2) What is a .08 alcohol concentration?
Under Texas law "Alcohol concentration" means the number of grams of
(A) 210 liters of breath;
(B) 100 milliliters of blood; or
(C) 67 milliliters of urine.
Unless you are a engineer, chemist, toxicologist or an expert on alcohol
and have a calculator, you will not be able to determine whether or not
you have an alcohol concentration of .08 or more. The amount of alcohol
in each of the above definitions is not equal. Consequently, depending
on the test, one test could confirm your innocence while another
insinuate your guilt with a .08 or more. A general rule of thumb is that
you may have “one beer (12 oz.),” “one glass of wine (4 oz.),” or “one
shot of whiskey (1.5 oz.)” per hour. These facts alone should prove the
importance of hiring an experienced DWI attorney who understands the
3) How can I calculate my alcohol concentration?
THE FOLLOWING BAC CALCULATOR IS PROVIDED FOR INFORMATIONAL PURPOSES
ONLY. IT IS NOT TO BE RELIED ON FOR THE PURPOSES OF CONSUMING ALCOHOL
AND THEN DRIVING.
Estimate your Blood/Breath Alcohol Level.
A general rule of thumb is that you may have “one beer (12 oz.),” “one
glass of wine (4 oz.),” or “one shot of whiskey (1.5 oz)” per hour. Also
refer to the answer in question number two.
4). What is the difference between DWI and DUI in Texas?
Under Texas law intoxication includes the introduction of alcohol, or a
controlled substance, a drug, a dangerous drug, or any combination of
two or more of those substances, or any other substance into the body.
In other words, Driving While Intoxicated includes all substances
including alcohol. While “Driving Under the Influence” or DUI in Texas
is an offense that involves minors. To be arrested in Texas for DUI, the
person arrested must be a minor (anyone under the age of twenty-one) who
operates a motor vehicle in a public place while having any detectable
amount of alcohol in the minor’s system. The key words are, “any
detectable amount of alcohol.” Generally, an offense under this section
is a Class C Misdemeanor. That is the difference between DUI and DWI in
Texas. However, there are other states that use these terms differently
than we do.
5) What do police officers look for when searching for drunk drivers on
the highways of Texas?
Police officers are trained to look for the following factors when
searching for drunk drivers on the highways in Texas. This list is based
on research conducted by the National Highway Traffic and Safety
Turning with wide radius
Straddling center of lane marker
Appearing to be “drunk”
Almost striking object or vehicle
Driving on other than designated roadway
Speed more than “10" miles below speed limit
Stopping without cause in Traffic lane
Following too closely
Tires on Center or Lane marker
Driving into Opposing or Crossing Traffic
Signaling Inconsistent with driving actions
Slow response to traffic signals
Stopping inappropriately (other than in a lane)
Turning abruptly or illegally
Accelerating or Decelerating Rapidly
Although police officers tend to believe speeding is a factor, speeding
is not a recognized sign of Intoxication. The faster you drive, the
quicker your reactions and reflexes must be as well as your judgment.
Therefore, if you are speeding and appear to be driving normally, that
would be indicators of sobriety rather than intoxication.
6) If I'm stopped by the police, should I answer any questions regarding
You are not required to answer questions that are designed to be
incriminating. In a police encounter, a simple request to speak to your
attorney before answering questions, would be an appropriate response.
However, informing the officer that you had one or two alcoholic
beverages should not be harmful since it usually would not cause a
person to be impaired. This response may explain away the odor of
alcohol on your breath. Always remain calm, and be courteous and
respectful at all times. Always remember that after stopping you and
approaching your vehicle, the officer is probably already recording your
discussion and actions on video without your knowledge.
7) What signs of intoxication do police officers look for after stopping
someone on the roadside?
Police officers are taught to look for the following symptoms of
impairment. This list is based on research conducted by the National
Highway Traffic and Safety Administration (NHTSA).
Red, watery, glassy or bloodshot eyes
Odor of alcohol on breath
Fumbling with wallet while trying to get license
Failure to comprehend officer's questions
Unsteady of feet while exiting vehicle
Swaying while standing
Leaning on car for support
Being combative, argumentative or jovial while talking with officer
Lack of awareness in regards to time and place
Unable to follow police instructions
8) Do I have a right to an attorney when I am stopped for a DWI
The law in Texas provides that persons stopped for DWI initially do not
have the right to an attorney. In fact, you do not have a right to speak
to a attorney until after the initial investigation on the street is
complete and you have been taken to jail. Most citizens do not
understand that after their arrest, they are not entitled to speak to a
attorney when confronted with the decision of taking or refusing a blood,
breath or urine test. Keep in mind, that it is still a good idea to
request a attorney when you are first stopped by the police and you want
to continue requesting to talk with your attorney before continuing
further with any of the police officers other requests.
9) What should I do if the police ask me to take “Field Sobriety Tests”?
