Criminal Law

• DWI
• DUI
• Robbery
• Drug
• Felony
• Murder

Frequent Asked Questions:

DWI/DUI:

Q1: What is DWI?

A: DWI is a criminal offense that says a person may not drive a motor vehicle in a public place while “intoxicated”. The DWI statute does not say driving while drunk.

Q2: What does “intoxicated” mean?

A:A person need not be drunk to be “intoxicated” but a person who is drunk must be intoxicated. “Intoxicated” is defined by the DWI statute in two ways. First, a person is “intoxicated” when he or she drives and, when, through the use of an alcoholic beverage, drug, controlled substance, or any combination thereof, has lost the “normal” use of either his or her “mental” or “physical” faculties. Second, a person is “intoxicated” when he or she drives and has an alcohol concentration of .08 or more in her body.

Q3: Whose “normal mental and physical faculties” are we judged by and “what is normal”?

A:The “normal mental and physical faculties” the DWI statute refers to are those of the particular person who has been arrested. The term does not refer to the normal faculties of the arresting officer, those of jurors in a DWI criminal trial, or those of a fictitious average person. Indeed, the term “normal” actually refers to a range of measurement of the faculties of the person arrested. For example, “normal” would not be a particular point on a 12″ ruler. Rather, it is better explained as the distance between two particular points on the ruler, i.e., between the 3″ and 9″ marks.

Q4: What is .08 alcohol concentration?

A: “Alcohol concentration” is defined by the statute as:

a. the number of grams of alcohol per 100 milliliters of blood;
b. the number of grams of alcohol per 210 liters of breath; or,
c. the number of grams of alcohol per 67 milliliters of urine.

Practically speaking, if you’ve been drinking, unless you are a physicist, an engineer, or a chemist, and have a calculator, you will be unable to determine if you have an alcohol concentration of .08 or more. Further, it is of interest to note that the amount of alcohol in each of the above statutorily defined concentrations is not equal, and can therefore result in a person being innocent according to one concentration but guilty according to another. Moreover, under the two statutory definitions of intoxication, it is also possible for a person to be innocent of being intoxicated because there is no loss of either normal mental or physical faculties but still be guilty of being intoxicated via .08.

Q5: Is it .08 or more when I drive or .08 or more at the time I’m tested, or both, that will make me guilty of DWI?

A: Our law only provides that the crime of DWI occurs when a person drives, and at that time, has an alcohol concentration of .08 or more in his body. It is not a per se crime to have an alcohol concentration of .08 in the body either before or after one has driven. However, depending on the time the test is conducted, such an alcohol concentration may be relevant in determining if the person had a .08 or more alcohol concentration when the actual driving occurred.

The timing of the particular test in question presents a significant problem for both the prosecution and the defense. This dilemma arises because .08 alcohol concentration testing is hardly ever done at or immediately after driving. Rather, an alcohol concentration test is usually administered approximately 45 minutes to 1 hour and 15 minutes after driving. In such delayed testing, absent other information about the number of alcoholic drinks consumed, the type of drinks consumed, and knowledge of when the drinks were consumed, it is scientifically impossible to determine if the person was over, or more importantly for the innocent, under a .08 alcohol concentration at the time of driving.

For example, let’s change our earlier scenario somewhat by having the person finish his fourth cocktail at 11:55 p.m. He leaves the smoke filled restaurant at 12:00 a.m. for a 5 minute drive home. However, this time instead of being stopped for speeding, he is stopped at 12:01 a.m. because the light over his license tag has burned out. The officer, having observed a fresh (strong) odor of an alcoholic beverage on the driver’s breath and his smoke reddened eyes, arrests him for DWI. The officer then transports him to the station house for an alcohol concentration test. The test is given at 12:30 and its result is .08. Here, depending on the timing of the person’s earlier consumption of alcoholic drinks, it is equally possible that earlier at 12:01 a.m., the person’s alcohol concentration was .05, i.e., not guilty, or .15, i.e., guilty. In the final analysis on this point, it may not have been a smart thing for our person to have driven at all, but if he was the .05, he neither committed nor would have committed a DWI offense.

Q6: If I decide to submit to chemical testing and my alcohol concentration is less than .08, can I still lose my license?

A: Yes, but this is usually the result of a subsequent criminal conviction for DWI or a related offense. For your driver’s license to automatically be suspended as a result of chemical testing, the alcohol concentration taken from your blood, breath, or urine must be .08 or more while driving.

Q7: How accurate and reliable are the police methods used to determine alcohol concentration?

A Texas law provides that testing of alcohol concentrations can be performed by analysis of a DWI suspect’s urine, blood or breath. All three of these testing methods, however, leave much to be desired.

Urine testing is the least accurate and least reliable means of alcohol concentration testing. Indeed, there appears to be no debate in the scientific community that this method of alcohol concentration testing is the least preferred.

Blood testing, unlike that of urine testing, is thought by the majority of forensic scientists to be the most accurate and reliable means of alcohol concentration determination. From a police perspective, however, it is also thought to be the least desirable and least convenient method. Further, like the testing of urine specimens, it provides an opportunity for the arrested person to recheck the blood test. If found to be erroneous, the validity of the police test can be attacked by re-testing the exact specimen taken by police.

Breath testing, again from a police perspective, is the most convenient means of alcohol concentration determination. In regard to the issues of accuracy and reliability of breath testing, however, there continues to be a heated debate among scientists. Moreover, under current procedures for breath testing in Texas, breath samples are not preserved for subsequent checks of the initial test’s validity. Indeed, for purposes of breath testing, if you are an innocent person and your breath test results show you to be intoxicated, then the chances of showing error in the prosecution’s case against you are literally “gone with the wind”.

