DUI/DWI - FREQUENTLY ASKED QUESTIONS

The attorneys at the Jimenez Law Firm understand that being charged with a DWI or a DUI can often times be very frightening.  DWI/DUI convictions can cause devastating consequences such as a large fine, loss of driving privileges, or even jail time.  We understand the severity of a conviction and will explore every legal avenue possible to craft an effective defense unique to your situation.  With the attorneys at the Jimenez Law Firm you will get an experienced and aggressive defense whether if is fighting for the best plea bargain or fighting for you in the courtroom.

THE LAW

Is there a difference in a DWI and a DUI?

Yes, although most people use the terms interchangeably, the two charges are very different.

DUI (Driving Under the Influence) – There are only 2 situations where you can receive a DUI.  (1) If you are under the age of 21 or (2) if you are a commercial truck driver.  DUI does not require intoxication, like DWI does, but rather it refers to any detectable amount of alcohol.  If you are under the age of 21 or a commercial truck driver you are not allowed to drive after consuming any alcohol.  A DUI in Texas is a Class C misdemeanor punishable by fine of up to $500.

DWI (Driving While Intoxicated) – Driving while intoxicated applies to all drivers regardless of age.  To be guilty of DWI, the state must prove that you were in fact intoxicated while operating a motor vehicle in a public place.  Yes, this means that if you are over the age of 21 and not a commercial truck driver, you can drive under the influence of alcohol but not while intoxicated.  Texas Penal Code provides 3 ways for the state to prove you are intoxicated. (1) If you have a blood alcohol concentration (BAC) of .08 or above or (2) if you do not have normal use of your mental faculties or (3) if you do not have normal use of your physical faculties.  Intoxication can be by the introduction of alcohol or drugs, even if the drugs are legal and/or prescribed.

THE CONSEQUENCES

What is the punishment for a DWI?

Due to the recent changes in September 2011, there are various punishment ranges depending on the circumstances. Please remember this is just a quick run down of the laws in Texas.  Contact us for a more detailed explanation if you are in need of assistance.

DWI 1 st : Class B misdemeanor punishable by fine up to $2,000 and/or 180 days in jail with a minimum of 72 hours in jail.

DWI 1st w/open container: Class B misdemeanor punishable by fine up to $2,000 and/or 180 days in jail with a minimum of 6 days in jail.

DWI 1st with BAC of 0.15 or more: Class A misdemeanor punishable by fine up to $4,000 and/or 1 year in jail

DWI 2nd: Class A misdemeanor punishable by fine up to $4,000 and/or 1 year in jail with a minimum of 30 days in jail.

DWI 3rd: Third Degree felony punishable by fine up to $10,000 and/or 2-10 years in prison.

DWI with child passenger: State Jail felony punishable by fine up to $10,000 and/or 6 months – 2 years in state jail.

Will my driver’s license be suspended?

Being arrested for a DWI/DUI will usually result in your driver’s license being suspended.  If you refuse the breath test your driver’s license can be suspended for 180 days if:  1) you have never been convicted of an alcohol or drug related offense before; 2) never refused to take a breath test following an arrest for an alcohol or drug related offense; or 3) never took a breath test that resulted in a BAC over .08.  If any of the three apply then the driver’s license suspension is for 2 years.  There will be additional suspensions if you are convicted.

Will I have to pay surcharges if I am convicted?

Yes, on September 1, 2003, DPS began assessing an additional penalty of a maximum of $1,000 per year for three years upon final conviction for DWI.

THE STOP/ARREST

Remain calm, act responsibly and be respectful.  Very little of what you say at this point will make a difference in whether you get arrested BUT can make a huge difference in whether you get convicted.

What can I expect/what do I do if I am stopped?

The officer will first ask you for your driver’s license and insurance, provide those to him as quickly as possible.

The officer will probably ask you if you have been drinking, where you are headed, where you are coming from, etc.  If you have not been drinking then you can say, “No sir”.  If you have been drinking then tell the officer you wish to invoke your 5th amendment right not to incriminate yourself.  Never tell the officer you have been drinking, not even 1 beer!

The officer will probably ask you to step out of the car and perform the Standardized Field Sobriety Tests (SFST’s).  You should step out of the car as the officer requested and respectfully decline to perform any SFST’s.  At his point, they can only hurt you.

The officer will probably then place you under arrest for DWI, take you to the police station and ask you to submit to a breath test.  Politely decline the breath test.

What are the SFST’s and why shouldn’t I perform them?

The SFST’s are a string of test approved by the National Highway Traffic Safety Administration to determine intoxication.  They usually consist of 3 tests.  (1) Horizontal Gaze Nystagmus (HGN), this is the eye test.  (2) Walk and Turn, this is when they ask you to walk a straight line (3) One Leg Stand, this is when they as you to stand on one foot and put the other in the air.  There are many other field sobriety tests that maybe used such as counting, stating the alphabet, etc.

You should not perform the field sobriety tests because the results are extremely subjective and the officer that arrests you has the sold discretion to determine whether you pass or fail.  These tests are designed to make people fail and often times; sober people will fail the tests.

If I take the breath test and pass it, will the officer let me go home?

Most likely not, if they have arrested you, they believe you are intoxicated.  BAC is only one of the ways they can prove intoxication.  If they arrested you, you are staying in jail whether you refuse the test or not.  Taking the test can only make your case worse.

POST-ARREST

What do I do after I have been arrested for DWI/DUI?

Contact an attorney.  There are many steps that can be taken to avoid a number of consequences that result from a DWI/DUI arrest.  It is imperative that you act quickly!!

Can I drive after I am arrested?

Yes, you have a temporary driving license that expires on the 41st day after issuance.  However, there are steps that can be taken to ensure that you never lose your privilege to drive.  You can challenge your drivers license suspension by requesting an Administrative License Review (ALR) hearing within 15 days of your date of arrest.  If you allow the 15 days to expire the ALR is no longer an option.

Why is the ALR important?

The ALR is important for 2 reasons: First, it requires the officer to prove that you were in fact intoxicated, if he cannot do that, then your driver’s license will not be suspended.  Second, it allows us an opportunity to ask the officer questions regarding your arrest prior to trial giving us more information that can prove to be beneficial in your case.

Can I drive if I lose the ALR?

Yes, we can take all the necessary steps to ensure you never lose your privilege to drive.  If you lose the ALR, we can assist you in obtaining an occupational drivers license while your driver’s license under suspension.

I was obviously intoxicated, I failed the breath test, and/or I look bad on video.  Why do I need an attorney?

There are a number of legal procedures that must be followed before you can be convicted of DWI/DUI.  There are a number of things we look for, and often find, that would not be found without hiring an attorney.  For example, was the stop constitutional, was the detention constitutional, was there probable cause for arrest, were proper procedures followed during the administration of the field sobriety test, were proper procedures followed during the administration of the breath/blood test, were Miranda warnings given, etc.  There are a number of ways to attack a DWI/DUI and the attorneys at the Jimenez Law Firm have all the knowledge and experience to put together an aggressive and effective defense for you.