Were You Arrested in Texas and Need Help? Check Out Our FAQs
A face-to-face meeting with Walter Reaves will help answer all of your questions, but until then, here are a few of the most frequently asked questions we hear.
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What happens to my CDL after a DWI arrest?
Many people have a commercial driver's license, or CDL. You may need that for your job, which means that if you lose your CDL, you could lose your job. So, the most important question you may have is whether you are going to be keep your CDL.
The rules for CDL holders are different from those that apply to those who hold a regular operator's license. If you are arrested for DWI, your operator's license can be suspended before you ever go to court. Your license can be suspended if you refuse a breath or blood test, or if you agree to the test, and fail.
In most cases, your license will be physically taken from you, and you will be given a paper that serves as a temporary license. Once the suspension period is over, you have to apply to get your license re-instated.
The terminology used for your operator's license is "suspension"; your license is suspended for a certain amount of time, and you have to get it re-instated when the suspension period is up. For a CDL, the terminology is different. You are either qualified or disqualified to operate a commercial vehicle. Section 522.081sets out the rules for disqualification. The statute covers several different situations - such as multiple traffic tickets - but here we are only going to address an arrest for driving while intoxicated.
For starters, if you refuse a breath or blood test, you will be disqualified from operating a commercial vehicle for one year. That means that even if you are able to get an occupational license to drive during the time your license is suspended, you will still be disqualified from a operating a commercial vehicle during that period, and will still be disqualified after you get you operator's license re-instated.
Subparagraph (b)(4) covers those situations where you agree to provide either a breath or blood test. This section also imposes a one year disqualification period, and covers situations where you were arrested while operating a commercial vehicle, and those situations where you were not.
- If you were operating a commercial vehicle, and you had an alcohol concentration of more than .04, you are disqualified for one year;
- If you operating another vehicle, and you had an alcohol concentration of more than .08, you are also disqualified for one year.
It is important to recognize that there are no exceptions or alternatives to disqualification. You cannot get some type of permit, or provisional license. As I said earlier, an occupational license does not authorize you to drive a commercial vehicle; it simply allows you to drive to and from work.
The impact of disqualification can be far more severe than the impact of a DWI conviction. It could mean the loss of employment if you must have a CDL to perform your job. For example, if you are a truck driver, there's not much you can do without your CDL.
If you are in this situation, you need to get help now, and find a lawyer with experience in handling DWI cases and license suspensions. This is not the time to cut corners, or cut costs.
How do you now when you've had too much to drink? It can be as simple as using a little math.
Although the best advice is to not drink and drive, that's not the law. Instead, the law only prohibits you from driving when you were "intoxicated". While there is more than one legal definition of intoxication, one of them is based on your blood alcohol concentration. If it's over .08 - when you are driving - your are too drunk to drive.
I don't need to tell you that you don't want to find this out to late. So, the question is whether there is a way to calculate your blood alcohol level, before you decide to drive. The good news is there is - although it certainly isn't foolproof. Here's a chart, which is one way to get a rough estimate:
The general rule is that your body eliminates approximately an ounce of alcohol every hour. That depends on a lot of things, including your sex and weight. It also depends on what you have in your stomach - the more food, the slower your body will process the alcohol.
The chart is fairly simple to use. Calculate the number of drinks, determine whether you are male or female, and then plug in your weight.
You then take that result, and subtract .01% for each 40 minutes of drinking; for example, you would would subtract .03 for 2 hours. If you had 2 drinks over 2 hours, and you were an 180 pound man, your estimated level would be .04 - which would be below the legal limit.
It's important to remember this only an estimate, so use it your own risk.
There's something else that's important to consider. Just because your actual BAC may be under .08, that doesn't mean you aren't going to be arrested. At a minimum, you might end up taking a trip to jail, where you will be offered the chance to take a breath test or blood. And even if it shows your below the legal limit, you can still be arrested. There are several reasons for that, but for now just know that it can happen.
It's probably also worth noting that if you have trouble doing this in your head, you're probably too drunk too drive.
Be safe - don't the find out the hard way - and the expensive way - that you should have found another way home. The surest way to avoid an arrest is to not drink and drive.
