 49.031, Possession of Alcoholic Beverage in Motor Vehicle.

Many people seem to believe that there is a front seat/back seat distinction, but there’s not. Also, drivers and passengers are included. With few exceptions, it’s not legal to have an open container of beer or other alcohol in your car in Texas.

The exceptions? (1) passengers in taxis, buses, limos and (2) motor homes and RVs.

Also, it is legal to keep it in a locked glove compartment or trunk. If the car has no trunk, it may be stored in the area behind the last upright seat.

Assuming that the Open Container violation is the only offense that the officer witnesses, it is one of the few Class C crimes in Texas that the police must issue a citation for, rather than being given the discretion to arrest. (As opposed to seatbelt and most other traffic violations, which are arrestable offenses.)

Finally, this is not to be confused with the DWI with Open Container provision, contained in 49.04, the main Texas DWI statute, which raises the minimum term of confinement for DWI convictions from 72 hours to six days.

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The beauty of the internet is that you can find out everything you need to know, on any subject, including legal topics such as DWI, with just a few clicks. The danger is that free advice is often not worth what you pay for it.

[Yes, as an aside, I’m aware that the purpose of my site is to educate folks arrested in Texas for DWI about the law, and that I don’t charge anything to come here. I suppose that’s why lawyers post disclaimers.]

I ran across the AllExperts site today, and found their “Drunk Driving” section. Most questions are answered by a Michigan lawyer, who appears to cut and paste a stock response of “I don’t practice law in your state, find a lawyer who does”, or “Call me, because your case is in Michigan”. Not too helpful.

However the site also allows for anyone (including non-lawyers) to answer the questions posed, and this is a typical back and forth:

Question: My brother is 18 and just got pulled over in Nevada for drunk driving; they also found marijuana in the car. (Significant amount not sure how much though.) I'm wondering if jail time is a possibility?

Answer: Yes. I would say jail time is possible. I would have to say he needs to speak to a lawyer. I would also say he probably would want to plead it out, yet he should talk to a lawyer. He needs help. Drunk driving and drugs. You should get him help for those two problems. I don't know your state's time with how long people go to jail for the above. You need to ask a lawyer.

Wow. Except for the “ask a (real) lawyer” part that’s just terrible “advice”. It’s clear that the writer answering the question skips over any possibility of the defendant being not guilty of DWI.  Or guilty, but not provably guilty. Or eligibility for probation. Or the chance of completing the recommended alcohol counseling in return for a reduction to a non-DWI charge. Or many other possible outcomes.

Most competent DWI lawyers will offer a free consultation, either in person or on the telephone. In person is always better. In my opinion, it allows the client to properly evaluate the attorney, and find out whether they will be a good fit. Don’t trust anyone who won’t talk to you about the facts of your case, and only wants to talk to you about their fee.

And don’t put too much stock into the free advice forums available on the internet.

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   Hello, Mr. Spencer, I am a very concerned Texan about a DWI charge with a deferred adjudication given back in Nov. 1998 when I was 19 years old. That has been more than eight years ago. When I got a copy of my criminal history I learned that the arrest was made but when it came to final pleading it said "unknown/unreported", but does not say "not guilty", nor "nolo contendere"? 

   What's up with this? I came across your website by accident and I read "there has been no deferred adjudication in Texas for DWI since 1984". Well Mr. Spencer, with all due respect, and I can assure you I am not lying to you, I do have a deferred adjudication on a DWI after 1984.

   Things keeps getting better, at the same time I was concurrently charged with evading arrest (Nov.98) with deferred adjudication, one year of probation. One day when I had to report to my probation officer for my evading arrest charge, I told him about the DWI charge and asked if I was going to serve it concurrently with evading arrest. He said what DWI? He did not know I even had it! 

   He said he was going to look for the report but couldn't find it in his office, and off he went to the city where I was originally arrested and couldn't find it either, and finally sent me to the county clerk office to see if the DWI report was there, neither. I went back to his office and told him what was happening and he said I was lucky that the papers got lost?! Up to date I am 100% sure I did not receive probation for this charge nor A.A. classes nor reported to my probation officer up-to-date. It's been over 8 years.

   What can be done from here should I expunge the record if possible or should I go with motion for non-disclosure? What is your best advice?

[email from “Name Withheld”]

There are several questions in this email; let me try to address them.

First, Deferred Adjudication for DWI, after 1984. While the law was changed to reflect that Deferred was not available to DWI offenders after September 1st, 1984, in fact, many counties kept giving it anyway. I suspect this was because they were unaware of the change in the law.

I know, from gathering prior records on DWI second and felony DWI clients in Austin, whose priors were in other Texas counties, that this happened, because I’ve seen it.  That actually presents some potentially favorable legal issues for the defense regarding enhancement of future DWIs, but I will address that question some other time.

My experience is that 1998 was a little late for any county in Texas to figure that out, but then again, you never know. Basically, if you plead no contest or guilty to the DWI, and the judge said something like “in the interest of justice I’m going to defer a finding of guilt and place you on community supervison…”, then you received deferred, even though technically you weren’t supposed to be able to.

Second, there’s really no such thing as “your criminal history”. Or perhaps I should say it this way: even this long after 9/11, there is no central database for all criminal history records. There’s only a variety of different agencies that have records of your arrest, and not all of them show what the disposition was. Even Texas DPS, which is the closest thing to a central depository for criminal histories, often shows “disposition unknown” as the resolution to cases that were resolved years ago.

You would need to go to the County Clerk’s office in the County in which you were arrested, not where you were supervised for the evading, and do a search for yourself by name and date of birth. In fact, in your case, I advise you to do it immediately, because you want to ensure that you got credit for the probation that you did for both cases.  If that doesn't do it, I'd contact a criminal defense lawyer in that county, and go from there.  If they were in the same county, contact a local attorney.

What you don’t want is some county in Texas thinking you were supposed to be reporting to their probation officer, but never did. If their computer tells them that, they may have issued a warrant for violating probation conditions (even though you were reporting in another county).

As far as expunction vs. motion for non-disclosure, an expunction is better, but you need to find out the disposition of the case, before you’ll be able to know if you are eligible for either.

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One of the especially confusing things that happens during the course of a DWI arrest in Texas comes up at the point the defendant must decide whether or not to submit to a breath or blood specimen analysis.

Most people believe that since they are being asked a question (i.e. “Will you take a breath test?”) that they have a legal right to talk to a lawyer before answering the question. Unfortunately that is not the case.

In fact, insistence on speaking to an attorney before making the decision will lead the officer to mark on the DIC paperwork that you refused to take a breath test. This legal analysis was upheld in Texas Dept. of Public Safety v. Raffaelli, 905 S.W.2d. 773:

After completion of this test, the officer read Raffaelli a statutory warning regarding the possible penalty if Raffaelli refused to give a blood or breath specimen. The officers in the room asked Raffaelli for a breath specimen. Raffaelli insisted on speaking with his attorney. The officers again requested a breath specimen, and again Raffaelli asked for his attorney. The officers treated Raffaelli's failure to consent as a refusal.

The Court of Appeals upheld the license suspension in that case, for the longer suspension period. Other Courts of Appeal in Texas have followed that lead as well. A recent commenter wrote:

I am totally flabbergasted at the DWI criminal system…

Right now I am charged with DWI in NC along with a refusal charge. The officer and I were not getting along at all. There was a lot of yelling and screaming which basically came about through his total disrespectful tone and attitude towards me. When asked if I wanted a witness to the breath test I answered, "Yes, I would like an attorney."

At that point he slammed the phone book down on the table. I simply stated, I don't know anyone around here! He then went back to the desk took out a piece of paper and began writing. 

After he was done he told me to come with him, which I did. He brought me in front of the magistrate and stated, "We have a refusal here”. This cost me a one year revocation of my license which I am fighting, and I have yet to go to court for the DWI charge. 

He never even gave me SFST's. The alcohol he smelled came from a topical medication which contains 67% ethanol. I had not even had a drink that day! Seems police have absolute power when it comes to DUI anymore thanks to MADD.

While his particular case was in North Carolina, the same thing is true for folks right here in Austin and across Texas.

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How much does it cost to be convicted of DWI in Texas? As usual, the answer here varies but let me take a crack at it anyway…

First we’ll assume this is a first time arrest, no collision, basic DWI that a defendant pleads guilty to in Austin.

The fine for a Class B misdemeanor DWI in Texas is “up to” $2000, but this is negotiable, let’s estimate it at an average of $500.

The DPS surcharge for a DWI conviction however is not negotiable, that’s a minimum of $1000 per year for 3 years, that’s $3000. If you provided a breath or blood sample over .16, twice the legal limit, the DPS surcharge is $2000/yr for 3 years = $6000. We’ll estimate this at the $3000 level.

Increase in insurance for a DWI conviction is going to vary greatly, based on your prior driving record, age, number of claims made against you in the past, etc. A very conservative estimate here though is going to be $3000, but probably higher. (And, again, conservative estimate means a low estimate.)

The ALR suspension of your 24/7 driver’s license is for either 90 days if you provided a specimen over .08, or 180 days if you refused to take a breath test. Occupational driver’s license costs in Travis County run approximately $250 for the filing fee, SR-22 insurance coverage for the period of the suspension will be $100-$150, and the reinstatement fee to DPS, which must be paid within 30 days of the ODL being filed, $125. So that’s approximately $475.

Probation costs $62 per month, and at an average of 18 to 24 months for “just” a first time DWI offense, which is common in Austin, you’re looking at $1116 to $1488. We’ll ballpark it at $1200.

Alcohol counseling is mandatory for DWI probations in Texas (or you lose your license again – never mind being sent back to court for a probation violation to face a more serious possibility of jail), and here in Austin, you’ll pay $55 to be evaluated for alcohol problems. The minimum number of classes assigned by the Travis County Counseling and Education Services (TCCES) is two: $10 for the MADD Victim Impact Panel, and $70 for the 12 hour DWI Education program. Minimum of $135.

So far, the cost of the DWI conviction is over $8000, and we didn’t talk about money spent on bail, towing charges to get your car out of impound, attorney’s fees, or court costs.

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Of course, there’s never a general “yes” or “no” answer to this question without knowing the specifics of the case, and what the state’s evidence is going to be.

Assuming though, as in most DWI trials in Texas, that the prosecutor’s evidence will come from one or two officers and the videotape, that the defendant did medium to OK on the tests (no one ever does them perfectly), and that there aren’t any outrageous admissions by the defendant on video (“I’m drunk”, “I had a twelve pack in the last 2 hours”), then the general answer in my opinion is “no, the defendant should not testify”.

Remember that the State’s burden is to prove guilt, and the defense needn’t prove innocence.

Perhaps more importantly, you don’t want this trial to look like a swearing match to the jury. Assault cases, for example, can often come down to the classic “he said, she said” swearing match. But DWIs are fundamentally different.

It’s rarely my theory in a DWI trial that the officer is lying. After all, there’s usually video evidence to show exactly what happened before, during, and after the field sobriety tests.

The theory in most DWI trials is going to be that the defendant’s performance on those so-called sobriety tests is (a) not that bad and (b) equivalent to how he personally might perform on them if he’d had nothing to drink. Then combine that theory with the argument that the state has failed to prove guilt beyond a reasonable doubt.

