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Tag Archives: Breath Test

Understanding Alcohol Intoxication

Intoxication is defined the same in either a Driving While Intoxicated (DWI) or Public Intoxication (PI) case in Texas.  I had a very interesting situation that came up recently.  I had a client who had been arrested for DWI.  He was leaving the bar late at night with some friends and while driving home late at night one of his friends got sick.  The friend had a little too much to drink and needed to throw up.  My client who was driving, pulled over on the highway to let his friend handle his business.  Within a couple of minutes an officer pulled in behind them to see if they needed any help.  When they smelled alcohol and saw some guy puking they decided to conduct a DWI investigation on my client.

They went through the normal standard field sobriety tests (Horizontal Gaze Nystagmus, One Leg Stand, Walk and Turn) and determined that my client was intoxicated.  He was arrested for DWI and taken to the station.  At the station they asked him to submit to a breath test to which my client agreed.  He took the test and blew a .04, well below the legal limit in Texas.

Now if you have any common sense, this just doesn’t seem right.  At the end of the day the definition of intoxication is the same for both DWI and PI. What happened next was interesting.  Officers usually get people to take breath tests by saying, “If you blow under the legal limit you are free to go”.  Well in this case I think the officers were either embarrassed or upset, so they decided to charge him with Public Intoxication.

Per the Texas Penal CodeIntoxicated means:

(A)  not having the normal use of mental or 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 substance into the body;  or

(B)  having an alcohol concentration of 0.08 or more.

Intoxication and the Alcohol Legal Limit

So you are intoxicated in Texas if you lose your physical faculties, lose your mental faculties, or if your alcohol concentration is .08 or more.  My client was not intoxicated by law in Texas, but somehow the officers thought it was ok to charge him with a “small” misdemeanor because it wasn’t that “serious”.

Lucky the prosecutor understood the law and dismissed this case after the first hearing.  It’s sad that my client had to waste time and money, but justice prevailed.

Texas Underage DWI Penalties

In Texas, DWI laws consider anyone who is under the age of 21 to be a minor. In Texas , driving on the roads implies that you are giving police officers implied consent to check your breath or your blood for the presence of alcohol or other drugs. This means that just by driving, you are already agreeing that it is ok for an officer to ask you to take a breath or blood test. If you refuse to do so your driver’s license could be suspended for 180 days on the 1st offense and 2 years on the second. If you do not have a driver’s license, then your driving privileges will be suspended the same number of days or years once you become eligible. Now this doesn’t mean you have to take a test, it is perfectly legal, and sometimes smarter to refuse any test that an officer might want you to take.

Underage DWI penalties in Texas

Texas has a zero tolerance law for minors and alcohol. That means that if you are not yet 21, that you cannot have ANY alcohol in your system at all. Even if you are under the legal limit of .08. For a 1st offense you could face:

  • Suspended TDL for up to 2 years
  • A fine of up to $500
  • A class involving alcohol education
  • An ignition interlock in your vehicle if you do keep your license in some way
  • A possible additional suspension through a criminal judge
  • And any fines, court costs, probation fees, legal fees that might result from your arrest

If you do get a suspension it is possible to get an occupational license in Texas by going through the criminal court. Whether or not an occupational license is granted will depend on who the judge is, and the facts surrounding your case. If you are in this situation and have a question to whether or not you are eligible, please give me a call at 713-222-2828 and I will be glad to look at your case.

If you are in the unfortunate situation of being a minor (or being the parent of a minor) who is charged with an alcohol related offense, it is very important to hire a criminal defense attorney as soon as possible. Many times there are fast approaching deadlines (like a 15 day deadline to request an Administrative License Revocation Hearing – ALR) that must be dealt with. If certain deadlines are missed, it becomes much more difficult and sometimes impossible to prevent the drivers license from being suspended for some amount of time.

Again, if you have any questions about your particular situation, please call my office at 713-222-2828 and I will do my best to advice you on your next steps.

Should You Take A Breath Test?

A question I get asked all too often as a Houston DWI Attorney is “should I take a breath test if I am stopped and have been drinking”.  The simple answer is, no!

Giving a breath test in a DWI case is essentially giving the officer, and the district attorney’s office more evidence to use against you if you happen to fail the test.  If you do not think you are going to pass, then there is no reason to take the test at all.  I am confident that any DWI Lawyer in Houston would give you the same advice.

Many people are asked to do sobriety tests, and even if they do wonderful the officers still “take them down to jail for further evaluation”.  So basically, you do everything that the officer asks you to do and all is gets you is arrested!   Why would you continue to cooperate with law enforcement when you are only seeing negative results?  It does not make any sense.

On top of that, your case is much more likely to get dismissed if you do not take the breath test (assuming you do not get blood drawn).  The district attorney’s office is usually very reluctant to dismiss a case if there is a breath test above .08 (but will dismiss cases time to time).  If you do not take the test, and do good on the standard field sobriety tests (or refuse those too!), there is much less evidence for a prosecutor to use against you.  They feel much better letting cases like this go as opposed to cases where some machine is telling them (and potentially jurors) that you were drunk on the night in question.

So to sum it all up, unless you have had absolutely nothing to drink just do not take a breath test!  You put yourself, and your Houston DWI Attorney, in a much better situation if you just refuse!