If you're this too later, don't worry. There are still options available to you. Breath testing is far from an exact science and there are ways to point out the problems. There are other ways to attack a case also, which and experienced DWI will know how to do. Don't wait until its too late. Call now and schedule an appointment to discuss your case and let us prepare a battle plan to move forward.
How much does it cost to hire a DWI lawyer in Waco, Texas?
The one question everyone has is how much is it going to cost? A lot of times, that’s the first question asked when people call us. If it’s not the first thing they ask, it’s because they’re embarrassed to ask up front. I know, because that's what I would do in a lot of situations. So I know that even if it’s not the first question, it is still the question you really want to know the answer to; after all, you need to know if you are going to be able to afford it.
So I’m going to tell you the answer – at least the answer we give. It’s $5,000.00. Sometimes the response is a long silence, which is often followed by “thank you” and they hang up. A lot of people expect it to be far less. Maybe it’s because they’ve called around, or more likely it’s because they don’t really understand what is involved, and how lawyers set fees.
Most lawyers are going to be shocked I told you this. For some reason, they think fees are supposed to be some big secret you can only get the answer to if you come in and talk to them. They don't want other lawyers to know what they charge. I don't understand that. When potential clients come in to talk to us, they often tell us they've been to a certain lawyer, and they were going to charge X. Maybe it's so they can adjust the fee if they need to. I can tell you that's not something we do. If you want to hire us, you should be willing to pay what we ask.
Instead of simply telling you what our fee is, I’m going to explain how we come up with that amount.
First, of all, there aren’t any rules or formulas lawyers use. However, most lawyers base fees on certain things, such as:
- Reputation, and
Experience is one of the things that are important, but only to an extent. For example, suppose you have a lawyer who has been licensed for 35 years. For the past 34 years, he’s been working for a firm that handles insurance disputes, and they went out of business. He decides to go out on his own and starts handling criminal cases, including DWI’s. Even though the lawyer has 35 years of experience, he/she may only have 1 year of experience in handling DWI cases. Or you might have a general practice lawyer with 35 years of experience. He/she has handled DWI cases, but may only handle 3 or 4 cases a year, along with the other matters they handle. That’s not the same experience as a lawyer who handles 30-40 DWI cases a year. This includes a lot of criminal defense lawyers; just because they have handled criminal cases doesn't mean they handle a lot of DWI cases.
All lawyers go to – and graduate from – law school. That doesn’t make you ready to handle a case through. Lawyers are required to continue their education, and take a certain number of CLE hours each year. The reason for that requirement is that the law is constantly changing, and you have to keep up with it. Getting the basic number of CLE hours is a minimum though; it’s the equivalent of the student who does just enough to pass. Most people want a lawyer – or any professional – to do more than just “pass”.
When I started practicing law, there were not nearly as many CLE programs as there are now. We are fortunate to now have a lot of educational opportunities. We also have the option to attend “advanced” training. Most of those are multi-day programs, devoted to a specific topic.
DWI is an area that requires a lot of training if you want to stay ahead of the prosecution. DWI is a unique area of the law, that combines both law and science. Understanding, and keeping up with DWI law, is not that hard. Once you know the basics, you can keep up with the case results with minimal effort. A lot of CLE course have DWI updates, so it’s pretty easy to stay up to date, and at least know what the law is.
What’s far more difficult to do is to learn the science involved in DWI cases. Most lawyers don’t have scientific backgrounds, so understanding the science does not come easy. You might wonder why that really makes a difference The majority of DWI cases involve either a blood or breath test. Few lawyers look at anything more than the result. However, these are tests, and like all testing, the validity of the test depends on whether it is performed properly, and the machines are working correctly. You won’t know that unless you understand the tests, and know what to look for.
Over the last several years, there has been an increasing number of advanced courses on blood and breath testing. Most are at least a week long. As you might guess, they are also expensive – ranging from a little over a thousand dollars to several thousand dollars. That doesn’t include hotel and travel. By the time you add all of that up, you have spent several thousand dollars going to a course. While you don’t charge clients for the costs of those courses, you do expect to be worth more than the lawyer who doesn’t have knowledge.
Some lawyers go even farther and take the same training given to police officers for Field Sobriety testing. They also will have the certification police officers have, which can be useful in cross-examination. Again, those classes are not cheap; you can’t just go down to the police academy and ask them to let you sit in. You should expect to pay more for a lawyer that has the training. This is the certificate I received after taking the Field Sobriety Training - which was actually a lot of fun.