Not only is a defendant’s testimony unnecessary in that situation, it may backfire. It focuses the jury on a “the cop said this, and the defendant said that” theory of the case instead of a basic, criminal law 101 “the state didn’t prove intoxication” argument.

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I live in Austin, but was pulled over for speeding in Hunt County, Texas. I had had a couple of drinks and submitted a breath sample and came up with a .131. I was arrested for DWI first offense and was also charged with Possession of Marijuana less that 2 oz for a small amount of marijuana I had in the car.

I've never been in trouble with the law before, save for a couple of expired inspection stickers here and there, so I'm filled with a bunch of anxiety as far as what steps I need to take now.

I was given a temporary license that expires on the 27th of this month (December). I've read the form and understand that after 90 days and $125 my license will be reinstated. In the meantime, I'll have to bike it. A co-worker told me that there is a way to get an occupational license. I have tried calling the number on the form but receive no answer to get further information. What steps must I take to get an occupational license?

Second question: I asked a civil lawyer acquaintance for a referral. He told me it would be best to find a lawyer in Hunt County as all charges like DWI and Poss. of Marijuana are handled locally. Do you agree? If so.. can you please make a recommendation for a lawyer?  Is it wise to be represented by somebody in a different county?

Third question: I read about having your charges sealed so that only the state can read your record, but potential employers (nosy neighbors, etc.) will not have access. Do I request this or is this something that is offered by the court?

Fourth question: What are the usual punishments for DWI 1 and Poss. Of Marijuana < 2 oz? In your opinion, what do I need to prepare for as far as fines, classes, probation?

Fifth question: Pardon the vulgarity, but will I be paying out the a** for legal representation? I'm so broke already-- what would you consider a fair cost for representation?

Thank you so much for your time. I truly appreciate any information you can send my way.

Sincerely,

Name Withheld

I received this email a while back, and here was my response:

Taking your questions (somewhat) in order...

I definitely recommend to folks they should hire local counsel, someone who practices regularly in the jurisdiction where they were charged.  I put out a question about Hunt County defense lawyers on the local Austin Criminal Defense Lawyers listserv, and will probably have some answers back soon. Call me this afternoon at (512) 964 9900, and I'll find some folks to recommend to you.

If it has been more than 15 days since you were arrested (and it sounds like it might be), you have unfortunately missed the opportunity to contest your driver's license suspension, but if it's within that time limit, all the more reason to contact an experienced DWI lawyer ASAP.  As for the occupational license, most good lawyers in my opinion will get the documents they need from you, and prepare that for you as part of the DWI representation. Unfortunately, very few jurisdictions have pre-prepared forms for a pro-se defendant to “just fill out” and get an ODL (none, actually, at least that I know of).

Whether or not you can have the records eventually sealed or expunged will depend on how the case is resolved.  The short answer is here is that if you are convicted of the DWI and/or POM you will probably not be eligible. Obviously a .13 breath test case is an uphill battle as far as beating the DWI charge goes, although, I don't know the specifics. First time marijuana offenders often receive deferred adjudication, and that can later be sealed by way of motion for non-disclosure. There is no deferred adjudication for DWI in Texas, so that will have to be dismissed or reduced or changed to a different charge for you to ever be able to erase or seal it.

I think it's usually reasonable to assume that first time offenses of DWI and Possession of Marijuana receive probation not jail, but again, I should probably add all the usual lawyer caveats here: I'm not making any guarantees, I don't have a crystal ball, etc., etc.

As for how much this all costs, I'm sorry but the answer really has to be "it depends".  Representation at the ALR hearing (driver's license suspension) and obtaining an occupational can drive the price up.  I have no idea how fast a case runs in Hunt County, or how many court appearances a lawyer up there would have to make on these cases.  Even for "just" a first time DWI and Marijuana case though, I wouldn't advise scraping the bottom of the barrel, and just hiring the cheapest lawyer you can find.

I hope this was somewhat helpful, and again, call me this afternoon, as I may have some names of recommended lawyers for you.

Jamie Spencer

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The NHTSA DWI Detection and Standardized Field Sobriety Testing Manual has a chapter devoted to “DWI Detection Phase One: Vehicle in Motion”. A list of 24 driving cues which “police officers may use to detect nighttime impaired drivers” is the meat of the chapter.

These same 24 cues are also listed in NHTSA’s booklet “The Visual Detection of DWI Motorists”. The chapter in the manual breaks these driving behaviors, most of which but not all are traffic violations, into four separate categories:

1. Problems Maintaining Proper Lane Position
2. Speed and Braking Problems
3. Vigilance Problems
4. Judgment Problems

The second part of Phase One: Vehicle in Motion is entitled “The Stopping Sequence”. In it, the officer is told to look for how the vehicle responds to the signal to stop (which will almost always be the activation of police overheads). Cues include:

1. an attempt to flee
2. no response
3. slow response
4. an abrupt swerve
5. sudden stop, and
6. striking the curb or another object

In most cases, while my client will probably be spotted initially committing a traffic violation, which may be included in the first 24 driving behaviors, the vast majority of times they exhibit none of the stopping sequence cues.

Absence of these cues, of course, does not prove the absence of intoxication. But, the defense is not required to prove innocence. Secondly, pointing out that all of these behaviors commonly associated with the typical intoxicated driver do not apply to my client can be useful for cross examination of the stopping officer.

[For those interested, The Visual Detection of DWI Motorists is available free of charge in booklet form upon request to: National Highway Traffic Safety Administration – Impaired Driver Division, 400 Seventh Street, SW., Room 5118, Washington D.C., 20590.]

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Washington State DUI Blog objects to law enforcement in his neck of the woods latest advertising campaign, “Drive Hammered, Get Nailed”. I think his criticisms have significant merit:

Law enforcement agencies in the State of Washington adopted, “Drive Hammered, Get Nailed” as a Driving Under the Influence ad campaign slogan. In part this is a lie.

“Drive hammered, get nailed” sends an improper message to the citizenry of Washington State. Washington State does not enforce a Driving While Intoxicated (DWI) criminal law. Washington enforces a Driving Under the Influence (DUI) criminal law.

The former sends a message that the driver must be drunk, intoxicated or “hammered.” The latter only requires a driver to be impaired meaning they are affected by an appreciable degree due to their consumption of intoxicants.

I haven’t seen these signs popping up around Austin yet, and perhaps they’ll never arrive. But his point is valid. The slogan implies you have to be falling down drunk to be arrested, booked, processed, charged, convicted, etc. 

Nothing could be further from the truth. In fact, being .07 is certainly not an absolute defense, at least in Texas. The state just prosecutes you under the alternate theory that you have “lost the normal use of your mental and physical faculties”. (Any wonder DWI lawyers advise folks not to take a breath test?)

I’ve always thought that MADD’s “Buzzed Driving Is Drunk Driving” billboards were a good thing, because that particular catchphrase actually comes pretty close to accurately describing Texas’ DWI law in layman’s terms.  At least it might make people over-cautious, rather than deceive them, as the Washington state slogan does.

One last thought on DUI/DWI public service announcements and billboard: they need to change this commonly seen sign...

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Jon Katz posts about the junk science aspects of the standardized Field Sobriety Tests. Tests able to detect the presence of alcohol, but not the level of alcohol, such as the HGN should be recognized as such.

Lawrence Taylor finds a story about a DWI enforcement officer who himself refused to submit to a breath test when investigated for drunk driving. (That should tell you all need to know about whether or not it is a good idea to provide a breath test.)

George Creal finds himself encouraged by the Palm Beach Police Department’s long standing policy of providing rides home for folks who feel they’ve had too much to drink.

Stephen Isaacs discusses the requirements for probable cause to arrest for DUI.

Washington State DUI Blog describes the Finger to Nose field sobriety test. Despite, as he notes, this not being among NHTSA’s battery of standardized field sobriety tests, it’s not unheard of for me to see it administered to some of my Austin clients accused of DWI. (If I haven’t yet received a response based on my request for the arresting officer’s training records, this can sometimes be an initial indication to me that the officer who arrested my client doesn’t always “go by the book”.)

Guy Sharpe discusses one of the physiological differences between men and women that can lead to an overestimation of true breath alcohol content during testing.

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Alveolar Breath – Breath from the deepest part of the lung.

Blood Alcohol Concentration (BAC) – the percentage of alcohol in a person’s blood.

Breath Alcohol Concentration (BrAC) – The percentage of alcohol in a person’s breath, taken from deep in the lungs.

Clue – Something that leads to the solution of a problem.

Cue – A reminder or prompting as a signal to do something. A suggestion or hint.

Divided Attention Test – A test which requires the subject to concentrate on both mental and physical tasks at the same time.

DWI/DUI – The acronym “DWI” means driving while impaired and is synonymous with the acronym “DUI”, driving under the influence or other acronyms used to denote impaired driving. These terms refer to any and all offenses involving the operation of vehicles by persons under the influence of alcohol and/or other drugs.

DWI Detection Process – The entire process of identifying and gathering evidence to determine whether or not a suspect should be arrested for a DWI violation. The DWI detection process has three phases:

• Phase One – Vehicle in Motion
• Phase Two – Personal Contact
• Phase Three – Pre-arrest Screening

Evidence – Any means by which some alleged fact that has been submitted to investigation may either be established or disproved. Evidence of a DWI violation may be of various types:

• a.  Physical (or real) evidence: something tangible, visible, or audible.
• b.  Well established facts (judicial notice).
• c.  Demonstrative evidence: demonstrations performed in the courtroom.
• d.  Written testimony or documentation.
• e.  Testimony.

Field Sobriety Test – Any one of several roadside tests that can be used to determine whether a suspect is impaired.

Horizontal Gaze Nystagmus (HGN) – An involuntary jerking of the eyes as they gaze toward the side.

Illegal Per Se – Unlawful in and of itself. Used to describe a law which makes it illegal to drive while having a statutorily prohibited Blood Alcohol Concentration.

Nystagmus – An involuntary jerking of the eyes.

One Leg Stand (OLS) – A divided attention field sobriety test.

Personal Contact – The second phase in the DWI detection process. In this phase the officer observes and interviews the driver face to face; determines whether to ask the driver to step from the vehicle; and observes the driver’s exit and walk from the vehicle.

Pre-arrest Screening – The third phase in the DWI detection process. In this phase the officer administers field sobriety tests to determine whether there is probable cause to arrest the driver for DWI, and administers or arranges for a preliminary breath test.

Preliminary Breath Test (PBT) – A pre-arrest breath test administered during investigation of a possible DWI violator to obtain an indication of the person’s blood alcohol concentration.

Psychophysical – “Mind/Body”. Used to describe field sobriety tests that measure a person’s ability to perform both mental and physical tasks.

Standardized Field Sobriety Test Battery – A battery of tests, Horizontal Gaze Nystagmus, Walk and Turn, and One-Leg Stand, administered and evaluated in a standardized manner to obtain validated indicators of impairment on NHTSA research.

Tidal Breath – Breath from the upper part of the lungs and mouth.

Vehicle in Motion – The first phase in the DWI detection process. In this phase the officer observes the vehicle in operation, determines whether to stop the vehicle, and observes the stopping sequence.

Vertical Gaze Nystagmus – An involuntary jerking of the eyes (up and down) which occurs when the eyes gaze upward at maximum elevation.

Walk and Turn (WAT) – A divided attention field sobriety test.

