What should I do if I am stopped and questioned by a police officer after I’ve been drinking?
If you are stopped, you are probably being videotaped. Be polite and courteous. Antagonizing the officer invites problems. Hand the officer your driver’s license and proof of insurance. Do not admit guilt, apologize, or volunteer information. This is not the time to beg your way out of a traffic ticket. If you are questioned, respectfully inform the officer that you will not answer any questions without an attorney present. When he finishes writing the ticket/warning, ask whether you are free to leave.
If you are free to leave, thank your lucky stars that you have not learned your lesson the hard way and be on your way – carefully and lawfully. In the future, choose the safer route by not driving after drinking and avoid all this stress. If another person in the car is capable of driving and hasn’t been drinking, let him drive. If you are told you are not free to leave, immediately request an attorney, terminate the interview, and remain silent.
What should I do if the police officer asks me to watch his pen or do physical agility tests?
You are under no obligation whatsoever to perform any physical tests like watching a pen, balancing on one leg, or walking a line. There is no legal penalty for refusing those tests. Don’t fall for a line like “Well, if you refuse to do the tests, you’re giving me no choice but to arrest you”. You may be arrested when you refuse, but the officer really decided to arrest you before he asked you to do the tests. Politely and respectfully declining to do any tests prior to consulting with an attorney will go a long way to helping your defense.
You have never performed the tests that he is requesting. Regardless of how well you think you will do on the tests, you will learn you failed the tests. Even officers who have done the tests hundreds of times fail to administer the tests by the book. When the officer asks you to perform for him, politely state that you must speak to an attorney before deciding whether to perform any test.
The police officer never read me my rights, so the case will be thrown out, right?
No. Failure to read someone his rights does not require dismissal. Miranda warnings are generally not required unless the police question a suspect while the suspect is in custody. Even then, the only “penalty” for failing to read Miranda rights to a suspect is that the statement made by the suspect might not be allowed in a trial.
Should I take the breath test or blood test?
I never urge anyone to take the breath test because it has serious problems accurately determining the quantity of ethyl alcohol present in a breath sample. The machine is useful in determining whether any alcohol is present, but deficiencies in the machine make test results unreliable. Risking one’s freedom, marriage, job, auto insurance rate, and loads of money on a breath test which is fraught with problems just doesn’t make sense.
Breath tests in DWI cases are far more common than blood tests. Breath test machines are usually put in the jails for easy access by police, results are available in minutes, samples are analyzed in an environment completely controlled by police, and the process is much cheaper. Texas uses the Intoxilyzer 5000 and 9000, both of which are made by CMI.
Blood tests require more steps and more time: a qualified person must draw the sample in sanitary conditions, the officer must label and package the sample for mailing, have it sent to the “crime” lab, the lab must analyze the sample and notify DPS of the results, and DPS must mail notice of suspension to the accused at his license address.
A hospital blood test has numerous problems, too. Blood tests are the exception in DWI cases, rather than the rule, so detail here will be sparse. Suffice to say that a hospital’s emergency room blood test is designed to produce a “quick and dirty” result to give doctors an idea of what they are dealing with, not a result for the technical, precise, and demanding arena of the courtroom.
As you might suspect, breath test shortcuts don’t favor the accused. One big difference is that a blood sample is saved and can be retested by the defense for accuracy, but the breath “sample” is literally blown out of a hole in the breath machine. Inexpensive technology is available to capture the sample for later, more accurate testing, but Texas has chosen a state-wide policy of allowing the sample to be “destroyed” in every case.
You might be interested to know a couple more things about the machine. It strictly assumes that your breath and blood have a direct ratio of 2100:1. Human beings’ true ratios range from about 1000:1 to over 3000:1. The 2100:1 assumption helps some people and hurts others. Are you willing to take the risk that your result could be inaccurately skewed up by as much as 50%? The machine also assumes your breath temperature to be 34 degrees Celsius, which is about 93 degrees Fahrenheit. If your breath temperature is higher than that, your test result will be higher than your true level.
