January 2007

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?

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.)

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.

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.

   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.

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.

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.

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.

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.


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

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.]