Texas has a certification process. While you cannot obtain certification in DWI law, you can obtain certification for criminal law and criminal appellate law. There are several parts to certification, and few lawyers seek it. First, you must be licensed at least five years – which is pretty minimal. You also must devote a substantial portion of your practice to criminal law. That by itself weeds out lawyers who only handle a few criminal cases a year.
The second part is recommendations. You have to provide the names of lawyers you have worked with, and judges you have appeared before. Those people are contacted and asked if they would recommend you for certification.
Finally, you have to take – and pass – a test to demonstrate your knowledge of criminal law. This isn’t an easy test and is like taking the bar exam all over again. They don’t make it easy, and a substantial number of people don’t pass it.
The end result is that you can be assured that a lawyer who is board certified has the experience and knowledge required to be able to say they are a “specialist”. As with anything else, you are going to pay more for a specialist. Think of doctors; a cardiologist charges more than a GP.
This one is a little more difficult to assess. You obviously want a lawyer who is respected by other lawyers and the courts. That way you know they are going to listen to what they have to say. That doesn’t mean they are always going to agree, but they are going to consider it because they understand the lawyer knows what they are talking about. Think of people you know. You probably have someone you respect, and you are going to give a lot more weight to what they have to say than someone you don’t know.
The problem is how to determine what a lawyer’s reputation is. One indicator is the opinion of other lawyers. I mentioned CLE programs earlier. The people who conduct those programs choose lawyers who they believe are experts in their field and have knowledge that other lawyers need to know about. You can be assured that lawyers who regularly appear in CLE programs have a good reputation among other lawyers.
Another indicator is press coverage. While anyone can get in the news – usually in a bad way – reporters quickly learn who the lawyers are that are respected, and seek them out when they need information on a particular topic.
Finally, we now have the benefit of reviews. While you have to be careful when evaluating what other people say, you can usually find a pattern. This is the online equivalent of going out and asking for recommendations. We can talk a lot more about reviews, but one thing I believe that is important is to look at the reviews provided by lawyers - if there are any. Again, lawyers know who the good lawyers are. You might think that lawyers will simply provide a good review for a friend, so they can return the favor. I'm sure that happens, but most lawyers are far too concerned with their reputation to endorse someone they know is not qualified.
The final factor is time. One of the factors that determine the amount of a fee is the amount of time that will be required to handle the case. That’s why it’s going to cost more to defend a murder case than a DWI case.
There are two approaches to setting fees in a criminal case. One is to charge a lower amount, with the hope of getting more cases. The downside to that is that the more cases you have, the less time you have to devote to each case. Practicing law is a business. Just like any other business, there are costs you have to pay to operate – rent, salaries, supplies, etc.. There is a certain amount you must take in each month just to operate, which is generally far more than most people would guess.
While a higher fee doesn’t guarantee that the lawyer is going to spend more time on your case, most lawyers who charge higher fees do so with the goal of handling fewer cases, so they can devote more time to each case.
Aren't all lawyers the same?
I hope that if you’ve gotten to the point in the article you recognize that there is a difference in lawyers. Just in case, I’ll talk about the assumption a lot of people have, which is that all lawyers are basically the same. Frankly, when I first got out of law school I thought the same thing. However, I learned early on that wasn't the case. The first time it hit me was after arguing a case before the Federal Court of Appeals. It was a multi-defendant case with several lawyers - all of whom I thought were pretty good. After arguments, one of the lawyers commented that he would have never raised one of the issues I presented - which was the issue the court seemed to be most interested in. It seemed pretty basic to me, and I was more than a little surprised that the other lawyer didn't also see it. The Court ended up agreeing with me and reversed my client's conviction. That was an eye-opening experience because I realized that if my client had the lawyer who made the comment to me, she would not have won - and might still be in prison.
I've since had that same experience several times. More than once I've had a District Attorney or another lawyer comment that they would have never thought to raise a certain issue, or I was the first person to point that out.
Everyone believes you get what you pay for - why should lawyers be any different?
