DWI / DUI: Driving While Intoxicated

Everything you need to know (but were afraid to ask)

  • DWI is an equal opportunity offense.
    • Judges, prosecutors, politicians, celebrities, teenagers, senior citizens, repeat and first-time offenders. Any one can get charged with DWI.
    • No matter who you are, if you are stopped and an officer thinks you’ve been driving, the odds are good you’re going to jail.
  • You should almost always fight a misdemeanor DWI charge.
    • The standard plea bargain for a first DWI is a conviction with probation.
    • Unfortunately, there’s no way to expunge a DWI conviction from your record, and the direct and indirect costs of a DWI can easily reach $10,000 dollars over just a few years.
  • Any DWI, especially a first-DWI, is potentially winnable.
    • There is almost never a reason to just plead no contest or guilty, even if you think the State has a strong case.
    • If you look good or “normal” on video, you have a chance at a not guilty.

Drinking and Driving In Texas

  • Myth: Drinking and Driving Is Illegal
    • It is not illegal to drink and drive, in Texas, so long as you are over 21.
  • Fact: If you’re 21 or older, you are not guilty of DWI, unless you were driving in a public place while intoxicated.
  • Intoxication: Intoxicated means
    • Your blood or breath alcohol score was over .08 – at the time of driving; or
    • That you did not have the normal use of your mental or physical faculties (abilities)

How to Evaluate and Fight a DWI

  • Were you illegally stopped by the Police?
    • In Texas, it is presumptively illegal for the police to stop you without a warrant.
    • To justify a warrantless stop, the State must prove by a clear and convincing evidence that the Officer had “reasonable suspicion” to believe you committed a crime in order to justify a warrantless stop.
    • If you were stopped by the police without committing a traffic violation or other illegal conduct, your lawyer may be able to suppress key evidence for the State’s case such as:
      • Standardized Field Sobriety Tests
      • Breath or blood score.
      • Admissions or incriminating statements.
      • Dash-cam or other video
  • Were you illegally arrested by the Police? administer standardized field sobriety tests properly?
    • In Texas, it is also presumptively illegal for the police to arrest you without a warrant.
    • The State must prove by clear and convincing evidence that the Officer had “probable cause” to believe you committed a crime in order to justify a warrantless arrest.
    • If you look good or “normal” on video, the basis of the arrest is almost always the claim by the arresting officer that you failed standardized field sobriety tests.
      • Standardized Field Sobriety Tests (SFSTs) are notoriously unreliable, subjective, and biased.
      • SFSTs are only admissible in evidence if the arresting Officer is properly trained and certified in the administration of SFSTs.
      • The Officer must also administer the SFSTs strictly in accordance with the protocol set forth by the National Highway Traffic Safety Administration (NHTSA).
    • If you were arrested for DWI on the basis of allegedly failing SFSTs, and the Officer failed to administer those SFSTs properly, your performance on the SFSTs cannot be held against you, and the arrest will likely be held illegal.
    • An illegal DWI arrest almost always results in the State being unable to offer into evidence a breath or blood test score.
  • Can the State Prove You Were Operating a Vehicle?
    • Who saw you driving?
    • Was your vehicle already pulled over or stopped when police arrived?
    • Can the Police show you were intoxicated while driving?
  • Was the breath or blood test done properly?
    • Were you observed by the breath test operator continuously for 15 minutes prior to the beginning of the breath test, beginning from when you exited the squad car?
      • Failure to follow the “15 minute” rule will result in the breath test score being suppressed (thrown out).
    • Did you burp or belch during the 15 minute period? If so, the police must restart the 15 minute observation because your breath test score will be artificially inflated by stomach acid?
    • Do you have acid-reflux or other medical condition that interferes with the ability of the breath test to measure your breath alcohol properly?
    • Was the blood drawn in a “sanitary” place by a “qualified technician”? If not, the State cannot offer into evidence against you at trial.
    • Were proper laboratory procedures regarding the preservation and analysis of your blood followed at the crime lab?
  • Proper Blood Search Warrant?
    • If you did not voluntarily consent to a blood test, the State must obtain a search warrant for your blood, and that requires sworn testimony before a magistrate before a search warrant can be issued.
    • Did the “4 corners” of the officer’s probable cause affidavit for the search warrant provide sufficient probable cause for a search warrant to be issued?
    • Was the search warrant affidavit properly sworn to or notarized?
    • Can the State produce an original or certified copy of the search warrant at trial?
    • Did the Officer note the name of the magistrate who signed the search warrant?
      • I’ve actually gotten the State to dismiss a DWI where the judge’s signature on the warrant was illegible and the Officer forgot to include the name of the magistrate who signed the warrant in his offense report!
  • Will the State’s witnesses show up at trial?
    • Because the State has the burden of proof, if you choose to fight your case, the State must get at a minimum the arresting officer and lab analyst to appear as witnesses in court at your trial.
    • DWI trials often take months, or even years to get called to trial. If the State cannot get its witnesses to the Courtroom when your case is called to trial, the State will have to dismiss the case.
      • Police Officers can be transferred, moved, deployed, or no longer working by the time your case is called to trial.
      • Lab analysts who test blood can be transferred, moved, or no longer employed by the time your case is called to trial.
      • For prescription medicine and non-alcohol DWI case which are tested at an out-of-state lab, the State may choose not to spend the money to fly the witnesses in for your trial.
  • Are you eligible for dismissal through pretrial diversion?
    • Military Veterans may have the option of participating in Veteran’s Court, successful completion of which results in the dismissal and expunction of your DWI.
    • Do you have multiple pending DWIs? In Dallas County, you may be eligible to participate in misdemeanor DWI court to get a second pending DWI dismissed upon successful completion of the program.

