DWI FAQs

What is an ALR hearing, and what’s it about?

Automatic License Revocation is an antiquated phrase, but that’s what it stands for when someone refers to “ALR.” When you received your driver’s license in Texas you gave your permission to provide a breath or blood test when requested by a police officer. Remember? No? Well, you also agreed that if you don’t provide tests that you will get a license suspension. You remember that, too, right? No? Fortunately some defense lawyers were paying attention to the Legislature when that law came up for a vote, and they reminded the committee that people have a due process right to a fair determination concerning the surrounding circumstances of your arrest which must be addressed in a hearing before your privilege to drive is suspended. “Well, okay,” the prosecution oriented representatives said, but they added at the last minute, that you had 15 days from the date of your arrest to request a hearing or you automatically lose your license. So (right or wrong) if you don’t request that hearing in 15 days, you automatically lose your license. God bless Texas!

Commercial driver license and ALR

If you have a Texas driver license that is also a commercial driver license your license is subject to suspension for failure of a breath or blood test or refusal of a breath or blood test. If you don’t request a hearing within 15 days you lose both for 180 days if you refused or 90 days if you fail either. You could be subject to a 1 year suspension for a DWI 2nd offense or 2 years for a felony DWI. In any event, you have a right to an occupational or restricted license during the period of suspension. However in the event of a felony, district judges get really stingy about that license.

If you lose the ALR hearing, the commercial driver license is suspended for 1 year, and all you can get at that point is a regular license. However, if you are in Texas driving on a commercial license out of a different State – maybe not.

CDL and DWI

5-7 year suspension of CDL upon conviction. Get a lawyer!

Why not take a breath test?

What? You want to be convicted? If you pass it the officer might let you go, but the chances are high that the officer will still get a blood test anyway to check for drugs – prescription or otherwise. As a practical matter, if you refuse breath and blood, then the officer must get a search warrant signed by a judge. Time passes and your alcohol concentration goes DOWN. (Or you could give them a breath test right away to assure the highest reading.)

What Can You Do About a Blood Test Anyway?

A lot! First, make sure your lawyer knows ALL about blood testing. Make sure he can explain the testing process to you. Make certain that he can get the laboratory records of YOUR blood test and go over them with you so YOU understand what happened during the test. Make sure that if anything went wrong, YOU understand what went wrong. Make sure that your lawyer lets the Judge know what went wrong and that the Judge understands it.

  • Calibrators can be off (calibration curve is faulty) or controls test out of range (batch results are faulty).
  • Software can break down.
  • Chain of custody may be wrong during batch preparation.
  • Limits of quantitation and detection may prevent additive effects of drugs to alcohol.
  • Type of drug may prevent additive effect of drugs to drugs or drugs to alcohol. You might need a toxicologist here.
  • Improper equipment may hamper drug detection: drug screen versus drug detection.
  • Column type for mass. spec. detection: for certain drugs like methamphetamine a chiral column is essential in order to identify d-methamphetamine.
  • If none of this makes any sense to you, that’s ok. However, it should make sense to your lawyer, right?

Difference between a 1st DWI and a 2nd DWI

The punishment doubles with a second: DWI 1st 180 days jail and $2000 fine; DWI 2nd 1 year days jail and $4000 fine. In some counties there is mandatory jail time on DWI 2nd as a condition of probation.

What to expect the first day of court

Judge will call your name so please stand up and say “here.” The judge will want to know if you have a lawyer, and if you don’t he will want to know if you will hire one or get a court-appointed lawyer. You have a RIGHT to a court-appointed lawyer if you cannot afford to pay a lawyer: Gideon v. Wainwright, 372 U.S. 335 (US Sup. Court 1963) If you have hired a lawyer, she will get you to sign a waiver of arraignment, and your first court date will be rescheduled.

Will my case be dismissed?

Yes and No. The best-case scenario is a class B DWI (1st offense and BAC below .15). You are NOW ELIGIBLE for the Texas deferred adjudication DWI which means that at the end of your probation your case is dismissed….yeah/no. Okay, this is Texas, remember? You can tell everyone who is interested that your DWI was dismissed, and you can get your record sealed from employers, kind of.

But after a jury trial you can get your class B DWI conviction sealed too, and tell everyone who is interested that you don’t have a DWI conviction.

However in either event, if you get arrested for DWI again the deferred dismissal and the conviction can both be used to make it a double-down DWI 2nd. God bless Texas!

DWI with Child(ren)

This is no joke. Each child is a count in the indictment. Punishment years can be stacked for each count, so every child counts, right?

Prior to September 1, 2019 this was a state jail felony with up to 2 years in jail. Now, it is a third degree felony: 2-10 years in prison and a $10,000 fine. Don’t count on probation either. What about the kids then? Ask the Texas Legislature.

