KNOW THE LAW, KNOW YOUR RIGHTS

Our law firm aggressively represents and thoroughly investigates offenses for individuals that have been charged with the offense of Driving While Intoxicated.   John Hopping is a seasoned trial attorney who have tried countless DWI cases over the years.  At The Hopping Law Firm, PLLC, we treat each DWI case as an opportunity to challenge the State of Texas to prove all the elements of DWI against our clients.  We will thoroughly scrutinize the police investigation and determine the areas of the case that we can attack at trial or in plea bargain negotiations.  If you’ve been charged with DWI, you face severe criminal and administrative penalties from the State of Texas.  You need attorneys who know what they’re doing when dealing with a DWI.  You will find that at The Hopping Law Firm, PLLC.

The information in the links below is meant to provide some useful information regarding your case.  Call us to see how we can successfully resolve your case.



What Is DWI?

DWI is a criminal offense set out in Texas Penal Code § 49.04, which states: “A person commits an offense if the person is intoxicated while operating a motor vehicle in a public place.”  Note that the DWI statute does not say “driving while drunk.”  The State of Texas does not have to prove that you were “drunk” at the time you were driving, only that you were “intoxicated”.



What Does “Intoxicated” Mean?

A person need not be drunk to be “intoxicated” but a person who is drunk must be intoxicated. “Intoxicated” is defined by the DWI statute in two ways:

1.   A driver is “intoxicated” when, through the use of an alcoholic beverage, drug, controlled substance, or any combination thereof, her or she has lost the “normal” use of either “mental” or “physical” faculties; or

2.   A driver is “intoxicated” when the driver has an alcohol concentration of .08 or more in his or her body.



Whose “Normal Mental and Physical Faculties” Are We judged by, and “What Is Normal?”

The “normal mental and physical faculties” the statute refers to are those of the particular person who was arrested. The term does not refer to the normal faculties of the arresting officer, jurors in a DWI criminal trial, or a fictitious average person. Indeed, the term “normal” actually refers to a range of measurement of the faculties of the person arrested. For example, “normal” would not be a particular point on a 12” ruler. Rather, it is better explained as the distance between two particular points on the ruler, e.g. between the 3” and 9” marks.



What Is .08 alcohol concentration?

“Alcohol concentration” is defined by statute as:

• 1. the number of grams of alcohol per 100 milliliters of blood;
  2. the number of grams of alcohol per 210 liters of breath; or,
  3. the number of grams of alcohol per 67 milliliters of urine.
  
• Practically speaking, if you’ve been drinking, unless you are a physicist, an engineer, or a chemist, and have a calculator, you will be unable to determine if you have an alcohol concentration of .08 or more. Further, note that the amounts of alcohol in the above statutorily defined concentrations are not equal and can result in a person being innocent in one concentration but guilty in another. Moreover, under the statutory definition of intoxication, it is also possible for a person to be innocent of being intoxicated because there is no loss of his normal mental or physical faculties but still be guilty of being intoxicated via .08.

BLOOD ALCOHOL CONCENTRATION

Is It .08 or more when I drive or .08 or more at the time I’m tested, or both, that will make me guilty of DWI?

Our law only provides that it is a crime of DWI where a person drives, and at that time has an alcohol concentration of .08 or more in his body. It is not a per se crime to have an alcohol concentration of .08 in the body either before or after one has driven. However, depending on the time the test is made, such an alcohol concentration may be relevant to determining if the person had a .08 or more alcohol concentration when the actual driving occurred.

The timing of the particular test in question presents a significant problem for both the prosecution and the defense of persons charged with DWI because .08 alcohol concentration testing is hardly ever done at the time of or immediately after driving. Rather, the time of an alcohol concentration test is usually done approximately 45 minutes to 1 hour and 15 minutes after driving. In such delayed testing, absent knowledge of the number and type of alcoholic drinks consumed and when the drinks were consumed, it is scientifically impossible to determine if the person was over, or more important for the innocent, under a .08 alcohol concentration at the time of driving.