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One of the purposes of allowing cross examination of witnesses is the idea of confronting your accuser. The theory is that the credibility and sincerity of a witness accusing you is best tested by live cross examination.

A few days ago, while sitting in court waiting for my client’s driver’s license suspension hearing to start, I watched an attorney conduct his cross of the officer who administered field sobriety tests to his client. The lawyer had a list of well prepared questions written out, which he then asked of the officer, one by one. Unfortunately, the method he used was basically to have his head down the entire time, reading the questions off of his legal pad.

When the lawyer got to the part about how the officer administered the HGN test, he had a pretty good line of questions he asked, such as:

            How long did you hold the stimulus at maximum deviation?

            How did you measure nystagmus prior to 45 degrees?

            How many total passes did you make during the HGN?

What the lawyer missed, by burying his head in his notes, was that the officer actually pulled a small “cheat sheet” out of his pocket, which gave him all the “correct” answers to these questions. These apparently weren’t notes from this particular arrest (trust me, no officer would make those sorts of detailed notes on every arrest), but just genereal guideline answers.

Not surprisingly, the officer got all of the questions right. But he was just reading his own pre-prepared notes, probably jotted down right of the NHTSA field sobriety test manual itself.

If the attorney had noticed this, he could easily have asked the officer to testify from his own memory of the event, or at least noted for the record that the officer was reading his answers from a sheet. Because he wasn’t paying attention to the witness, he missed this entirely.

One of the reasons I ask for driver’s license hearings in every DWI case is that it gives me the opportunity to cross examine the stopping and arresting officers. Several times, in cases that otherwise seemed somewhat hopeless, I have found out things about a DWI case that are extremely helpful. One of these things can be as simple as… the officer makes a really poor witness.

Complete and thorough preparation for cross examination is essential, but don’t forget to watch the witness testify. Evaluate his demeanor, and always ask yourself this: “Would this police officer make a good witness in front of a jury?”

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The Texas statute covering deferred adjudication probation allows a defendant to plead no contest (or even guilty) to certain charges and be placed on a type of probation that, if successfully completed, leaves the defendant without a conviction. Most offenses under Texas law can then be sealed, through the fairly new Motion for Non-Disclosure process.

Unfortunately, this type of probation is completely unavailable for DWI in Texas, even a first time DWI, no collision, no injury, “just a misdemeanor”, and yes, even if the accused “never had a speeding ticket before”.

But wait, there’s more. In Texas, you can receive deferred adjudication probation for offenses as serious as murder – but not first offense Class B misdemeanor DWI. “For murder?”, I hear you ask…

Well, yes, you can. It’s not likely, but I can pose a hypothetical where a person might receive probation for murder…Suppose a 92 year old great grandfather “pulled the plug” so to speak on his 90 year old wife, and all the evidence showed that he did it because he loved her dearly, and couldn’t bear to see her suffer the indignities that old age had heaped upon her.

Now technically, he intentionally took a human life, which is the basic definition of murder, so he could be prosecuted for that. But a felony prosecutor might (I repeat might) consider a plea bargain for deferred probation, figuring that the defendant was not a danger to society, no benefit would come from incarceration, etc. etc.

And while that might be a stretch, my point here is that deferred adjudication probation is available as a potential option in a murder case. But not for plain-jane first offense DWI.

Why is that? Well, the forces behind the ever increasing penalties for “just” a DWI are very powerful, and legislators don’t like to offend certain lobbying groups. There has been no deferred adjudication in Texas for DWI since 1984, and I certainly don’t see things changing on that front any time soon.

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Nystagmus is an actual medical phenomenon that describes an involuntary eye movement, or ‘ a jerking of the eyes’, as police officers often call it. Nystagmus can be difficult to detect, and has multiple causes, other than alcohol consumption.

Unfortunately, diagnosing both the complex medical condition itself, as well as divining its cause, has been boiled down to a few hours of a two and a half day Field Sobriety Test certification class, and taught to police officers across Texas and the United States as the ‘gold standard’ for DWI detection.

I can’t count the number of times I have heard the phrase “the eyes don’t lie” (from prosecutors, police witnesses, and others in law enforcement). Well, the truth is that when it comes to DWI detection, they do.

This blog will attempt to dissect truth from fiction, and to study what nystagmus is, what it isn't, what causes it, and why police officers so often believe that what they saw on the scene of an arrest during a DWI investigation really isn’t science at all. Stay tuned…

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Folks arrested for first time DWI offenses in Austin often come to my office surprised that their physical driver’s license was taken from them before their release from jail.

Many believe that their license is currently suspended, before they have even gone to court. The truth is that the license suspension is not concurrent with the confiscation that happens the night of the arrest.

In Texas, a person arrested for DWI, whose license was taken before they were released, has the right to contest the drivers license suspension, as long as they (or more likely, their lawyer) makes the proper request to the Texas Department of Public Safety within fifteen (15) days.

This blog will cover issues relating to the Texas Administrative Driver’s License Revocation procedure (the ALR hearing), as well as the process by which a DWI defendant may obtain an occupational license to allow them to keep driving to work, school, church, groceries, and all the important places (not necessarily to all the fun places we like to go sometimes).

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More than half of police officers in Texas are certified to administer field sobriety tests to subjects stopped and being investigated for DWI.  The percentage is even higher in Austin.

The Austin Police Department created a specialized DWI Enforcement Unit (defense lawyers around here tend to refer to it as the ‘DWI Task Force’) in August of 1998. Since that time, arrests for DWI in and around Austin have more than doubled.

This blog will focus on DWI issues from the criminal defense lawyer’s perspective, and a great number of posts will be devoted to talking about the field sobriety tests, errors made in administration of the tests, and how to defend yourself against DWI charges brought primarily because of an officer’s opinion that you did not perform well enough on these tests.

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CHAPTER 106. Provisions Relating to Age

Section 106.01.   Definition

Section 106.02.   Purchase of Alcohol by a Minor

Section 106.025. Attempt to Purchase Alcohol by a Minor

Section 106.03.   Sale of Alcohol to a Minor 

Section 106.04.   Consumption of Alcohol by a Minor (MIC)

Section 106.041. Driving Under the Influence of Alcohol by Minor (Texas DUI)

Section 106.05.   Possession of Alcohol by a Minor (MIP)

Section 106.06.   Furnishing Alcohol to a Minor; Purchase of Alcohol for a Minor

Section 106.07.   Misrepresentation of Age by a Minor

Section 106.071. Punishment for Alcohol-Related Offense by a Minor

Section 106.08.   Importation by a Minor

Section 106.09.   Employment of Minors

Section 106.10.   Plea of Guilty by a Minor

Section 106.115. Attendance at Alcohol Awareness Course; License Suspension

Section 106.116. Reports of Court to Commission

Section 106.117. Report of Court to Department of Public Safety

Section 106.12.   Expungement of Conviction of a Minor

Section 106.13.   Sanctions Against Retailer

Section 106.14.   Actions of Employee

Section 106.15.   Prohibited Activities by Persons Younger Than 18

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Section 106.041. Driving Under the Influence of Alcohol by Minor

(a) A minor commits an offense if the minor operates a motor vehicle in a public place while having any detectable amount of alcohol in the minor's system.

(b) Except as provided by Subsection (c), an offense under this section is a Class C misdemeanor.

(c) If it is shown at the trial of the defendant that the defendant is a minor who is not a child and who has been previously convicted at least twice of an offense under this section, the offense is punishable by:

(1) a fine of not less than $500 or more than $2,000;

(2) confinement in jail for a term not to exceed 180 days; or

(3) both the fine and confinement.

(d) In addition to any fine and any order issued under Section 106.115, the court shall order a minor convicted of an offense under this section to perform community service for:

(1) not less than 20 or more than 40 hours, if the minor has not been previously convicted of an offense under this section; or

(2) not less than 40 or more than 60 hours, if the minor has been previously convicted of an offense under this section.

(e) Community service ordered under this section must be related to education about or prevention of misuse of alcohol.

(f) A minor who commits an offense under this section and who has been previously convicted twice or more of offenses under this section is not eligible for deferred disposition or deferred adjudication.

(g) An offense under this section is not a lesser included offense under Section 49.04, Penal Code.

(h) For the purpose of determining whether a minor has been previously convicted of an offense under this section:

(1) an adjudication under Title 3, Family Code, that the minor engaged in conduct described by this section is considered a conviction under this section; and

(2) an order of deferred disposition for an offense alleged under this section is considered a conviction of an offense under this section.

(i) A peace officer who is charging a minor with committing an offense under this section is not required to take the minor into custody but may issue a citation to the minor that contains written notice of the time and place the minor must appear before a magistrate, the name and address of the minor charged, and the offense charged.

(j) In this section:

(1) "Child" has the meaning assigned by Section 51.02, Family Code.

(2) "Motor vehicle" has the meaning assigned by Section 32.34(a), Penal Code.

(3) "Public place" has the meaning assigned by Section 1.07, Penal Code.

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§ 49.01.  Definitions.

§ 49.02.  Public Intoxication.

§ 49.031 Possession of Alcoholic Beverage in Motor Vehicle.

§ 49.04.  Driving While Intoxicated.

§ 49.045 Driving While Intoxicated with Child Passenger.

§ 49.05.  Flying While Intoxicated.

§ 49.06.  Boating While Intoxicated.

§ 49.065 Assembling or Operating an Amusement Ride While Intoxicated.

§ 49.07  Intoxication Assault.

§ 49.08.  Intoxication Manslaughter.

§ 49.09.  Enhanced Offenses and Penalties.

§ 49.10.  No Defense.

§ 49.11.  Proof of Mental State Unnecessary.

§ 49.12.  Applicability to Certain Conduct.

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§ 49.01. Definitions. 

In this chapter:

(1) "Alcohol concentration" means the number of grams of alcohol per:

   (A) 210 liters of breath;

   (B) 100 milliliters of blood; or

   (C) 67 milliliters of urine.

(2) "Intoxicated" means:

   (A) not having the normal use of mental or 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 substance into the body; or

   (B) having an alcohol concentration of 0.08 or more.

(3) "Motor vehicle" has the meaning assigned by Section 32.34(a).

(4) "Watercraft" means a vessel, one or more water skis, an aquaplane, or another device used for transporting or carrying a person on water, other than a device propelled only by the current of water.

(5) "Amusement ride" has the meaning assigned by Section 2151.002, Occupations Code.

(6) "Mobile amusement ride" has the meaning assigned by Section 2151.002, Occupations Code.

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§ 49.02. Public Intoxication.

(a) A person commits an offense if the person appears in a public place while intoxicated to the degree that the person may endanger the person or another.

(b) It is a defense to prosecution under this section that the alcohol or other substance was administered for therapeutic purposes and as a part of the person's professional medical treatment by a licensed physician.

(c) Except as provided by Subsection (e), an offense under this section is a Class C misdemeanor.

(d) An offense under this section is not a lesser included offense under Section 49.04.

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§ 49.031. Possession of Alcoholic Beverage in Motor Vehicle.

(a) In this section:

  (1) "Open container" means a bottle, can, or other receptacle that contains any amount of alcoholic beverage and that is open, that has been opened, that has a broken seal, or the contents of which are partially removed.