You hire a lawyer to give you the best chance for success in a case - whatever success may mean in your situation. That's no different from decisions you make in other areas of your life - especially when it comes to your health. My wife passed away several years ago after a long battle with cancer. When she was first diagnosed, I wanted a cure. We liked the doctor we were with, but I wanted to make sure we left no stone uncovered. I asked around, and also did some research, and eventually found a doctor who was considered an expert in treatment; she was about to retire from seeing patients, and concentrate solely on research. I knew she would be current on all of the current treatment options, even those that might not yet be readily known to the average physician. We ended up seeing her, and she continued to monitor my wife's case and provide recommendations from time to time. She didn't have the cure, but I'm convinced her advice and guidance gave my wife several extra years of life.
In a criminal case, your health is not at stake, but something equally as valuable is. Your freedom. When we sought out the doctor I wasn't worried about the cost - which I figured I would have to pay. I was going to come up with it.
If you want to take advantage of our experience and knowledge give us a call
If you've spent any time on this site, you would probably guess that we aren't the cheapest lawyers around; and you would be right. We try to set fees based on the experience and knowledge we bring to the table, which will hopefully translate into a benefit to you. If the future of you and your family is important, give us a call at 254-296-0020, or fill out the contact section on this page.
What's the first thing I should do if arrested for Driving while intoxicated?
For most people, an arrest for driving while intoxicated is the first time they have been involved in the criminal justice system. That means you probably don't have a clue as to what to do next. The natural tendency is to ignore it and try to not to think about it. Of course, that's impossible, because your arrest is probably all you're thinking about.
I'm assuming you have already posted bond and got out of jail. You may now be starting to look for a lawyer. That's an important decision, but in the meantime, there are a couple of things you need to take care of.
Request a hearing on your license suspension
You probably received a piece of paper, which serves as your temporary driver's license. If you don't do anything, your license will be suspended 40 days after the date of your arrest. You have the right to have a hearing, and require the Texas Department of Public Safety to prove the facts required to suspend your license. However, you must do this within 15 days of your arrest.
The process for requesting a hearing is pretty simple. You can either call or fax your request. The information is on the temporary license. You will need to provide your driver's license number, date of birth, and date of arrest, along with the reason why your license is being suspended. If you do that, your license is still valid until a hearing is held.
Check your bond conditions
Along with the temporary license, you should have been given papers related to the charge. In some situations, the judge who sets the bond is required to put a condition on your bond that you put an interlock device on your car. That is a device you have to blow into before you can start your car. If that condition was placed on your bond, you will be in violation of your bond if you don't do it. That means your bond could be revoked, and you could be arrested again and go back to jail. So make sure you check, and if in doubt, ask your bondsman.
If you hire a lawyer, they can take care of these things for you. If you haven't done so already, request our free book on Hiring a lawyer for Your DWI case. I guarantee you it won't be a waste of your time.
If you believe we might be the right lawyer for you and want to call and schedule an appointment to talk with us, please give us a call at 254-296-0020.
Do I have to take the Field Sobriety Tests?
If you are stopped, and the officer suspects you are driving while intoxicated, they are almost always going to ask you take Field Sobriety Tests. Those are series of standarized tests, that include:
- Horizontal Gaze Nystagmus (HGN), which looks at your eyes
- Walk and Turn
- One Leg Stand
Few officers ask you take these tests. Instead, they simply direct to do so. The first direction usually includes moving to a location where they can adminster the HGN. If you don't know, you would probably think you are required to take these tests. That assumption is WRONG, but unfortunately few people know they can refuse.
Why would you want to refuse? For starters, the tests have never been "peer reviewed" and verified, which means their scientific validity has never been established. Officers are even told in training that there are "error rates", which means the tests will identify someone as intoxicated who isn't.
Another reason is that while the tests appear to be objective, much of the scoring is subjective. That means whether you pass or fail can depend on how an officer evaluates youro actions. You also are scored only on what you do wrong; you don't get credit for the things you do right.
The final reason is that the tests are basically coordination tests. If you think about it, the tests require you to do abnormal actions to determine d you're normal. How many times do you walk down a line heel to toe, or stand on one leg and count.
So the question is whether you should take them. My answer is almost always no. There are reasons for that, other than you might be intoxicated. One reason is that most times, the officer has already decided you are intoxicated, and is simply looking for intoxication. Not only can that influence how they score the tests, they don't have to let you go even if they give you a passing score. I've had cases where individuals "passed", but were still arrested.
