What is a DWI
In the state of Texas, DWI is the term applied to driving while intoxicated or, colloquially, drunk driving. (Some people refer to it as DUI, although, technically, DUI in Texas usually applies to minors.) Many of the same DWI laws and penalties apply whether you are driving a motor vehicle, flying an aircraft, operating a boat, or assembling or operating an amusement ride. Texas DWI laws are not restricted to alcohol; a driver may be charged with a DWI offense if they have taken a controlled substance, a drug or any other substance that may impair their ability to drive safely. This even includes certain prescription or over-the-counter medications, regardless of whether you had a valid prescription from a physician.
In certain circumstances, the penalties for DWI may be enhanced. These include prior convictions, driving while intoxicated with a passenger under the age of 15, and being involved in an accident in which someone is killed or seriously injured. The penalty for an ordinary, first-time DWI offense may also be increased if the persons alcohol concentration was higher than .15.
A drivers blood or breath alcohol concentration is often assessed to determine whether the driver is above the .08 legal limit to operate a motor vehicle, aircraft, boat, etc.
Texas Blood Alcohol Concentration (BAC) Limits
- Adults 21 years and older – .08 percent
- Minors – any detectable amount
- Commercial drivers – .04 percent
“Officer, I do not wish to answer any questions.”
Whether you are stopped for suspicion of DWI (often called “DUI” in other states and “DUI Minor” in Texas) or are under investigation for assault, drugs or any type of crime, you do not have to answer police questions. You can politely tell a police officer or detective that you do not wish to talk. It doesn’t matter whether or not a police officer has read you your “Miranda rights.” You always have an absolute right to remain silent.
|Tip: Never lie to a police officer or detective. You are always better off saying nothing than lying.|
DWI Example – If you are stopped or detained for suspicion for DWI, a police officer will typically ask you whether you have had anything to drink. The officer may also ask you how much you have had to drink; when was your last drink; where are you coming from; where are you going; and, whether you think you’re OK to drive. Just tell the officer, “I don’t wish to answer any questions.”
Even if refusing to talk makes your police officer angry, just be firm and polite. Never use bad language or argue with a police officer. Remember there is a good chance your encounter with a police officer is being audio- and video recorded. A person who acts and sounds calm and polite on a police video will often do better in court than someone who loses composure.
|Tip: In some instances a police officer (usually a Texas State Trooper) will ask you to rate your intoxication on a scale of zero to 10, with “zero being totally sober” and “10 being falling down drunk.” That’s a trick question designed to help a prosecutor convict you in court. You shouldn’t answer that question, unless you can truthfully tell the officer you are “zero.”|
Drug Example – If police stop your vehicle, detain you on foot or detain you inside of your home, apartment or place of business, you do not have to answer any questions. A police officer may tell you he “smells weed” or ask “why do I smell marijuana?” or “where is it?” He may tell you if you cooperate, it will be much easier for you. Just politely tell the officer, “I don’t wish to answer any questions.” Say it repeatedly, if necessary.
If a police officer threatens to get a drug sniffing dog or a warrant to search your vehicle, home, apartment or place of business, make him do it. And if you get arrested, continue to remain silent – except to ask for a Houston DWI lawyer. Never talk with an officer who is investigating you for possession or distribution of drugs or any type of contraband, unless an experienced criminal lawyer advises you to do so.
|Tip: If you get detained or arrested, the police must give you reasonable access to a phone. This does not mean “only one phone call.” If you talk with someone on the phone, do not discuss the details of the arrest or the case against you. Police agencies will often record phone calls for possible use against you in court.|
CPS Example – If you are contacted by Child Protective Services, the Texas Department of Family and Protective Services or any government agency regarding a matter that might be criminal in nature (for example, child sexual abuse or injury to a child, disabled person or elderly person), you should not speak with any government representative, unless an experienced criminal attorney advises you to do so. Just say, “I do not wish to answer any questions until I have spoken with an attorney.” Say it repeatedly, if necessary.
|Tip: Cases involving children, disabled people and the elderly can be emotional and difficult to navigate. You should contact a criminal attorney without delay, so that you can be sure that your rights are protected and the choices you make are informed.|
“Officer, I do not wish to do any tests.”
If you are stopped or detained on suspicion of DWI, a police officer may ask you to do field sobriety tests. The three basic tests involve following a pen or the officer’s finger with your eyes (called a “horizontal gaze nystagmus” test), walking nine steps heel-to-toe on a real or imaginary line and nine steps back (called a “walk and turn” test), and standing on one leg for 30 seconds (called a “one leg stand” test). There may be additional tests, such as reciting the alphabet or tilting your head back, closing your eyes and estimating 30 seconds. You do not have to do these tests. Ever.
It is possible for a completely sober person to fail police tests, which could then make it difficult for the sober person to defend himself in court. To refuse these tests, just tell the officer, “I do not wish to do any tests.” Remember to be firm but polite. Police usually video record their encounters with motorists and often record everything that happens inside a police car. So remain quiet and still when you are in a police car by yourself or during the ride to jail.
