Criminal Defense Lawyer -- Brett A. Podolsky

YOU HAVE 15 DAYS FROM THE DATE OF ARREST TO REQUEST A HEARING WITH DPS TO SAVE YOUR LICENSE, FAILURE TO REQUEST A HEARING WILL RESULT IN THE AUTOMATIC SUSPENSION OF YOUR DRIVERS LICENSE.

DWI is a criminal offense prohibiting a person from operating a motor vehicle in a public place while "intoxicated".

In Texas intoxication is defined as:

The State only needs to prove one of the three methods beyond a reasonable doubt in order to obtain a conviction.

What does 'normal' mean?

According to the law, the definition of the word normal is the average person. The problem for the State is how do we determine the average person? The law is vague in this subject, which allows for good argument to a jury that everyone is different and each has his own normal. What might be normal performance for a 22 year old former high school athlete could be very different than for 45 year old Joe Defendant who is 40 lbs overweight and can't even ride a bicycle.

What is 0.08-alcohol concentration?

"Alcohol concentration" is defined by statute as:

For an average male, one drink should amount to a BAC of approximately 0.02. A drink is 1-¼ ounces of liquor, 1-12oz beer, or 1-6 oz. glass of wine. The body eliminates about 0.02 BAC per hour, therefore to reach a 0.08 an average male must consume four drinks in one hour.

Am I Required To Take a Breath Test?

At some point after one gets arrested for DWI, the police officer will ask you to provide a breath test. This is accomplished by blowing into a machine called the Intoxilyzer 5000 .

Unless there has been a accident involving a serious injury, the police cannot force to provide a breath sample. They will tell you they are giving you the "opportunity" to blow. The police are supposed to read you a statutory warning form (DIC-24) that explains the consequenses for refusing a breath test. However, when you applied for your driver's license you unknowingly consented to providing the State with a breath test if the officer has reason to believe that you are DWI. This is called the implied consent law. This implied consent theory is how the DPS legally justifies a penalty if you do not consent to a breath test. If you refuse to provide a sample (as is your right) you could lose your driver's license for a minimum of six months through a process called Adminstrative License Revocation (ALR).

The Police Officer will often just take you to the Breath Test room and sit you down in front of the machine and just tell you to blow. You do have rights, and should not waive them. Always request that a lawyer be present prior to answering any questions and taking any tests.

Never provide any breath test or body fluid sample without consulting with a lawyer first.

Learn More about the Intoxilyzer 5000

Learn More about the Implied Consent law

Learn More about (ALR)

What Are Field Sobriety Tests?

Field Sobriety Tests (FSTs) are a battery of mental and physical tests developed by the National Highway Traffic Safety Administration (NHTSA). These tests are used to assess a person's overall impairment to determine whether the subject has lost the normal use of their mental or physical faculties due to the introduction of a chemical substance (most commonly alcohol). FSTs are considered "divided attention" tasks, which require a subject to concentrate on more than one task at the same time. Driving a motor vehicle requires use of both mental and physical faculties. Introduction of alcohol affects the driver's ability to adequately divide attention, often forcing drivers to concentrate on one area of operating a motor vehicle while ignoring other ones (i.e. ignore a traffic signal while concentrating on one's speed). While impaired, most people can successfully concentrate on a single task fairly well, but when impaired, most drivers cannot successfully divide their attention between multiple tasks at once.

What most people don't know, and are not told by the Officer, is that these tests are not mandatory. However, the officer who stopped your car won't tell you this and will use the results of the tests to justify your arrest and to accumulate evidence to be used against you in court. Although the tests are supposed to test your ability to perform divided attention tasks, they are actually designed for failure and to make you appear impaired. Remember, it is your right to respectfully refuse to submit to any FSTs, whether on the street or at the station .

There are three standardized FSTs most commonly used by the police. They are the Horizontal Gaze Nystagmus (HGN), Walk & Turn (W&T), and the One Leg Stand (OLS) tests. These are the only three tests that have been scientifically validated by the NHTSA as reliable indicators of intoxication. Keep in mind that they are not 100% accurate, even when administered and interpreted perfectly. With regard to the three standardized FSTs, the government has admitted, and it is documented in the law enforcement DWI training manual, that:

"It is necessary to emphasize this validation only applies when: the tests are administered in the prescribed standard manner; the standardized clues are used to assess the suspects performance; the standardized criteria are employed to interpret that performance. If any one of the standardized field sobriety test elements is changed, the validity is compromised."

Other commonly used, but non-standardized, tests include counting backwards, saying the alphabet (or part of it), finger to nose, and the stationary balance (Rhomberg - eyes closed, head tilted) tests.

Remember, you are very likely being video taped any time you are speaking with a police officer or performing any tests. Act accordingly, be polite, respectful and never forget that this tape will be shown to your jury at trial. This is an opprtunity to testify to the jury without taking the stand at trial, so take the opportunity to tell the officer that you are not intoxicated.

