Driving Under the Influence (DUI/DWI)

Drunk Driving In Texas

In Texas, being charged with drunk driving can be as easy as being pulled over for speeding and an officer smelling alcohol on your breath. While it is not a crime to drink and drive in Texas (i.e. only driving while intoxicated makes it a crime), law enforcement is trying its hardest to make drinking and driving a crime. Many people have a drink or two at dinner and drive home not being intoxicated, and get pulled over, only to wind up in jail after either refusing to perform or performing poorly on field sobriety tests. There is nothing in the Texas Penal Code that makes drinking and driving a crime, unless you are intoxicated.

The method by which law enforcement tests for intoxication is often through the administration of standard field sobriety tests. Many citizens will take field sobriety tests believing that the test is designed to expose intoxicated subjects, but in reality the test is designed to test a person’s attention span. The idea here is simple: intoxicated persons have a weakened ability to divide their attention span compared to a person with the normal use of their mental and physical capacities (i.e. a non-intoxicated person). However, just because an idea is simple, it doesn’t mean it is fair. The problem with using field sobriety tests to prove that a person is intoxicated is that poor attention span can be the result of a multitude of factors and variables other than intoxication. For example, if you are nervous, overweight, a senior citizen, exhausted, fatigued, or diabetic, you will have a weakened ability to successfully perform a task while dividing your attention span. But because you had the odor of an alcoholic beverage on your breath, the police and the state will do whatever it takes to make you a drunk driver.

The reality is you can’t afford to be a drunk driver. You can’t afford it because the price is too much to pay, both financially and personally. On a first DWI offense, you’re looking at a fine of up to $2,000.00, seventy-two (72) hours to six (6) months in county jail, the loss of your driver’s license up to a year, and a $1,000.00 or $2,000.00 annual fee for three years to retain your driver’s license. On a second offense of drunk driving, you have even more to lose. The fine goes up to $4,000.00, one month to a year in jail, the loss of your driver’s license for up to two (2) years, and a $1,000.00, $1,500.00, or $2,000 annual fee for three years to get your driver’s license back.

This is all you have to lose when you’re the only victim from drunk driving. If you happen to injure a person as a result of driving drunk, now you’re looking at felony prison time. But “driving drunk” in Texas really has less to do with intoxication than it does your performance on the field sobriety tests. If your poor performance on these tests was the result of being nervous rather than being intoxicated, the state is probably going to make you prove that in a court of law if you wish to avoid a conviction. Your words and beliefs often do not matter to the county district attorney’s office. Unless you hire an attorney who knows how to attack the reliability of these tests and expose them for what they are rather than what they claim to be, you will look guilty to a jury of your peers.

Defending a drunk driver is becoming more difficult with each passing day, as the state is pursuing more extreme policies and procedures to allow law enforcement to force a blood draw when you refuse to take any tests. A forced blood draw may sound too aggressive to most, but it has become a reality, backed by the Texas Court of Criminal Appeals. So far, no one has been able to successfully argue at the appellate level that it is unconstitutional to force a blood draw on a person who exercises his Fifth Amendment right against self-incrimination. The Courts have gone so far as to exclude the Fifth Amendment all together, reasoning that the Fifth Amendment is not even implicated in a forced blood draw, since the taking of a person’s blood is not testimony, but rather, forensic evidence of a crime. Turn on the news one weekend, and you will likely hear about “no refusal” weekend where police officers have mini blood draw vans stationed all over Houston and where suspects are taken and forced to have a warrant-backed blood draw on their arm after they refuse to provide a breath specimen or perform standard field sobriety tests. To fight these cases, you will need an attorney familiar with gas chromatography, so that the forensic evidence can be challenged in a court of law and ultimately suppressed at your trial. While the costs of challenging a blood draw case of drunk driving is more expensive than challenging a breath test or no test case, your money is well spent on a lawyer who knows what he is doing and how to expose the blood work for what it may be: “junk science”.

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