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Christina Jimenez and Joshua Floyd from The Jimenez Law Firm, P.C. discuss the Elements, Consequences and Possible Resolutions to Drinking While Intoxicated. Their years of experience allows them to discuss DWI/DUI situations in a manner which is easy to understand and gives the viewer viable educational information.
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At 0:12 – We are going to talk about driving while intoxicated and give some basic information. Floyd will take the lead since he is much more familiar with DWIs than I am. Can you give us a basic definition of a DWI?
At 0:40 – A basic definition of a DWI is you can be convicted of a DWI if you operate a motor vehicle in a public place while intoxicated.
At 0:59 – We typically break down the legal definition into legal elements. So today, we’re going to take the definition and break it down into elements. The first word is operating. Floyd, tell us what operating means.
At 1:22 – The layman’s definition of operating is that you are using the motor vehicle, and that is what the first element means.
At 1:30 – So we’ve had several consultations where the client says that they were resting in the back seat, or they were in the passenger seat. Talk to me about that situation. Is that technically operating?
At 1:58 – It depends. There’s a lot of circumstances that go into whether you will satisfy this element. For example, circumstances such as if you are the only person in the vehicle or there are multiple people, or whether the vehicle is running or not can lead to a conviction or acquittal. If there are multiple people in the vehicle, they may not be able to prove who was operating.
At 2:32 – In one case, we had represented a lady who we will call Jill. Jill said that she had met someone that evening, we will call him Jack, and he was driving. And, they had hit a wall. She said that Jack had taken off running. When the police arrived at the scene, only Jill was there. She was in the passenger side of the car. There was an investigation, and the police surmised that there was no Jack. And this case went to trial. She was acquitted because they could not prove beyond a reasonable doubt that she had operated the vehicle that night.
At 4:40 – Ok, so what happens in a situation where a person is tired from work, and they pull over and get into the back seat to go to sleep?
At 5:01 – If the person hasn’t been drinking, then it really isn’t a problem. However, if have been drinking and working, it’s always best to call an Uber to be safe. If you need to pull over to rest, it’s best to pull into a public parking lot and turn off the engine. Then there’s some room for the argument that you may not have been the one to operate the vehicle through the parking lot. But, if you pull over on the side of the road, the vehicle is running, and you’re the only one in it, it’s hard to argue that you did not operate the vehicle.
At 5:50 – The next element is public roads. So, people may say, well, I pulled over into a parking lot, or I pulled into my driveway. What do you say to that, Floyd? Well, a lot of people don’t believe that a parking lot is public, but it is. Public just means it is accessible to anyone. There was a case years ago where the defendant had gotten arrested at Texas Speedway. He had pulled into a parking lot to the right. The argument was that he was in a parking lot that was public. The problem was the parking lot was not readily accessible to the public because you had to pay to get in.
At 6:41 – So, we had it dismissed under those grounds. And so, where you are and whether it’s public or not has a lot of circumstances. But, in general, anything that is accessible to the public is considered public.
At 6:59 – So the next element is intoxicated. Tell me what that means.
At 7:03 – Intoxicated means blood alcohol content above .08 or the loss of your normal mental and physical faculties. Can you function as you normally would be able to? That’s hard to determine under those circumstances because no one knows what your normal is. But that’s what they must prove.
At 7:25 – On many occasions, I’ve had clients who come in and say they are unable to stand up straight, have bad knees or vertigo, or another loss of physical faculties. We have also had people detained who need to perform the sobriety test but are physically unable to perform it. This helps us in the jury phase. How do we deal with people in these circumstances?
At 9:43 – Officers are taught to ask those questions. They are taught to ask if a person has any physical elements that prevent them from completing the sobriety test. So, if you can’t perform the sobriety tests, you should let officers know. In today’s world, officers are wearing body cams, and there are cameras filming what’s happening outside the car. They also have a large camera facing the backseat of the vehicle.
At 10:20 – Many times, we get clients in the police car, or they were belligerent towards the police. That kind of behavior makes it obvious that are drunk or under the influence of some substances. So just be aware that you’re constantly being watched. Don’t pass out in the back seat of the car. Your best bet is to act as normally as possible because that’s what’s going to help us when we get in front of a jury.
At 11:07 – So we’ve talked about alcohol, how do we deal with drugs?
At 11:18 – There’s not a different offense for drugs. If you’re intoxicated by illegal or even legal drugs you have a prescription for, and you’ve lost your mental and physical faculties, and you can’t operate a motor vehicle safely, then you can be convicted for the offense.
At 11:50 – If you’re using drugs, is that something the breathalyzer can perceive?
At 11:57 – No, not the breathalyzer, but they will do a blood draw if they think you’re intoxicated with something else.
At 12:05 – What does the blood test entail?