The manufacturer of the Intoxilyzer 5000 and 900 and DPS forbid anyone but law enforcement personnel to inspect and test the machine’s accuracy. Truly scientific techniques and methods are generally subjected to open and critical examination and testing by the scientific community. Such a process ensures that the techniques and methods employed are reliable and accurate. Defense lawyers and experts hired by the defense are resisted at every turn. It’s no wonder that even the manufacturer of the machine doesn’t warrant the Intoxilyzer 5000 and 9000 as fit for any particular purpose.
Police often try to get people to take the tests to “prove” innocence. That attitude loses sight of the basic truth that you are innocent unless proven guilty. YOU ARE REQUIRED TO PROVE NOTHING about your innocence. The government has the entire responsibility of proving your guilt.
Be aware that refusing to take the test or failing the test can carry severe consequences.
The arresting officer will literally take your license from you and should give you a yellow temporary paper license to use until the suspension starts.
REFUSAL of a test can lead to a suspension of your driver’s license for 180 days to 2 years. (Also, refusal to take a test is statutorily admissible at your trial to imply that you didn’t take the test because you knew you would fail it.)
On the other hand, FAILING the test (getting a .08 or higher), can result in suspension of 90 days to 1 year. You have a right to a hearing on whether your license should be suspended, and it must be requested as soon as possible, no later than 15 days after receiving notice of suspension.
If you have never had a Texas driver’s license, don’t be lulled into a sense of false security that your “license” cannot be suspended. The legal term “license” includes the privilege to obtain a license, so you are affected, too.
Driving during a suspension period constitutes a crime commonly called DWLI (Driving While License Invalid). Penalties for DWLI are deceptive and more serious than you might think. Any conviction results in another suspension of your license. More than one conviction can land you in jail with penalties equal to DWI, too.
The news isn’t all bad. Should a jury or judge find you “not guilty” after a trial, your driving record can be cleared of the suspension, and your arrest can be removed from your criminal record.
Given the unreliability of breath testing and the way Texas has chosen to conduct its breath testing program, I will not advise someone to take a breath test.
Whether to refuse to provide a blood sample is a more difficult question, but I recommend never giving evidence to a government agent trying to harm you. They are not requesting blood because they think it will help you. The only reason they ask is because they think it will help them.
The officer told me my license would be suspended. What should I do?
Administrative License Suspension, or ALR, is what he was talking about, but not all arrests end with suspended licenses. In most cases, a “Notice of Suspension” is served immediately after the test is failed or refused.
Unless and until your license becomes suspended, you may drive without restriction. Many officers tell those they arrest that the license is suspended as of the moment of arrest, which is NOT true. The accused will automatically lose his license UNLESS a hearing request is received by DPS within 15 days of the accused receiving his notice of suspension. Making a proper and timely request will entitle you to a hearing on whether your license should be suspended. That hearing will be conducted by the State Office of Administrative Hearings (SOAH), usually within six weeks of arrest. Suspensions range from 90 days to 2 years.
ALR hearings involve many different laws, such as transportation code, criminal law, rules of evidence, rules of procedure, SOAH rules, and DPS rules. This is another reason it is very important to contact a qualified lawyer immediately. DO NOT DELAY.
If my license is suspended, how will I get back and forth to work?
“Occupational Licenses” are available under many different circumstances. The judge must find that an “essential need” exists, such as school and job commuting. The license is restricted as to routes, areas, and certain times.
It can be granted only after an appropriate lawsuit is filed to obtain the license. A qualified attorney can help you with the process. Court costs vary, but $120-$200 are common. DPS requires another $10. An SR-22 will also be necessary; an SR-22 is a document sent to DPS to ensure that you are continuously insured as required by law. Your insurance and attorney are additional costs.
Some people are ineligible to receive an occupational license.
Should I hire a lawyer?
Without a doubt, YES, and the sooner the better. Some evidence, by its very nature, is most valuable and obtainable for a short time. Delay may prevent the development of some evidence. DWI cases are very complex, involving a great amount of law and science. Failure to quickly request an ALR hearing can handicap your defense. It is critical that you obtain quality legal counsel quickly.
Conviction for DWI can lead to severe and far-reaching consequences, and your driving record will NEVER be cleared after conviction is final.