There are a lot of single mothers who just want to have fun like every other girl. Babies go to the babysitter while mom goes out for a little fun. Then she picks up the kids to go home late at night. This law is unjust, but then, children are very important. Is this the way to handle the problem? I don’t think so, but I didn’t make that law. Have the babysitter come to the house, please.

DWI and Veterans

Our veterans and their families have sacrificed a lot for us. They had felt a sense of duty and devotion to our way of life. In the process they may have been injured physically and psychologically. They deserve some understanding when it comes to addiction born out of pain and loneliness. We have a place for the DWI veterans, and they are not alone. It is called the Veterans Treatment Court for certain criminal offenses. They can obtain the treatment that they need to overcome their problems both legally and psychologically.

Veterans Court is a statutory program in Texas and throughout the United States. If you are a veteran and have a problem with DWI, please contact me right away and I can help you with your case immediately.

How many drinks does it take to become legally intoxicated?

Chart for Females

Body Weight 1 2 3 4 5 6 7 8 9 10 11 12
90 lbs .053 .106 .159 .212 .265 .318 .371 .424 .477 .530 .583 .636
100 lbs .047 .094 .141 .188 .235 .282 .329 .376 .423 .470 .517 .564
110 lbs .042 .084 .126 .168 .210 .252 .294 .336 .378 .420 .482 .504
120 lbs .038 .076 .114 .152 .190 .228 .266 .304 .342 .380 .418 .456
130 lbs .036 .072 .108 .144 .180 .216 .228 .252 .324 .360 .396 .432
140 lbs .033 .066 .099 .132 .165 .198 .231 .264 .297 .330 .363 .396
150 lbs .031 .062 .093 .124 .155 .186 .217 .248 .279 .310 .341 .372
160 lbs .028 .056 .084 .112 .140 .168 .196 .224 .252 .280 .308 .336
170 lbs .027 .054 .081 .108 .135 .162 .189 .216 .243 .270 .297 .324
180 lbs .025 .052 .078 .104 .130 .156 .182 .208 .234 .260 .286 .312
190 lbs .025 .050 .075 .100 .125 .150 .175 .200 .225 .250 .275 .300
200 lbs .023 .046 .069 .092 .115 .138 .161 .184 .207 .230 .253 .276
210 lbs .022 .044 .067 .088 .110 .132 .154 .176 .198 .220 .242 .264

Chart for Males

Body Weight 1 2 3 4 5 6 7 8 9 10 11 12
100 lbs .038 .075 .113 .150 .188 .225 .263 .300 .338 .375 .413 .450
110 lbs .034 .066 .103 .137 .172 .207 .241 .275 .309 .344 .379 .412
120 lbs .031 .063 .094 .125 .156 .188 .219 .250 .281 .313 .344 .375
130 lbs .029 .058 .087 .116 .145 .174 .203 .232 .261 .290 .320 .348
140 lbs .027 .054 .080 .107 .134 .161 .188 .214 .241 .268 .295 .321
150 lbs .025 .050 .075 .100 .125 .151 .176 .201 .226 .251 .276 .301
160 lbs .023 .047 .070 .094 .117 .141 .164 .188 .211 .234 .258 .281
170 lbs .022 .045 .066 .088 .110 .132 .155 .178 .200 .221 .244 .265
180 lbs .021 .042 .063 .083 .104 .125 .146 .167 .188 .208 .229 .250
190 lbs .020 .040 .059 .079 .099 .119 .138 .158 .179 .198 .217 .237
200 lbs .019 .038 .056 .075 .094 .113 .131 .150 .169 .188 .206 .225
210 lbs .018 .036 .053 .071 .090 .107 .125 .143 .161 .179 .197 .214
220 lbs .017 .034 .051 .068 .085 .102 .119 .136 .153 .170 .188 .205
230 lbs .016 .032 .049 .065 .081 .098 .115 .130 .147 .163 .180 .196
240 lbs .016 .031 .047 .063 .078 .094 .109 .125 .141 .156 .172 .188

What do police officers look for when they are looking for drunk drivers?