Understand the police want you to help them make their case against you
stronger. By performing field sobriety tests, you are simply helping the
police manufacture evidence against you. Be aware that they fully intend
on using this evidence against you in court . Therefore, taking an
Horizontal Gaze Nystagmus (HGN) test (the pen test), the Walk and Turn
(walk the straight line), the One Leg Stand test, or any other
evaluation test on the street is usually not a good idea. Most experts
agree that police officers are not trained well enough to accurately
interpret the symptoms observed while administering these street
evaluations. This doesn't mean that you need to be rude or nasty to an
officer if he asks you to do some Field Sobriety Tests. Again, it is
much better that you be courteous, respectful and "respectfully decline"
10) Should I take a blood, breath or urine test?
Most of us who are experienced DWI Attorneys agree that the above tests
are not completely accurate and therefore should not be taken. According
to most experts of the three tests, the blood test is the most accurate,
but it is too time consuming for police officers to use. The Breath test
is the easiest for the officer, because the machine is available and
already housed at the police station. The urine sample is the least
accurate by all accounts.
However, if you agree to take one of these chemical tests for the
police, remember that you are then entitled to request your own
independent test, so you need to request a blood test also. Most police
officers will not provide you with that information. Therefore, calling
an experienced DWI attorney immediately after your arrest is important!
11) What happens if I refuse or fail to take one of these
Basically, If a person refuses or fails a blood or breath test following
an arrest for driving while intoxicated, the person may receive a
license suspension of 90 days up to 2 years, depending on the number of
alcohol related contacts the person has had in the past. More
importantly, whether you take a test, or you refuse one that the police
offer, you only have 15 days after your arrest to request a hearing to
fight to keep your license from being suspended. This is one of the
reasons it is important to request a hearing before the State Office of
Administrative Hearings to stop the Texas Department of Public Safety (DPS)
from attempting to administratively (civilly) suspend your license.
Again, calling an experienced DWI attorney immediately after your arrest
12) Can my drivers license also be suspended if I am convicted of Driving
Yes, if a person receives a final conviction that person’s license may
be suspended. The license suspension period ranges from 90 days up to 2
years. A conviction for driving while intoxicated under the age of 21
will result in an automatic suspension for one year, unless the person
is on probation and required to have an Ignition Interlock Device..
Note: Generally speaking, in Harris County, if you are a first offender,
and you represent yourself and plead guilty to Driving While Intoxicated
you will more than likely receive a final conviction and lose your
license for one year. Remember, the Assistant District attorney and the
Judge do not represent you, one is there to prosecute you; the other is
there to preside over the case. The Judge cannot and will not give you
legal advice. Again, having an experienced DWI attorney represent you is
very important to your case!
13) How long will a DWI arrest stay on my record?
If you are convicted for the DWI, even if you receive probation, it will
remain on your record “FOREVER.” If you are found “Not Guilty” at your
trial, you can have the arrest and the DWI charge “expunged” from your
14) Is it legal to drink alcohol while driving an automobile? What about
having an open container in the vehicle?
No, it is a Class C Misdemeanor for a driver to have an open container
of alcohol in his or her personal possession while operating a motor
vehicle. It is also illegal for any passenger to have an open container
of alcohol in their possession. However, if you are the passenger in a
taxicab, limousine, bus, or in the living quarters of a mobile home, you
can legally consume alcohol while being driven around.
If you go to a party and take a bottle of wine, beer or liquor, and
leave the party with them you can be ticketed for possessing an open
container of alcohol. In order to legitimately carry a bottle of wine,
beer or liquor, the seal must not be broken. If the seal is broken, the
only other legitimate way to carry the bottle is put in the trunk of
your car, or if you are in a truck or SUV, then it must go behind the
last row of seats. However, my advice is to leave the alcohol at the
party when you leave.
15) Will I have to have an Ignition Interlock Device put in my car
as a condition of bond?
For a first offense, conditions of bond are a matter of discretion with
the Court. Generally, most judges will not make a an Ignition Interlock
Device as a condition of bond for a first offense DWI. However, if you
are charged with a subsequent DWI (no matter how long ago your first DWI
was), with Intoxication Assault, or with Intoxication Manslaughter you
are required by law to install an Ignition Interlock Device on you
automobile. In fact, you will not be able to drive any vehicle that is
not equipped with an Interlock Device. If the device determines a
certain level of alcohol on your breath, it will temporarily disable
your vehicle. When driving, you have to continuously blow into the
device about every twenty (20) minutes. Please note, that the alcohol in
some mouthwashes can even be enough to cause the Ignition Interlock
Device to disable the vehicle if you do not wait a certain period of
time after its use.
16) What is an occupational or restricted license?
An occupational or restricted license is a special restricted license
authorized by a Court, and issued to persons whose license has been
suspended or revoked for certain offenses. This restricted or
occupational license authorizes the operation of a non-commercial motor
vehicle in connection with a person’s occupation, for educational
purposes or in the performance of essential household duties.
17) Is the Order from the court the actual occupational or restricted
No, this is the order granting the occupational license. The court order
and all other required items need to be submitted to the Texas
Department of Public Safety (DPS) so an occupational or restricted
license can be issued. The court order may be used as a temporary
restricted license for 30 days from the date of the judge’s signature
while DPS processes the occupational license, and is to be kept in the
glove box of the motor vehicle you operate.