Whether you hire Mr. Goff or another qualified lawyer, you owe it to yourself to hire an attorney to handle this matter. Don’t kid yourself into thinking that you can do it yourself. If you could handle it yourself, would you be reading this?
How reliable is breath testing in determining a person’s blood alcohol level?
The answer to this question is extremely long and the subject of great debate. Breath testing is used by law enforcement personnel for its ease and convenience, not its accuracy. Reliability depends upon the ability of the machine to accurately measure the presence of breath alcohol. Breath alcohol supposedly reflects the level of alcohol in a person’s blood. Alcohol in the blood, of course, produces a depressive effect upon the central nervous system, leading to intoxication. However, even a perfectly functioning Intoxilyzer 5000 and 9000 (the breath machines Texas uses) has problems producing reliable results as to intoxication. A couple of simple facts illustrate some deficiencies in the machine:
- The machine strictly assumes that your breath and blood have a direct ratio of 2100:1. That means an equal amount of alcohol will be found in 2100 ml of breath and 1 ml of blood from the same person. Human beings’ true ratios range from under 1000:1 to over 3000:1. The 2100:1 assumption helps some people and hurts others. Any given person’s result could be inaccurately skewed by as much as 50%, depending on the person’s true breath to blood ratio. The problem of breath to blood ratios in and of itself is good reason to cast serious doubt upon the reliability and accuracy of breath testing, and no make or model of breath test machine corrects the problem.
- The machine also strictly assumes your breath temperature to be 34 degrees Celsius, which is about 93 degrees Fahrenheit. If your breath temperature is higher than that, your test result will be higher than your true level. The converse is also true. Newer machines can adjust for this inaccuracy, but the machine Texas uses does not. (The 9000 partially and inadequately addresses this topic.)
This website is not meant to be exhaustive, so consult a qualified attorney for further information to this broad question.
How do I choose which attorney to hire to defend me against the DWI charge?
Word of mouth is usually a good indicator, although not perfect. Reputation in the community is generally earned. Unpaid tributes to an attorney’s prowess are invaluable. Be sure to look for someone who actively defends DWI cases in particular. When consulting with an attorney, ask about whether he can discuss his knowledge of the NHTSA’s Standardized Field Sobriety Tests and how the Intoxilyzer 5000 works. You might want to ask whether the attorney owns various police DWI training manuals for reference and use in cross-examination, as well. You may ask whether the attorney knows what ALR is, how it works, and whether the attorney has experience with ALR. Believe it or not, many attorneys actually advise their clients that they shouldn’t bother with the ALR process.
Phillip Goff is a member of the most prestigious organization in the United States devoted to DWI defense: National College for DUI Defense (hyperlink to it in a new window, please).
How much will an attorney cost me? Should I take my case to trial?
How much you pay for an attorney depends on too many factors to list here. Proper defense of DWI involves a great deal of valuable time and efforts, so don’t expect a low price. If you want the “lowest-priced” attorney you can find to hold your hand as you plead guilty, the phrase “you get what you pay for” comes to mind.
Financial costs of a DWI conviction are extraordinary. Whatever the result of your DWI case, you will live with it for many years. Investing in an attorney is an important decision which affects your freedom and financial future.
Every person who pleads guilty to DWI is convicted of DWI. An overwhelming percentage of those convicted are placed on probation. A conviction for DWI results in automatic surcharges on your driver license, and failure to pay them results in your driver license being suspended indefinitely. Surcharges range from $1,000 to $2,000 per year for three years, so you wind up paying $3,000 to $6,000, in addition to all the other costs. Pleading guilty typically isn’t the easy way out many people believe.
If you take the case to trial, you may lose, but you have a chance to win; pleading guilty means a 100% chance you will lose. Probation is not guaranteed after losing a jury trial, but most misdemeanor DWI cases result in probation, even after jury trial. Your individual case needs to be assessed on its particular facts, and that requires in-depth review of information.
Taking a case to trial has its pros and cons. Trials do not happen as quickly as pleas of guilty, of course. As time passes, emotions and memories blur; witnesses may move or die. Trial is usually very stressful for the accused. These are a few of the numerous factors to consider.
You have the ultimate decision as to whether you take your case to trial, and you should carefully weigh all the facts with your lawyer before making that decision. Without knowing details of your case, it is impossible to intelligently answer whether you should take your case to trial.