According to the DWI Detection training manual published by the National Highway Traffic Safety Administration in 2004, officers are taught to look for the following:

  • Anything which may draw their attention to the vehicle (especially at night time) such as
  • A moving traffic violation
  • Weaving across a lane
  • Abruptly swerving
  • Turning with too wide a radius
  • Almost striking an object or other vehicle
  • Stopping incorrectly
  • Rapid acceleration or deceleration
  • Driving on the wrong side of the road
  • Slow response to traffic signals
  • Slow or failure to respond to officer’s signals
  • Stopping in a lane for no apparent reason
  • No headlights
  • Driving in an area other than a marked traffic lane
  • Throwing objects out of the car or other inappropriate behavior such as leaning out of the window or yelling out of the window
  • An equipment violation (burned out tail light or burned out license plate light)
  • An expired registration or inspection sticker
  • Any unusual driving actions, such as weaving within a lane or moving at slower than normal speed
  • After the stop, evidence of drinking or drugs in the vehicle itself

What signs of intoxication do police officers look for after stopping someone on the roadside?

According to the DWI Detection training manual published by the National Highway Traffic Safety Administration in 2004, officers are taught to look for the following:

  • Slowed reactions
  • Impaired judgment as evidenced by a willingness to take risks
  • Impaired vision
  • Poor coordination
  • Difficulty exiting the vehicle
  • Fumbling with drivers license or insurance
  • Repeating questions for comments
  • Swaying, unsteady or balance problems
  • Leaning on the vehicle for support
  • Slurred speech
  • Slow to respond to officer/officer must repeat
  • Providing incorrect or changing answers to the same question
  • Odor of alcohol

If I fail a breath test why shouldn’t I just plead guilty and not risk taking my case to trial?

If you fail a breath test it does not mean that you will always be found guilty. I have tried many, many breath test cases and obtained not guilty verdicts. There are a lot of issues to address even in breath test failure cases. My biggest responsibility is to show the jury that you are on trial for driving while intoxicated – not testing while intoxicated.

I didn’t refuse to take the breath test, so why did the cop say I refused?

The police are taught to call it a refusal if for any reason you do not take a breath test or if you take too long during the administration of the test. But don’t let it bother you. With the right lawyer, a breath test refusal can be one of your strongest factors at trial to argue not guilty.

Will the judge be harsher with me if I go to trial and get found guilty?

Legally the judge cannot do that, and in the vast majority of the cases the judge will not. In fact some judges ultimately may sentence you to less time after a jury verdict when they see you and hear the facts of the case. On the other hand, some judges are just as harsh on guilty pleas as on verdicts of guilty. You should rely upon experienced counsel.

Can’t I just pay a fine for something else, do community service and have the DWI dismissed?

Not exactly. The law now allows first offenders with alcohol concentrations below .15 to plead guilty to a deferred adjudication for DWI. You will do community service, pay a fine and court costs and you will have a breath testing device in the car for 6 months. You can have your record “sealed” from employers who are not governmental agencies by a petition for non-disclosure.

However, a “deferred adjudication” for DWI will recite that your case is dismissed after successful completion of 1-year supervision, but it is still considered a conviction by the State of Texas. If you ever get arrested again for DWI it will be considered a DWI second offense regardless of the alcohol concentration, and the punishment doubles. You cannot get a deferred adjudication again.

Why should I take my case to trial?

If you plead guilty you have no hope of being found not guilty by the State of Texas even if the case is later dismissed by deferred adjudication. Some employers will treat you more leniently if you get a deferred adjudication, and you will not get a driver license suspension.

However, if you are charged with a class B misdemeanor DWI and take your case to trial you may be found not guilty. If you are found not guilty you can have your case expunged, for free within 30 days, and you can deny that you have ever been arrested – under oath!

Even if you are found guilty by a jury of class B DWI the punishment is the same as the deferred adjudication. Also, you can have your record “sealed” from non-governmental employers, and you will not get a license suspension.

This is a DWI case. For most misdemeanors (even second offenses), the jury will not see you as “public enemy number one.” The jurors are not going to be afraid to ride down on the elevator with you at the end of the day. No one will argue that you are a bad person. Many people have been in your position, but they did not get stopped—including some jurors! You have a right to a trial.

If I plead guilty won’t the record just go away after a while anyway?

Deferred adjudication and probation are both final convictions for purpose of enhanced penalties. They do not go away – ever.

I have a pilot’s license, how does my arrest affect my flying privileges?

The Federal Aviation Administration has specific reporting requirements for the arrest and conviction involving this offense. Additionally, you must report any negative action on your driver’s license to the administration, or you can lose you pilot’s license. If your driver’s license is suspended at the administrative level you must report that suspension to the FAA. The pilot’s license may be suspended or revoked upon conviction for DWI.

I was on my boat at the lake and this officer arrested me. I wasn’t doing anything wrong. How can they do that?

