DWI Defense Lawyer
DWI FAQ
1. What is DWI ?
DWI is a criminal offense that says a person may not
drive a motor vehicle in a public place while " intoxicated
". The DWI statute does not say driving while
drunk.
2. What does "intoxicated" mean ?
A person need not be drunk to be "intoxicated" but a
person who is drunk must be intoxicated. "Intoxicated" is
defined by the DWI statute in two ways. First, a person is
"intoxicated" when she drives and, when, through the use of an
alcoholic beverage, drug, controlled substance, or any
combination thereof, has lost the "normal" use of either her
"mental" or "physical" faculties. Second, a person is
"intoxicated" when she drives and has an alcohol concentration of
.08 or more in her body.
3. Whose "normal mental and physical faculties" are we
judged by and "what is normal" ?
The "normal mental and physical faculties" the
DWI statute refers to are those of the particular person
who has been arrested. The term does not refer to the
normal faculties of the arresting officer, those of jurors in a
DWI criminal trial, or those of a fictitious average
person. Indeed, the term "normal" actually refers to a
range of measurement of the faculties of the person
arrested. For example, "normal" would not be a particular
point on a 12" ruler. Rather, it is better explained as the
distance between two particular points on the ruler, i.e.,
between the 3" and 9" marks.
4. What is .08 alcohol concentration ?
"Alcohol concentration" is defined by the statute
as:
a) the number of grams of alcohol per 100 milliliters of
blood;
b) the number of grams of alcohol per 210 liters of breath;
or,
c) the number of grams of alcohol per 67 milliliters of
urine.
Practically speaking, if you've been drinking, unless you are a physicist, an engineer, or a chemist, and have a calculator, you will be unable to determine if you have an alcohol concentration of .08 or more. Further, it is of interest to note that the amount of alcohol in each of the above statutorily defined concentrations is not equal, and can therefore result in a person being innocent according to one concentration but guilty according to another. Moreover, under the two statutory definitions of intoxication, it is also possible for a person to be innocent of being intoxicated because there is no loss of either normal mental or physical faculties but still be guilty of being intoxicated via .08.
5. Is it .08 or more when I drive or .08 or more at the time I'm tested, or both, that will make me guilty of DWI ?
Our law only provides that the crime of DWI occurs when a person drives, and at that time , has an alcohol concentration of .08 or more in his body. It is not a per se crime to have an alcohol concentration of .08 in the body either before or after one has driven. However, depending on the time the test is conducted, such an alcohol concentration may be relevant in determining if the person had a .08 or more alcohol concentration when the actual driving occurred.
The timing of the particular test in question presents a significant problem for both the prosecution and the defense. This dilemma arises because .08 alcohol concentration testing is hardly ever done at or immediately after driving. Rather, an alcohol concentration test is usually administered approximately 45 minutes to 1 hour and 15 minutes after driving. In such delayed testing, absent other information about the number of alcoholic drinks consumed, the type of drinks consumed, and knowledge of when the drinks were consumed, it is scientifically impossible to determine if the person was over, or more importantly for the innocent, under a .08 alcohol concentration at the time of driving.
For example, let's change our earlier scenario somewhat by having the person finish his fourth cocktail at 11:55 p.m. He leaves the smoke filled restaurant at 12:00 a.m. for a 5 minute drive home. However, this time instead of being stopped for speeding, he is stopped at 12:01 a.m. because the light over his license tag has burned out. The officer, having observed a fresh (strong) odor of an alcoholic beverage on the driver's breath and his smoke reddened eyes, arrests him for DWI. The officer then transports him to the station house for an alcohol concentration test. The test is given at 12:30 and its result is .08. Here, depending on the timing of the person's earlier consumption of alcoholic drinks, it is equally possible that earlier at 12:01 a.m., the person's alcohol concentration was .05, i.e., not guilty, or .15, i.e., guilty. In the final analysis on this point, it may not have been a smart thing for our person to have driven at all, but if he was the .05, he neither committed nor would have committed a DWI offense.
6. If I decide to submit to chemical testing and my alcohol concentration is less than .08, can I still lose my license?
Yes, but this is usually the result of a subsequent criminal conviction for DWI or a related offense. For your driver's license to automatically be suspended as a result of chemical testing, the alcohol concentration taken from your blood, breath, or urine must be .08 or more while driving.
7. How accurate and reliable are the police methods used to determine alcohol concentration ?
Texas law provides that testing of alcohol concentrations can be performed by analysis of a DWI suspect's urine, blood or breath. All three of these testing methods, however, leave much to be desired.
Urine testing is the least accurate and least reliable means of alcohol concentration testing. Indeed, there appears to be no debate in the scientific community that this method of alcohol concentration testing is the least preferred.
Blood testing, unlike that of urine testing, is thought by the majority of forensic scientists to be the most accurate and reliable means of alcohol concentration determination. From a police perspective, however, it is also thought to be the least desirable and least convenient method. Further, like the testing of urine specimens, it provides an opportunity for the arrested person to recheck the blood test. If found to be erroneous, the validity of the police test can be attacked by re-testing the exact specimen taken by police.
Breath testing, again from a police perspective, is the most convenient means of alcohol concentration determination. In regard to the issues of accuracy and reliability of breath testing, however, there continues to be a heated debate among scientists. Moreover, under current procedures for breath testing in Texas, breath samples are not preserved for subsequent checks of the initial test's validity. Indeed, for purposes of breath testing, if you are an innocent person and your breath test results show you to be intoxicated, then the chances of showing error in the prosecution's case against you are literally "gone with the wind".
8. How is breath testing done ?
Police breath alcohol concentration testing in Texas is done by a machine named an Intoxilyzer 5000. Breathalyzers are not used.
The Intoxilyzer machine, which costs approximately $7,500.00, is said to work on the basis of infrared light absorption by alcohol detected in a person's breath. According to its manufacturer and the Texas Department of Public Safety (DPS), which certifies and writes the rules for its use, the machine determines alcohol concentration by subtracting the amount of light absorbed from the person's breath sample and then compares that amount to the amount of light originally introduced into the breath sample -- the difference is the test result.
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