What should I do if the police ask me to take Field Sobriety Tests?

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1 DWI A DWI is not like a traffic ticket. It is a much more serious offense that carries a penalty of up to 180 days in jail and up to a $2,000 fine for a first offense. Repeat DWI offenders increase their exposure to fines and jail sentences, and in instances of 2 or more prior DWI convictions, a felony charge with prison time up to 10 years is a possible punishment.. If you are convicted of DWI/DUI, you will have a permanent criminal record. You will have to pay a Texas driver's license surcharge of $1,000 a year or more for at least three years. Your auto insurance rates will increase if your policy is not cancelled. In certain professions such as professional drivers or pilots, a DWI conviction can destroy your career. Most Police agencies in Tarrant County will make a video recording either from the police car at the scene, or at the police station, or both. I will carefully review this. What are referred to as Field Sobriety Tests (FST's) are often shown on these "videos". The National Highway Traffic Safety Administration (NHTSA) has devised rules for the proper administration of these tests. It is not uncommon for police officers to administer these tests incorrectly. I have the police training manuals and materials that were used to train your arresting officer. With these instruction materials, it can be determined whether the FSTs were properly done. It will also be evident to you and I when we watch the video whether you actually seem intoxicated, or merely tired, nervous, or even scared. ALR Hearing The ALR hearing provides an opportunity for me to cross examine the arresting officer. This testimony may be used as evidence to defend you in your criminal DWI trial. Your most important goal is to avoid a DWI conviction. Even if your driver's license is suspended, I can keep you driving legally with an occupational license in most cases. What should I do if the police ask me to take Field Sobriety Tests?

2 The police want you to help them make their case against you stronger. By performing field sobriety tests, you are simply helping the police manufacture evidence against you. Though they will not warn you about this, they intend using this evidence against you. Therefore, taking a Horizontal Gaze Nystagmus (HGN) test (the pen test), the Walk and Turn (walking a real or imaginary straight line), the One Leg Stand test, or any other evaluation test on the street is usually not a good idea. Most experts agree that police officers are not trained well enough to accurately interpret the symptoms observed while administering these street evaluations. Do not be rude to an Officer if he asks you to do some Field Sobriety Tests. Be courteous & respectful, but decline all their tests. Should I take a blood, breath or urine test No. These tests are not completely accurate and should not be taken. Most experts think that the blood test is the most accurate of the 3 tests, but it is usually too time consuming for police officers to want to use. The Breath test is the easiest for the officer, because the machine is at the police station. The urine sample is the least accurate. However, if you agree to take one of these chemical tests for the police, remember that you are then entitled to request your own independent test. Police Officers will usually not provide you with that opportunity or any information on how to get this done. Call an experienced DWI lawyer immediately after your arrest to find out how to get your own blood test. If the Police Officer shows you a warrant, signed by a Judge, that says you must submit to a blood test, do NOT resist. You could be injured, and further charges could result. Ask for a copy of the warrant. It is possible that we can have the blood test results thrown out after charges are filed. What happens if I refuse or fail to take one of these chemical tests? There is a separate Civil Court Administrative License Revocation (ALR) process that occurs if you refuse or fail a blood or breath test following an arrest for driving while intoxicated. If the Civil Judge decides after a hearing that the Department of Public Safety (DPS) has proven certain legally required facts, then you may receive a license

3 suspension of 90 days up to 2 years, depending on the number of alcohol related contacts you have had in the past. Whether you take the test, or you refuse the test offered, you only have 15 days after your arrest to request a hearing from the ALR Judge to fight to keep your license from being suspended. It is critically important to request a hearing before the State Office of Administrative Hearings (ALR) to stop the Texas Department of Public Safety (DPS) from attempting to administratively suspend your license. Call an experienced DWI lawyer immediately after your arrest to make certain that this is done correctly! If this is done incorrectly, or after the 15 days are up, then you will automatically loose your license. Can my driver s license also be suspended if I am convicted of Driving While Intoxicated? There are TWO ways for your license to be suspended. See the section above on ALR CIVIL Hearings for the first. The second way is in the Criminal Court which will decide if you are guilty of DWI. If you receive a final conviction your license may be suspended. The license suspension period ranges from 90 days up to 2 years. A conviction for driving while intoxicated under the age of 21 will result in an automatic suspension for one year, unless that person is on probation and required to have an Ignition Interlock Device. How long will a DWI arrest stay on my record? If you are convicted for the DWI, even if you receive probation, it will remain on your record FOREVER. If you are found Not Guilty at your trial, you can have the arrest and the DWI charge expunged from your record. (See the information about Expunction for details.) Is it legal to drink alcohol while driving an automobile? What about having an open container in the vehicle? No, it is a Class C Misdemeanor for a driver to have an open container of alcohol in their personal possession while operating a motor vehicle. It is also illegal for any

