Questions and Answers: DWI
Questions and Answers: DWI
What is the legal definition of intoxication?
The legal definition of intoxication in Texas is:
Having an alcohol concentration of 0.08 or more
Not having the normal use of 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 substances into the body.
Not having the normal use of 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 substances into the body
The State only needs to prove one of the three ways 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 is how do we determine the average person? The law is vague in this subject, which lends itself for good argument to a jury that everyone is different and each has his own normal.
Am I required to answer any questions, take Field Sobriety Tests, or take a breath test?
Under criminal law, you are not required to perform any type of test or answer any questions to the police officer. You have the right to refuse any tests and request an attorney. However, if you refuse to attempt these tests, the officer most likely is going to arrest you. Further, the civil law, which your driver’s license falls under, does not protect you. In fact, when you applied for your driver’s license you unknowingly consented to any future tests, if to which you refused you would lose your driver’s license for a period of six months. The decision is yours and there is a civil risk (your license), but you do have rights, and should not waive them. Always request your lawyer and don’t cooperate with anything if you wish to exercise your rights.
Does a person have a choice to refuse being videotaped?
No. However, although a person has no right to refuse being videotaped, he does have the right to refuse to perform any police field sobriety exercises and to refuse to answer any questions, the answers to which, might be incriminating. Unlike breath or blood test refusals, there are no penalties for refusing to perform field sobriety tests or refusing to answer questions while being videotaped.
Are Field Sobriety Tests very accurate?
If performed in a controlled environment in the exact proscribed standardized manner, the tests can be a likely indicator of intoxication. This is hardly done in the street.
The research conducted by the National Highway Traffic Safety Administration, the designers of the tests, concluded the Horizontal Gaze Nystagmus is 77% accurate, the Walk & Turn is 68% accurate, and the One Leg Stand is 65% accurate only when administered in the prescribed, standardized manner. Any change from the standardized manner will compromise the tests validity and make any result inaccurate. When not conducted properly it becomes an opinion test of the officer.
Therefore, these tests will inaccurately claim 23% - 35% of the people tested as intoxicated. Which when done incorrectly, which is the norm, can drop the accuracy to a frightening level.
What can affect my performance on Field Sobriety Tests?
Even SOBER persons can have difficulty with these tests, as stated by The National Highway Traffic Safety Administration. The reason is as the NHTSA has admitted, are several factors that affect every person, such as:
Age
Being ill
The distraction of traffic
The police car’s strobe lights
Fatigued
Footwear
Lack of coordination
Gusts of wind
Weight
Road or sidewalk conditions
Allergies
Scared
Head lights of traffic
Weather conditions
Being nervousness
Back problems
Leg or knee problems
Inner ear disorders
What is the State's burden of proof to prove me guilty?
The State of Texas must prove your guilt "beyond a reasonable doubt", which is the highest burden of proof in the justice system. It is not defined, by Texas law, but can be easily explained to a jury.
The lowest burden of proof is probable cause. That is how an officer can start an arrest.
The next highest burden of proof is preponderance of the evidence. This is the amount of proof needed in civil courtrooms involving civil suites. A preponderance of the evidence is proof amounting to 51% or who can move the scales of justice.
The next highest burden of proof is clear and convincing evidence. This is amount of proof that will cause a juror or judge to have a "firm belief" in the matter to be proved. This is used in custody cases. Most juries when they hear that the burden of proof is higher than that to take their kids away from them understand the high level of proof.
Beyond a Reasonable Doubt is the highest burden of proof. A jury must have more than that necessary to take your kids away in evidence that you were intoxicated before they could find you guilty. This is very simple, if a juror has a single doubt, based on reason, as to a person being intoxicated, they must follow the law and find them not guilty.
Do I have the right to an attorney before deciding whether to take a breath or blood test?
Texas law does not give you the right to speak with an attorney prior to making the decision of whether or not to take the field sobriety tests, the breath test or blood test. However, the law does not require you to perform any field sobriety tests or to take a breath or blood test so continue to ask for an attorney and refuse to cooperate and the likely chances of being found NOT GUILTY can increase!
How long will a DWI arrest stay on my record?
If you are convicted of the DWI, it will be on your record for life. Furthermore, a DWI conviction can be used for ten years to enhance your punishment of you are arrested for DWI again. If you are found Not Guilty, you can have the arrest and DWI charge "expunged" from your record.