Learn More About FSTs and the NHTSA

Horizotal Gaze Nystagmus (HGN)

This test refers to the involuntary and pronounced jerking of the eye as it moves laterally inside the eyesocket. When this occurs, the person is unaware of the jerking, and cannot control it. This involuntary jerking becomes more pronounced and visible as persons' blood alcohol increases. Theoretically, this is the most reliable of the FST's. However, nystagmus is a natural, normal phenomenon which is present to some degree in all people.

When the HGN test is administered, the officer holds a stimulus (usually a pen) 12-15 inches in front of your eyes. The officer will ask you to follow the stimulus with your eyes, without moving your head. The officer will start with the left eye and look for 3 specific clues:

1. Lack of Smooth Pursuit

As the eye moves from side to side, does it move smoothly or does it noticeably jerk (bounce)? The jerking is similar to how a windshield wiper jerks across a dry windshield. There is a standardized pace the officer is to utilize when conducting this phase of the test. From the center of the face, they are to move the pen all the way out to the side (45 degrees) at pace taking approximately 2 seconds, then 2 seconds back to center, then repeating with the right eye. They are to repeat the procedure. If they have the eyes move too fast, not only are they performing the test improperly, this can cause and the government has admitted that such quick movement of the eyes in itself may cause nystagmus.

2. Distinct Nystagmus at Maximum Deviation

The Officer will move the pen as far to one side as possible and have you follow with your eyes. The Officer will then hold that position. When the eye moves as far to the side as possible and is kept in that position for a minimum 4 seconds. The Officer is looking for a distinct jerking (bouncing) of the eye. The test is then repeated with the other eye. However, it is important to note that some people exhibit slight jerking of the eye at maximum deviation even without the presence of alcohol. Additionally, if the eye is moved to the side too quickly, this also may cause the nystagmus.

3. Onset of Nystagmus Prior To 45 Degrees

As the eye tracks the pen towards one side, the Officer will observe whether the eye begins to jerk (bounce) prior to reaching a 45-degree angle (about halfway from the nose out to the shoulder). The Officer should move the pen at a pace that should take approximately 4 seconds to reach 45-degrees. It is important to take the full 4 seconds when checking for onset. If the stimulus is moved too fast, the officer could take your eye beyond 45 degrees, or if the eye is moved to 45-degrees too quickly, this may cause the nystagmus.

The maximum number of clues in each eye is 3, for a total of 6 clues. The original research has shown that if the test is administered properly and 4 or more clues are present, then there is 77% probability that the person's BAC is .1 or above. However, Texas Law will not allow an officer to speculate on the Defendant's BAC based on the results of SFTs.

This is the first of only two divided attention tests that have been validated by the National Highway Transportation and Safety Administration (NHTSA) and consists of the instruction phase and the walking phase. During the instruction phase, the subject must stand with the right foot directly in front of the left foot with the heel and toes touching, while keeping their arms at their side. The subject must listen to the Officer as he explains how to do the test while maintain the very awkward stance. Any deviation from the instruction stance (arms at side, heel toe touching) will be taken as a sign(s) of intoxication.

During the walking phase, the person takes 9 heel-to-toe steps (heel and toe must touch after each step), then turn, while pivoting on one foot, and take 9 heel-to-toe steps back, all while counting the steps out loud. The steps are taken down a straight line, and if an actual line is not present, the person is instructed to walk down an imaginary line. The officer is looking for 8 specific clues:

The original NHTSA studies have shown that if 2 or more clues are present, the test is 68% accurate at predicting intoxicated.

One Leg Stand

This test consists of the instruction phase and the balance & counting phase. During the instruction phase, the person must stand with their feet together, arms at their side while listening to the Officer's instructions.

The subject must raise one leg (of their choice) approximately 6 inches off the ground, arms at their side, toes pointed out and look at their toes. The subject is instructed to count 1001, 1002, 1003, etc. until they are told to stop. The test is to last for 30 seconds and the officer is to time the test. During the test, if at anytime the subject puts their foot down, they are instructed to pick it back up and continue counting where they left off. The officer is looking for 4 specific clues:

    1. Sways while balancing;
    2. Using arms for balance;
    3. Hopping; and
    4. Putting foot down.

The original research has shown that if 2 or more clues are present the test is 65% accurate at determining intoxication.

Important things to remember when an officer begins a DWI investigation

In the event that you do receive a conviction for DWI you must be aware of the surcharges you will have to pay to keep your license valid and clear.

A surcharge is an penalty imposed by the Texas Department of Public Safety that must be paid in order for a person to maintain their driver's license after they have been convicted of either a DWI or provided to a breath test of .16 or more. The surcharge lasts for 3 years. The surcharges are assessed as follows:

Please refer to the DPS Website for more information on mandatory surcharges for certain offenses.