For example, let’s change our earlier scenario by having the person finish his fourth cocktail at 11:55 p.m. He leaves the smoke-filled restaurant at 12:00 a.m. for a five-minute drive home. Traveling home, at 12:01 a.m., he is stopped by a police officer not for speeding but because the light over his license tag has burned out. The officer, having observed a fresh (strong) odor of an alcoholic beverage on his breath and his smoke reddened eyes, arrests the person for DWI and transports him to the station house for an alcohol concentration test. The test is given at 12:30 and its result is .08. Here, depending on the timing of the person’s earlier consumption of alcoholic drinks, it is equally possible that earlier, at 12:01 a.m., the person’s alcohol concentration was .05, i.e., not guilty, or .15, i.e., guilty. In the final analysis on this point, it may not have been a smart thing for our person to have driven at all, but if he was the .05, he neither committed nor would have committed a DWI offense.



How Accurate and Reliable Are the Police Methods Used to Determine Alcohol Concentration?

• Texas law provides that testing of alcohol concentration can be performed by analysis of a DWI suspect’s urine, blood, or breath. All three of these testing methods leave much to be desired.

• Urine testing is the least accurate and least reliable means of alcohol concentration testing. Indeed, there appears to be no debate in scientific circles that this means of alcohol concentration testing is the least preferred testing method when compared to blood and breath testing.

• Blood testing, unlike urine testing, is thought by the majority of forensic scientists to be the most accurate and reliable means of alcohol concentration determination. However, from a police perspective, it is also thought to be the least desirable and least convenient method.
  
  Further, also from a police perspective and like the testing of urine specimens, preservation of the specimen taken by the police provides an opportunity for the arrested person to recheck and attack the accuracy and reliability of the police test.

• Breath testing, again from a police perspective, is the most convenient means of alcohol concentration determination. In regard to the issues of accuracy and reliability of breath testing, there appears to be great debate. Moreover, under current procedures for breath testing in Texas, breath samples are not preserved for subsequent checks of the initial test’s validity. Indeed, for purposes of breath testing, if you are an innocent person and your breath test results show you to be intoxicated, then the chances of showing error in the prosecution’s case against you are literally “gone with the wind.”
  
  
  
  How Is Breath Testing Done?

• Police breath alcohol concentration testing in Texas is done by a machine called an Intoxilyzer. There are two models now in use, a Model 4O11ASA and a Model 5000, with the latter rapidly replacing the former. Breathalyzers are not used.

• The Intoxilyzer machine, which costs approximately five thousand dollars, is said to work on the basis of infrared light absorption by alcohol detected in a person’s breath. According to its manufacturer and the Texas Department of Public Safety (DPS), which certifies the machine and writes the rules for its use, the machine determines alcohol concentration by subtracting the amount of light absorbed from the person’s breath sample and then compares that amount to the amount of light originally introduced into the breath sample. The difference between the two is the test result.
  
  

  What Are the Penalties for DWI?

• DWI, depending on the number of prior convictions and when those convictions occurred, can be either a misdemeanor or a felony. For offenses committed September 1, 1994 or thereafter, the punishment scheme for intoxication offenses ranges from a Class B misdemeanor to a second degree felony. Chapter 49 of the Texas Penal Code codified the intoxication offenses with identical penalties for driving, flying, and boating while intoxicated.

• Generally speaking, the classification and penalties for DWI are:

• first offense: Class B misdemeanor with a fine not to exceed $ 2,000 and/or confinement in jail from 3 to 180 days, and a suspension of driver’s license privileges from 90 to 365 days.

• second offense: Class A misdemeanor with a fine not to exceed $ 4,000 and/or confinement in jail from 30 days to 1 year, and a suspension of driver’s license privileges from 180 days to 2 years. Even if the sentence is probated, punishment may still require not less than 72 hours of continuous confinement.

• third offense (or more): third degree felony with a fine not to exceed $ 10,000 and/or imprisonment in the institutional division for any term of not more than 10 years or less than 2 years, and suspension of driver’s license privileges from 180 days to 2 years. Even if the sentence is probated, punishment may still require not less than 10 days of continuous confinement in a jail.

•  with an open alcohol container (first offense): the minimum term of confinement is increased to six days.

• with an accident where serious bodily injury occurred: The offense is known as intoxication assault and classified as a third degree felony. The punishment includes a fine not to exceed $ 10,000, imprisonment in the institutional division for any term of not more than 10 years or less than 2 years. If the sentence is probated, punishment still requires not less than 30 days of continuous confinement in jail.

