DWI Attorney Dallas – Articles

Seven Things You Should Know About Driving While Intoxicated (DWI)

1. Police officers must have a reason for stopping your vehicle

Before a Police Officer can pull you over they must have a legitimate reason for stopping your vehicle. The most common reasons include speeding, failing to maintain a single lane, and ignoring traffic safety devices. If you obey the traffic laws and still get pulled over, there is a good chance you can get your case dismissed by a Motion to Suppress. The best way to ensure the Police do not stop your vehicle to conduct a DWI investigation is to closely follow all the traffic laws and devices in the area you are driving in.

2. If the Police stopped your vehicle for a legitimate reason, the Police must still have “reasonable suspicion” to conduct a DWI investigation.

“Reasonable Suspicion” exists if the officer has specific articulable facts which, taken together with rational inferences from such facts, reasonably justify the officer to believe that a particular person has engaged or is engaging in a criminal activity. Terry v. Ohio, 392 U.S. 1, 21 (1968). In simple terms the Police are looking for certain signs that would indicate you are driving while intoxicated. Police officers are taught to look for the following symptoms of impairment. If only a few of these signs are present an officer will have “reasonable suspicion” to conduct a DWI investigation. This list is based on research conducted by the National Highway Traffic and Safety Administration (NHTSA).

  • Flushed face
  • Red, watery, glassy or bloodshot eyes
  • Odor of alcohol on breath
  • Slurred Speech
  • Fumbling with wallet while trying to get license
  • Failure to comprehend officer’s questions
  • Unsteady of feet while exiting vehicle
  • Swaying while standing
  • Leaning on car for support
  • Being combative, argumentative or jovial while talking with officer
  • Disheveled clothing
  • Lack of awareness in regards to time and place
  • Unable to follow police instructions

3. If a Police officer has “reasonable suspicion” of DWI, the officers will use 3 standardized field sobriety tests in conducting their DWI investigation: the Horizontal Gaze Nystagmus (HGN), Walk and Turn, and One Leg Stand tests. You have the right to refuse taking each of these tests.

Understand 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. Be aware that they fully intend on using this evidence against you in court. The tests and the clues the Police are looking for are as follows:

HGN – the Horizontal Gaze Nystagmus has a 77% reliability of predicting that a person is above the legal limit. However, all of the proper instructions must be given to you for the test to be reliable. You must be told the following:

  • I am going to check your eyes
  • Keep your head still and follow this stimulus with your eyes only
  • Keep following the stimulus with your eyes until I tell you to stop

The officer will hold the stimulus out to the right then the left, requiring your eyes follow the stimulus as they look for nystagmus (jerking of the eye).

There are six scoring factors for the HGN test (one for each eye):

  • The Lack of Smooth Pursuit: The eyes bounce as they follow a smoothly moving stimulus.
  • Distinct Nystagmus at Maximum Deviation: Distinct nystagmus will be evident when the eye is held at maximum deviation for a minimum of four seconds
  • Onset of Nystagmus Prior to 45 Degrees – They are looking for the point at which the eye is first seen jerking

Walk & Turn – all of the proper instructions must be given to you for the test to be reliable. You must be told the following, and the officer must demonstrate as he is instructing you:

  • Place your left foot on the line
  • Place your right foot on the line ahead of your left foot, with the heel of your right foot against toe of your left foot
  • Keep your arms to your side
  • Keep this position until you are told to begin
  • The officer must ask if you understand the instructions and receive an acknowledgement from you that you do.
  • When told to start, take 9 heel-to-toe steps, turn, and take 9 heel-to-toe steps back
  • When you turn, keep the front foot on the line, and turn by taking a series of small steps with the other foot
  • While walking, keep arms at side, watch feet at all times, and count steps out loud
  • Once you start, don’t stop until test is completed
  • The officer must ask if you understand the instructions and receive an acknowledgement from you that you do.
  • Begin the test and count first step from the heel-to-toe as “one”

There are eight scoring factors for the Walk and Turn test:

  • Cannot keep balance while listening to instructions
  • Starting before instructions are finished
  • Stopping while walking
  • Did not touch heel-to-toe (more than 1/2 inch on any step)
  • Stepped off line
  • Used arms for balance
  • Improper turn
  • Incorrect number of steps

One Leg Stand – all of the proper instructions must be given to you for the test to be reliable. You must be told the following, and the officer must demonstrate as he is instructing you:

  • Stand with your feet together and your arms at your side
  • Keep that position until you are told to begin
  • The officer must ask if you understand the instructions and receive an acknowledgement from you that you do
  • When told to start, raise either leg approximately 6 inches off the ground with your foot pointed out
  • Keep both legs straight, arms at side
  • Count 1,001, 1,002 etc. until told to stop
  • Keep your arms at side and keep watching raised foot
  • The officer must again ask if you understand the instructions and receive an acknowledgement from you that you do
  • The officer will then start the test
  • The test can last no more than 30 seconds of actual time

There are four scoring factors for the one leg stand test:

  • Sways while balancing
  • Arms for balance
  • Hopping
  • Puts foot down

If you put your foot down three or more times, you are considered to have reached a “decision point” on the testing. If you stop at any point during the testing, you should be given the opportunity to resume the testing.