“I decline to take a breath test.”
If police arrest you for DWI or any alcohol-related offense, you do not have to take a breath test. (Even on so-called “no-refusal weekends” and “no-refusal holidays.”) Although there may be driver’s license consequences for refusing a breath test, you may face similar driver’s license consequences for failing a breath test. Also, a DWI with a breath test failure above the legal limit of .08 is usually more difficult to defend in court than a non-breath test case. Finally, breath testing has well-documented problems with accuracy. If you have had anything to drink, you are almost always better off telling the officer, “I decline to take a breath test.”
“I do not consent to give blood.”
If police arrest you for DWI or any alcohol-related offense, you do not have to give a blood test. (Even on so-called “no-refusal weekends” and “no-refusal holidays.”) Make the police get a search warrant to draw your blood. But never struggle or physically resist a blood test. Just tell the police and the person who draws your blood, “I do not agree to this blood test” (or words to that effect).
|Tip: If you fail to make it clear to police that you refuse a breath test and, further, that you do not give consent to a blood test, you may lose valuable legal rights to challenge the evidence against you in court.|
“I do not give you permission to search.”
Depending on the situation, a police officer may have the right to search your person, vehicle, home, apartment, hotel room or place of business. You should not fight or physically resist a search. Instead, make it clear to police that you do not agree to a search. If police threaten to get a drug sniffing dog, a search warrant, or even to arrest you, make them do it. Just make it clear (and repeat it as many times as necessary), “I do not give you permission to search.”
|Tip: Giving a police officer verbal or written consent to search will often destroy your ability to successfully defend your case in court. Although you should never argue, fight or physically resist, you should not agree to a search, unless an experienced criminal defense attorney advises you to do so.|
“I wish to terminate this interview.”
If you are in police custody and the police are interrogating you (i.e., asking you questions), you have an absolute right to remain silent. It doesn’t matter whether the police have read you your “Miranda Rights” or whether the police claim you don’t have any rights. You always have the right to remain silent.
But if for some bizarro reason you decide to give up your right to remain silent and talk with police, you also have a right to terminate the interview at any time. Just say, “I wish to terminate this interview.”
|Tip: If you remain silent, you won’t have to remember the right to terminate the interview, because you won’t start an interview to begin with!|
“I want a lawyer. Now!”
It doesn’t matter what type of case you may be involved in. You can never hurt yourself by asking for a lawyer. Even if the police claim you do not have the right to a lawyer, you should always ask for a lawyer. (Ask repeatedly, if necessary.) Even the most stubborn police officer or detective will eventually get the message and stop asking you questions. Just say, “I want a lawyer. Now.”
|Tip: It doesn’t matter whether you are a suspect or merely a witness. A person may start out as a witness, only to find that after talking with police, the person is now considered a suspect. You should not speak with the police about any criminal matter without first speaking with an attorney.|
Once you are able to contact one of our Houston DWI lawyers, you will find that by following these steps, we are able to argue your case much more effectively.
Disclaimer: This web page and contents of how2refuse.com and scheinerlaw.com are not legal advice and do not create an attorney-client relationship. This web page and contents of how2refuse.com and scheinerlaw.com contain basic information for people who want to know their rights and how to exercise those rights. Information herein applies only to police encounters in Texas. If you have been stopped, questioned or arrested in a criminal matter, you should contact your own attorney for advice.
What Happens if I Get a DWI
Being arrested for DWI can have a negative effect on your life, long after you have paid your debt to society. Apart from the possible custodial sentence, fines and suspension of driving privileges, your arrest is a matter of public record and may affect the following:
Your chances of getting a job, renting a home, or getting into the college or university of your choice. Prospective employers, landlords and college admissions officers may access your criminal record. You may also have to declare your arrest on an employment application.
Your ability to obtain a firearm A person may be found ineligible to obtain a concealed handgun license if he/she has been convicted of a Class “A” or Class “B”. At a minimum, DWI is a Class “B” misdemeanor.
Service in the armed forces.
International travel. Some countries will not permit entry to individuals who have a criminal record. Despite shared borders with the United States, it may be difficult to enter Canada or Mexico with a history of DWI. If you have a record of DWI, it is best to seek solid DWI information from an immigration lawyer before planning your trip.
Your car insurance rates may increase substantially.
If convicted, you will be forever labeled as a drunk driver
For all of the above reasons, it is more important than ever before that you engage an experienced lawyer if you are arrested for DWI. No one should be unjustly punished in the well-intentioned zeal for keeping genuine offenders off the roads.
For DWI help or if you are still unsure about what is a DWI, contact Scheiner Law Group, P.C., where our goal is a dismissal or acquittal in every case. We serve the greater Houston metropolitan area, including the counties of Austin, Brazoria, Chambers, Walker and Waller.