• where a death has occurred: The offense is known as intoxication manslaughter and classified as a second degree felony. The punishment includes a fine not to exceed $ 10,000 and/or imprisonment in the institutional division for any term of not more than 20 years or less than 2 years. If the sentence is probated, punishment still requires a period of confinement of not less than 120 days. Also, a suspension of driver’s license privileges from 90 to 365 days.

• After September 1, 1994 a previous conviction of an offense under the laws of another state that prohibit the operation of a motor vehicle while intoxicated can be used to enhance the punishment for DWI under Texas law.

• In all of the above penalty classifications, unless the particular person has previously been convicted of a felony, he will be eligible to be considered for probation but it is not guaranteed he will receive a probated sentence or that no jail time will be served as a condition of probation.
  
  
  
  What Special Conditions Are Placed upon “Bond for DWI?
  
  For a first offense, bond conditions are a matter of discretion for the court. However, if you are charged with a subsequent offense of DWI or a first offense of Intoxication Assault or Manslaughter, you are required to install a vehicle ignition interlock device on your car and are not allowed to operate a motor vehicle not equipped with an interlock device. This interlock device determines the presence of alcohol in your breath. If the device detects a certain level of alcohol, the vehicle is temporarily disabled. However, a judge may decide that justice would not be served by installing an interlock device on your vehicle and can excuse its installation. Conversely, some judges require that all DWI defendants, even first offenders, install interlock devices on their cars.
  
  

  Does a Person Have a Choice to Refuse a Required Breath or Blood Test?
  Yes! Our law provides where the implied consent law is applicable, the person arrested for DWI may refuse to take the requested test. Such a refusal, however, can result in the following penalties:
  
  1.   Suspension of your driving privileges for 180 days if this is your first arrest for DWI,
  2.     A two year suspension for a subsequent arrest within ten years if, in the first arrest you refused to submit to testing, and,
  3. The admission into evidence of your refusal to take the test in the subsequent DWI criminal trial.  The purpose of this admission, from the prosecutor's viewpoint, is to imply to the jury, that the suspect refused because she believed that she was too intoxicated to pass the test.
  
  If you do submit to alcohol concentration testing and fail, your driver's license privileges can be suspended, and the test result may come into evidence in the criminal trial.  The possible suspension periods are as follows:
  a)    90 days if your driving record shows no prior alcohol related arrests,
  b)    One year if you have a prior conviction or suspension within the preceding ten years.

If I Decide to Submit to Chemical Testing and My Alcohol Concentration Is Less Than .08, Can I Still Lose My License?

Yes, but this is usually the result of a subsequent criminal conviction for DWI or a related offense. For your driver’s license to automatically be suspended as a result of chemic testing, the alcohol concentration taken from your blood, breath, or urine must be .08 or more while driving.

What Can a Knowledgeable Attorney Do for Me Immediately After I’ve Been Arrested for DWI?

A lot! An attorney who is knowledgeable about DWI can assist the arrested person in being released from jail by arranging for and posting bond. A lawyer present, either in person or by telephone, can prevent and/or deter the police from intentional or negligent violations of your rights.

Further, it should be noted that all persons arrested for DWI who have taken the police breath or blood test, and even a few who have not, have a statutory and/or due process constitutional right to a second independent blood test, by their doctor if performed within two hours of arrest. Here, a lawyer usually has a greater chance of arranging for and coordinating such a blood test than the person in jail for DWI.

As a final example, the lawyer can advise you as to whether or not it would be in your best interest to answer questions, perform exercises, or to make a statement explaining and proclaiming your innocence while you are being video/audio recorded by the police.

DRIVER’S LICENSE SUSPENSION

If I Refuse a Chemical Test or If I Am Found to Have an Alcohol Concentration of .08 or More at the Time of Vehicle Operation, Can Anything Be Done to Prevent My License from Being Suspended?

First of all, you have the right to what is called an Administrative License Revocation Hearing (an ALR hearing). After you are arrested for DWI and either refuse or fail chemical testing, a peace officer is required to give you written notice that your driver’s license will be suspended. After the officer does that, you will have 15 days from that date to request, in writing, a hearing from the Department of Public Safety (DPS) headquarters in Austin. Alternatively, if you fail to request a hearing, you waive that right and your license will be suspended on the 40th day after receiving notice.