Q8: How is breath testing done?

A: Texas law provides that testing of alcohol concentrations can be performed by analysis of a DWI suspect’s urine, blood or breath. All three of these testing methods, however, leave much to be desired.

Urine testing is the least accurate and least reliable means of alcohol concentration testing. Indeed, there appears to be no debate in the scientific community that this method of alcohol concentration testing is the least preferred.

Blood testing, unlike that of urine testing, is thought by the majority of forensic scientists to be the most accurate and reliable means of alcohol concentration determination. From a police perspective, however, it is also thought to be the least desirable and least convenient method. Further, like the testing of urine specimens, it provides an opportunity for the arrested person to recheck the blood test. If found to be erroneous, the validity of the police test can be attacked by re-testing the exact specimen taken by police.

Breath testing, again from a police perspective, is the most convenient means of alcohol concentration determination. In regard to the issues of accuracy and reliability of breath testing, however, there continues to be a heated debate among scientists. Moreover, under current procedures for breath testing in Texas, breath samples are not preserved for subsequent checks of the initial test’s validity. Indeed, for purposes of breath testing, if you are an innocent person and your breath test results show you to be intoxicated, then the chances of showing error in the prosecution’s case against you are literally “gone with the wind”.

Q9: What is the debate over the Intoxilyzer’s reliability and accuracy?

A:Proponents of the Intoxilyzer say it will only show a result from absorbed breath (deep lung air) alcohol and nothing else. However, opponents say that the Intoxilyzer often misreads other commonly found substances in human breath and erroneously gives high readings saying that they are from alcohol.
Of particular importance here are the following facts:

a) First, the DWI alcohol concentration law says a person is intoxicated when he has a .08 concentration in his breath, but, it does not say .08 by Intoxilyzer. This fact means that no judge or jury is required to believe that an Intoxilyzer result of .08 or more is accurate or reliable.

b) Second, neither the manufacturer nor the DPS will allow anyone, other than law enforcement personnel, to test either the machine’s accuracy or its reliability. It is generally understood that for a procedure to be accepted as accurate and reliable in science, that it must be open and available for the scientific community to test and retest the procedure. This is not the case with the Intoxilyzer.

c) Third, the manufacturer says it does not warrant that the Intoxilyzer is fit for any particular purpose. This fact clearly is an implicit admission by the manufacturer that its machine is not even warranted as accurate and reliable for breath testing.

d) Fourth, the Intoxilyzer is capable of breath preservation, however, our DPS purposely fails to require the breath specimens to be saved. The cost of preservation would be less than $2.00 per test and would allow an opportunity for the person charged with DWI to check the accuracy of the sample. And, if found to be inaccurate, attack the validity of the prosecutor’s test. Indeed, it is a generally accepted scientific fact that the re-testing of preserved breath specimens, which is done by a method known as gas chromatography, is a more accurate and reliable means of breath alcohol concentration testing than that done by the Intoxilyzer.
d) Fifth and last, the Intoxilyzer’s working design is premised on the assumption that every person tested is exactly the average person. All persons are not exactly average! Human beings come in all different sizes, weights, ages, muscle tones, lung capacities, alcohol tolerances, temperatures, hematocrit levels (amount of solids in the blood) and blood/breath ratios (the number of times an item appears in the blood vs. the number of times the same item appears in the breath). Automatic and undetected error can be illustrated by simply having the person tested not be exactly average. In this regard, it should be noted that the Intoxilyzer assumes a blood/breath ration of 2100/1 (i.e., 2100 parts of alcohol in the blood for every 1 part of alcohol in the breath) for every person tested. Here, it can be noted that a majority of persons have a blood/breath ration of 2100/1 or greater. Persons with a higher blood/breath ration of 2100/1 will not be prejudiced by the Intoxilyzer’s assumption. However, persons with a lower blood/breath ration will be prejudiced because the Intoxilyzer will erroneously read too high of an alcohol concentration result, thus potentially causing a person who should test at .04, .05, .06, etc. to actually test out at .08, .11, .12, etc. Of particular import here is the fact that scientists have documented persons with blood/breath ratios as low as 1100/1.

This same type of prejudice also occurs where the person tested is not exactly average with respect to other bodily functions: muscle development, temperature, hematocrit level, etc. Moreover, since the machine was built by humans, is serviced by humans, and is operated by humans, it is subject to human error just like all other machines. The above facts conclusively demonstrate that the Intoxilyzer, even if it is properly working and is being properly operated, because the person being tested is not exactly average, can label an innocent person as guilty.

Q10: Are crimes of DWI and public intoxication different, and if so, how?

A: Yes, they are very different. Specifically, the statutory definitions of the term “intoxicated” are not equal in regard to the two charges. The DWI intoxication definitions (loss of normal mental or physical faculties and/or .08 or more) require a lesser measure of intoxication than does public intoxication (P.I.). A person is “intoxicated” for purposes of P.I. when he is either a danger to himself or a danger to others. In addition, police officers usually video tape DWI suspects, and persons holding drivers licenses have conditionally pre-agreed to take either a breath or blood test, upon request, after their arrest for DWI. No such agreement or videotape procedure exists for P.I. Finally, the punishments for DWI, which are discussed in the following section, and P.I. are different. Specifically, P.I. is in the lowest category for criminal offenses, it is a Class C misdemeanor which carries with it the possibility of a fine up to $500.00 — no incarceration may be assessed upon conviction for this type of misdemeanor.

 

Contact The Hubbard Law Firm for a confidential consultation to assist you with your legal needs. Licensed to practice in all courts in the State of Texas.