   (2) "Passenger area of a motor vehicle" means the area of a motor vehicle designed for the seating of the operator and passengers of the vehicle. The term does not include:

       (A) a glove compartment or similar storage container that is locked;

       (B) the trunk of a vehicle; or

       (C) the area behind the last upright seat of the vehicle, if the vehicle does not have a trunk.

  (3) "Public highway" means the entire width between and immediately adjacent to the boundary lines of any public road, street, highway, interstate, or other publicly maintained way if any part is open for public use for the purpose of motor vehicle travel. The term includes the right-of-way of a public highway.

(b) A person commits an offense if the person knowingly possesses an open container in a passenger area of a motor vehicle that is located on a public highway, regardless of whether the vehicle is being operated or is stopped or parked. Possession by a person of one or more open containers in a single criminal episode is a single offense.

(c) It is an exception to the application of Subsection (b) that at the time of the offense the defendant was a passenger in:

   (1) the passenger area of a motor vehicle designed, maintained, or used primarily for the transportation of persons for compensation, including a bus, taxicab, or limousine; or

   (2) the living quarters of a motorized house coach or motorized house trailer, including a self-contained camper, a motor home, or a recreational vehicle.

(d) An offense under this section is a Class C misdemeanor.

(e) A peace officer charging a person with an offense under this section, instead of taking the person before a magistrate, shall issue to the person a written citation and notice to appear that contains the time and place the person must appear before a magistrate, the name and address of the person charged, and the offense charged. If the person makes a written promise to appear before the magistrate by signing in duplicate the citation and notice to appear issued by the officer, the officer shall release the person.

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§ 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.

(b) Except as provided by Subsection (c) and Section 49.09, an offense under this section is a Class B misdemeanor, with a minimum term of confinement of 72 hours.

(c) If it is shown on the trial of an offense under this section that at the time of the offense the person operating the motor vehicle had an open container of alcohol in the person's immediate possession, the offense is a Class B misdemeanor, with a minimum term of confinement of six days.

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§ 49.045. Driving While Intoxicated with Child Passenger.

(a) A person commits an offense if:

   (1) the person is intoxicated while operating a motor vehicle in a public place; and

   (2) the vehicle being operated by the person is occupied by a passenger who is younger than 15 years of age.

(b) An offense under this section is a state jail felony.

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§ 49.05. Flying While Intoxicated.

(a) A person commits an offense if the person is intoxicated while operating an aircraft.

(b) Except as provided by Section 49.09, an offense under this section is a Class B misdemeanor, with a minimum term of confinement of 72 hours.

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§ 49.06. Boating While Intoxicated. 

(a) A person commits an offense if the person is intoxicated while operating a watercraft.

(b) Except as provided by Section 49.09, an offense under this section is a Class B misdemeanor, with a minimum term of confinement of 72 hours.

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§ 49.065. Assembling or Operating an Amusement Ride While Intoxicated. 

(a) A person commits an offense if the person is intoxicated while operating an amusement ride or while assembling a mobile amusement ride.

(b) Except as provided by Subsection (c) and Section 49.09, an offense under this section is a Class B misdemeanor with a minimum term of confinement of 72 hours.

(c) If it is shown on the trial of an offense under this section that at the time of the offense the person operating the amusement ride or assembling the mobile amusement ride had an open container of alcohol in the person's immediate possession, the offense is a Class B misdemeanor with a minimum term of confinement of six days.

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§ 49.07 Intoxication Assault.

(a) A person commits an offense if the person, by accident or mistake:

   (1) while operating an aircraft, watercraft, or amusement ride while intoxicated, or while operating a motor vehicle in a public place while intoxicated, by reason of that intoxication causes serious bodily injury to another; or

   (2) as a result of assembling a mobile amusement ride while intoxicated causes serious bodily injury to another.

(b) In this section, "serious bodily injury" means injury that creates a substantial risk of death or that causes serious permanent disfigurement or protracted loss or impairment of the function of any bodily member or organ.

(c) An offense under this section is a felony of the third degree.

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§ 49.08. Intoxication Manslaughter.

(a) A person commits an offense if the person:

   (1) operates a motor vehicle in a public place, operates an aircraft, a watercraft, or an amusement ride, or assembles a mobile amusement ride; and

   (2) is intoxicated and by reason of that intoxication causes the death of another by accident or mistake.

(b) An offense under this section is a felony of the second degree.

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§ 49.09. Enhanced Offenses and Penalties. 

(a) Except as provided by Subsection (b), an offense under Section 49.04, 49.05, 49.06, or 49.065 is a Class A misdemeanor, with a minimum term of confinement of 30 days, if it is shown on the trial of the offense that the person has previously been convicted one time of an offense relating to the operating of a motor vehicle while intoxicated, an offense of operating an aircraft while intoxicated, an offense of operating a watercraft while intoxicated, or an offense of operating or assembling an amusement ride while intoxicated.

(b) An offense under Section 49.04, 49.05, 49.06, or 49.065 is a felony of the third degree if it is shown on the trial of the offense that the person has previously been convicted:

(1) one time of an offense under Section 49.08 or an offense under the laws of another state if the offense contains elements that are substantially similar to the elements of an offense under Section 49.08; or

(2) two times of any other offense relating to the operating of a motor vehicle while intoxicated, operating an aircraft while intoxicated, operating a watercraft while intoxicated, or operating or assembling an amusement ride while intoxicated.

(c) For the purposes of this section:

(1) "Offense relating to the operating of a motor vehicle while intoxicated" means:

(A) an offense under Section 49.04 or 49.045;

(B) an offense under Section 49.07 or 49.08, if the vehicle operated was a motor vehicle;

(C) an offense under Article 6701l-1, Revised Statutes, as that law existed before September 1, 1994;

(D) an offense under Article 6701l-2, Revised Statutes, as that law existed before January 1, 1984;

(E) an offense under Section 19.05(a)(2), as that law existed before September 1, 1994, if the vehicle operated was a motor vehicle; or

(F) an offense under the laws of another state that prohibit the operation of a motor vehicle while intoxicated.

(2) "Offense of operating an aircraft while intoxicated" means:

(A) an offense under Section 49.05;

(B) an offense under Section 49.07 or 49.08, if the vehicle operated was an aircraft;

(C) an offense under Section 1, Chapter 46, Acts of the 58th Legislature, Regular Session, 1963 (Article 46f-3, Vernon's Texas Civil Statutes), as that law existed before September 1, 1994;

(D) an offense under Section 19.05(a)(2), as that law existed before September 1, 1994, if the vehicle operated was an aircraft; or

(E) an offense under the laws of another state that prohibit the operation of an aircraft while intoxicated.

(3) "Offense of operating a watercraft while intoxicated" means:

(A) an offense under Section 49.06;

(B) an offense under Section 49.07 or 49.08, if the vehicle operated was a watercraft;

(C) an offense under Section 31.097, Parks and Wildlife Code, as that law existed before September 1, 1994;

(D) an offense under Section 19.05(a)(2), as that law existed before September 1, 1994, if the vehicle operated was a watercraft; or

(E) an offense under the laws of another state that prohibit the operation of a watercraft while intoxicated.

(4) "Offense of operating or assembling an amusement ride while intoxicated" means:

(A) an offense under Section 49.065;

(B) an offense under Section 49.07 or 49.08, if the offense involved the operation or assembly of an amusement ride; or

(C) an offense under the law of another state that prohibits the operation of an amusement ride while intoxicated or the assembly of a mobile amusement ride while intoxicated.

(d) For the purposes of this section, a conviction for an offense under Section 49.04, 49.045, 49.05, 49.06, 49.065, 49.07, or 49.08 that occurs on or after September 1, 1994, is a final conviction, whether the sentence for the conviction is imposed or probated.

(e) Repealed by Acts 2005, 79th Leg., ch. 996, Sec. 3.

(f) Repealed by Acts 2005, 79th Leg., ch. 996, Sec. 3.

(g) A conviction may be used for purposes of enhancement under this section or enhancement under Subchapter D, Chapter 12, but not under both this section and Subchapter D.

(h) This subsection applies only to a person convicted of a second or subsequent offense relating to the operating of a motor vehicle while intoxicated committed within five years of the date on which the most recent preceding offense was committed. The court shall enter an order that requires the defendant to have a device installed, on each motor vehicle owned or operated by the defendant, that uses a deep-lung breath analysis mechanism to make impractical the operation of the motor vehicle if ethyl alcohol is detected in the breath of the operator, and that requires that before the first anniversary of the ending date of the period of license suspension under Section 521.344, Transportation Code, the defendant not operate any motor vehicle that is not equipped with that device. The court shall require the defendant to obtain the device at the defendant's own cost on or before that ending date, require the defendant to provide evidence to the court on or before that ending date that the device has been installed on each appropriate vehicle, and order the device to remain installed on each vehicle until the first anniversary of that ending date. If the court determines the offender is unable to pay for the device, the court may impose a reasonable payment schedule not to extend beyond the first anniversary of the date of installation. The Department of Public Safety shall approve devices for use under this subsection. Section 521.247, Transportation Code, applies to the approval of a device under this subsection and the consequences of that approval. Failure to comply with an order entered under this subsection is punishable by contempt. For the purpose of enforcing this subsection, the court that enters an order under this subsection retains jurisdiction over the defendant until the date on which the device is no longer required to remain installed. To the extent of a conflict between this subsection and Section 13(i), Article 42.12, Code of Criminal Procedure, this subsection controls.

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§  49.10. No Defense.

In a prosecution under Section 49.03, 49.04, 49.045, 49.05, 49.06, 49.065, 49.07, or 49.08, the fact that the defendant is or has been entitled to use the alcohol, controlled substance, drug, dangerous drug, or other substance is not a defense.

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§ 49.11. Proof of Mental State Unnecessary.

(a) Notwithstanding Section 6.02(b), proof of a culpable mental state is not required for conviction of an offense under this chapter.

(b) Subsection (a) does not apply to an offense under Section 49.031.

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§ 49.12. Applicability to Certain Conduct.

Sections 49.07 and 49.08 do not apply to injury to or the death of an unborn child if the conduct charged is conduct committed by the mother of the unborn child.

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Chapter 524 - Administrative Suspension of Driver’s License for Failure to Pass Test for Intoxication

Subchapter A. GENERAL PROVISIONS

Section 524.001. Definitions

Section 524.002. Rules; Application of Administrative Procedure Act

Subchapter B. SUSPENSION DETERMINATION AND NOTICE

Section 524.011. Officer’s Duties for Driver’s License Suspension

Section 524.012. Department’s Determination for Driver’s License Suspension

Section 524.013. Notice of Department’s Determination

Section 524.014. Notice of Suspension

Section 524.015. Effect of Disposition of Criminal Charge on Driver’s License Suspension

Subchapter C. SUSPENSION PROVISIONS

Section 524.021. Suspension Effective Date

Section 524.022. Period of Suspension

Section 524.023. Application of Suspension under Other Laws

Subchapter D. HEARING AND APPEAL

Section 524.031. Hearing Request

Section 524.032. Hearing Date; Rescheduling

Section 524.033. State Office of Administrative Hearings

Section 524.034. Hearing Location

Section 524.035. Hearing

Section 524.036. Failure to Appear

Section 524.037. Continuance

Section 524.038. Instrument Reliability and Analysis Validity

Section 524.039. Appearance of Technicians at the Hearing

Section 524.040. Notice Requirements

Section 524.041. Appeal from Administrative Hearing

Section 524.042. Stay of Suspension on Appeal

Section 524.043. Review; Additional Evidence

Section 524.044. Transcript of Administrative Hearing

Subchapter E. REINSTATEMENT AND REISSUANCE OF DRIVER'S LICENSE

Section 524.051. Reinstatement and Reissuance

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Section 524.001. Definitions

In this chapter:

(1) "Adult" means an individual 21 years of age or older.