Everyone should know their Rights. That includes the right to say NO to Field Sobriety Tests.
If you've been arrested for DWI and want a FREE written case evaluation, fill out our form at Do I have a Defense?. If you would like to schedule an appointment to talk with us about your case, give us a call at 254-296-0020.
What does BAC mean?
If you’ve done any research on DWI you’ve seen the term BAC, and may be wondering what that means. Blood alcohol concentration is the abbreviation for “blood alcohol content”. The phrase actually used in the penal code is “alcohol concentration”. That phrase is defined as the number of grams of alcohol in:
- 210 liters of breath
- 100 milliliters of blood, or
- 67 milliliters of urine
This is important because “intoxicated” means having an alcohol concentration of .08 or more.
When you put all that together, you can commit the offense of driving while intoxicated when you operate a vehicle with an alcohol concentration of .08 or more.
You might wonder why lawyers refer to BAC when a breath test is taken. If BAC means blood alcohol content, that should apply only to blood tests right? Technically, you would be right. However, there is a reason for it – other than “AC” doesn’t sound as good. The explanation is that breath tests are designed to measure the amount of alcohol in the blood. The alcohol in the blood is transferred in the lungs, and expelled , which is what breath tests are based on. The breath test machine makes the calculations, and prints out the number – which looks the same as a blood test.
If you’re paying attention you probably figured out that they don’t take 100 milliliters of blood, nor does the breathalyzer collect 210 liters of breath. The result reported is based on a calculation to get that result from a much smaller sample. 100 milliliters is a little over 3 ounces; the actual amount in collected in a blood tube is generally 2-3 milliliters, so they have to perform a calculation to determine how much would be in 100 milliter. The same goes from 210 liters of breath - it be roughly the amount of air in a 55 gallon fish tank.
There are a lot of issues with blood tests and breath tests, but we won’t go there now.
Just because the reading from the breathalyzer or the blood test is over .08 doesn’t mean you are guilty. The State has to prove that reading is accurate, which is also another discussion.
If you’ve been arrested for drunk driving and want to talk with an experienced, board certified lawyer, give us a call at 254-296-0020.
Do I have to Answer Questions After a Traffic Stop
The scenario is repeated hundreds of time each day. Someone is pulled over for a traffic offense, the police officer smells alcohol. One of the first questions they are going to ask is have you had anything to drink. You don't want to lie, so you say yes. The next question is how much, and you are going to say "2 or 3" - trust me, 99% of the people give that answer. Since everyone says the same thing, they aren't going to believe you, and assume it's been a lot more. You have probably just ensured an escorted trip to the local jail.
I'll give you a hint. If the police smell alcohol, and you admit you have been drinking, you're probably going to jail. While you might think that's ridiculous, think about it from the officer's perspective. The last thing any police officer wants to do is let someone who go, who goes down the road and is involved in the accident. The first question is "why did you let them go." While it might not be fair, more often than not they are going to err on the side of taking you to jail.
If you're going to get arrested anyway, why should you do anything to help them convict you in court. Most people don't know this, but you have the right to refuse to answer questions. You do have to provide your name and identification, but that's it. Most people think they are going to look guilty if they refuse to answer questions, and you probably are. However, it's better than giving evidence to use against you later.
Here's how it plays out. If you admit you've been drinking, you already made at least half the case for the State. They aren't going to believe you on the number of drinks, and will argue you were trying to minimize the amount. Just as damaging are statements about when your last drink was. Most people want to put it as far back as possible. The State will believe that statement, and use that against you. Since alcohol is eliminated from the body, if you take a blood or breath test, they are going to argue that your alcohol level was actually much higher when you were driving, since it had gone down some by the time the test was done.
I know its unfortable to refuse to answer questions from a police officer. We've all been conditioned to cooperate with the police. This is one situation though where cooperation is not a good thing - at least for you.
If you've been arrested for a DWI, and want to discuss your case and see if we can help, give us a call at 254-781-3588.
What is an SR-22 and why do I need one?
An SR-22 is a certificate demonstrating a vehicle has the minimum liability insurance required by the State. You will need one if it is Ordered by the Court. It may also be required if your license has been suspended or revoked as the result of an accident, conviction or judgment. The Certificate must be filed with the Texas Department of Public, and maintained in force for whatever period is required.
