"No, Thank You, Officer"

Driving While Intoxicated in Texas

When it comes to driving while intoxicated (DWI), as an attorney, (and I think most of my criminal defense lawyer colleagues would agree), whether you’re stopped by law enforcement in Houston, Conroe, The Woodlands, Kingwood, Humble, or Harris, Montgomery or Liberty County, the most important thing you should know about driving while intoxicated is: DON’T.

Unfortunately for their defense in a criminal case involving DWI, a number of people are accused of driving while intoxicated who are not, in fact, “intoxicated” beyond the legal limit or who do not fit the law’s definition of “driving while intoxicated,” THEY HAVE GIVEN THE STATE THE EVIDENCE IT NEEDS TO CONVICT THEM. This website is intended to help you understand your rights when stopped by a law enforcement officer and charged with a crime – DWI – and what we can do to help you, even if you’ve already taken the tests and failed. Do not give up! As you’ll read here, there are many, many ways to defend a DWI case, and your defense to the criminal charge depends not only on the facts, but also on hiring an experienced criminal defense lawyer to fight for you.

When you are stopped by a law enforcement officer and they ask you whether you’ve been “drinking,” and then they ask you to step out of your vehicle, the OFFICER ALREADY THINKS THAT YOU’RE DRIVING WHILE INTOXICATED. The officer has already stopped you for another reason – speeding, unsafe lane change, “failure to maintain single lane,” or some other “traffic violation.” The officer will then likely note in his report that you “fumbled” for your license or insurance card, that your eyes were “bloodshot” or “glassy,” and that he smelled the “odor of an alcoholic beverage.” Once the officer forms these opinions, you are asked to exit your vehicle AND THE INVESTIGATION OF DRIVING WHILE INTOXICATED HAS COMMENCED.

More than likely, you are going to jail. Everything that happens after you get out of your vehicle is designed to bolster the officer’s opinion that you are intoxicated and to provide evidence to support the criminal charge against you.

The best advice I can give you when you are stopped by a law enforcement officer and asked to take a breath test or a field sobriety test is this: just say “no, thank you, officer.”
While it may be intimidating, and while you may have your license suspended, and while the officer may try to tell you that if you “pass” these tests he will “let you go,” you should NOT participate in any of the field sobriety tests or consent to a breath or blood test. The chances of you passing the field sobriety tests are low. Remember – the defense of your DWI case starts when you’re asked to get out of your vehicle. If you GIVE the officer the evidence against you, you are many times more likely to be convicted of DWI. Just say “no, thank you, officer.”

This section is intended to acquaint you with the offense of driving while intoxicated (DWI) in Texas, the elements of proof and evidence necessary for the State to obtain a conviction, the range of punishment for the offense, and the types of punishment normally considered by courts when assessing punishment for this offense.

You should know that your situation will depend on the specific facts of your case. What happens to your case will depend, ultimately, on an assessment of the facts of your particular situation, your background, your history with the criminal justice system, (if any), and your current life situation. This information is intended to give you general information only. If you have any questions, you should consult with us or another qualified attorney.

Elements of the Offense

Like any other criminal charge, the charge of “driving while intoxicated” is made up of certain “elements.” In the case of a DWI charge, the State must prove certain things, or “elements,” such as that you were driving a vehicle, in a public place or public thoroughfare, while intoxicated. If the State fails to prove an “element,” or if an “element” of the charge doesn’t exist or isn’t true, you may be acquitted of the charge as a whole.

When we evaluate a criminal charge, one of the first things we do is check to see if all of the “elements” of that charge are supported by the evidence.

“Public Place”

The first “element” we will discuss in reference to a DWI charge is that the State must prove that you operated a motor vehicle in a “public place.” A person commits an offense by driving or operating a motor vehicle in a public place while intoxicated. Penal Code §49.04(a). Proof of a culpable mental state is not required for conviction of this offense. In other words, the States doesn’t have to prove that you “intended” to drive while intoxicated. Since proof of a culpable mental state is not required for this offense, defenses such as insanity are not available.