At 12:14 – They go to the hospital. There is a strict checklist that they must go through. Then they send it off to the lab at DPS. The test will reveal a number just like a breathalyzer.
At 12:51 – Is this something that you must agree to? Do you have to agree to the blood draw, the breath test, and the sobriety test?
At 13:06 – We’ll start with the sobriety field test. You can refuse it, but it will be used against you as evidence of being under the influence. You can refuse the breathalyzer, but that also can be used against you. If you refuse the breath test, then they can request blood. You can refuse the blood draw, but if they have probable cause, they can get a warrant to take the blood from you.
At 13:56 – Let’s talk about the impact of refusing the breath test.
At 14:01 – I presume you are talking about driver’s license suspension. If you refuse the test, your driver’s license can be suspended for up to 180 days. This is an administrative suspension from the state of Texas. If you take the breathalyzer or the blood test and fail it, your license is only suspended for 90 days.
At 14:32 – Tell me the process of the driver’s license suspension.
At 14:40 – So, when you’re arrested, and you refuse the breath test, you have a right to a hearing. You can request that within 15 days of the date you were arrested. It is an administrative hearing. Then we go before the administrative judge and argue your case. There are different issues, such as whether they did not have probable cause to stop, if the breath test is valid, or if the refusal to take the breath test is valid. If we can argue that something is legally wrong about the arrest, we can present it to a judge. If the administrative judge rules there was a legal issue with your case, then your license is not suspended. If you do not request a hearing, your driver’s license is automatically suspended.
At 15:35 – Good. So, this is pre-conviction. What about after a conviction?
At 15:51 – You can get an additional suspension after the conviction for violating the Penal Code. This is for 90 days to one year without a license. you can also go to DWI safety class, and they can waive the suspension.
At 16:14 – Is there something that people can do if their license is suspended?
At 16:23 – Generally speaking, yes. You can get an occupational driver’s license.
At 16:31 – What is an occupational driver’s license?
At 16:33 – A license that will allow you to get to work and do daily functions.
At 16:46 – The last topic is the different punishments for the different types of driving offenses.
At 17:01 – There several types of driving while intoxicated offenses and the range of punishment for each of them. But we can focus on a DWI. The first DWI is a Class B misdemeanor with 72 hours to 180 days in jail. The fine does not exceed $2,000. If you get caught with an open container in the car, it increases from 72 hours to 6 days to 180 days in jail. The fine is $2,000.
At 17:32 – So, we are clear. If you are pulled over for a DWI, and you have an open container, even if it is a first offense, the minimum time in jail increases to 6 days.
At 17:49 – Also, for the first DWI, if your blood draw is 1.15 or above, then it’s enhanced to a Class A misdemeanor. This means you can spend up to a year in jail. A second DWI is a Class A misdemeanor. For a second DWI, the punishment can be 30 days to one year in jail and a fine not to exceed $4,000.
At 18:31 – What about it you have a child in the car?
At 18:39 – If there is a child in the car, it doesn’t matter if it is a first, second, or third DWI. It is a third-degree felony. That’s 6 months to 2 years in prison and a fine not to exceed $10,000.
At 18:54 – Let me go back. If it is your third DWI, then you’ll get charged with a third-degree felony. The punishment is 2 to 10 years in jail. A fine not to exceed $10,000.
At 19:16 – In all the cases, can they get deferred? Or are they automatically going to jail? Are there probation options?
At 19:30 – No, they are not automatically going to jail. It’s more likely they will get probation for the first and second offenses. Unless, of course, there were extenuating circumstances, or you are barred from receiving probation.
At 19:49 – There was a third question about being deferred. There’s a new law around deferred. Yes, there is a new law around deferred, but it really doesn’t give you the benefits. And it has not shown many benefits.
At 20:06 – With all DWI offenses, they have eliminated surcharges to your driver’s license. And now they have a super fine. This is in addition to the fines we spoke of already. On a first DWI, you can get a fine of $1,000, and on a second DWI, it’s a $1,500 fine. For a third DWI, it is an additional $3,500 fine.
At 20:39 – We’ve covered a lot of information, and we can’t possibly go over every single situation. There are going to be differences and nuances in every case. As with every other video we post, the best practice is to hire a local attorney. Explain your situation, and they will research it. Then they will know how to approach the prosecutor and potentially take it to a jury trial to argue the case.
At 21:49 – that is correct. There are so many variables that go into handling this type of case. Let me go back and correct myself since I think I gave you the wrong numbers for the super fine. The Super fine is $3000.00 for the first DWI, and for the second, the fine is $4500. And if it’s above 0.15, then the fine is $6000.
At 22:13 – Is there anything else that we need to share regarding a DWI?
At 22:24 – I don’t think so. Just don’t do it. But if you do, find someone who has experience in this area, and that way, it will have the least amount of impact on your life.