What is the legal definition of intoxication?
The legal definition of intoxication in Texas is:
Having an alcohol concentration of 0.08 or more
Not having the normal use of 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 substances into the body.
Not having the normal use of 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 substances into the body
The State only needs to prove one of the three ways 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 is how do we determine the average person? The law is vague in this subject, which lends itself for good argument to a jury that everyone is different and each has his own normal.
Am I required to answer any questions, take Field Sobriety Tests, or take a breath test?
Under criminal law, you are not required to perform any type of test or answer any questions to the police officer. You have the right to refuse any tests and request an attorney. However, if you refuse to attempt these tests, the officer most likely is going to arrest you. Further, the civil law, which your driver’s license falls under, does not protect you. In fact, when you applied for your driver’s license you unknowingly consented to any future tests, if to which you refused you would lose your driver’s license for a period of six months. The decision is yours and there is a civil risk (your license), but you do have rights, and should not waive them. Always request your lawyer and don’t cooperate with anything if you wish to exercise your rights.
Does a person have a choice to refuse being videotaped?
No. However, although a person has no right to refuse being videotaped, he does have the right to refuse to perform any police field sobriety exercises and to refuse to answer any questions, the answers to which, might be incriminating. Unlike breath or blood test refusals, there are no penalties for refusing to perform field sobriety tests or refusing to answer questions while being videotaped.
Are Field Sobriety Tests very accurate?
If performed in a controlled environment in the exact proscribed standardized manner, the tests can be a likely indicator of intoxication. This is hardly done in the street.
The research conducted by the National Highway Traffic Safety Administration, the designers of the tests, concluded the Horizontal Gaze Nystagmus is 77% accurate, the Walk & Turn is 68% accurate, and the One Leg Stand is 65% accurate only when administered in the prescribed, standardized manner. Any change from the standardized manner will compromise the tests validity and make any result inaccurate. When not conducted properly it becomes an opinion test of the officer.
Therefore, these tests will inaccurately claim 23% - 35% of the people tested as intoxicated. Which when done incorrectly, which is the norm, can drop the accuracy to a frightening level.
What can affect my performance on Field Sobriety Tests?
Even SOBER persons can have difficulty with these tests, as stated by The National Highway Traffic Safety Administration. The reason is as the NHTSA has admitted, are several factors that affect every person, such as:
Age
Being ill
The distraction of traffic
The police car’s strobe lights
Fatigued
Footwear
Lack of coordination
Gusts of wind
Weight
Road or sidewalk conditions
Allergies
Scared
Head lights of traffic
Weather conditions
Being nervousness
Back problems
Leg or knee problems
Inner ear disorders
What is the State's burden of proof to prove me guilty?
The State of Texas must prove your guilt "beyond a reasonable doubt", which is the highest burden of proof in the justice system. It is not defined, by Texas law, but can be easily explained to a jury.
The lowest burden of proof is probable cause. That is how an officer can start an arrest.
The next highest burden of proof is preponderance of the evidence. This is the amount of proof needed in civil courtrooms involving civil suites. A preponderance of the evidence is proof amounting to 51% or who can move the scales of justice.
The next highest burden of proof is clear and convincing evidence. This is amount of proof that will cause a juror or judge to have a "firm belief" in the matter to be proved. This is used in custody cases. Most juries when they hear that the burden of proof is higher than that to take their kids away from them understand the high level of proof.
Beyond a Reasonable Doubt is the highest burden of proof. A jury must have more than that necessary to take your kids away in evidence that you were intoxicated before they could find you guilty. This is very simple, if a juror has a single doubt, based on reason, as to a person being intoxicated, they must follow the law and find them not guilty.
Do I have the right to an attorney before deciding whether to take a breath or blood test?
Texas law does not give you the right to speak with an attorney prior to making the decision of whether or not to take the field sobriety tests, the breath test or blood test. However, the law does not require you to perform any field sobriety tests or to take a breath or blood test so continue to ask for an attorney and refuse to cooperate and the likely chances of being found NOT GUILTY can increase!
How long will a DWI arrest stay on my record?
If you are convicted of the DWI, it will be on your record for life. Furthermore, a DWI conviction can be used for ten years to enhance your punishment of you are arrested for DWI again. If you are found Not Guilty, you can have the arrest and DWI charge "expunged" from your record.