DWI Laws in Texas | Fort Worth DWI Attorneys
Texas is a highly-conservative state when it comes to its laws regarding driving while intoxicated (DWI) and the consequences of violating these laws. The statutes are pretty straight-forward about the core elements of the offense under 49.04 are:
- operating a motor vehicle
- in a public place
- while intoxicated
“Operating a motor vehicle” has been interpreted broadly by Texas criminal trial and appellate courts. There have been many decisions by the Texas Court of Criminal Appeals that allow for this element to be proved without any evidence that the individual was actually driving the vehicle. Our Fort Worth DWI attorneys will challenge the state’s definition of “operation” and persuade a jury that the evidence is not sufficient to prove that “operation” occurred.
It’s also common for police officers to make mistakes when determining they have reasonable suspicion to stop a vehicle. If a police officer determines he has reasonable suspicion that a traffic violation has occurred, he can stop the vehicle. Once the officer smells the faintest odor of alcohol or sees an open container, he or she will likely commence an investigation for DWI.
A “public place” is any place to which the public or a significant portion of the public has a access. See Penal Code 1.07(40) This can include parking lots, in addition to roadways.
In most circumstances, the element at issue in a driving while intoxicated case is “intoxication.” The state can prove intoxication by:
- Loss of the normal use of mental faculties
- Loss of the normal use of physical faculties
- Blood alcohol concentration >.08 or
- Breath alcohol concentration >.08
The Fort Worth DWI attorneys at Barnett Howard & Williams PLLC are trained in DWI detection techniques and procedures and can challenge officer testimony using their very training manuals.
Standardized Field Sobriety Tests | Tarrant County DWI Lawyers
When determining the loss of normal use of mental or physical faculties, field sobriety tests (FST’s) are tools used by law enforcement to seek clues of intoxication. See the NHTSA Website for more details.
These tests include the horizontal gaze nystagmus test, the walk and turn test, and the one leg stand test.
These tests are 100% voluntary. You cannot be compelled to do them if you choose to refrain. As with most of the DWI investigation process, law enforcement agencies have developed ways to assist them with evidence-gathering in DWI cases. However, they require voluntary participation by the accused. Without them, the ability to prove DWI cases beyond a reasonable doubt can be much more difficult. The 5th amendment provides us with the right to remain silent. Always keep in mind, anything you say or do in these situations could be used against you in court. The NHTSA Manual provides that the FSTs can be compromised if one element of any test is not conducted properly. Our Fort Worth DWI attorneys know how to challenge the field sobriety tests in court.
Horizontal Gaze Nystagmus Test (HGN)
The horizontal gaze nystagmus (HGN) test is the first of the three tests normally administered by the police officer. Some research has shown HGN can be caused by the introduction of alcohol or some drugs into the body. The HGN test is designed to reveal to the officer whether the involuntary jerking of the eyeballs which occurs as a result of HGN is present in someone suspected of DWI.
When performing the field sobriety test for HGN, there are three manipulations performed on both eyeballs. They specifically test for:
- Lack of smooth pursuit;
- Sustained nystagmus at maximum deviation; and
- Onset of nystagmus prior to 45 degrees.
Because they perform these 3 manipulations on each eyeball, there is a maximum possibility of six clues on the HGN test. Most Fort Worth DWI attorneys understand that HGN evidence is confusing to a jury and typically not helpful to the state in proving the case.
Walk and Turn Test
The walk and turn is the second test in the FST battery. It and the third test, the one leg stand test, are designed to test an individual’s divided attention. Divided attention can best be described as someone’s ability to use their mind and body in concert to achieve a desired result. Driving requires divided attention. So, testing for divided attention ability is the idea behind these tests. However, these tests are very peculiar when compared to the task of operating a vehicle. For this reason, these tests have and continue to come under heavy scrutiny.