Selecting An Attorney to Defend You:

One of the most important decisions you can make after a DWI arrest is the attorney that you trust to represent you. The right attorney can make all the difference in the outcome of your case. When deciding whom to hire to defend you on a DWI, consider the following:

  • Don’t fall for fear tactics or let your be intimated. Finding the RIGHT lawyer is way more important than finding a lawyer fast.
  • Is he or she promising or guaranteeing you an outcome? If any defense or DWI attorney who promises you a dismissal is violating all kinds of state bar rules, and is simply telling you what you want to hear.
  • Is he or she interested in fighting your case? Has he or she identified any strategies that could work in your case?
  • Does he or she spend the time necessary to interview you and learn what happened?
  • What is the attorney’s or the firm’s record of success in successfully fighting DWIs?

My best advice in selecting a DWI attorney is to trust your instincts, and choose an attorney that you believe will spend the time to investigate your case thoroughly and explore every possible defense. All the knowledge and experience in the world won’t help, if you select an attorney who is too busy or has too big of a case load to spend time on your case. And if you select an attorney who never tries cases, the odds are good that you’ll be paying an attorney to plead you guilty.

Results Speak for Themselves: Selected “DWI” Accomplishments

Charge Range of Punishment Outcome
.155 blood DWI – Class “A” Misdemeanor Up to 1 year in jail and up to $4,000 fine State dismissed after mistrial / hung jury. Obstruction
.148 blood DWI, Dallas County, Misdemeanor “B” Up to 180 days in jail and up to $2000 fine Dismissal / Obstruction
.09 breath DWI – 2nd offense – Class “A” Misdemeanor 30 days to 1 year in jail, up to $4000 fine Not guilty
.08 breath DWI – Class “B” Misdemeanor Up to 180 days in jail and up to $2000 fine Not Guilty
Xanax/Alprazolam DWI- Class “B” Misdemeanor (Client passed out while stopped at red light) Up to 180 days in jail and up to $2000 fine Dismissed/Obstruction
.284 blood felony DWI, Dallas 282nd Judicial District, F-1514104 2 to 10 years in prison, up to $10,000 fine State dismissed felony DWI (Client plead to misdemeanor)
.168 breath felony DWI, Dallas, 363rd Judicial District, F-1534821 2 to 10 years in prison, up to $10,000 fine State dismissed felony DWI. (Client plead to misdemeanor)

Need Help with DWI / DUI or Other Intoxication Offense?

If you have been arrested, charged, or have found out that you have a warrant for an DWI/DUI or Intoxication offense, contact us at (214) 530-2056.