Interstate 35 is the 9^th largest interstate in the United States. It runs north and south from the bottom tip of Laredo, Texas to the very top of Minnesota.  In Texas I35 is commonly known for connecting Austin and San Antonio. While the exact number of DWI arrests along I35 is not tracked, it is known for being a hotbed for DWI and other intoxication arrests. I35 is maintained by the Texas Department of Transportation and various law enforcement agencies enforce Texas laws on these roadways depending on what county one is passing through.

DWI lawyers often refer to DWI offenses as political crimes.  This is because alcohol (i.e. M.A.D.D.) and drug awareness groups pump a lot of time and money into stiffening DWI penalties.  You’ve seen the DWI billboards and propaganda:

• “Drink, Drive, Go To Jail”
• “Buzzed Driving is Drunk Driving”
• “DWI, You Can’t Afford It”
• “The eyes of APD are upon you.”

These slogans are misguided, biased, and prejudicial. It is perfectly legal to drink and drive as long as you are not intoxicated.

• Buzzed driving is not drunk driving.  In fact, drunk or buzzed are not legal Texas DWI terms.  Nowhere in the Texas Penal Code is either mentioned.
• While DWIs are expensive, and you can’t afford a DWI conviction, with our Travis County DWI lawyers on your side we can fight the DWI; and win!

Contact the #1 Austin DWI Lawyers at The Adamo Law Firm for more information.

What is a DWI in Texas?

DWI is a criminal offense prohibiting a person from OPERATING a MOTOR VEHICLE in a PUBLIC PLACE while INTOXICATED.  The government has the burden of proving each above element beyond a reasonable doubt. Our DWI Law Firm can show you how difficult that can be.

Is a DUI the same as a DWI in Texas?

In Texas if you are over 21 years old you and suspected of driving while intoxicated, you will be charged with DWI. If you are under 21 years old and the officer smells a “detectable amount of alcohol” on your breath, you can be charged with DUI. A DUI is the same punishment as a speeding ticket.

Lake Travis and Lake Austin Boating While Intoxicated

Specific to this area, BWIs are common especially during busy holiday weekends. Alcohol and boats are as Texan as alcohol and guns and Boating While Intoxicated arrests are on the rise. Boating While Intoxicated (BWI) carries similar elements that need be proved beyond a reasonable doubt by the State and similar punishments as a DWI charge. To determine intoxication however officers use different standardized methods in a BWI case than they do in a DWI case.

A specific BWI study confirmed the roadside Standardized Field Sobriety Exercises were not suitable for the marine environment. In their place, four tests, the Horizontal Gaze Nystagmus (HGN), finger to nose (FTN), palm pat (PP), and Hand Coordination (HC) were found to give marine officers the most accurate determination of intoxication of the tests available.

Travis County BWI and Specific Marine Field Sobriety Exercises include:

1. Finger to Nose (FTN): this test requires subjects to bring the tip of the index finger to touch the tip of the nose with their eyes closed, head tilted slightly back, while estimating the passage of 30 seconds.
2. Palm Pat (PP): The PP required subjects to extend one hand, palm up, and to place other hand on it palm down. The subject is instructed to use the top had to pat the bottom hand. To top hand rotates 180 degrees, alternating the pat between the back and the palm of the hand. The bottom hand remains stationary. Subjects are to count each pat aloud.
3. Horizontal Gaze Nystagmus (HGN): Each eye is examined for lack of smooth pursuit, angle of onset, and jerking at maximum deviation.
4. Hand Coordination (HC): the HC test requires the subject to perform a series of tasks with their hands.

See below a standard Travis County BWI Score Card

Texas Prescription Drug DWI & the Drug Recognition Evaluation (DRE)

In response to the growing driving while intoxicated arrests due to ingestion of prescription drugs law enforcement certified ordinary police officers as “drug recognition experts” through limited training sessions at best. The truth is DRE officers are not real drug experts and they do not have the training or qualifications to make the medical conclusions on drug impairment. Just because someone ingested medication does not automatically equate to being under the influence of that drug or impaired by that drug.