A “public place” is any place to which the public, or a substantial group of the public, has access. This includes, but is not limited to, streets, highways, and the common areas of schools, hospitals, apartment houses, office buildings, shops, and transportation facilities. Penal Code §1.07(a)(40). For example, the parking lot of a multi unit condominium complex that is accessible to a substantial group of the public is a public place for purposes of this definition. The definition of “public place” is cast in broad language in the statute. Thus, for example, the fact that a park’s hours of operation have ended and the public is no longer supposed to use the park is irrelevant to the determination of whether the place is one to which the public has access. An information (the charging instrument filed by the State setting out the allegation that you committed the crime charged) alleging that the act occurred in a public place without specifying the place involved is not subject to a motion to quash for lack of specificity.

Intoxication

A person is deemed to be intoxicated for purposes of this offense when he or she does not have 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 these substances, or any other substance into the body. Penal Code §49.01(2)(A). The terms “controlled substance,” “drug,” and “dangerous drug” are defined in the Health and Safety Code.

A person is also considered to be intoxicated when he or she has an alcohol concentration of 0.08 or more. Penal Code §49.01(1). “Alcohol concentration” is the number of grams of alcohol per 100 milliliters of blood, 210 liters of breath, or 67 milliliters of urine.

In a prosecution for driving while intoxicated under the first definition of intoxication, the type of intoxicant used is an element of the offense. Therefore, an information charging the defendant with DWI under that definition must allege the type of intoxicant, either singularly or in disjunctive combination with other types of intoxicant. The current statute requires that the type of intoxicant be specified in prosecutions for both driving while intoxicated and intoxication manslaughter under Penal Code Section 49.08.

However, it has also been held that an information alleging the influence of intoxicating liquor will support a conviction based on intoxication due either to liquor alone or to a combination of liquor and drugs, when this is raised by the evidence. Moreover, a conviction may be upheld when intoxication is alleged to be due to liquor and drugs, but there is no evidence of drugs.

The definition of intoxication based on alcohol concentration serves to turn the statutory presumption of intoxication based on an alcohol concentration of 0.08 percent or more into a legal definition of intoxication. The excessive alcohol concentration does not create an irrebuttable presumption of intoxication, but rather defines the offense and becomes an element of it.

A charging instrument alleging driving while intoxicated must allege which of the two definitions of intoxication the State will rely on at trial, in addition to the type of intoxicant the defendant is alleged to have used. That is, the State must indicate whether it intends to prove intoxication through evidence of loss of faculties, evidence of the defendant’s alcohol concentration, or both methods. The State may specifically allege, in the conjunctive or disjunctive, either or both of the definitions. The purpose of this rule is to put the defendant on clear notice of what the State will attempt to prove at trial.

If both methods of proving intoxication are alleged in the information and the jury is charged disjunctively, a general verdict is proper and will support a conviction under either theory that is supported by the evidence.

Driving a Motor Vehicle

A motor vehicle is a device in, on, or by which a person or property is or may be transported or drawn on a highway, except a device used exclusively on stationary rails or tracks. Penal Code §49.01(3).

Under this definition, an information charging a defendant with driving an automobile will support a conviction even though the evidence shows that the vehicle was actually a motorcycle.

The word “operate” contemplates the doing of something or the making of some effort by the driver. For example, the phrase “driving and operating a motor vehicle” has been held to include steering a motor vehicle without the engine running while being pushed by another motor vehicle. Nevertheless, the courts have expanded the definition, and at least one court has found sufficient evidence of operation when the intoxicated defendant was found asleep in a
stopped vehicle that had the engine idling and the transmission in neutral.

Chemical Tests

Requirements for Admissibility

Chapter 724 of the Transportation Code sets forth the requirements for administering chemical tests to determine the intoxication of the accused. Transportation Code, §724.001 et seq.

If the results of a chemical test are erroneously admitted into evidence, a conviction for driving while intoxicated may nonetheless be affirmed if there is sufficient independent evidence to support the conviction. In the court’s opinion in Rangel v. State, 502 S.W.2d 152, 153 154 (Crim. App. 1973), an officer’s testimony regarding the defendant’s behavior was sufficient independent evidence to support determination that the defendant was intoxicated.