4. As part of their DWI investigation the Police will also ask you to take a Breath or Blood test. You have the right to refuse taking a Breath or Blood alcohol concentration test.

Most of us who are experienced DWI Attorneys agree that the above tests are not completely accurate and therefore should not be taken. According to most experts of the tests, the blood test is the most accurate, but it is too time consuming for police officers to use. The Breath test is the easiest for the officer, because the machine is available and already housed at the police station. You need to know that if you refuse to take these tests offered by the Police, that refusal can be used as evidence of guilt. Additionally your license will be suspended for 180 days up to 2 years depending on your driving history. If you refuse the tests, you will almost certainly be placed under arrest (see probable cause below). However, you will not have given the Police the one piece of definitive proof they look for in order to obtain a conviction in your case.

5. You are being video-taped while the Police conduct their DWI investigation.

Police departments usually equip its DWI enforcement squad cars with video recording capability. The Police use this video to record everything starting with when they first approach your vehicle all the way up until you are booked at the police station. From the moment your vehicle is approached you should assume that every word and action is being video-taped. It is important to remain as calm and rational as possible through the investigation even though it is nerve wracking process. The Police are looking for anything and everything they can to make their case look better. This includes the list for “reasonable suspicion” (supra), the “clues” for the standardized field sobriety tests, and your demeanor and speech throughout their investigation.

6. Police only need “probable cause” to arrest you for DWI.

The definition of probable cause is “a reasonable belief that a person has committed a crime.” The issue is this definition is not a bright line rule or test. It is a belief based on the officer’s training and experience. Probable Cause is a higher burden of proof than the reasonable suspicion the police need to conduct their DWI investigation, but it does not determine guilt or innocence. In a DWI investigation a police officer bases his belief of probable cause on the evidence you provide by your looks and actions at the scene, the standardized field sobriety tests, and/or the breath or blood tests. The less evidence the police have, the harder it is to prove you were driving while intoxicated. If you refuse to do every test the police offer, you will is essence have given the police no evidence by which to establish probable cause. However, the police will use this refusal to substantiate their beliefs and this will allow them meet their burden of probable cause. It is important to remember that just because the police have probable cause to arrest you, this does not equal guilt.

7. Hiring the right attorney is crucial after a DWI arrest because the penalties for a DWI conviction are serious.

Generally speaking, the penalties for DWI are as follows:

  • First offense: a first-offense conviction includes a fine not to exceed $2,000.00 and/or the possibility of serving jail time from 3 days to 180 days, and a driver’s license suspension of 90 to 365 days. (Class B Misdemeanor).
  • Second offense: the maximum fine increases to no more than $4,000.00 and/or jail from 30 days to one year, and a possible driver’s license suspension ranging from 180 days to 2 years. (Class A Misdemeanor).
  • Third offense: here, you may receive a fine up to $10,000.00 and/or 2 to 10 years of imprisonment, and suspension of your driver’s license ranging from 180 days up to 2 years. (3rd Degree Felony).
  • DWI with an open alcohol container (first offense): In addition to the penalty referenced above you face a minimum 6 days in jail and a fine of no more than $2,000.00. (Class B Misdemeanor).
  • DWI with an accident where serious bodily injury because of the intoxication: this crime is called intoxication assault, if convicted you may serve a minimum of 2 years up to a maximum of 10 years in jail. Additionally, you may be fined up to $10,000.00. (3rd Degree Felony).
  • DWI where a death has occurred because of the intoxication: this crime is extremely serious and is intoxication manslaughter. If convicted you may pay a maximum fine of $10,000.00 and/or be imprisoned from 2 to 20 years (Intoxicated Manslaughter or Manslaughter with use of Deadly Weapon are both 2nd Degree Felonies).
  • DWI with a child passenger: A person commits a state jail felony if they drive while intoxicated and there is another person in the vehicle who is under 15 years of age. ‘Punishment for a non-enhanced state jail felony is by confinement in a state jail for any term of not more than 2 years or less than 180 days and a fine not to exceed $10,000.00.

In some of the above minor classifications you may be eligible for probation, but there is no guarantee that you will receive a probated jail sentence or fine.

Standard Misdemeanor DWI Conditions of Probation include:

  • Report once a month to a probation officer
  • Not to commit any further crimes during the term of probation
  • To pay a monthly supervisory fee to the probation office (approximately $40.00)
  • To perform a specified number of community service hours during the term of your probation (between 24 and 80 hours) (community service is volunteer work to benefit the community)
  • To attend DWI awareness classes dealing with the effects of alcohol or listening to victims of DWI related tragedies.
  • To disdain from consuming alcohol for the term of your probation
  • To pay your non-probated fines and court costs
  • Any other requirements the court sets for you

For outstanding DWI defense in Dallas, you should call tough, agressive, and trusted Dallas DWI lawyer Mark T. Lassiter.

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