The purpose of the SR-22 is to ensure that you maintain insurance coverage. The responsibility for monitoring the policy is shifted to the insurance company. They have to make sure the policy is current, and notify DPS if there are any changes. The SR-22 is not an actual insurance policy; it is actually an endorsement to the policy, which means you can't just go buy an SR-22.
It is important to note that a certificate of insurance coverage is NOT the same as an SR-22, and will not take its place. In other words, just because you insurance - no matter how much - that is not going to take the place of an SR-22. Not every company will issue an SR-22 since they consider it to be high risk insurance coverage. Some agents also are not familiar with the requirements for an SR-22, and may not want to handle it; or they may provide you the wrong coverage.
It is important to get coverage from a company that knows what they are doing, and knows the requirements for satisfying DPS. If you already have coverage for you and your family, you need to be especially careful, because taking out another policy may void the coverage you already have since you cannot be insured under two policies.
In our office we routinely refer people to Accurate Concepts Insurance. They are specialists in providing SR-22 coverage, and know exactly what to do. Importantly, they also make the process relatively painless, and issue notices to everyone who needs it - including your attorney.
If you have been arrested for a DWI and want to discuss your case give us a call at 254-296-0020, or fill out our contact form.
If you've been arrested for Driving While Intoxicated and want a FREE written case evaluation, fill out the form at Do I have a Defense?
How do I request a hearing on my license suspension?
If you have been stopped and arrested for driving while intoxicated, your driver's license will be taken from you. You will be given a piece of paper, which serves as a temporary license. That temporary license is valid for 15 days UNLESS YOU REQUEST A HEARING. If you don't do anything your license will be suspended on the 15th day, and you will no longer be able to drive until the suspension is over.
You can request a hearing on the suspension. The hearing will happen before an administrative law judge, who will decide several issues. Those are:
- whether there was a legitimate reason to stop
- whether there was a reason to believe you were intoxicated
- whether you either refused to take a breathe test or took a test and failed it
While those can be fairly easy things to prove, the burden is on DPS to do that. We have been successful in challenging the reason for the stop, and in some cases challenging whether there really was a refusal.
Requesting a hearing is fairly simple. You can either call, write or fax your request. The instructions are provided at the bottom of the temporary license you are provided. No matter which method of notification you choose, the notice must contain:
- your full name
- date of birth
- driver's license number and State
- current mailing address
- home and daytime telephone numbers
- date and county of arrest
- arresting agency
- arresting officer
- whether test was failed or refused
All of this information must be included, or the notice will not be considered. Generally, when there are problems with the notice it usually involves the failure to include the county of arrest and arresting agency, and whether the test was failed or refused. You don't get a chance to correct it, so make sure you include everything.
Whichever method you choose make sure you keep some proof. DPS gets hundreds of faxes, letters, and calls each day, and occasionally they miss one. There have been a few occasions when they did not receive the notice, and we had to prove it was sent.
The notice must be received within 15 days of receiving notice of suspension. That is usually the date of arrest. However, in some cases - especially where blood is drawn - your license may not be taken immediately. Instead, you will be mailed notice of the suspension after the results come back. Your time starts to run from the date you receive the notice, or it is presumed you received the notice.
If you properly and timely request a hearing, your license will not be suspended, and you can continue to drive until the hearing.
If you would like more information on DWI please download a copy of our DWI survival guide. Or if you would like to discuss your case with us, give us a call at 254-296-0020.
If the police ask for a blood test can I request a breath test
Blood tests are being requested far more often in DWI cases. Whereas they used to be fairly rare, now it's a common occurence to request a blood sample even if a breathalyzer is available. No refusal weekends are also becoming more common - where if you refuse to take a breath test a warrant will be obtained to get a blood sample from you.
Obviously a blood test is far more invasive than a breath test. A number of people are terrified of needles, and would never willingly agree to be poked with one. It's not surprising that sometimes when an officer requests a blood sample a suspect will ask if they can take a breath test instead. It seems only fair that you should have that choice; after all, you're still giving them what they want - which is evidence they can ultimately use against you. Fairness and common sense seldom prevail in criminal cases though, and this situation is no exception.