When administering the walk and turn (WAT), the officer will instruct the individual to stand in a heel-to-toe position with his arms down at his side. If you can visualize it or know from having done this test, this position is very awkward and hard to maintain. While trying to hold in this position, the police officer then gives the instructions to the test and you are expected to listen and follow along. The basic instructions order the individual to take nine heel-to-toe steps down (what is usually) and imaginary line, then take a series of smaller steps to make the turn before taking nine heel-to-toe steps back to where the individual started. There are eight clues the police officer is trained to look for. They are:
- Cannot keep his balance;
- Starts too soon;
- Stops walking;
- Misses heel-to-toe;
- Steps off of the imaginary line;
- Uses his arms to balance;
- Takes the wrong number of steps; and
- Turns improperly.
These “clues” of intoxication are things that a perfectly sober person would likely experience as well when attempting this test and our Fort Worth DWI attorneys will point that out to a jury.
One-Leg Stand Test
The final test is the one leg stand (OLS.) During this test, the individual is asked to stand on one leg while extending the other leg keeping the foot approximately six inches off the ground. The individual is also instructed to point his toe outward. Again, like the WAT, this is a very strange position to maintain. Most people think of Daniel practicing the crane kick in Karate Kid. While trying to hold this position, the police officer then gives instructions to count out loud from 1 to usually 20. The four clues the police officer is trained to look for are:
- Swaying while balancing;
- The use of arms to balance;
- Hops while attempting the test; or
- Puts his foot down during the test.
Again, these “clues” are often experienced equally by a sober person and our Fort Worth DWI attorneys highlight that point to a jury.
After these tests are completed, a police officer can make an opinion as to whether there is probable cause to believe the driver is “intoxicated.” If they decide yes, they can proceed with an arrest. The officer could also decide to let the person go. As you might guess, it is rare that someone is released at this point.
Blood Test or Breath Test to Determine Blood-Alcohol Content for DWI Intoxication
After the driver is arrested, the police will then proceed by asking for a breath or blood specimen. In order to do this, the individual must be read their statutory warning known as the DIC-24 – see a copy of the DIC-24 form here.
After the officer reads this lengthy, wordy document to the person suspected of driving while intoxicated, they are asked a simple question: Yes or No? Often this eight-paragraph warning can be intimidating and confusing leaving the person with questions about their rights. Police are prohibited from giving legal advice to the individual. So, little leeway is given to the person and an immediate response required.
Simply put, there is no way to force an individual to give a breath test. If someone chooses to decline the request for a breath specimen, there are consequences. One of those consequences is a response by DPS to attempt to suspend your license. The other is that the police officer may try and obtain a warrant for a blood draw. In order to obtain a warrant, a police officer must show probable cause a DWI has been committed by the person suspected. If he can establish probable cause in an affidavit and find a magistrate to issue the warrant, he can proceed to take the individual to a phlebotomist for a mandatory blood draw. There are also some circumstances where he can seek a mandatory blood draw without a warrant (any felony grade DWI charge.) Once the mandatory blood draw is pursued, they will use any amount of force necessary to obtain the required amount of blood from the individual’s body for testing. The drawn blood is submitted to a lab for analyses of alcohol concentration, presence of substances or a combination of both.
Labs are not perfect. The chain of custody on the blood sample is always at issue. The state must prove the blood tested is the same blood taken from the individual. They must also prove the blood was tested in accordance with accepted scientific standards and that the person performing the analyses is qualified to perform those tasks correctly.
Breath machines, also known as the “Intoxilyzer,” can also be flawed. These machines are maintained by “Intoxilyzer Supervisors” who normally work for the state of Texas. As expected, their opinions and knowledge are usually state-sided. However, there are processes in place by which they must abide. For example, if their routine maintenance of the machines comes into question, the breath sample results yielded by those machines can be thrown out. Many people will tell you that other Fort Worth DWI attorneys have told them over the years not to blow during a DWI stop because the machine is not reliable. We agree with that. Any time that technology is involved, there is a concern about error in the results of the test.
Regardless, if a breath specimen is provided by an individual and that sample is over the legal limit of .08, the state enjoys the advantage of additional evidence they may not have had. There are occasions where a breath sample result yields an amount of less than .08. It is still within the discretion of the police officer to go forward with the DWI charge based on their investigation and the evidence they’ve observed. Admissions to drinking or drug use, open containers or drug paraphernalia in plain view or even the odor of alcohol or marijuana to name a few.
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