(2) "Alcohol concentration" has the meaning assigned by Section 49.01, Penal Code.

(3) "Alcohol-related or drug-related enforcement contact" means a driver's license suspension, disqualification, or prohibition order under the laws of this state or another state resulting from:

(A) a conviction of an offense prohibiting the operation of a motor vehicle while:

(i) intoxicated;

(ii) under the influence of alcohol; or

(iii) under the influence of a controlled substance;

(B) a refusal to submit to the taking of a breath or blood specimen following an arrest for an offense prohibiting the operation of a motor vehicle while:

(i) intoxicated;

(ii) under the influence of alcohol; or

(iii) under the influence of a controlled substance; or

(C) an analysis of a breath or blood specimen showing an alcohol concentration of a level specified by Section 49.01, Penal Code, following an arrest for an offense prohibiting the operation of a motor vehicle while intoxicated.

(4) "Arrest" includes the taking into custody of a child, as defined by Section 51.02, Family Code.

(5) "Conviction" includes an adjudication under Title 3, Family Code.

(6) "Criminal charge" includes a charge that may result in a proceeding under Title 3, Family Code.

(7) "Criminal prosecution" includes a proceeding under Title 3, Family Code.

(8) "Department" means the Department of Public Safety.

(9) "Director" means the public safety director of the department.

(10) "Driver's license" has the meaning assigned by Section 521.001. The term includes a commercial driver's license or a commercial driver learner's permit issued under Chapter 522.

(11) "Minor" means an individual under 21 years of age.

(12) "Public place" has the meaning assigned by Section 1.07(a), Penal Code.

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Section 524.002. Rules; Application of Administrative Procedure Act

(a) The department and the State Office of Administrative Hearings shall adopt rules to administer this chapter.

(b) Chapter 2001, Government Code, applies to a proceeding under this chapter to the extent consistent with this chapter.

(c) The State Office of Administrative Hearings may adopt a rule that conflicts with Chapter 2001, Government Code, if a conflict is necessary to expedite the hearings process within the time required by this chapter and applicable federal funding guidelines.

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Section 524.011. Officer’s Duties for Driver’s License Suspension

(a) An officer arresting a person shall comply with Subsection (b) if:

(1) the person is arrested for an offense under Section 49.04, Penal Code, or an offense under Section 49.07 or 49.08 of that code involving the operation of a motor vehicle, submits to the taking of a specimen of breath or blood and an analysis of the specimen shows the person had an alcohol concentration of a level specified by Section 49.01(2)(B), Penal Code; or

(2) the person is a minor arrested for an offense under Section 106.041, Alcoholic Beverage Code, or Section 49.04, Penal Code, or an offense under Section 49.07 or 49.08, Penal Code, involving the operation of a motor vehicle and:

(A) the minor is not requested to submit to the taking of a specimen; or

(B) the minor submits to the taking of a specimen and an analysis of the specimen shows that the minor had an alcohol concentration of greater than .00 but less than the level specified by Section 49.01(2)(B), Penal Code.

(b) A peace officer shall:

(1) serve or, if a specimen is taken and the analysis of the specimen is not returned to the arresting officer before the person is admitted to bail, released from custody, delivered as provided by Title 3, Family Code, or committed to jail, attempt to serve notice of driver's license suspension by delivering the notice to the arrested person;

(2) take possession of any driver's license issued by this state and held by the person arrested;

(3) issue a temporary driving permit to the person unless department records show or the officer otherwise determines that the person does not hold a driver's license to operate a motor vehicle in this state; and

(4) send to the department not later than the fifth business day after the date of the arrest:

(A) a copy of the driver's license suspension notice;

(B) any driver's license taken by the officer under this subsection;

(C) a copy of any temporary driving permit issued under this subsection; and

(D) a sworn report of information relevant to the arrest.

(c) The report required under Subsection (b)(4)(D) must:

(1) identify the arrested person;

(2) state the arresting officer's grounds for believing the person committed the offense;

(3) give the analysis of the specimen if any; and

(4) include a copy of the criminal complaint filed in the case, if any.

(d) A peace officer shall make the report on a form approved by the department and in the manner specified by the department.

(e) The department shall develop forms for the notice of driver's license suspension and temporary driving permits to be used by all state and local law enforcement agencies.

(f) A temporary driving permit issued under this section expires on the 41st day after the date of issuance. If the person was driving a commercial motor vehicle, as defined by Section 522.003, a temporary driving permit that authorizes the person to drive a commercial motor vehicle is not effective until 24 hours after the time of arrest.

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Section 524.012. Department’s Determination for Driver’s License Suspension

(a) On receipt of a report under Section 524.011, if the officer did not serve a notice of suspension of driver's license at the time the results of the analysis of a breath or blood specimen were obtained, the department shall determine from the information in the report whether to suspend the person's driver's license.

(b) The department shall suspend the person's driver's license if the department determines that:

(1) the person had an alcohol concentration of a level specified by Section 49.01(2)(B), Penal Code, while operating a motor vehicle in a public place;  or

(2) the person is a minor and had any detectable amount of alcohol in the minor's system while operating a motor vehicle in a public place.

(c) The department may not suspend a person's driver's license if:

(1) the person is an adult and the analysis of the person's breath or blood specimen determined that the person had an alcohol concentration of a level below that specified by Section 49.01(2)(B), Penal Code, at the time the specimen was taken; or

(2) the person is a minor and the department does not determine that the minor had any detectable amount of alcohol in the minor's system when the minor was arrested.

(d) A determination under this section is final unless a hearing is requested under Section 524.031.

(e) A determination under this section:

(1) is a civil matter;

(2) is independent of and is not an estoppel to any matter in issue in an adjudication of a criminal charge arising from the occurrence that is the basis for the suspension; and

(3) does not preclude litigation of the same or similar facts in a criminal prosecution.

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Section 524.013. Notice of Department’s Determination

(a) If the department suspends a person's driver's license, the department shall send a notice of suspension by first class mail to the person's address:

(1) in the records of the department; or

(2) in the peace officer's report if it is different from the address in the department's records.

(b) Notice is considered received on the fifth day after the date the notice is mailed.

(c) If the department determines not to suspend a person's driver's license, the department shall notify the person of that determination and shall rescind any notice of driver's license suspension served on the person.

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Section 524.014. Notice of Suspension

 A notice of suspension under Section 524.013 must state:

(1) the reason and statutory grounds for the suspension;

(2) the effective date of the suspension;

(3) the right of the person to a hearing;

(4) how to request a hearing; and

(5) the period in which the person must request a hearing.

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Section 524.015. Effect of Disposition of Criminal Charge on Driver’s License Suspension

(a) Except as provided by Subsection (b), the disposition of a criminal charge does not affect a driver's license suspension under this chapter and does not bar any matter in issue in a driver's license suspension proceeding under this chapter.

(b) A suspension may not be imposed under this chapter on a person who is acquitted of a criminal charge under Section 49.04, 49.07, or 49.08, Penal Code, or Section 106.041, Alcoholic Beverage Code, arising from the occurrence that was the basis for the suspension. If a suspension was imposed before the acquittal, the department shall rescind the suspension and shall remove any reference to the suspension from the person's computerized driving record.

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Section 524.021. Suspension Effective Date

(a) A driver's license suspension under this chapter takes effect on the 40th day after the date the person:

(1) receives a notice of suspension under Section 524.011; or

(2) is presumed to have received notice of suspension under Section 524.013.

(b) A suspension under this chapter may not be probated.

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Section 524.022. Period of Suspension

(a) A period of suspension under this chapter for an adult is:

(1) 90 days if the person's driving record shows no alcohol-related or drug-related enforcement contact during the 10 years preceding the date of the person's arrest; or

(2) one year if the person's driving record shows one or more alcohol-related or drug-related enforcement contacts during the 10 years preceding the date of the person's arrest.

(b) A period of suspension under this chapter for a minor is:

(1) 60 days if the minor has not been previously convicted of an offense under Section 106.041, Alcoholic Beverage Code, or Section 49.04, Penal Code, or an offense under Section 49.07 or 49.08, Penal Code, involving the operation of a motor vehicle;

(2) 120 days if the minor has been previously convicted once of an offense listed by Subdivision (1); or

(3) 180 days if the minor has been previously convicted twice or more of an offense listed by Subdivision (1).

(c) For the purposes of determining whether a minor has been previously convicted of an offense described by Subsection (b)(1):

(1) an adjudication under Title 3, Family Code, that the minor engaged in conduct described by Subsection (b)(1) is considered a conviction under that provision; and

(2) an order of deferred adjudication for an offense alleged under a provision described by Subsection (b)(1) is considered a conviction of an offense under that provision.

(d) A minor whose driver's license is suspended under this chapter is not eligible for an occupational license under Subchapter L, Chapter 521, for:

(1) the first 30 days of a suspension under Subsection (b)(1);

(2) the first 90 days of a suspension under Subsection (b)(2); or

(3) the entire period of a suspension under Subsection (b)(3).

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Section 524.023. Application of Suspension Under Other Laws

(a) If a person is convicted of an offense under Section 106.041, Alcoholic Beverage Code, or Section 49.04, 49.07, or 49.08, Penal Code, and if any conduct on which that conviction is based is a ground for a driver's license suspension under this chapter and Section 106.041, Alcoholic Beverage Code, Subchapter O, Chapter 521, or Subchapter H, Chapter 522, each of the suspensions shall be imposed.

(b) The court imposing a driver's license suspension under Section 106.041, Alcoholic Beverage Code, or Chapter 521 or 522 as required by Subsection (a) shall credit a period of suspension imposed under this chapter toward the period of suspension required under Section 106.041, Alcoholic Beverage Code, or Subchapter O, Chapter 521, or Subchapter H, Chapter 522, unless the person was convicted of an offense under Article 6701l-1, Revised Statutes, as that law existed before September 1, 1994, Section 19.05(a)(2), Penal Code, as that law existed before September 1, 1994, Section 49.04, 49.07, or 49.08, Penal Code, or Section 106.041, Alcoholic Beverage Code, before the date of the conviction on which the suspension is based, in which event credit may not be given.

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Section 524.031. Hearing Request

If, not later than the 15th day after the date on which the person receives notice of suspension under Section 524.011 or is presumed to have received notice under Section 524.013, the department receives at its headquarters in Austin, in writing, including a facsimile transmission, or by another manner prescribed by the department, a request that a hearing be held, a hearing shall be held as provided by this subchapter.

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Section 524.032. Hearing Date; Rescheduling

(a) A hearing requested under this subchapter shall be held not earlier than the 11th day after the date on which the person requesting the hearing is notified of the hearing unless the parties agree to waive this requirement. The hearing shall be held before the effective date of the suspension.