DREs were formed to assist in solving the problem of persons suspected of DWI not performing well on field sobriety exercises, but then registering a 0.00 on a breath or blood test. In other words, no alcohol was detected or in the suspected person’s body. So if it wasn’t alcohol, it couldn’t be poor balance or coordination, no, law enforcement turned their focus toward drugs and despite their very own training manual stating “the drug influence evaluation isn’t an exact science” and that DREs are “not infallible, and neither are laboratories”, prosecutors continue to attempt to roll them out.

Without going over the history of DREs and want the officer training entails to become an “expert”, we will jump into the 12 step process performed by a DRE officer on someone suspected of drug induced DWI.

1. Breath Alcohol Test (Is the BAC below 0.08?)
2. Interview of the Arresting Officer (if the arresting officer is not a DRE officer, he/she should request a DRE officer)
3. Preliminary Examination and First Pulse (Could it be something other than drugs, like a medical condition such as a stroke, head injury, diabetes, etc.)
4. Eye Examination (HGN, VGN, & lack of eye convergence)
5. Divided Attention Tests (these should be performed in a controlled environment (i.e. not on the side of road).
   1. Rhomberg Balance
   1. Walk & Turn
   1. One Leg Stand (once on each leg)
   1. Finger to Nose
6. Vital Signs and Second Pulse (certain drugs will elevate, depress or have no impact on vital signs)
7. Darkroom Examination of Pupil Size and Nasal and Oral Cavities Examination
8. Muscle Tone
9. Examination for Injection Sites and Third Pulse
10. Statements, Interrogation and Other Observations (Any statements are ripe for suppression because once the DRE begins a person is considered under arrest and should be read Miranda warnings).
11. Opinion of Evaluator
12. Toxicology Examination (another area ripe for suppression due to lack of warnings because the suspect did not know he/she was not obligated to provide a second specimen; nor is the second test relevant or reliable because unlike alcohol there is no per se level of drug that has been determined to be illegal).

Travis County DWI & BWI Punishment Ranges

The most common question for a DWI criminal attorney is “I have been charged with (X), will I go to prison?” DWI criminal defense attorneys, familiar with the Texas justice system, will be able to explain all your options to you. While the goal is always to achieve the best result possible, each case is different and presents a different way to reach that goal. The Travis County DWI Attorneys at the Adamo Law Firm are experienced and creative to get you the best result someway, somehow. We often tell clients, if there is a way to get it dismissed, we’ll find it and because nearly 50% of our cases are dismissed, we believe that statement is absolutely true.

Below are the punishment ranges for DWI criminal offenses. The punishment ranges do not reflect the potential outcome of your case.

First-Offense Texas DWI:

• BAC under 0.15 = Class B Misdemeanor, punishable from 3 to 180 days in jail and/or up to a $2000 fine.
• BAC over 0.15 = Class A Misdemeanor, punishable up to 1 year in jail and/or up to a $4000 fine.

Second Offense Texas DWI:

• Class A Misdemeanor, punishable from 30 days to 1 year in jail and/or up to a $4000 fine.

Note:  Your Texas driver’s license may be suspended for 180 days to 2 years.

Third Offense Texas DWI:

• 3rd Degree Felony, punishable from 2-10 years in prison and/or up to a $10,000 fine.

Note:  Your Texas driver’s license may be suspended for 180 days to 2 years.

DWI with a Child Passenger (child passenger under 15 years of age):

• State Jail Felony, punishable from 180 days to 2 years in a state-jail facility and/or a fine up to $10,000.

Intoxication Assault (elements = accident + serious bodily injury + accident occurred because intoxication):

• 3rd Degree Felony, punishable from 2-10 years in prison, and up to a $10,000 fine.

Note:  If you are granted probation – minimum 30 days in jail as a condition.  An experienced and qualified DWI criminal defense attorneys may be able to convince the court of alternatives to jail (i.e. home confinement).

Intoxication Manslaughter (elements = accident + death + because of intoxication):

• 2nd Degree Felony, punishable from 2- 20 years in prison, and up to a $10,000 fine.

Note:  If you are granted probation – minimum of 180 days in jail as a condition.

Texas DWI Open Container in vehicle

Under Texas Law, if you have an open container (i.e. beer, cocktail) in your vehicle while arrested for DWI, there is a minimum jail sentence of 6 days. As a practical matter our Austin DWI lawyers are often able to get this enhancement dropped.