4 passenger to have an open container of alcohol in their possession. However, if you are the passenger in a taxicab, limousine, bus, or in the living quarters of a mobile home, you can legally consume alcohol while being driven around. If you go to a party and take a bottle of wine, beer or liquor, and leave the party with an opened bottle you can be ticketed for possessing an open container of alcohol. In order to legitimately carry a bottle of wine, beer or liquor, the seal must not be broken. If the seal is broken, the only other legitimate way to carry the bottle is to put it in the trunk of your car. If you are in a truck or SUV, then it must go behind the last row of seats. However, it is best to leave the alcohol at the party when you leave. Will I have to have an Ignition Interlock Device put in my car as a condition of bond? For a first offense, conditions of bond are a matter of discretion with the Court. Generally, most Judges will not make a an Ignition Interlock Device as a condition of bond for a first offense DWI, unless a test shows an alcohol concentration over However, if you are charged with a subsequent DWI (no matter how long ago your first DWI was), with Intoxication Assault, or with Intoxication Manslaughter you are required by law to install an Ignition Interlock Device on your vehicle. In fact, you will not be able to drive any vehicle that is not equipped with an Interlock Device. If the device determines a certain level of alcohol on your breath, it will temporarily disable your vehicle. When driving, you have to continuously blow into the device about every 20 minutes. This machine is not foolproof, and the alcohol in some mouthwashes can be enough to cause the Ignition Interlock Device to disable the vehicle if you do not wait a certain period of time after its use. What is an occupational license? This is a special restricted license authorized by the Court, and issued to persons whose license has been suspended or revoked for certain offenses. This restricted or occupational license authorizes the operation of a non commercial motor vehicle in connection with a person s occupation, for educational purposes or in the performance of essential household duties.

5 What are the requirements for obtaining the Occupational License in a DWI or ALR suspension case? You must mail into the Texas Department of Public Safety (DPS), a certified copy of the court order granting the occupational license. Also enclose the following: 1. An original pink SR 22 certificate of insurance. This is the only proof of insurance acceptable. 2. A $10 license fee for a one year license or less. The maximum length of issuance is a 2 year license for $20, provided that the court order grants this length of time. 3. A $125 statutory reinstatement fee for the Administrative License Revocation (ALR), if required; and 4. A completed SR 37 form to type the occupational license. Special Note: The Texas Department of Public Safety (DPS) requires all reinstatement fee(s) be paid prior to the issuance of the occupational license. What is an SR 22 and how can I get an SR 22? An SR 22 insurance policy is a certificate of insurance that shows the Texas Department of Public Safety (DPS) proof of insurance for the future, as required by law. SR 22 insurance is not necessarily "high risk" insurance. It is motor vehicle liability insurance which requires the insurance company to certify coverage to DPS, and the insurance company must notify DPS anytime the policy is cancelled, terminated or lapses. You may contact an insurance agent/company of your choice who is authorized to write liability insurance for the State of Texas. If I do not own a car, can I still get an SR 22? You do not need to own a car to buy this kind of insurance. If you do not own a car, please contact an insurance agent/company of your choice and talk to them about a non owner SR 22. Can an insurance card or insurance policy be substituted for the requirement of filing an SR 22?

6 No, when proof of financial responsibility is required, form SR 22 must be filed to meet the requirements of the DPS. Can you drive a commercial motor vehicle with an occupational or restricted license? No, if a person s driver license or the privilege to drive is suspended, revoked, cancelled, or denied under any Texas law, then that person may not be granted an occupational, restricted or essential need license to operate a commercial motor vehicle. Can I get Deferred Adjudication" for a DWI? No. DWI is one of a few of crimes in Texas where Deferred Adjudication is not available under the law as a punishment option. Can I receive probation if I am convicted of DWI? Yes, depending on your prior criminal history, the facts surrounding your case, and whether you meet the minimum requirements under Texas law for "community service" or "probation". The minimum requirements are: (1) That you have never been convicted of a felony offense in this State, another state or the United States; and (2) you have never been given adult "community service" or "probation" for a felony offense in this State, another state or the United States. What is the difference between deferred adjudication and Probation? Both of these punishment alternatives are ways to keep from serving time in the County Jail one is called "Deferred Adjudication Community Service" and the other is called just "Community Service" or what we used to call "probation." Deferred Adjudication is a punishment that an individual can only receive from the Judge and never a jury, whereas probation can be received from either a Judge or a Jury. For Deferred Adjudication, the Judge defers (puts off) a finding of guilty and places that person on community service without entering judgment (adjudication) of guilty. On the other hand, under the punishment known as "probation", the person is found or