18) What are the requirements for obtaining the restricted license in a
DWI or ALR suspension case?
You must mail into the Texas Department of Public Safety (DPS), a
certified copy of the court order granting the occupational license.
Also enclose the following:
An original pink SR-22 certificate of insurance. This is the only
proof of insurance acceptable.
A $10 license fee for a one-year license or less. The maximum length
of issuance is a 2-year license for $20, provided that the court order
grants this length of time.
A $125 statutory reinstatement fee for the Administrative License
Revocation (ALR), if required; and
A completed SR-37 form to type the occupational license.
Texas Department of Public Safety (DPS)
all reinstatement fee(s) be paid prior to the issuance of the
occupational or restricted license.
19) What is an SR-22 and how can I obtain an SR-22?
An SR-22 insurance policy is a certificate of insurance that shows the
Texas Department of Public Safety (DPS) proof of insurance for the
future, as required by law. SR-22 insurance is not necessarily "high
risk" insurance. It is motor vehicle liability insurance which requires
the insurance company to certify coverage to DPS, and the insurance
company must notify DPS anytime the policy is cancelled, terminated or
lapses. You may contact an insurance agent/company of your choice who is
authorized to write liability insurance for the State of Texas.
20) If I do not own a car, can an SR-22 be obtained?
You do not need to own a car to buy this kind of insurance. If you do
not own a car, please contact an insurance agent/company of your choice
and talk to them about a non-owner SR-22.
21) Can an insurance card or insurance policy be accepted toward the
requirement of filing the SR-22?
No, when proof of financial responsibility is required, form SR-22 must
be filed to meet the compliance requirements with the DPS.
22) What happens if my SR-22 is cancelled?
Once the Texas Department of Public Safety (DPS) receives notification
from the insurance company that the policy is cancelled, terminated, or
lapses appropriate enforcement action may be taken. If the SR-22 is
still required and there is not a valid SR-22 on file, you again face
the possibility that your driving privilege and vehicle registration
will be suspended. Additionally, the Court may withdraw its original
court order granting you the restricted license.
23) Can you drive a commercial motor vehicle with an occupational or
No, if a person’s driver license or the privilege to drive is suspended,
revoked, cancelled, or denied under any law in this state, the person
may not be granted an occupational, restricted or “essential need”
license to operate a commercial motor vehicle.
(24) Someone said I could get " Deferred Adjudication" if I am
charged with a DWI is that correct?
No. DWI is one of a few of crimes in Texas where Deferred Adjudication
is not available under the law as a punishment option.
(25) Could I receive a probation if I am convicted of DWI?
Yes, depending on your prior criminal history, the facts surrounding
your case, etc. and whether you meet the minimum requirements under
Texas law — for "community service" or "probation:" Those minimum
requirements are: 1) That you have never been convicted of a felony
offense in this State, another state or the United States; and you have
never been given adult "community service" or "probation" for a felony
offense in this State, another state or the United States.
(26) What is the difference between deferred adjudication and Probation?
First, Texas classifies both of these punishments as "community
service," — one is called "Deferred Adjudication Community Service" and
the other is called just "Community Service" or what we used to call
"probation." Second, Deferred Adjudication is a punishment that an
individual can only receive from the Judge and never a jury, whereas
probation can be received from either a Judge or a Jury. Third, in a
Deferred Adjudication situation, the Judge defers a finding of guilty
against an individual and places that person on community service
without entering judgment of guilty. On the other hand, under the
punishment known as "probation", the person is found or judged "guilty"
and sentenced, but the sentence is then probated. With probation the
individual is actually convicted, but the sentence is probated, whereas
with the "Deferred Adjudication" the person is not convicted, but is
placed on community service. However, as stated in Question 24, Deferred
Adjudication is not a punishment option in a DWI case in Texas. If some
attorney mentions to you that it might be available or tells you that it
is, then you are not talking with a DWI attorney.
(27) Someone mentioned to me that Texas has increased its fines for DWI or
that it passed a "Surcharge" for individuals convicted of DWI? Is this
some sort of a fine and how does it work?
Contrary to media reports, the 78TH Texas Legislature did not increase
fines. However, the Legislature did pass a "Surcharge" or an
administrative fee under a law known as the "Driver Responsibility Act,"
that took effect on September 1, 2003. The fees under this law are
strictly administrative in nature, and are above and beyond, any fines,
court costs, probation fees or filing fees that the State already
receives in a DWI case. The law basically requires any person convicted
after September 1, 2003 of a first offense DWI to pay the State of Texas
a "surcharge" in the amount of $1,000.00 per year for three years to
keep their drivers license; or any person convicted of a second offense
DWI to pay the State of Texas a "surcharge" of $1,500.00 per year for
three years to keep their drivers license; or any person convicted of an
offense of DWI, that has a test result of .16 or higher with a breath or
blood test, to pay $2,000.00 per year for three years to keep their
drivers license. These fees are paid to the Department of Public Safety
and if not paid within the designated time allowed, the person will
automatically lose their driver’s license or the privilege to obtain a
driver's license until the money is paid.
(28) Can a person be charged with a felony DWI if there is child in the
vehicle when they are arrested by the police?