Vehicle or watercraft as a deadly weapon under Texas DWI law

In felony DWI and serious intoxication crimes, like Texas intoxication assault and Texas intoxication manslaughter, prosecutors often seek a deadly weapon finding. If true, a deadly weapon finding increases the minimum prison sentence to 50%. In other words, if sentenced to prison you would not be eligible for parole until after at least 50% or half of your sentence was served.

In order for the prosecution to be successful in a deadly weapon finding they must prove beyond a reasonable doubt:

1. The object meets the definition of a deadly weapon;
   1. Under Texas law a motor vehicle may become a deadly weapon if the manner of its use is capable of causing death or serious bodily injury.
2. The deadly weapon was used or exhibited during the transaction on which the felony conviction was based; AND
3. Other people were put in actual danger.
   1. “Other” means someone other than the driver must have been put in danger of death or serious bodily injury.
   1. The danger must be actual, not hypothetical. Drichas v. State, 175 S.W.3d 795, 797-99 (Tex. Crim. App. 2005).

What are the elements in a Texas DWI

What the State has to prove beyond a reasonable doubt.

What does intoxicated mean?

Intoxicated means you have “lost the normal use of either your mental or physical faculties or a breath, blood or urine test shows your alcohol level to be 0.08 or higher at the time of driving.” The government may also enhance a DWI if the blood alcohol result is 0.15 or higher at the time of the test. For example, if you blew or your blood was drawn and the result comes back 0.15 or higher, the original DWI accusation is enhanced from a Class B misdemeanor (up to 180 days in jail) to a Class A misdemeanor (up to 1 year in jail). 

What is operating in Texas?

Commons sense would tell you operating a motor vehicle is driving a motor vehicle, but Texas law doesn’t always make sense. While most arrests involve the observation of a person driving, a person does not have to be driving to be arrested in Texas for DWI. Texas courts have upheld DWI convictions where the vehicle was not in even moving and have state “while driving does involve operation, operation does not necessarily involve driving.” Denton v. State, 911 S.W.2d 388, 389 (Tex. Crim. App. 1995). An example of operating without driving would be asleep in a stopped vehicle with front tire against curb, foot on break, and engine running.

What does BAC mean in Texas?

BAC in Texas means Blood Alcohol Concentration and is measured by the number of grams of alcohol per 100 milliliters of blood; number of grams of alcohol per 210 liters of breath (a.k.a. BrAC); or the number of grams of alcohol per 67 milliliters of urine. The government must prove beyond a reasonable doubt you were 0.08 or higher at the time of driving or 0.15 or higher at the time of the test. Your Travis County DWI lawyer should be able to clearly explain these numbers to you.

Beating the DWI Field Sobriety Tests.

There are three standardized sobriety tests or coordination exercises as we like to call them officers use to determine whether you are possibly impaired: Horizontal Gaze Nystagmus Test (HGN); Walk and Turn; and One Leg Stand.  These subjective tests are unreliable and poor indicators of intoxication. See below an officer’s standard scoring sheet for DWI field sobriety exercises. 

Background on DWI Field Sobriety Exercises:

Three studies contributed to the development of the sobriety tests used today: 1977 Psychophysical Tests for DWI Arrest; 1981 Development and Field Test of Psychophysical Tests for DWI Arrests; and 1983 Field Evaluation of a Behavioral Test Battery for DWI.  These studies were conducted in a lab.

Despite their fancy, scientific titles these studies have never been submitted for peer review or published in any scientific journals.  Additionally, the 1977 study had a 47% false arrest error rate.  Meaning 47% of the time the officer’s arrest was wrong.  The 1981 study faired only slightly better, backing a 32% false arrest error rate.

Between 1995-1998 the National Highway and Traffic Safety Administration (NHTSA) conducted three sobriety test validation studies:  the Colorado study, the Florida study, and the San Diego study.  The point of these studies was to take the field sobriety tests out into the field under real conditions and have officers make arrest decisions.  In the Florida study, 67% of all incorrect arrests failed the Horizontal Gaze Nystagmus test and 70% of subjects under 0.08 (i.e. not legally intoxicated) failed the walk and turn test.  In the San Diego study, 52% of subjects under a 0.08 failed the walk and turn and 41% of subjects under 0.08 failed the one leg stand.