How much will a DWI conviction cost me? Long Answer.
It can vary greatly, so the answer is not the same for everyone.
It is not a pretty picture, in any case. The amounts listed here are estimates for a first-time offense only, not to be taken as precise. Repeat offenses lead to greater costs.
A conviction for DWI results in automatic surcharges on your driver license, and failure to pay them results in your driver license being suspended indefinitely. Surcharges range from $1,000 to $2,000 per year for three years, so you wind up paying $3,000 to $6,000, in addition to all the other costs.
Upon arrest, the person’s car is usually towed and stored. Fees range wildly and may reach $500.
If the driver’s license (or privilege to get a license) is suspended after an ALR hearing, or if a hearing is not requested, a $125 reinstatement fee is required.
Bail costs vary greatly, depending on many factors. A few very lucky individuals get personal recognizance bonds, which cost nothing but the promise to appear in court. However, most people must pay between $50 and $500 to be released.
Some counties require pretrial supervision (believe it or not, probation even before conviction, solely based upon the accusation), including regular fees of about $25-$60 per month until the case is resolved.
Fines for a first-time offense are $0-$2000. $500-$1,000 is a normal fine. Court costs range greatly between $250 and $650, excluding any subpoena fees. If a video was made, more may be assessed.
Probation fees depend upon length of probation. $25-$60 per month is the statutory range for such fees, so a two-year probation can cost as much as $1,440. Regular conditions of probation include the completion of a DWI education program, costing $70-$300.
Private counseling or treatment for alcoholism costs thousands of dollars. Cheaper government programs may be available.
One of the greatest variables is the impact on the driver’s insurance rate. Major insurers like State Farm or Allstate will simply refuse coverage. For those insurers willing to offer policies, price depends on numerous factors: age, marital status, make and model of car driven, levels and type of coverage sought, driving record, and whether the DWI involved a wreck or other charges. Without a doubt, the insurance rate will increase substantially, and options will be limited. The insurer may require the purchase of six months insurance in advance. An SR-22 will require more. A lapse in coverage can cause the driver’s license to be suspended.
Of course, attorney fees are highly variable. You can find some attorneys willing to take on DWI cases for a mere few hundred dollars, but most will charge thousands, depending upon many factors.
Other indirect costs include time lost from work by going to court appearances, probation appointments, and serving jail time.
Restitution for injuries and property damage in wreck cases are usually required conditions of probation.
Transportation costs include cab or bus fare while a driver’s license is suspended.
Occupational licenses, which require the filing of a lawsuit, cost hundreds of dollars, as well.
Other considerations include possible job loss or limitation of opportunities. Marriages and other personal relationships are often seriously and deeply wounded, as well.
How much will a DWI conviction cost? Short Answer.
Any DWI conviction costs many thousands of dollars. Given the extraordinary impact a conviction can have, it is crucial to obtain sound legal assistance NOW. Many people believe they cannot afford an attorney and simply walk into court and plead guilty without an attorney. Even if you don’t hire Phillip W. Goff, please find a competent DWI defense attorney to help you; don’t go it alone. In the long run, what you save from not hiring an attorney is virtually certain to cost you far more than you saved. This is not a time to try to pinch pennies because you’ll absolutely, positively be paying thousands of dollars with a DWI conviction.
What are the penalties for DWI?
The circumstances of a case or defendant may lead to enhancement of punishment for a variety of reasons. Open containers and criminal history, for example, may affect the applicable range of punishment in any given case. The answers given are general and subject to change, depending upon the exact circumstances of your case.
1st offense : 72 hours to 180 days in county jail, $0-$2,000 fine, or both such fine and incarceration . Probation can be up to 24 months long and include numerous conditions set by the judge. License suspension can be from 90 days to 1 year, but completing the 12-hour DWI Education Program within 181 days of the date of sentencing usually prevents this suspension. *ALR is a separate matter that may lead to license suspension.