If the officer fails to provide you with notice of your license suspension, the DPS will mail a notice to you, via certified mail, that your driver’s license is subject to suspension. This is important because, instead of the 15 days to file for a hearing from the date of your arrest, you now have 15 days from the date you receive the DPS notice. Notice is presumed to have been received five days after it is mailed, triggering the 15-day time limit to request a hearing. Accordingly, do not rely on receiving notice from the department to request a hearing or you might end up waiving that right. This is also a good time to confirm with DPS that the address on your driver’s license is correct, because that is where the DPS will send the notice. For notice by mail purposes, your driver’s license address is your mailing address even if it is the incorrect address. This is because you have a duty to report address changes to the DPS within 30 days of moving. Accordingly, be sure to have your license address changed if you have moved since obtaining your license.

When you make your request for an ALR hearing, the suspension of your driver’s license is stopped while you await the hearing. Furthermore, if you lose your hearing, you also have the right to appeal. To appeal, you must request the appeal within 30 days after the judgment becomes final. Otherwise, you waive the right to appeal and your driver’s license will be suspended on the 40th day after the judgment becomes final. Again, while you are waiting for the appeal to be heard, your driver’s license suspension is stopped, but only for a period of 90 days. Your license will be suspended on the 91st day even if your appeal has not been ruled upon. Here, however, if you win your appeal, your suspension is lifted. Whether your suspension can be prevented is, however, dependent upon whether you have been convicted of an alcohol-related offense within the past 10 years, or whether your driver’s license has been suspended in relation to a drug- or alcohol-related offense in the past five years. If you fit into one of these categories, your driver’s license is suspended on the 40th day after the final judgment during the pendency of your appeal. Again, however, the suspension is vacated if you win your appeal. Lastly, if you ultimately lose your license to a suspension, you can have it reinstated if you win your DWI case by being found “not guilty.”




Why Is It Important to Request a Hearing?

There are a number of good reasons to request an ALR hearing. First and foremost, the best reason to request such a hearing is to attempt to save your driving privileges. Second, by requesting an ALR hearing, you force the State of Texas to prove that the police officer who stopped and arrested you did so with either reasonable suspicion or probable cause. By litigating these issues, you ensure that your rights are protected. Also, if the state fails to prove that probable cause or reasonable suspicion existed to stop or detain you, it might be prevented from relitigating the same issues in your subsequent criminal prosecution for DWI. This could result in a dismissal of the criminal charges against you.

In the ALR hearing, there are two possible theories of prosecution that the state will argue. The first is that you refused to take an alcohol breath-test and the second is that you took such a test and failed. If you refused to submit to chemical testing, our law requires the State of Texas to prove the following at an ALR hearing:

1.         reasonable suspicion or probable cause existed to stop or arrest you;
2.         probable cause existed to believe you operated a motor vehicle in a public place while intoxicated;
3.         you were placed under arrest and requested to submit to chemical testing; and
4.         you refused the test upon request of the officer.
The issues are slightly different if you submit to and fail chemical testing. If you fail, the DPS must prove the following two issues:
1.         that you had an alcohol concentration of .08 or more while operating a motor vehicle in a public place and at the time of testing; and
2.         that there was probable cause to arrest or reasonable suspicion to stop you.

Proof is generally submitted in the form of the arresting officer’s written affidavit, but sometimes subpoenas are issued and the officer actually testifies. In either event, a skilled and knowledgeable attorney is necessary to ensure that your rights are protected.




If My Driver’s License Is Suspended Because I Refused a Chemical Test or Because I Was Convicted of DWI, Then What Are the Penalties for Driving While the License Is Suspended?

This type of offense, known in legal circles as Driving While License Suspended (DWLS), is a misdemeanor and carries with it the possibility of from three days to six months’ incarceration and $100-500 fine for each violation, unless it is enhanced to a Class A Misdemeanor. In that case, the penalties will increase.
Fortunately, if your driver’s license is suspended you may apply for an occupational driver’s license. To receive an occupational driver’s license, the law requires that good cause be shown. Examples of “good cause” under our law would be going to and from work, taking children to and from school, going to and from a religious service, traveling to or from a grocery store, or traveling to or from a medical facility for treatment. This license allows you to drive during a 12-hour period per day. This privilege is, however, subject to restrictions.

Note, however, that you cannot be issued an occupational license if you have had one in the last 10 years. Also, you might be required to install an alcohol interlock device on your car and fulfill some of the same requirements necessary for probation.