Finally in 2007 NHTSA conducted the Robustness study, specifically looking at the HGN test and determining the impact of test variations from protocol.  While NHTSA believes this study validated the HGN test, looking at the numbers reveal the opposite.  A false positive rate of 76.9% occurred when the stimulus speed was too fast (1 second instead of 2 seconds (protocol)).  A false positive rate of 54.1% occurred when the stimulus height was either higher or lower than protocol (2 inches above eye level).  A 69.2% false positive rate occurred when the stimulus was farther or closer away than protocol (12-15 inches in front of the face).  The truth is the HGN test has an incredibly high false positive rate.  All three of the standardized tests are wrought with error.  They are merely subjective opinions of an officer, often a predisposed officer with little training or knowledge about the tests.  DWI defense attorneys have many tools to attack the above coordination exercises.

Winning against the DWI or BWI Breath Test

At The Adamo Law Firm we have the necessary tools and resources to provide an in depth examination of everything that went into the breath or blood test. We keep records of faulty machines and lab analysts from prior cases and will subpoena all the records of either the breath machine or blood machine to determine the reliability of the test. Often times our Travis County DWI Lawyers are able to keep the breath or blood result from jury’s eyes and ears due to lab protocol error, machine reliability issues, analyst error, etc.

Winning Your Austin DWI or BWI Case.    

Texas began breath alcohol testing on a statewide level in 1968 using the Breathlyzer. In 1980 the Intoxilyzer 4011 was introduced and upgraded to the Intoxilyzer 5000 in 1988. For nearly 30 years the Intoxilyzer 5000 was the preferred choice for Texas law enforcement to obtain a breath sample from suspected DWI drivers. That was until recently the Intoxilyzer 9000 was developed and became the latest machine to estimate a suspected intoxicated driver’s BAC.

Of course, like it’s predecessors the Intoxilyzer 9000 comes with uncertainty and reliability issues.

The Austin DWI Lawyers at The Adamo Law Firm will attack:

• The inherent margin of error in the BrAC machine of 0.02;
• Possibility residual alcohol or mouth alcohol inflated the result;
• Possibility stomach alcohol vapors (GERD) combined with breath alcohol to inflate the result;
• Probability the machine’s assumption a person’s breath temperature is 34 degrees inflated the result (result is inflated by 6% for every 1 degree above 34);
• Possibility radio frequency interference (RFI) invalidated the result;
• Blood/breath partition ration assumption of 2100:1. Scientific studies have shown a person’s blood/breath partition ration can range from 900:1 – 4100:1.

            Example: the machine registers a 0.10 BrAC at 2100:1

                        At 900:1 that same 0.10 = (0.10/2100) X 900 = 0.04

                        At 4100:1 that same 0.10 = (0.10/2100) X 4100 = 0/19

• Possibility machine read interferents and falsely reported them as ethanol (e.g. occupational exposure to chemicals (hair dresser, painter, etc.), everyday exposure to chemicals, sanitizer used inside breath test operating room, etc.)

Our Travis County DWI lawyers will also subpoena the machines maintenance records, repair records, service records, etc. just as we do with DWI blood tests.

The point being breath test machines results are ripe for attack and in doing so we can use the machine’s issues to provide reasonable doubt and win your Travis County DWI.

Beating the Blood Test in a DWI.   

If you consented to a blood test or a warrant was drawn to take your blood there are a number of evidentiary hurdles the government must overcome in order for the result to be admitted into evidence.  If these requirements are not met your Austin DWI lawyer can suppress the blood results.