The court's have consistently held that the choice of which test to administer belongs to the officer. They don't need a reason to choose one over the other. They get to choose, and you either have to consent to take the test they selected, or refuse. You don't get to negotiate - or make a counter-offer. Additionally, if you refuse to take the test requested that's considered a refusal, even if you offered to take the other test. That means that if they request a blood test and you tell them you'll take a breath test, that's considered a refusal.
Why would an officer request one test over another? Usually it's a matter of convenience. If you were in an accident and taken to the hospital, it's more convenient to get a blood sample - they would have to take you to jail to administer the breath test. On the other hand, if they've taken you to jail, it's more convenient to administer the breath test than have someone come in and draw blood - or to have to transport you somewhere where your blood can be drawn.
The bottom line is that you don't have a choice - either take the test requested, or refuse.
Does Texas have an offense of driving under the influence?
The main criminal offense covering intoxicated drivers is driving while intoxicated - or DWI. That's different from many states, where the offense is driving under the inluence - or DUI. Texas does have an offense of DUI, but it only applies to minors.
If you're a minor - which means you are under 18 - you commit an offense if you operate a motor vehicle (or watercraft) while having any detectable amount of alcohol in your system. Basically you can't drink and drive; which is the only time the phrase "don't drink and drive" has any validity. The state doesn't have to prove you are intoxicated, simply that you have alchohol in your system.
So how do they prove you have "a detectable amount" of alcohol in your system? Police rarely take minors in for a breath test, or blood test, unless they believe the minor is intoxicated. Instead, the decision to charge you generally is based on the odor or smell of alcohol on your breath. Not exactly scientific, but that's a separate discussion.
The offense of DUI is a class C misdemeanor, which is similar to a ticket. However if you've been convicted of the same offense twice before, the punishment is increased to a class B misdemeanr, and you can be sentenced to up to 180 days in the county jail. In addition to the fine, community service is mandatory; 20 - 40 hours if it's a first offense, and 40-60 hours if you've been convicted before.
In addition to a fine and community service, there is also a mandatory alcohol awareness class that must be completed. If you don't complete it within 90 days (unless extended by the court) your license will be suspended for a period up to 6 months, or if you don't have one prevent you from getting one for up to six months.
As you can see, just because you aren't going to jail doesn't mean DUI is a minor offense. Before you go in and plead guilty make sure you know the consequences - and the alternatives.
What happens if I can't afford to pay my surcharges?
Many people are surprised to learn that additional fees are imposed on drivers who commit certain offenses, or have their licenses suspended. The fees are in addition to any fines or punishment that is imposed. These are called surcharges, and generally are $1,000 per year.
It took a while for the legislature to recognize what everyone told them at the beginning - a lot of people can't afford the surcharges. If they can't pay the surcharge, they can't keep their license. Many have to drive to make a living, and they are going to do it whether they have a license or not. The result is that you have a lot of unlicensed - and uninsured - drivers running around.
The legislature has finally recognized that there needs to be a way to provide some relief for people who simply cannot pay the surcharges. They authorized the creation of an amnesty program as well as an indigency program. The amnesty program was aimed at individuals who were in default on payment of their surcharges. DPS was authorized to reduce the surcharges to 10% of the total amount in default, not to exceed $250.00. You can also get your license back while you are making payments.
What if a surcharge is imposed and you can't afford to pay it? The Indigency Program allows the amount to be reduced to 10% of the amount due, not to exceed $250. You are eligible if you are at or below 125% of the federal poverty level. Those amounts can be found here. This is the table for 2018 according to the US Department of Health and Human Services:
2018 POVERTY GUIDELINES FOR THE 48 CONTIGUOUS STATES
AND THE DISTRICT OF COLUMBIA
Persons in family/household Poverty guideline For families/households with more than 8 persons, add $4,320 for each additional person. 1 $12,140 2 16,460 3 20,780 4 25,100 5 29,420 6 33,740 7 38,060 8 42,380
You apply for the Indigency Program by filing a sworn affidavit. You can find the application form at https://www.txsurchargeonline.com/Indigence.aspx. Simply download the form, sign it before a notary public, and send it in along with the supporting documents. According to DPS, decisions are usually made within 14 days.
If you qualify, make sure you take advantage of this program. Instead of having to pay $1000 you can get by with only paying $100.00. That's definitely too good to pass up.
How important is the DWI video?