7 judged "guilty" and sentenced, but the sentence is then probated. Deferred Adjudication has not been a punishment option in a DWI case in Texas since If you talk with an attorney who thinks that it might be available for DWI, then you are not dealing with a knowledgable DWI Attorney. Is there a "Surcharge" for those convicted of DWI? Is this some sort of a fine and how does it work? The Texas Legislature did pass a "Surcharge" or an administrative fee under a law known as the "Driver Responsibility Act," that took effect on September 1, The fees under this law are strictly administrative in nature, and are above and beyond any fines, court costs, probation fees or filing fees that the State already receives in a DWI case. The law basically requires any person convicted after September 1, 2003 of a first offense DWI to pay the State of Texas a "surcharge" in the amount of $1, per year for three years to keep their drivers license; or any person convicted of a second offense DWI to pay the State of Texas a "surcharge" of $1, per year for three years to keep their drivers license; or any person convicted of an offense of DWI, that has a test result of.16 or higher with a breath or blood test, to pay $2, per year for three years to keep their drivers license. These fees are paid to the Department of Public Safety and if not paid within the designated time allowed, the person will automatically lose their driver s license or the privilege to obtain a driver's license until the money is paid. What is the difference between DWI and DUI in Texas? Under Texas law intoxication includes the introduction of alcohol, or a controlled substance, a drug, a dangerous drug, or any combination of two or more of those substances, or any other substance into the body. In other words, Driving While Intoxicated includes all substances including alcohol. Driving Under the Influence, or DUI is an offense that involves minors. To be arrested in Texas for DUI, the person arrested must be a minor (anyone under the age of twenty-one) who operates a motor vehicle in a public place while having any detectable amount of alcohol in the minor s system. The key words are, any detectable amount of alcohol. Generally, an offense under this section is a Class C Misdemeanor.

8 What is the definition of intoxication in Texas? "Intoxication" under Texas law means: (A) not having the normal use of [one s] mental faculties by reason of the introduction of alcohol, a controlled substance, a drug, a dangerous drug, a combination of two or more of those substances, or any other substance into the body; or (B) not having the normal use of [one s] physical faculties by reason of the introduction of alcohol, a controlled substance, a drug, a dangerous drug, a combination of two or more of those substances, or any other substance into the body; or (C) [a person] having an alcohol concentration of 0.08 or more.t Theoretically the prosecutor only needs to prove one of the three ways in order to obtain a conviction. For example, if the jury believes the person has lost their physical faculties, although they have not lost their mental faculties and there is no blood or breath test, theoretically that person could be found guilty. That is not always the case, generally, if the evidence only shows the loss of either the mental or physical faculties, and not both, there is usually a logical explanation for that loss and the result should be they are not intoxicated.

9 What is a.08 alcohol concentration? Under Texas law "Alcohol concentration" means the number of grams of alcohol per: (A) 210 liters of breath; (B) 100 milliliters of blood; or (C) 67 milliliters of urine. Unless you are an engineer, chemist, toxicologist or an expert on alcohol and have a calculator, you will not be able to determine whether or not you have an alcohol concentration of.08 or more. The amount of alcohol in each of the above definitions is not equal. Consequently, depending on the test, one test could confirm your innocence while another insinuates your guilt with a.08 or more. A general rule of thumb is that you may have one beer (12 oz.), one glass of wine (4 oz.), or one shot of whiskey (1.5 oz.) per hour. These facts alone should prove the importance of hiring an experienced DWI lawyer who understands the differences. How can I make sure I do not have an illegal alcohol concentration when I drink? You can't be sure, but a general rule of thumb is that you may have one beer (12 oz.), one glass of wine (4 oz.), or one shot of whiskey (1.5 oz) per hour. If you are below average weight or height, are older, have not eaten recently, or are tired, these amounts will STILL cause you to be considered "intoxicated". THE BEST PROTECTION IS A DESIGNATED DRIVER, OR A CAB.