• The officer must have reasonable suspicion or probable cause to stop you.
• The officer must have reasonable suspicion to detain you.
• The officer must have probable cause to arrest you.
• If you consent to a blood draw, it must be voluntary.
• If you consent to a blood draw, the blood must be taken by an authorized person and in a sanitary place (shockingly, Texas Courts have held jail clinics sanitary).
• If a warrant is obtained, there must be a supporting, sworn affidavit showing sufficient facts to establish probable cause of DWI.
• If a warrant is obtained, the blood draw must be performed in a reasonable manner (i.e. in accordance with accepted medical practices and does not invite an unjustified element of personal risk of infection or pain).
• The blood drawer (e.g. nurse, physician, chemist, qualified technician) must be qualified.
• The blood drawer must follow accepted medical practices when drawing blood.
• Most often Blood Kits are provided by the officer.  The kit should be within the expiration date.
• Grey top tubes are used because they contain the proper anti-coagulant and preservative (sodium fluoride and potassium oxalate).  The tube must be inverted properly and not be compromised.
• After the blood is drawn, the kit should be properly assembled, sealed and transported to the police property room for refrigeration (with a temperature between 2-8 degrees centigrade.

Blood Testing – Headspace Gas Chromatography w/ Ionization Detector (GC-FID)

Without going into the details of the machine, imagine a driveway.  By the garage is a pile of balls; basketballs, footballs, baseballs, golf balls, tennis balls, etc.  If you took a blower and aimed it at the pile, the balls would begin traveling towards the street.  Because of their weight and shape, they would all travel at different speeds.  You would be able to count or quantify the number of basketballs, footballs, baseballs, etc. as they reached the end of the driveway. You would also be able to time how long it took for each to do so. Gas Chromatography acts in a similar manner.  Our blood is made up of different compounds and substances.  These compounds are pushed through the machine and exit at different times (this is known as the retention time).

The results are reflected and quantified on a chromatogram.

Thousands of pages of documents will and should be requested by your Austin DWI lawyer and examined to determine if the machine was properly separating and quantifying ethanol.  After all these are overworked, often poorly cared for machines. Like any machine, any washer, dryer, refrigerator, etc. this machine is prone to wear, tear, and error.

 Enzymatic Blood Testing (Hospital Testing):

If you were involved in a car accident and blood was taken at the hospital, the hospital will often use this method of testing.  It is quick and inexpensive, and doctors need to know the most efficient way to treat you.  These blood results are often subpoenaed by the government.  In this type of testing, plasma or serum is tested as opposed to whole blood.  Plasma or serum yield a result 16-25% higher than whole blood.  Any plasma or serum result must be converted to whole blood in order to be admissible in court.  Further, this type of testing is prone to false-positives. Interferents, such as lactic acid, can confuse the machine into thinking there is ethanol in the blood when there may not be. High lactic acid is synonymous with bodily injury. If you were in a car crash for example and sustained serious injuries, your lactic acid level will likely be high and can influence the accuracy of the blood test.

DWI Retrograde Extrapolation (Going Back in Time)

In the majority of DWI cases, if a breath or blood sample is taken, it is done anywhere from 15 minutes to three hours after the vehicle stop. In Texas, the State must prove the breath or blood result was 0.08 or higher at the time of driving. They may attempt to prove this by establishing a range of possible alcohol concentrations at the time of driving through a theory known as retrograde extrapolation.

Retrograde extrapolation, or back extrapolation, is an attempt by the State to go “back in time” and try to predict what a person’s Breath Alcohol Concentration (BrAC) or Blood Alcohol Concentration (BAC) could have been at the time of driving. The Travis County DWI Lawyers at the Adamo Law Firm understand the limits of retrograde extrapolation through a deep understanding of how alcohol is absorbed and eliminated in the human body.

In a typical scenario the State asks the State’s expert to calculate (1) how many drinks would have been in your client’s system at the time of the breath or blood test and (2) what your client’s breath or blood alcohol level would have been at the time of driving based on a list of factors the State provides.

The truth is the formula used by the State’s expert in trial is a shortened version of a mathematical formula that uses certain averages and makes certain assumptions about you. Exposing these assumptions is one of the simplest ways to challenge testimony on retrograde extrapolation.

At the very minimum, a person attempting to perform a retrograde extrapolation calculation needs the following information:

• Gender
• Weight
• Food in the stomach or empty stomach
• Time food was eaten
• Time of last drink
• Time of first drink

Arguably, the calculation should also take into account:

• Body mass index
• Type of alcoholic beverage consumed
• Type of food eaten
• Trauma or stress that could have delayed absorption.