Boating While Intoxicated is the same as driving while intoxicated, except that you are operating a watercraft. The park police or other agency monitoring the waterway have the right to board your boat for any reason or for no reason. Whoever is driving or holding the controls is the driver at that time. If alcohol is detected by the police, they will take you to the shore and hold you for 15 minutes to get your balance. Then they will try to get you to perform field sobriety tests. You are not required to perform their tests. If they are doing tests, that means that they are CREATING evidence of intoxication not of sobriety. It just makes sense not to cooperate. Refuse a breath test and a blood test. It’s going to take them a long time to get a search warrant and take your blood. Stand up for yourself. You will be better off in the long term.

What are the penalties for a DWI?

  • First Offense – Class B Misdemeanor with up to $2k in fines, 6 months in jail, & 1 year license suspension
  • Second Offense – Class A Misdemeanor with up to $4k in fines, 1 year in jail, & a 2 year license suspension
  • Third Offense & More – 3rd Degree Felony with up to $10k in fines, 10 years in jail, & 2 year license suspension

Enhancements for DWIs include, but are not limited to:

  • Certain Blood Alcohol Concentrations above .15%
  • A Minor in the Vehicle
  • Open Containers
  • Injury or Death to Another Individual

I’ve heard that you don’t have to take a breath test if you were boating.

You don’t ever have to take a breath test. However, if you take a breath test and fail it you won’t lose your driver’s license. A driver’s license suspension will result from a refusal to take a breath test but not from a failure of a breath test. The punishment for this offense is the same as DWI. However, there is no real benefit for you to fail a breath test in order to keep your driver license. If you have been drinking, don’t blow AND refuse a blood test. If they get a warrant, fine, let them take the blood then – hours later.

When I got arrested for DWI there was an accident and the other person was injured; what’s going to happen to me?

This is a felony crime if an intoxicated person simply by accident or mistake while operating a car, a boat or an airplane in a public place causes serious bodily injury to another. “Serious bodily injury” means injury that creates a substantial risk of death or that causes serious permanent disfigurement or protracted loss or impairment of the function of any bodily member or organ. The punishment range is 2-10 years in prison and a fine of $10,000. Most District Attorneys will not allow probation unless the person who is injured and his or her family agree to it. Judges usually follow the recommendation of the District Attorney on this punishment.

What can I do if I am faced with this type of offense?

You should hire a DWI lawyer who is a specialist in criminal law. The reason is that the prosecutor must first prove DWI in this type of case before he can get a conviction for intoxication assault. Also DWI is a “lesser included offense” of intoxication assault. An experienced lawyer may be able to obtain a reduction of the charge to DWI.

What kind of judge hears this case?

This case is tried in a district court. A conviction results in the loss of the rights to vote and to carry arms. A felony conviction creates several restrictions upon a person’s standing in society.

How long does someone go to prison for this type of offense?

The amount of time varies from case to case from 2-10 years. However, probation is an option. If prison time is the sentence, once a person has served a portion of his prison sentence he is eligible for parole. However, if the judge makes a finding that the car, boat or airplane was a “deadly weapon,” the individual must serve at least one-half of his sentence before becoming eligible for parole. A conviction also carries with it many administrative penalties such as a driver’s license suspension.

Intoxication Manslaughter

This is a felony crime if an intoxicated person simply by accident or mistake while operating a car, a boat or an airplane in a public place causes the death another. The punishment range is 2-20 years in prison and a fine of $10,000. Most District Attorneys will not allow probation unless the person who is injured and his or her family agree to it. Judges usually follow the recommendation of the District Attorney on this punishment. However, probation can be granted by the court or a jury. The average sentence in Bexar County, Texas is about 17 years in prison.

This case is tried in a district court. A conviction results in the loss of the rights to vote and to carry arms. A felony conviction creates several restrictions upon a person’s standing in society. A conviction also carries with it many administrative penalties such as a driver’s license suspension and surcharges for reinstatement of driving privileges.

What can I do if I am faced with this type of offense?

You should hire a DWI lawyer who is a specialist in criminal law. The reason is that the prosecutor must first prove DWI in this type of case before he can get a conviction for intoxication assault. Also DWI is a “lesser included offense” of intoxication manslaughter. An experienced lawyer may be able to obtain a reduction of the charge to DWI.

What kind of judge hears this case?

This case is tried in a district court. A conviction results in the loss of the rights to vote and to carry arms. A felony conviction creates several restrictions upon a person’s standing in society.

How long does someone go to prison for this type of offense?

The amount of time varies from case to case from 2-20 years. However, probation is an option, usually when the family of the deceased agrees to it or has not opposition to probation. If prison time is the sentence, once a person has served a portion of his prison sentence he is eligible for parole. However, if the judge makes a finding that the car, boat or airplane was a “deadly weapon,” the individual must serve at least one-half of his sentence before becoming eligible for parole. A conviction also carries with it many administrative penalties such as a driver’s license suspension and surcharges for reinstatement of driving privileges.