(b) A hearing shall be rescheduled if, before the fifth day before the date scheduled for the hearing, the department receives a request for a continuance from the person who requested the hearing. Unless both parties agree otherwise, the hearing shall be rescheduled for a date not earlier than the fifth day after the date the department receives the request for the continuance.

(c) A person who requests a hearing under this chapter may obtain only one continuance under this section unless the person shows that a medical condition prevents the person from attending the rescheduled hearing, in which event one additional continuance may be granted for a period not to exceed 10 days.

(d) A request for a hearing stays suspension of a person's driver's license until the date of the final decision of the administrative law judge. If the person's driver's license was taken by a peace officer under Section 524.011(b), the department shall notify the person of the effect of the request on the suspension of the person's license before the expiration of any temporary driving permit issued to the person, if the person is otherwise eligible, in a manner that will permit the person to establish to a peace officer that the person's driver's license is not suspended.

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Section 524.033. State Office of Administrative Hearings

(a) A hearing under this subchapter shall be heard by an administrative law judge employed by the State Office of Administrative Hearings.

(b) The State Office of Administrative Hearings shall provide for the stenographic or electronic recording of the hearing.

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Section 524.034. Hearing Location

A hearing under this subchapter shall be held:

(1) at a location designated by the State Office of Administrative Hearings:

(A) in the county of arrest if the arrest occurred in a county with a population of 300,000 or more; or

(B) in the county in which the person is alleged to have committed the offense for which the person was arrested or not more than 75 miles from the county seat of the county in which the person was arrested; or

(2) with the consent of the person and the department, by telephone conference call.

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Section 524.035. Hearing

(a) The issues that must be proved at a hearing by a preponderance of the evidence are:

(1) whether:

(A) the person had an alcohol concentration of a level specified by Section 49.01(2)(B), Penal Code, while operating a motor vehicle in a public place; or

(B) the person is a minor and had any detectable amount of alcohol in the minor's system while operating a motor vehicle in a public place; and

(2) whether reasonable suspicion to stop or probable cause to arrest the person existed.

(b) If the administrative law judge finds in the affirmative on each issue in Subsection (a), the suspension is sustained.

(c) If the administrative law judge does not find in the affirmative on each issue in Subsection (a), the department shall:

(1) return the person's driver's license to the person, if the license was taken by a peace officer under Section 524.011(b);

(2) reinstate the person's driver's license; and

(3) rescind an order prohibiting the issuance of a driver's license to the person.

(d) An administrative law judge may not find in the affirmative on the issue in Subsection (a)(1) if:

(1) the person is an adult and the analysis of the person's breath or blood determined that the person had an alcohol concentration of a level below that specified by Section 49.01, Penal Code, at the time the specimen was taken; or

(2) the person is a minor and the administrative law judge does not find that the minor had any detectable amount of alcohol in the minor's system when the minor was arrested.

(e) The decision of the administrative law judge is final when issued and signed.

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Section 524.036. Failure to Appear

A person who requests a hearing and fails to appear without just cause waives the right to a hearing and the department's determination is final.

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Sec. 524.037. Continuance

(a) A continuance under Section 524.032 stays the suspension of a driver's license until the date of the final decision of the administrative law judge.

(b) A suspension order may not go into effect pending a final decision of the administrative law judge as a result of a continuance granted under Section 524.039.

(c) If the person's driver's license was taken by a peace officer under Section 524.011(b), the department shall notify the person of the effect of the continuance on the suspension of the person's license before the expiration of any temporary driving permit issued to the person, if the person is otherwise eligible, in a manner that will permit the person to establish to a peace officer that the person's driver's license is not suspended.

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Section 524.038. Instrument Reliability and Analysis Validity

(a) The reliability of an instrument used to take or analyze a specimen of a person's breath to determine alcohol concentration and the validity of the results of the analysis may be attested to in a proceeding under this subchapter by affidavit from the certified breath test technical supervisor responsible for maintaining and directing the operation of breath test instruments in compliance with department rule.

(b) An affidavit submitted under Subsection (a) must contain statements on:

(1) the reliability of the instrument and the analytical results;  and

(2) compliance with state law in the administration of the program.

(c) An affidavit of an expert witness contesting the reliability of the instrument or the results is admissible.

(d) An affidavit from a person whose presence is timely requested under this section is inadmissible if the person fails to appear at a hearing without a showing of good cause. Otherwise, an affidavit under this section may be submitted in lieu of an appearance at the hearing by the breath test operator, breath test technical supervisor, or expert witness.

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Section 524.039. Appearance of Technicians at the Hearing

(a) Notwithstanding Section 524.038, if not later than the fifth day before the date of a scheduled hearing the department receives from the person who requested a hearing written notice, including a facsimile transmission, requesting the presence at the hearing of the breath test operator who took the specimen of the person's breath to determine alcohol concentration or the certified breath test technical supervisor responsible for maintaining and directing the operation of the breath test instrument used to analyze the specimen of the person's breath, or both, each requested person must appear at the hearing.

(b) The department may reschedule a hearing once not less than 48 hours before the hearing if the person requested to attend under Subsection (a) is unavailable. The department may also reschedule the hearing on showing good cause that the person requested under Subsection (a) is not available at the time of the hearing.

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Section 524.040. Notice Requirements

(a) Notice required to be provided by the department under this subchapter may be given by telephone or other electronic means. If notice is given by telephone or other electronic means, written notice must also be provided.

(b) Notice by mail is considered received on the fifth day after the date the notice is deposited with the United States Postal Service.

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Section 524.041. Appeal from Administrative Hearing

(a) A person whose driver's license suspension is sustained may appeal the decision by filing a petition not later than the 30th day after the date the administrative law judge's decision is final. The administrative law judge's final decision is immediately appealable without the requirement of a motion for rehearing.

(b) A petition under Subsection (a) must be filed in a county court at law in the county in which the person was arrested or, if there is not a county court at law in the county, in the county court. If the county judge is not a licensed attorney, the county judge shall transfer the case to a district court for the county on the motion of either party or of the judge.

(c) A person who files an appeal under this section shall send a copy of the petition by certified mail to the department and to the State Office of Administrative Hearings at each agency's headquarters in Austin. The copy must be certified by the clerk of the court in which the petition is filed.

(d) The department's right to appeal is limited to issues of law.

(e) A district or county attorney may represent the department in an appeal.

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Section 524.042. Stay of Suspension on Appeal

(a) A suspension of a driver's license under this chapter is stayed on the filing of an appeal petition only if:

(1) the person's driver's license has not been suspended as a result of an alcohol-related or drug-related enforcement contact during the five years preceding the date of the person's arrest; and

(2) the person has not been convicted during the 10 years preceding the date of the person's arrest of an offense under:

(A) Article 6701l-1, Revised Statutes, as that law existed before September 1, 1994;

(B) Section 19.05(a)(2), Penal Code, as that law existed before September 1, 1994;

(C) Section 49.04, Penal Code; 

(D) Section 49.07 or 49.08, Penal Code, if the offense involved the operation of a motor vehicle; or

(E) Section 106.041, Alcoholic Beverage Code.

(b) A stay under this section is effective for not more than 90 days after the date the appeal petition is filed. On the expiration of the stay, the department shall impose the suspension. The department or court may not grant an extension of the stay or an additional stay.

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Section 524.043. Review; Additional Evidence

(a) Review on appeal is on the record certified by the State Office of Administrative Hearings with no additional testimony.

(b) On appeal, a party may apply to the court to present additional evidence. If the court is satisfied that the additional evidence is material and that there were good reasons for the failure to present it in the proceeding before the administrative law judge, the court may order that the additional evidence be taken before an administrative law judge on conditions determined by the court.

(c) There is no right to a jury trial in an appeal under this section.

(d) An administrative law judge may change a finding or decision as to whether the person had an alcohol concentration of a level specified in Section 49.01, Penal Code, or whether a minor had any detectable amount of alcohol in the minor's system because of the additional evidence and shall file the additional evidence and any changes, new findings, or decisions with the reviewing court.

(e) A remand under this section does not stay the suspension of a driver's license.

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Section 524.044. Transcript of Administrative Hearing

(a) To obtain a transcript of an administrative hearing, the party who appeals the administrative law judge's decision must apply to the State Office of Administrative Hearings.

(b) On payment of a fee not to exceed the actual cost of preparing the transcript, the State Office of Administrative Hearings shall promptly furnish both parties with a transcript of the administrative hearing.

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Section 524.051. Reinstatement and Reissuance.

(a) A driver's license suspended under this chapter may not be reinstated or another driver's license issued to the person until the person pays the department a fee of $125 in addition to any other fee required by law.

(b) The payment of a reinstatement fee is not required if a suspension under this chapter is:

(1) rescinded by the department; or

(2) not sustained by an administrative law judge, or a court.

(c) Each fee collected under this section shall be deposited to the credit of the Texas mobility fund.

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SUBCHAPTER A. GENERAL PROVISIONS

Section 724.001. Definitions

Section 724.002. Applicability

Section 724.003. Rulemaking

SUBCHAPTER B. TAKING AND ANALYSIS OF SPECIMEN

Section 724.011. Consent to Taking of a Specimen

Section 724.012. Taking of a Specimen

Section 724.013. Prohibition on Taking a Specimen If Person Refuses; Exception

Section 724.014. Person Incapable of Refusal

Section 724.015. Information Provided by Officer Before Requesting Specimen

Section 724.016. Breath Specimen

Section 724.017. Blood Specimen

Section 724.018. Furnishing Information Concerning Test Results

Section 724.019. Additional Analysis by Request

SUBCHAPTER C. SUSPENSION OR DENIAL OF LICENSE ON REFUSAL OF SPECIMEN

Section 724.031. Statement Requested on Refusal

Section 724.032. Officer’s Duties for License Suspension; Written Refusal Report

Section 724.033. Issuance by Department of Notice of Suspension or Denial of License

Section 724.034. Contents of Notice of Suspension or Denial of License

Section 724.035. Suspension or Denial of License

SUBCHAPTER D. HEARING

Section 724.041. Hearing on Suspension or Denial

Section 724.042. Issues at Hearing

Section 724.043. Findings of Administrative Law Judge

Section 724.044. Waiver of Right to a Hearing

Section 724.045. Prohibition on Probation of Suspension

Section 724.046. Reinstatement of License or Issuance of New License

Section 724.047. Appeal  

Section 724.048. Relationship of Administrative Proceeding to Criminal Proceeding  

SUBCHAPTER E. ADMISSIBILITY OF EVIDENCE

Section 724.061. Admissibility of Refusal of Person to Submit to Taking of Specimen

Section 724.062. Admissibility of Refusal or Request for Additional Test

Section 724.063. Admissibility of Alcohol Concentration or Presence of Substance  

Section 724.064. Admissibility in Criminal Proceeding of Specimen Analysis

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Section 724.001. Definitions

In this chapter:

(1) "Alcohol concentration" has the meaning assigned by Section 49.01, Penal Code.

(2) "Arrest" includes the taking into custody of a child, as defined by Section 51.02, Family Code.

(3) "Controlled substance" has the meaning assigned by Section 481.002, Health and Safety Code.

(4) "Criminal charge" includes a charge that may result in a proceeding under Title 3, Family Code.

(5) "Criminal proceeding" includes a proceeding under Title 3, Family Code.

(6) "Dangerous drug" has the meaning assigned by Section 483.001, Health and Safety Code.

