Frequently Ask Questions

1. What is DWI
   
   Driving While Intoxicated is defined by the Texas Penal Code. It does not mean drinking and then driving unless you are intoxicated when operating the vehicle.
    
2. How soon must I act to contest my DWI?
   
   You only have 15 days from the date of your arrest to request an administrative hearing to contest your license suspension. If you refused the breath/blood/urine test you face a possible suspension of your license for at least one hundred eighty days. If you submitted to a test which yields a result of .08% or above, you face a possible suspension of your license for at least 90 days.
    
3. What does intoxicated mean?
   
   It can mean two things.
   1. Having an alcohol concentration of .08 or more; or
   2. Not having the normal use of mental and/or physical faculties because of the ingestion of alcohol, drugs, controlled substances, or any combination thereof.
       
4. What does an alcohol concentration of .08 mean:
   
   “Alcohol Concentration” is defined as follows:
   • The number of grams of alcohol per 100 milliliters of blood;
   • The number of grams of alcohol per 210 liters of breath;
   • The number of grams of alcohol per 67 milliliters of urine.
   
   Contrary to popular belief, alcohol testing is not an exact science. Many factors can affect the tests used to measure “alcohol concentration”; accordingly, it is possible to be guilty if tested by one method yet innocent if measured by another method (i.e. breath test vs. blood test). The State of Texas gives you the right to a blood test, if you have first submitted to a breath test; however, they do not advise you of this right. In practice, you will generally be looking at a breath test measurement taken by the use of an Intoxylizer 5000. However, the statute does mandate testing by the 5000; therefore, judges and juries are not mandated to rely on these test results.
   
   Further, you could have the normal use of your mental and physical faculties and yet still test with a concentration that equals or exceeds the .08 threshold. This may be the result of a high tolerance for alcohol or from an inaccurate test.
    
5. Are the methods used to determine alcohol concentration accurate?
   
   The short answer is no; however, some are better than others. Blood testing is considered to be the most accurate and reliable; urine testing is considered to be the least accurate and reliable; and breath testing falls somewhere in between. All three methods are subject to errors. Errors may result from instrument failure, failure to follow testing protocols, and contamination among other causes. Breath tests cannot be checked by independent examination, although the Intoxilyzer 5000 is designed to preserve a sample. Blood tests results are subject to independent examination.
    
6. What is the Inoxilyzer 5000?
   
   This is the instrument used to measure breath alcohol concentration in Texas. The instrument works on the theory of infrared spectrometry, by measuring the absorption of infrared light absorbed by the alcohol on a person's breath.
    
7. Is this machine reliable?
   
   The underlying mathematical formula is proprietary in nature and has not been released by the manufacturer. However, the manufacturer will not warrant their product is fit for any particular purpose; this means they do not promise it is fit for use as a breath testing device. Moreover, the particular machine used to test a person's breath is not subject to independent testing for accuracy and reliability. Moreover, although the breath sample could be preserved by using a $2.00 accessory, Texas does not utilize this meager method of quality control.
   
   Additionally, although the machine is equipped with some safeguards, there are common substances that may be misidentified as alcohol by the Inoxilyzer 5000. If these “contaminants” are not flagged by the machine, they will produce a false high reading. Also, residual alcohol or other substances in your mouth may cause the Intoxylizer to produce a false high result.
   
   Finally, the Intoxylizer is designed to paint with a very broad brush and it makes the erroneous assumption that all persons being measured are the same. Obviously, we come in all shapes and sizes with different constitutions, metabolisms, weights, ages, lung capacities and temperatures; the Intoxylizer does not take this into account. Worse, its assumptions can result in a breath test score .08 when the true number should be .04.
    
8. What will happen to me if I am convicted of DWI?
   
   First Offense (Class B Misdemeanor): Fine ranging from $0 to $2000.00, a jail sentence of not less than 3 days but not more than 180 days, and a license suspension ranging from 90 days to one year.
   
   - With Open Container your minimum jail sentence jumps to 6 days.
   
   Second Offense (Class A Misdemeanor): Fine ranging from $0 to $4000.00, a jail sentence of not less than 30 days but not more than 365 days, and a license suspension ranging from 180 days to 2 years.
   
   Third Offense (3rd Degree Felony): Fine ranging from $0 to $10,000.00, a jail sentence of not less than 2 years but not more than 10 years, and a license suspension ranging from 180 days to 2 years.
   
   Intoxication Assault (3rd Degree Felony) (if you are accused of DWI with an accident that caused serious bodily injury): Fine ranging from $0 to $10,000.00, a jail sentence of not less than 2 years but not more than 10 years.
   
   Intoxication Manslaughter (3rd Degree Felony) (DWI and accident causing death): Fine ranging from $0 to $10,000.00, a jail sentence of not less than 2 years but not more than 20 years.
   
   DWI with child passenger (3rd Degree Felony) (DWI and child in car who is less than 15 years of age): Fine ranging from $0 to $10,000.00, a jail sentence of not less than 180 days but not more than 2 years.
    
9. Will I go to jail if I am convicted?
   
   If this is your first offense, then you probably will not go to jail. However, at a minimum you would be placed on probation. If you fail to abide by the conditions of probation, then you could be placed in jail. For subsequent offenses and felonies, your chances of incarceration increase. Of course, every case is fact specific and you may or may not be looking at jail time based on your circumstances. Even if a jail sentence is imposed, we have some options to minimize the impact of the sentence. For example, we may be able to convince the judge to let you work for the county in lieu of serving actual jail time, or we may be able to convince the judge to let you serve your sentence after work or on the weekends, so you can keep your job.
    
10. What does probation generally entail?
     
    • Report at least once per month to a probation officer
    • Do not commit any further offenses
    • Pay a monthly probation fee (generally around $50)
    • Perform community service (generally 24 to 80 hours)
    • DWI classes dealing with the effects of DWI
    • DWI Victim Impact Panel (victims of DWI tell you how DWI has destroyed their lives)
    • No drinking
    • No drug use
    • Pay all fines and costs
    • Random drug testing
    • Installation of an interlock device on your car (makes you take a breath test before the car will start)
       
11. If my license is suspended, how will I get to work?
    
    If you drive with a suspended license, you will go to jail. However, we may petition the court for an occupational driver's license. This type of license will allow you to drive to and from work and for duties related to your employment. You will also be allowed to drive to perform essential needs of your household. You will be able to drive for at least four hours per day, but not for more than 12 hours per day.