2nd offense : 30 days – 1 year in county jail, $0-$4,000 fine, or both such fine and incarceration. Probation can be up to 24 months long and include numerous conditions set by the judge. Jail time as a condition of probation is normal. License suspension is from 6 months to 2 years. If the judge does not set a term of suspension, DPS will suspend your license for 1 year. Completing the required DWI Intervention Program will not prevent suspension of your license. *ALR is a separate matter that may lead to license suspension.
3rd & subsequent offense (Felony): 2-10 years in state prison and a fine of $0-$10,000 . Probation can be up to 10 years long and include numerous conditions set by the judge. Jail is a normal condition of probation, and you may be required to attend an inpatient counseling at a facility run by the prison system as a condition of probation. License suspension is from 180 days to 2 years. If the judge does not set a term of suspension, DPS will suspend your license for 1 year. *ALR is a separate matter that may lead to license suspension. Forfeiture of your car is possible, depending upon circumstances.
DWI with a Child Passenger under age 15 years (even for a first offense): 180 days to 2 years in state jail and a fine of $0-$10,000. Probation can be 2-5 years and include numerous conditions set by the judge. Jail is a normal condition of probation, and you may be required to attend inpatient counseling at a facility run by the prison system as a condition of probation. License Suspension 90 days to 2 years. If the judge does not set a term of suspension, DPS will suspend your license for 1 year. *ALR is a separate matter that may lead to license suspension. Forfeiture of your car is possible, depending upon circumstances.
Intoxication Assault (involves serious bodily injury and can be a first offense): 2-10 years in state prison and a fine of $0-$10,000. Probation can be 2-10 years and include numerous conditions set by the judge. Jail is a normal condition of probation, and you may be required to attend inpatient counseling at a facility run by the prison system as a condition of probation. License suspension. If the judge does not set a term of suspension, DPS will suspend your license for 1 year. *ALR is a separate matter that may lead to license suspension. Forfeiture of your car is possible, depending upon circumstances.
Intoxication Manslaughter (involves death and can be a first offense): 2-20 years in state prison and a fine of $0-$10,000 . Probation can be 2-10 years and include numerous conditions set by the judge. A minimum of 120 days jail is a required condition of probation. You may be required to attend inpatient counseling at a facility run by the prison system as a condition of probation. License suspension can be from 6 months to 2 years. If the judge does not set a term of suspension, DPS will suspend your license for 1 year. *ALR is a separate matter that may lead to license suspension. Forfeiture of your car is possible, depending upon circumstances.
What is ALR?
Police and prosecutors call it “Automatic License Revocation.” Regretfully, many defense lawyers seem to be in the same boat. Those lawyers advise people not to request a hearing, instead opting for passive acceptance of the driver license suspension. They give up an opportunity to prevent a suspension, as well as lose a fantastic opportunity to prepare for the criminal case.
ALR actually stands for “Administrative License Revocation.” People charged with DWI in Texas often don’t realize they have two cases. They know about the DWI criminal case and when they are due in court. However, an arrest for DWI also triggers ALR, a civil case dealing with a driver license suspension.
The State Office of Administrative Hearings, “SOAH”, conducts ALR hearings dedicated to the sole purpose of suspending your driver license.
After most DWI arrests, a yellow “Notice of Suspension” is served on the person charged. If DPS does not receive a request for hearing within 15 days of service, that person’s driver license will be automatically suspended. Suspension ranges from 90 days to 2 years.
Without a hearing request, suspension begins on the 40th day after service of the notice. The arresting officer will literally take the person’s license a provide a temporary driving permit. The 15-day period to request a hearing will remain the same.
Requesting a hearing within the 15 days entitles the person to an administrative hearing to determine whether his license will be suspended. KEY: the request must not only be sent, it must be RECEIVED by DPS within 15 days.
While awaiting your hearing, you can drive normally. Should you win your hearing, your license would not be suspended. If you lose, you may choose to apply for an occupational license (for going to and from work).
If your license is suspended, DPS will require a $125 reinstatement fee. Otherwise, DPS will list your license as suspended even after the suspension period has passed.
Some people wrongly believe that ALR cannot hurt them because they have an out-of-state driver license or have never had a driver license. That’s a dangerous attitude based on a mistake. The ALR law definition of driver license includes the privilege to apply for one. A suspension in Texas is honored by almost every state.