In a trial for any criminal action or proceeding arising out of an offense involving the operation of a motor vehicle or watercraft under Chapter 49 of the Penal Code, (such as driving while intoxicated), the parties are entitled to introduce evidence concerning the defendant’s alcohol concentration or the presence of a controlled substance, drug, dangerous drug, or other substance as shown by an analysis of a specimen of the defendant’s blood, breath, urine, or any other bodily substance, taken at the request or order of a peace officer. When a person has been given a chemical test at the request of a peace officer, the person is entitled to a full report of the results of the test on request.

The type of specimen to be submitted is solely within the discretion of the arresting officer. In fact, there is no due process requirement that a person be afforded the opportunity to take a chemical test, such as a blood test, nor does the implied consent law create a mandatory duty to administer a test or a specific test.

A breath specimen taken at the request or order of a peace officer must be taken and analyzed under the rules of the Department of Public Safety by an individual possessing a certificate issued by the department, certifying that the individual is qualified to perform the analysis. Transportation Code, §724.016. Breath test results may be excluded at trial when the DPS rules are not followed.

In order to admit the results of an intoxilyzer test into evidence, the State is required to show: (1) that the machine functioned properly on the day of the test as evidenced by the running of a reference sample (which is supposed to be done automatically when the test is administered); (2) the existence of periodic supervision over the machine and operation by one who is qualified; and (3) proof of the results of the test by a witness qualified to translate and interpret such results. The issue of compliance with the DPS rules only arises when the State introduces evidence of the actual results of the breath test. While there is statutory language indicating that DPS rules must be followed when the test is administered in order to admit the results of a breath test at trial, the statute does not mandate that the State must affirmatively introduce testimony as to compliance with each of the DPS rules as a predicate to admissibility unless a fact issue concerning a particular rule has been raised.

When a person gives a specimen for a test, the person may, on request and within a reasonable time not to exceed two hours after the arrest, have a physician, qualified technician, chemist, or registered nurse of his or her own choosing draw a specimen and have an analysis made of his or her blood, in addition to any specimen taken and analyzed at the direction of the peace officer. The person must be allowed a reasonable opportunity to contact somebody to draw blood, but the officers are not required to transport the person to that individual for testing.
Moreover, the failure or inability to obtain this additional specimen or analysis does not preclude the admission of evidence relating to the analysis of the specimen taken at the direction of the peace officer. Transportation Code §724.019. In addition, there is no right to a later blood test when the person has refused to provide the original sample requested by an officer. In such cases, the officer has no obligation to inform the person of any right to have a subsequent sample drawn.

Nevertheless, the defendant may attempt to introduce at trial the fact that a request to take an additional test was refused. Transportation Code §724.062. When the defendant does have a test taken after arrest, the defendant should be prepared to show chain of custody at trial to establish admissibility.

Consent to Take Tests

Any person who operates a motor vehicle in a public place, or a watercraft, in Texas is deemed to have given consent to submit to the taking of a specimen of his or her breath or blood for the purpose of determining the alcohol concentration, or the presence of a controlled substance, drug, dangerous drug, or other substance, when the person is arrested for any offense arising out of acts alleged to have been committed while the person was operating a motor vehicle while intoxicated. Transportation Code §724.011(a). That’s normally referred to as the “implied consent” law.

However, it should be noted that consent is not implied unless the officer had reasonable grounds to believe person was driving while intoxicated when the officer stops the accused and requests the test. The implied consent law applies only to breath or blood tests, although the person may voluntarily consent to the administration of any other tests. Transportation Code §724.011(b). The peace officer has the right to designate the type of specimen to be taken. Transportation Code §724.012(c).

Although a person gives implied consent to take these tests, the person also retains an absolute right to refuse a test under the terms of the statute. Transportation Code §724.013. Thus, actual consent is still a requirement under the statute. The person’s consent must be voluntary, and must not be the result of physical or psychological pressures brought to bear by law enforcement officials.

The State must prove that actual consent was positive and unequivocal, and that the officer involved did not use duress or coercion, actual or implied, in obtaining consent — UNLESS that officer has a warrant, in which case the blood sample may be forcibly taken.

Since the taking of a chemical test is not a testimonial communication, there need not be any Miranda warnings prior to its administration. There is also no federal or state constitutional right to counsel before making the decision of whether to take a chemical test. So, asking for a lawyer “before” you will consent to a breath test will not delay or deter the officer from asking you for a breath sample, nor will it be grounds to exclude the breath tests results at trial.