Almost every police car in Waco - and everywhere else in Texas - is equipped with recording equipment. It is usually activated when the officer decides to stop someone and is not turned off until they arrive at the jail if an arrest is made. When an officer suspects someone of driving while intoxicated, they perform a series of tests called Field Sobriety Tests. How you perform has a lot to do with the ultimate disposition of your case.
Generally, the video is not something you have a chance to review until after charges are filed. In most jurisdictions, the video is provided as part of discovery. Some places will let you make a copy - McLennan County is one of those places - while others will only let you review them in the District or County attorney's office. Hill County is one of those places.
I've had a lot of clients tell me they did really well on the sobriety tests. In fact, most people think they did great. The video supports some, while for many the video shows the complete opposite. After reviewing the video - or getting a description of it - the first question is usually how important it is going to be.
The fact is that the video is the most important piece of evidence in most cases. The better you perform, the better your chance of getting the case dismissed, or obtaining a not guilty verdict. Police reports in most cases read almost exactly the same. "The suspect had bloodshot eyes, and the odor of alcohol on their breath." When describing the field sobriety tests they set out everything the person did wrong - and never mention what they did right. Many times the descriptions are grossly exaggerated; when you read them you wonder how the person made it through without falling on their face. The flip side is also true - if you look really bad on the video there may not be much you can do but make the best deal you can.
There are many videos where the suspect appears to do everything well. Those are the cases where you can use the video to prove that you weren't intoxicated. It's even better when observations the officer put in the report don't show up in the video.
So what if your video is horrible? There still could be some hope. Before an officer can stop you they must have a reasonable suspicion that you've committed some offense. If they don't have that, everything that results from the stop - which would include the video - would have to be suppressed.
That's why you can't make a decision solely on the video. Instead, your lawyer must look at everything before advising you on how to proceed. Which also means you must have a lawyer who knows what to look for.
Can I get deferred adjudication in a DWI case?
One of the most common questions I hear is whether you can be placed on "deferred adjudication" for driving while intoxicated. The simple answer is NO.
If you don't know, deferred adjudication is a form of supervision - i.e. probation. The conditions of supervision are basically the same; the difference is in what happens in the end. In regular probation cases, you will complete the period of supervision and be released. That is basically the end of it. You still have a criminal conviction, and it will still appear on your arrest record.
Deferred adjudication differs in what happens when you are originally placed on supervision. Instead of finding you guilty the court "defers" a finding of guilt. In other words, they don't find you guilty, and instead carry the case forward while you are on supervision. If you successfully complete supervision the charges are dismissed. You can then truthfully say you have never been convicted of a criminal offense. In some cases, you can also obtain an "Order of Non-Disclosure", which basically seals your record.
Unfortunately, the legislature has taken away the ability to receive deferred adjudication in a DWI case. There are a few other cases where you cannot receive deferred, but most of those are serious felonies. Chalk up DWI to influential lobbying groups.
It's important to know that a conviction for driving while intoxicated is an offense with some significant collateral consequences. The inability to obtain deferred adjudication is simply one of those.
What is an ignition interlock device?
Use of an ignition interlock device is often one of the conditions and terms of a DWI conviction in Texas. If you've been convicted of two or more DWIs in a five-year period, you are required to outfit any vehicles you drive with this device. Also, depending on the severity of your DWI, you could be ordered to use the ignition interlock device even if is your first offense. That is really up to the judge when your sentencing is taking place.
An ignition interlock device consists of a tube that feeds into electronic equipment attached to a vehicle’s ignition system. A driver must submit a breath sample before he is able to start the car. If the breath sample indicates a blood-alcohol concentration (BAC) over a specified limit, the car will not start. Additionally, the driver will be prompted to submit breath samples while he is driving, to make sure he did not start drinking after the car started.
If someone is ordered to have an ignition interlock device installed, she is responsible for paying for the device and any installation charges, and must make sure installation is complete within 30 days. Any court-ordered installations have to be performed by service centers certified by the Department of Public Safety.
In addition to having the ignition interlock device installed, the person must also obtain a restricted interlock license, which authorizes her to drive only if the device is installed. A restricted interlock license will not be issued if the individual's regular driver's license is expired or suspended, or if she has not paid the required fees.
If you have been arrested for DWI and need help avoiding a conviction, contact Waco DWI defense lawyer Walter Reaves at 254-296-0020 for a free consultation.