This is the reason the officer may have asked what you had to drink, when you had your first drink, last drink, if you had anything to eat, etc. More times than not the State does not have the necessary facts to attempt retrograde extrapolation and an experienced DWI lawyer will request the judge keep out any attempts made by the State to go back in time.

TRAVIS COUNTY DWI BOND QUESTIONS & ANSWERS

My bonding papers say DWI 1^st, BAC > 0.08 does that mean my BAC sample was 0.08?

No. The information on the bonding papers represents what you are likely to be charged with. In this instance a Class B misdemeanor.

If you provided a breath sample, your Travis County DWI  attorney will receive the results fairly quickly. If a blood sample was given, the results may not be available for a month or even longer.

Why do I have Bond Conditions?

If you are charged with a DWI first offense, bond conditions are a matter of discretion for the court. Some courts MAY require you to install a vehicle ignition interlock device on your car and prohibit you from driving a vehicle not equipped with the device.

If you are charged with a subsequent DWI offense (DWI 2^nd) or a more serious intoxication offense like Intoxication Assault or Intoxication Manslaughter, you WILL be required to install a vehicle ignition interlock device and be prohibited from driving a vehicle not equipped with said device.

If you do not have a vehicle to drive or a valid driver’s license the court may order a portable device or SCRAM device.

If given the choice of the necessary evils we recommend the interlock. It is the least expensive of the three and the least intrusive.

TEXAS DWI LICENSE QUESTIONS AND ANSWERS BY AUSTIN DWI LAWYERS

After my Austin DWI arrest, the police took my license. is it suspended?

No. If you refused or failed a breath and/or blood test the officer most likely confiscated your driver’s license. In return, he/she should have issued you a temporary driving certificate authorizing you to drive for forty (40) days and given you notice your driver’s license is subject to suspension. You have fifteen (15) days from the date your received notice to request an Administrative License Revocation (ALR) Hearing. If you fail to request a hearing within the fifteen (15) day window, the opportunity is lost and your license WILL BE suspended on the 40th day after receiving notice (typically calculated from the the date you were arrested for DWI).

Upon a proper hearing request, the suspension of your driver’s license is stayed or stopped while you await the hearing. You can go to DPS and acquire a new license during this time.

Note: The ALR is separate from the DWI. The ALR is in a different court, with different prosecutors and judges. Your Travis County DWI lawyer can explain in more detail.

Note: If your license is suspended you will be entitled to an occupational license.

I didn’t receive a temporary driving certificate from the Travis county or Austin police department officer. What do I do now?

The Department of Public Safety (DPS) should mail you notice your driver’s license may be suspended. You have fifteen (15) days from the date you received said notice to request an ALR hearing. Your DWI lawyer can request the hearing for you. DPS will send the notice to the address listed on your driver’s license (so make sure it is correct) or your DWI lawyer’s office if he/she requests the hearing for you.

Make sure a hearing is properly requested. This can save your license from being suspended.

I refused to provide a breath or blood sample, how long MAY my license be suspended?

If (the if is important) your Texas driver’s license is suspended the length of suspension is:

For a First Offense Travis County DWI if you refused a breath or blood test, your license can be suspended for 180 days.   If you have previously been arrested for an intoxication offense and refused a test at that time, your license can be suspended for two years.   If a warrant was obtained to draw your blood, for purposes of ALR hearings it is treated as a refusal.

For a First Offense Travis County DWI, if you provided a breath or blood sample and it showed an alcohol concentration over 0.08 your license can be suspended for 90 days.

If you have a prior DWI conviction or DWI suspension within the last ten years, your license can be suspended for one year.

I don’t have a Texas license. Can it still be suspended?

Yes and No. Texas can, via the Interstate Compact on Driver’s License, notify the issuing State of your license suspension and ask that the state honor it (not all states are part of the Interstate Compact Act). Additionally, Texas can prohibit you from obtaining a Texas License. A Texas officer should not seize a license from another state. Talk to your criminal attorney to learn more.

There is a ton that goes into defending against a Travis County DWI. The State of Texas is willing to throw a lot of money and resources to try and secure a DWI conviction. You need an experienced DWI law firm with the knowledge, experience and tools to fight the DWI. Call The Adamo Law Firm and lets get to work!