However, before requesting a person to submit to the taking of a specimen, the officer is required by statute to inform the person both orally and in writing of the following matters [Transportation Code §724.015]:

1. If the person refuses to submit to the taking of the specimen, the refusal may be admissible in a subsequent prosecution.

2. If the person refuses to submit to the taking of the specimen, the person’s license to operate a motor vehicle will be automatically suspended, whether or not the person is subsequently prosecuted as a result of the arrest. The suspension is for not less than 90 days if the person is 21 years of age or older, and for one year if the person is younger than 21 years of age.

3. If the person submits to the taking of a specimen and analysis shows the person had an alcohol concentration above the statutory limit, the person’s license to operate a motor vehicle will be automatically suspended for not less than 60 days, whether or not the person is subsequently prosecuted as a result of the arrest.

4. If the officer determines that the person is a resident without a license to operate a motor vehicle in Texas, the department will deny the person the issuance of a license, whether or not the person is subsequently prosecuted as a result of the arrest, if the person refuses to submit to the taking of a specimen or if the alcohol concentration is above the statutory limit. If the person refuses to submit to the taking of a specimen, the denial is for not less than 90 days if the person is 21 years of age or older, and for one year if the person is younger than 21 years of age. If the alcohol concentration is greater than the statutory limit, the denial is for not less than 60 days.

5. The person has a right to a hearing on the suspension or denial if, not later than the 15th day after the date on which the person receives the notice of suspension or denial or on which the person is considered to have received the notice by mail as provided by law, the department receives, at its headquarters in Austin, a written demand, or a request for the hearing in another form prescribed by the department, including a request by facsimile.

These warnings are normally given orally and in writing, and you should always read carefully a document presented to you by law enforcement for your signature.

These warnings are mandated by the statute. However, any additional warning about the effects of refusal, even if accurate, may constitute coercion that would render the suspect’s consent involuntary. For example, consent was not shown to be voluntary in a case in which the officer gave additional “warnings” that the suspect would be jailed and charged with driving while intoxicated if he refused to submit to testing, and there was no evidence showing that the additional warnings had no bearing on the suspect’s decision to consent. Additionally, consent is not voluntary if it is induced by the officer’s misstatement of the consequences of refusal. However, it can be very difficult to prove at trial that the officer “lied” or misstated the results, unless she does so on the videotape of your arrest.

A person who is dead, unconscious, or otherwise incapable of refusal is considered not to have withdrawn the implied consent provided by Transportation Code Section 724.011. If the person is dead, a specimen may be taken by the county medical examiner, or by a licensed mortician or other authorized person if there is no county medical examiner for the county. If the person is alive but is incapable of refusal, a specimen may be taken in the ordinary manner. Transportation Code, §724.014.

Before making the request for a specimen, the officer must inform the person of certain consequences of refusal to submit as discussed above. If a person refuses the request, the officer must request the person to sign a statement that (1) the officer requested that the person submit to the taking of a specimen, (2) the person was informed of the consequences of not submitting to the taking of a specimen, and (3) the person refused to submit to the taking of a specimen. Transportation Code, §724.031.

A person’s refusal of a request by an officer to submit to the taking of a specimen may be introduced in evidence at the person’s trial, whether the refusal was express or the result of an intentional failure to give the specimen. Transportation Code §724.062. A defendant’s refusal to consent to testing is not protected from admission into evidence by the state or federal constitution or by the Code of Criminal Procedure. However, because refusal to submit is in the nature of an incriminating act or statement, a defendant’s refusal may not be admissible in evidence if the statutory warning was not given. The reason the defendant refused to take a breath test is not admissible as part of the state’s case. However, it could be relevant and admissible as part of the defense.

Suspension or Denial of License

If a person refuses to submit to the taking of a blood or breath specimen, whether expressly or because of an intentional failure of the person to give the specimen, the peace officer must serve notice of license suspension or denial of issuance of a license on the person and make a written report of the refusal on a designated form. This is the “ALR” procedure — Administrative License Revocation — administered by the Department of Public Safety (DPS).