(7) "Department" means the Department of Public Safety.

(8) "Drug" has the meaning assigned by Section 481.002, Health and Safety Code.

(9) "Intoxicated" has the meaning assigned by Section 49.01, Penal Code.

(10) "License" has the meaning assigned by Section 521.001.

(11) "Operate" means to drive or be in actual control of a motor vehicle or watercraft.

(12) "Public place" has the meaning assigned by Section 1.07, Penal Code.

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Section 724.002. Applicability

The provisions of this chapter that apply to suspension of a license for refusal to submit to the taking of a specimen (Sections 724.013, 724.015, and 724.048 and Subchapters C and D) apply only to a person arrested for an offense involving the operation of a motor vehicle or watercraft powered with an engine having a manufacturer's rating of 50 horsepower or above.

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Section 724.003. Rulemaking

The department and the State Office of Administrative Hearings shall adopt rules to administer this chapter.

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Section 724.011. Consent to Taking of a Specimen

(a) If a person is arrested for an offense arising out of acts alleged to have been committed while the person was operating a motor vehicle in a public place, or a watercraft, while intoxicated, or an offense under Section 106.041, Alcoholic Beverage Code, the person is deemed to have consented, subject to this chapter, 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, drug, dangerous drug, or other substance.

(b) A person arrested for an offense described by Subsection (a) may consent to submit to the taking of any other type of specimen to determine the person's alcohol concentration.

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Section 724.012. Taking of a Specimen

(a) One or more specimens of a person's breath or blood may be taken if the person is arrested and at the request of a peace officer having reasonable grounds to believe the person:

(1) while intoxicated was operating a motor vehicle in a public place, or a watercraft; or

(2) was in violation of Section 106.041, Alcoholic Beverage Code.

(b) A peace officer shall require the taking of a specimen of the person's breath or blood if:

(1) the officer arrests the person for an offense under Chapter 49, Penal Code, involving the operation of a motor vehicle or a watercraft;

(2) the person was the operator of a motor vehicle or a watercraft involved in an accident that the officer reasonably believes occurred as a result of the offense;

(3) at the time of the arrest the officer reasonably believes that as a direct result of the accident:

(A) any individual has died or will die; or

(B) an individual other than the person has suffered serious bodily injury; and

(4) the person refuses the officer's request to submit to the taking of a specimen voluntarily.

(c) The peace officer shall designate the type of specimen to be taken.

(d) In this section, "serious bodily injury" has the meaning assigned by Section 1.07, Penal Code.

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Section 724.013. Prohibition on Taking a Specimen If Person Refuses; Exception

Except as provided by Section 724.012(b), a specimen may not be taken if a person refuses to submit to the taking of a specimen designated by a peace officer.

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Section 724.014. Person Incapable of Refusal

(a) A person who is dead, unconscious, or otherwise incapable of refusal is considered not to have withdrawn the consent provided by Section 724.011.

(b) If the person is dead, a specimen may be taken by:

(1) the county medical examiner or the examiner's designated agent; or

(2) a licensed mortician or a person authorized under Section 724.016 or 724.017 if there is not a county medical examiner for the county.

(c) If the person is alive but is incapable of refusal, a specimen may be taken by a person authorized under Section 724.016 or 724.017.

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Section 724.015. Information Provided by Officer Before Requesting Specimen

Before requesting a person to submit to the taking of a specimen, the officer shall inform the person orally and in writing that:

(1) if the person refuses to submit to the taking of the specimen, that refusal may be admissible in a subsequent prosecution;

(2) if the person refuses to submit to the taking of the specimen, the person's license to operate a motor vehicle will be automatically suspended, whether or not the person is subsequently prosecuted as a result of the arrest, for not less than 180 days;

(3) if the person is 21 years of age or older and submits to the taking of a specimen designated by the officer and an analysis of the specimen shows the person had an alcohol concentration of a level specified by Chapter 49, Penal Code, the person's license to operate a motor vehicle will be automatically suspended for not less than 90 days, whether or not the person is subsequently prosecuted as a result of the arrest;

(4) if the person is younger than 21 years of age and has any detectable amount of alcohol in the person's system, the person's license to operate a motor vehicle will be automatically suspended for not less than 60 days even if the person submits to the taking of the specimen, but that if the person submits to the taking of the specimen and an analysis of the specimen shows that the person had an alcohol concentration less than the level specified by Chapter 49, Penal Code, the person may be subject to criminal penalties less severe than those provided under that chapter;

(5) if the officer determines that the person is a resident without a license to operate a motor vehicle in this state, the department will deny to the person the issuance of a license, whether or not the person is subsequently prosecuted as a result of the arrest, under the same conditions and for the same periods that would have applied to a revocation of the person's driver's license if the person had held a driver's license issued by this state; and

(6) the person has a right to a hearing on the suspension or denial if, not later than the 15th day after the date on which the person receives the notice of suspension or denial or on which the person is considered to have received the notice by mail as provided by law, the department receives, at its headquarters in Austin, a written demand, including a facsimile transmission, or a request in another form prescribed by the department for the hearing.

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Section 724.016. Breath Specimen

(a) A breath specimen taken at the request or order of a peace officer must be taken and analyzed under rules of the department by an individual possessing a certificate issued by the department certifying that the individual is qualified to perform the analysis.

(b) The department may:

(1) adopt rules approving satisfactory analytical methods; and

(2) ascertain the qualifications of an individual to perform the analysis.

(c) The department may revoke a certificate for cause.

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Section 724.017. Blood Specimen

(a) Only a physician, qualified technician, chemist, registered professional nurse, or licensed vocational nurse may take a blood specimen at the request or order of a peace officer under this chapter. The blood specimen must be taken in a sanitary place.

(b) The person who takes the blood specimen under this chapter, or the hospital where the blood specimen is taken, is not liable for damages arising from the request or order of the peace officer to take the blood specimen as provided by this chapter if the blood specimen was taken according to recognized medical procedures. This subsection does not relieve a person from liability for negligence in the taking of a blood specimen.

(c) In this section, "qualified technician" does not include emergency medical services personnel.

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Section 724.018. Furnishing Information Concerning Test Results

On the request of a person who has given a specimen at the request of a peace officer, full information concerning the analysis of the specimen shall be made available to the person or the person's attorney.

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Section 724.019. Additional Analysis by Request

(a) A person who submits to the taking of a specimen of breath, blood, urine, or another bodily substance at the request or order of a peace officer may, on request and within a reasonable time not to exceed two hours after the arrest, have a physician, qualified technician, chemist, or registered professional nurse selected by the person take for analysis an additional specimen of the person's blood.

(b) The person shall be allowed a reasonable opportunity to contact a person specified by Subsection (a).

(c) A peace officer or law enforcement agency is not required to transport for testing a person who requests that a blood specimen be taken under this section.

(d) The failure or inability to obtain an additional specimen or analysis under this section does not preclude the admission of evidence relating to the analysis of the specimen taken at the request or order of the peace officer.

(e) A peace officer, another person acting for or on behalf of the state, or a law enforcement agency is not liable for damages arising from a person's request to have a blood specimen taken.

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Section 724.031. Statement Requested on Refusal

If a person refuses the request of a peace officer to submit to the taking of a specimen, the peace officer shall request the person to sign a statement that:

(1) the officer requested that the person submit to the taking of a specimen;

(2) the person was informed of the consequences of not submitting to the taking of a specimen; and

(3) the person refused to submit to the taking of a specimen.

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Section 724.032. Officer’s Duties for License Suspension; Written Refusal Report

(a) If a person refuses to submit to the taking of a specimen, whether expressly or because of an intentional failure of the person to give the specimen, the peace officer shall:

(1) serve notice of license suspension or denial on the person;

(2) take possession of any license issued by this state and held by the person arrested;

(3) issue a temporary driving permit to the person unless department records show or the officer otherwise determines that the person does not hold a license to operate a motor vehicle in this state; and

(4) make a written report of the refusal to the director of the department.

(b) The director must approve the form of the refusal report. The report must:

(1) show the grounds for the officer's belief that the person had been operating a motor vehicle or watercraft powered with an engine having a manufacturer's rating of 50 horsepower or above while intoxicated; and

(2) contain a copy of:

(A) the refusal statement requested under Section 724.031; or

(B) a statement signed by the officer that the person refused to:

(i) submit to the taking of the requested specimen; and

(ii) sign the requested statement under Section 724.031.

(c) The officer shall forward to the department not later than the fifth business day after the date of the arrest:

(1) a copy of the notice of suspension or denial;

(2) any license taken by the officer under Subsection (a);

(3) a copy of any temporary driving permit issued under Subsection (a); and

(4) a copy of the refusal report.

(d) The department shall develop forms for notices of suspension or denial and temporary driving permits to be used by all state and local law enforcement agencies.

(e) A temporary driving permit issued under this section expires on the 41st day after the date of issuance. If the person was driving a commercial motor vehicle, as defined by Section 522.003, a temporary driving permit that authorizes the person to drive a commercial motor vehicle is not effective until 24 hours after the time of arrest.

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Section 724.033. Issuance by Department of Notice of Suspension or Denial of License

(a) On receipt of a report of a peace officer under Section 724.032, if the officer did not serve notice of suspension or denial of a license at the time of refusal to submit to the taking of a specimen, the department shall mail notice of suspension or denial, by first class mail, to the address of the person shown by the records of the department or to the address given in the peace officer's report, if different.

(b) Notice is considered received on the fifth day after the date it is mailed.

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Section 724.034. Contents of Notice of Suspension or Denial of License

A notice of suspension or denial of a license must state:

(1) the reason and statutory grounds for the action;

(2) the effective date of the suspension or denial;

(3) the right of the person to a hearing;

(4) how to request a hearing; and

(5) the period in which a request for a hearing must be received by the department.

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Section 724.035. Suspension or Denial of License

(a) If a person refuses the request of a peace officer to submit to the taking of a specimen, the department shall:

(1) suspend the person's license to operate a motor vehicle on a public highway for 180 days; or

(2) if the person is a resident without a license, issue an order denying the issuance of a license to the person for 180 days.

(b) The period of suspension or denial is two years if the person's driving record shows one or more alcohol-related or drug-related enforcement contacts, as defined by Section 524.001(3), during the 10 years preceding the date of the person's arrest.

(c) A suspension or denial takes effect on the 40th day after the date on which the person:

(1) receives notice of suspension or denial under Section 724.032(a); or

(2) is considered to have received notice of suspension or denial under Section 724.033.

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Section 724.041. Hearing on Suspension or Denial

(a) If, not later than the 15th day after the date on which the person receives notice of suspension or denial under Section 724.032(a) or is considered to have received notice under Section 724.033, the department receives at its headquarters in Austin, in writing, including a facsimile transmission, or by another manner prescribed by the department, a request that a hearing be held, the State Office of Administrative Hearings shall hold a hearing.

(b) A hearing shall be held not earlier than the 11th day after the date the person is notified, unless the parties agree to waive this requirement, but before the effective date of the notice of suspension or denial.

(c) A request for a hearing stays the suspension or denial until the date of the final decision of the administrative law judge. If the person's license was taken by a peace officer under Section 724.032(a), the department shall notify the person of the effect of the request on the suspension of the person's license before the expiration of any temporary driving permit issued to the person, if the person is otherwise eligible, in a manner that will permit the person to establish to a peace officer that the person's license is not suspended.

