February 2007

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.

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.

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.

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".

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.]


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.

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:


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.

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.

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.)

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.