See the section on this site where the Administrative License Revocation Proceeding is discussed Adminstrative License Revocation Proceeding

Other Evidence

Direct evidence other than chemical tests is admissible to show the defendant’s intoxication. A non-expert witness, such as a police officer or a lay person, may express his or her opinion as to the defendant’s intoxication based on observation of the defendant’s behavior. In Lewis v. State, the court held that the officer’s testimony of intoxication was sufficient by itself for conviction despite a “zero” reading on breath test machine. This may include testimony regarding a horizontal gaze nystagmus test. However, although the defendant’s performance on this test is admissible as evidence of intoxication, the test is not sufficiently reliable to support specific blood alcohol testimony.

The Standard Field Sobriety Tests are discussed on this site Standard Field Sobriety Tests.

The defendant’s intoxication may also be shown by circumstantial evidence. Evidence such as the discovery of empty or partially filled liquor bottles found in the vehicle may be admitted as bearing on this issue. However, such evidence, alone, may be held to be insufficient to prove intoxication. Further, although evidence of traffic citations is generally not admissible, citations may be admissible if the conduct that provided the basis for their issuance shows the impairment of the defendant’s faculties. The offense may not be proved solely by use of the defendant’s extrajudicial confession.

Circumstantial evidence most often becomes a factor when there is an issue about whether the defendant had been driving the vehicle. If no one actually saw the defendant drive the vehicle, the surrounding circumstances must be assessed to determine if they exclude every reasonable hypothesis other than the defendant’s having driven the vehicle. This is of necessity a determination that must be made on a case by case basis. The following are examples of cases in which the circumstances have been found sufficient to indicate the defendant was driving the vehicle:

1. The defendant was the sole occupant of the car and was found slumped over the steering wheel after a collision. Thomas v. State, 162 Crim. R. 268, 283 S.W.2d 933, 934 (1955).

2. The defendant was the sole occupant of the car and was found behind the steering wheel of a car parked partly on the highway with exhaust coming from the tail pipe. Keenan v. State, 700 S.W.2d 12, 14 (Tex. App. Amarillo 1985, no pet.).

The following are examples of cases in which the circumstances have been found insufficient to indicate that the defendant was driving the vehicle:

1. The vehicle was found completely off the road with no indication that it had been on the road or that the defendant had driven it. Ford v. State, 571 S.W.2d 924, 925 926 (Crim. App. 1978).

2. The defendant was the sole occupant and was found in the front seat after an accident. Avants v. State, 170 Crim. R. 307, 340 S.W.2d 817, 817 (1960).

3. The defendant was found slumped over the steering wheel of a vehicle idling in the road with the transmission in park, but there was no evidence as to the length of time the car had been there or as to the car registration. Reddie v. State, 736 S.W.2d 923, 927 (Tex. App. San Antonio 1987, pet. ref.).

4. The defendant was found unconscious and intoxicated in the driver’s seat of a car parked on the shoulder of the road with the engine idling. Ballard v. State, 757 S.W.2d 389, 391 (Tex. App. Houston [1st Dist.] 1988, pet. ref.).

A defendant’s extra-judicial statement may be used to prove that the defendant was driving if the statement is corroborated by surrounding circumstances. Even though the State has established the fact of the defendant’s driving, there must also be evidence to fix the time of the driving to furnish the jury with an informed basis for determining any relationship between the defendant’s driving and his or her intoxication.

Videotaping

In my opinion, you should NEVER agree to perform ANY Standard Field Sobriety Test. Just say “no, thank you, officer.” Keep in mind that most of the time in Harris and Montgomery County, and every time you are stopped by the DPS, you will be videotaped once you exit your vehicle.

Each county with a population of 25,000 or more according to the last federal census has the obligation of purchasing and maintaining electronic devices to visually record a person arrested for driving while intoxicated when the offense occurred before September 1, 1994. When an arrest occured in such a county, the failure to record the defendant may be adduced in evidence at the trial. This is the exclusive remedy for the failure to videotape the defendant; the case is not dismissed nor are the charges against you reduced. Dismissal for this failure is not required even if it is shown that the police wilfully failed to make the recording.