(d) A hearing shall be held by an administrative law judge employed by the State Office of Administrative Hearings.

(e) A hearing shall be held:

(1) at a location designated by the State Office of Administrative Hearings:

(A) in the county of arrest if the county has a population of 300,000 or more; or

(B) in the county in which the person was alleged to have committed the offense for which the person was arrested or not more than 75 miles from the county seat of the county of arrest if the population of the county of arrest is less than 300,000; or

(2) with the consent of the person requesting the hearing and the department, by telephone conference call.

(f) The State Office of Administrative Hearings shall provide for the stenographic or electronic recording of a hearing under this subchapter.

(g) An administrative hearing under this section is governed by Sections 524.032(b) and (c), 524.035(e), 524.037(a), and 524.040.

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Section 724.042. Issues at Hearing

The issues at a hearing under this subchapter are whether:

(1) reasonable suspicion or probable cause existed to stop or arrest the person;

(2) probable cause existed to believe that the person was:

(A) operating a motor vehicle in a public place while intoxicated; or

(B) operating a watercraft powered with an engine having a manufacturer's rating of 50 horsepower or above while intoxicated;

(3) the person was placed under arrest by the officer and was requested to submit to the taking of a specimen; and

(4) the person refused to submit to the taking of a specimen on request of the officer.

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Section 724.043. Findings of Administrative Law Judge

(a) If the administrative law judge finds in the affirmative on each issue under Section 724.042, the suspension order is sustained. If the person is a resident without a license, the department shall continue to deny to the person the issuance of a license for the applicable period provided by Section 724.035.

(b) If the administrative law judge does not find in the affirmative on each issue under Section 724.042, the department shall return the person's license to the person, if the license was taken by a peace officer under Section 724.032(a), and reinstate the person's license or rescind any order denying the issuance of a license because of the person's refusal to submit to the taking of a specimen under Section 724.032(a).

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Section 724.044. Waiver of Right to a Hearing

A person waives the right to a hearing under this subchapter and the department's suspension or denial is final and may not be appealed if the person:

(1) fails to request a hearing under Section 724.041; or

(2) requests a hearing and fails to appear, without good cause.

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Section 724.045. Prohibition on Probation of Suspension

A suspension under this chapter may not be probated.

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Section 724.046. Reinstatement of License or Issuance of New License

(a) A license suspended under this chapter may not be reinstated or a new license issued until the person whose license has been suspended pays to the department a fee of $125 in addition to any other fee required by law. A person subject to a denial order issued under this chapter may not obtain a license after the period of denial has ended until the person pays to the department a fee of $125 in addition to any other fee required by law.

(b) If a suspension or denial under this chapter is rescinded by the department, an administrative law judge, or a court, payment of the fee under this section is not required for reinstatement or issuance of a license.

(c) Each fee collected under this section shall be deposited to the credit of the Texas mobility fund.

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Section 724.047. Appeal 

Chapter 524 governs an appeal from an action of the department, following an administrative hearing under this chapter, in suspending or denying the issuance of a license.

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Section 724.048. Relationship of Administrative Proceeding to Criminal Proceeding 

(a) The determination of the department or administrative law judge:

(1) is a civil matter;

(2) is independent of and is not an estoppel as to any matter in issue in an adjudication of a criminal charge arising from the occurrence that is the basis for the suspension or denial; and

(3) does not preclude litigation of the same or similar facts in a criminal prosecution.

(b) Except as provided by Subsection (c), the disposition of a criminal charge does not affect a license suspension or denial under this chapter and is not an estoppel as to any matter in issue in a suspension or denial proceeding under this chapter.

(c) If a criminal charge arising from the same arrest as a suspension under this chapter results in an acquittal, the suspension under this chapter may not be imposed. If a suspension under this chapter has already been imposed, the department shall rescind the suspension and remove references to the suspension from the computerized driving record of the individual.

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Section 724.061. Admissibility of Refusal of Person to Submit to Taking of Specimen

A person's refusal of a request by an officer to submit to the taking of a specimen of breath or blood, whether the refusal was express or the result of an intentional failure to give the specimen, may be introduced into evidence at the person's trial.

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Section 724.062. Admissibility of Refusal or Request for Additional Test

The fact that a person's request to have an additional analysis under Section 724.019 is refused by the officer or another person acting for or on behalf of the state, that the person was not provided a reasonable opportunity to contact a person specified by Section 724.019(a) to take the specimen, or that reasonable access was not allowed to the arrested person may be introduced into evidence at the person's trial.

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Section 724.063. Admissibility of Alcohol Concentration or Presence of Substance 

Evidence of alcohol concentration or the presence of a controlled substance, drug, dangerous drug, or other substance obtained by an analysis authorized by Section 724.014 is admissible in a civil or criminal action.

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Section 724.064. Admissibility in Criminal Proceeding of Specimen Analysis

On the trial of a criminal proceeding arising out of an offense under Chapter 49, Penal Code, involving the operation of a motor vehicle or a watercraft, or an offense under Section 106.041, Alcoholic Beverage Code, evidence of the alcohol concentration or presence of a controlled substance, drug, dangerous drug, or other substance as shown by analysis of a specimen of the person's blood, breath, or urine or any other bodily substance taken at the request or order of a peace officer is admissible.

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In Chapter 8 of NHTSA’s “DWI Detection and Standardized Field Sobriety Testing” Manual is a subsection entitled “Overview of Nystagmus”:

Nystagmus is defined as an involuntary jerking of the eyes. Alcohol and certain other drugs cause Horizontal Gaze Nystagmus.

Categories of Nystagmus

There are three general categories of nystagmus:

1. Vestibular Nystagmus is caused by movement or action to the vestibular system.

2. Nystagmus can also result directly from neural activity.

3. Nystagmus may also be caused by certain pathological disorders. 

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Vestibular Nystagmus is caused by movement or action to the vestibular system.

A. Types of vestibular nystagmus:

Rotational Nystagmus occurs when the person is spun around or rotated rapidly, causing the inner fluid in the ear to be disturbed. If it were possible to observe the eyes of a rotating person, they would be seen to jerk noticeably.

Post Rotational Nystagmus is closely related to rotational nystagmus: when the person stops spinning, the fluid in the inner ear remains disturbed for a period of time, and the eyes continue to jerk.

Caloric Nystagmus occurs when fluid motion in the canals of the vestibular system is stimulated by temperature as by putting warm water in one ear and cold in the other.

Positional Alcohol Nystagmus (PAN) occurs when a foreign fluid, such as alcohol, that alters the specific gravity of the blood is in unequal concentrations in the blood and the vestibular system.

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Nystagmus can result directly from neural activity:

Optokinetic Nystagmus occurs when the eyes fixate on an object that suddenly moves out of sight, or when the eyes watch sharply contrasting moving images. 

Examples of optokinetic nystagmus include watching strobe lights, or rapidly moving traffic in close proximity. The Horizontal Gaze Nystagmus test will not be influenced by optokinetic nystagmus when administered properly.

Physiological Nystagmus is a natural nystagmus that keeps the sensory cells of the eyes from tiring. It is the most common type of nystagmus. It happens all the time, to all of us. This type of nystagmus produces extremely minor tremors or jerks of the eyes. These tremors are generally too small to be seen with the naked eye. Physiological nystagmus will have no impact on our (NHTSA) Standardized Field Sobriety Tests, because its tremors are generally invisible.

Gaze Nystagmus occurs as the eyes move from the center position. Gaze nystagmus is separated into three types:

(1) Horizontal Gaze Nystagmus occurs as the eyes move to the side. It is the observation of the eyes for Horizontal Gaze Nystagmus that provides the forst and most accurate test in the Standardized Field Sobriety Test battery. Although this type of nystagmus is most accurate for determining alcohol impairment, its presence may also indicate the use of other drugs.

(2) Vertical Gaze Nystagmus (VGN) is an involuntary jerking of the eyes (up and down) which occurs when the eyes gaze upward at maximum elevation. The presence of this type of nystagmus is associated with high doses of alcohol for that individual and certain other drugs. The drugs that cause Vertical Gaze Nystagmus are the same ones that cause horizontal Gaze Nystagmus.

Note: There is no drug that will cause Vertical Gaze Nystagmus that does not cause Horizontal Gaze Nystagmus. If Vertical Gaze Nystagmus is present and horizontal Gaze Nystagmus is not, it could be a medical condition.

(3) Resting Nystagmus is referred to as a jerking of the eyes as they look straight ahead. Its presence usually indicates a pathology or high doses of a Dissociative Anesthetic drug such as PCP. If detected, take precautions.  (Officer Safety)

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Nystagmus can be caused by certain pathological disorders. They include brain tumors and other brain damage or some diseases of the inner ear. These pathological disorders occur in very few people and in even fewer drivers.

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Conditions Requiring Motor Vehicle Ignition Interlock – Texas Code of Criminal Procedure Article 17.441

(a) Except as provided by Subsection (b), a magistrate shall require on release that a defendant charged with a subsequent offense under Sections 49.04-49.06, Penal Code, or an offense under Section 49.07 or 49.08 of that code:

(1) have installed on the motor vehicle owned by the defendant or on the vehicle most regularly driven by the defendant, a device that uses a deep-lung breath analysis mechanism to make impractical the operation of a motor vehicle if ethyl alcohol is detected in the breath of the operator; and

(2) not operate any motor vehicle unless the vehicle is equipped with that device.

(b) The magistrate may not require the installation of the device if the magistrate finds that to require the device would not be in the best interest of justice.

(c) If the defendant is required to have the device installed, the magistrate shall require that the defendant have the device installed on the appropriate motor vehicle, at the defendant's expense, before the 30th day after the date the defendant is released on bond.

(d) The magistrate may designate an appropriate agency to verify the installation of the device and to monitor the device. If the magistrate designates an agency under this subsection, in each month during which the agency verifies the installation of the device or provides a monitoring service the defendant shall pay a fee to the designated agency in the amount set by the magistrate. The defendant shall pay the initial fee at the time the agency verifies the installation of the device. In each subsequent month during which the defendant is required to pay a fee the defendant shall pay the fee on the first occasion in that month that the agency provides a monitoring service. The magistrate shall set the fee in an amount not to exceed $10 as determined by the county auditor, or by the commissioners court of the county if the county does not have a county auditor, to be sufficient to cover the cost incurred by the designated agency in conducting the verification or providing the monitoring service, as applicable in that county.

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The 3 main providers of Ignition Interlock devices in Austin, Texas for DWI defendants are:

(1) Smart Start, 2 locations:

North Austin: 401 East Braker Lane, Suite M, Austin, TX 78753.  Phone: (512) 821-9200

South Austin: 4360 South Congress Ave. Suite 11, Austin, TX 78745.  Phone: (512) 386-6306

(2) Draeger Interlock, 2 locations:

North Austin: 501 West Powell Lane #210, Austin, TX 78753.  Phone: (512) 339-4294

South Austin: 4402 South Congress Ave., Austin, TX 78745.  Phone: (512) 448-0843

(3) Guardian Interlock, 2 locations:

North Austin: 501 W. Powell Lane, Suite 215, Austin, TX 78753. Phone: (512) 836-6867

South Austin: 2123 Goodrich Avenue, Austin, TX 78704.  Phone: (512) 912-7770

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