Also, a defendant is not entitled to a dismissal if the police, after recording the defendant, inadvertently destroyed the videotape. And, courts have held that the defendant is not even entitled to a jury instruction on this issue, since that would be a comment on the weight of the evidence.

A defendant has no right to consult with an attorney before performing videotaped sobriety tests. The video portion of a sobriety test is not testimonial in nature; thus, there is no Fifth Amendment protection and the videotape may be admitted even though the defendant requested an attorney. The audio portion of the videotape is also admissible unless the police conduct depicted in the videotape expressly or impliedly calls for a testimonial response from the defendant not ordinarily incident to arrest and custody or is conduct the police should know is reasonably likely to elicit such a response.

As you can see, once the officer asks you to step out of your vehicle, and asks – or directs – you to perform the sobriety tests, THAT OFFICER HAS MOST LIKELY ALREADY DECIDED THAT YOU’RE DRIVING WHILE INTOXICATED AND HAS, AGAIN, MOST LIKELY, DECIDED TO ARREST YOU. ALL THAT IS HAPPENING AT THIS POINT IS THAT THE OFFICER IS GATHERING EVIDENCE TO BE USED TO TRY TO CONVICT YOU.

Whether the verbal responses of a DWI suspect that show mental confusion are testimonial in nature and, thus, inadmissible if not preceded by Miranda warnings, has been the subject of interesting debate. For example, in Pennsylvania v. Muniz, 496 U.S. 582, 611, 110 S. Ct. 2638, 110 L. Ed.2d 528 (1990), the accused was asked seven questions regarding his name, address, weight, eye color, date of birth, and current age following his DWI arrest. The defendant was then asked the date of his sixth birthday. The Muniz Court held that the first seven questions were “for record keeping purposes only and therefore fall outside the protections of Miranda thereby not warranting the imposition of the Fifth Amendment.” Thus, any slurring of speech and other evidence of a lack of muscular coordination revealed by the answers to the officer’s direct questions constituted nontestimonial responses for purposes of the Fifth Amendment protection against self incrimination. However, the response to the sixth birthday question was testimonial in nature, and not properly admitted in the absence of Miranda warnings. Prior to Muniz, the Court of Criminal Appeals held that reciting the alphabet and counting were not testimonial because these communications were physical evidence of the functioning of a defendant’s mental and physical faculties. Jones v. State, 795 S.W.2d 171, 175 (Crim.App. 1990, reh’g denied).

While the decision in Muniz cast doubt on the continuing validity of this holding, the Court of Criminal Appeals has reaffirmed this conclusion in a decision issued after Muniz. Gassaway v. State, 957 S.W.2d 48, 50 (Crim. App. 1997).

Defenses

It is no defense to a charge of driving while intoxicated that the defendant had a legitimate or necessary purpose for driving while intoxicated. For example, it has been held that a defendant did not have a defense when he drove while intoxicated to seek medical treatment for a serious head injury that he had sustained. Similarly, an intoxicated passenger is not justified in taking the wheel when the driver is also intoxicated solely for the purpose of stopping the car in obedience to a police officer’s signal to stop.

Other factors or conditions held not to be a defense to driving while intoxicated include a passive dependent personality, an addiction to alcohol, susceptibility to illness, loss of sleep, or being under the influence of aspirin or Anacin. Likewise, the defenses of involuntary intoxication and insanity not available in DWI cases. It is also not a defense that the person was legally entitled to use the alcohol, controlled substance, drug, dangerous drug, or other substance. Penal Code §49.10.

However, the defendant is entitled to raise and have the jury instructed on an affirmative defense when the evidence shows that the defendant had not consumed any prohibited substance prior to the incident in question and that independent facts or conditions accounted for the defendant’s appearance, manner, and conduct.

Conclusion

As you can see, there are a number of very important issues that must be evaluated before you can decide on your best course of action when you’re charged with DWI. However, it is very important to remember: the defense of your case STARTS when you are pulled over by the police.

If you just say “no, thank you, officer,” when asked to cooperate with field sobriety tests or to take a breath test or give a blood sample, you have a much better chance of defending yourself against unwarranted charges.

If you are charged with DWI, contact us at www.charlesbfrye.com to discuss your case.