DWI: Reality vs. Myth
Drunk driving is a significant problem nationwide. According to the National Highway Traffic Safety Administration (NHTSA), more than 10,000 people died in alcohol related crashes in 2012. The statistics show that drinking and driving sometimes lead to tragic results.
But often, in a rush to stop the DWI problem, police officers frequently arrest non-intoxicated drivers on suspicion of DWI. Because both innocent and intoxicated drivers are arrested for DWI, several misconceptions exist about what is DWI.
[Photo: Texas State Highway patrol car, taken by me, Dec. 17, 2006 on the ground of the Texas State Capitol in Austin, Texas. Creative Commons.]
- If my breath (or blood) test is over the limit, then that means I’m automatically guilty of Driving While Intoxicated.False. Under Texas DWI Law, intoxication maybe proven in either of two ways: (i) impairment theory, i.e., loss of normal use of mental or physical faculties; or (ii) per se theory, i.e., alcohol concentration in blood, breath, or urine of .08 or more. See Kirsch v. State, 306 S.W.3d 738 (Tex. Crim. App. 2010). The Texas Court of Criminal Appeals stated that “a BAC [blood alcohol concentration]-test result, by itself, is not sufficient to prove intoxication at the time of driving. There must be other evidence in the record that would support an inference that the defendant was intoxicated at the time of driving as well as at the time of taking the test.” Id. (emphasis added).In other words, the State must prove to the jury beyond a reasonable doubt that: (1) the chemical test provides trustworthy evidence of a defendant’s BAC; and (2) an inference can be made from the results of the chemical test that a defendant had a BAC of .08 or greater at the time of the offense.This is a key issue in many DWI prosecutions because breath and blood tests are frequently taken some time (an hour or more) after a person is stopped and arrested for suspicion of DWI. The BAC in a person can either increase or decrease during this time.In short, chemical tests are important–but not dispositive pieces of an evidentiary puzzle. Your attorney must examine other evidence such as videotapes from the arrest, rates of error for the chemical test, and whether the State can show that the test taken sometime after your arrest can support an inference that you were intoxicated at the time of driving. This inference is often called retrograde extrapolation testimony. Click here for an overview of retrograde extrapolation.
- There is no point to requesting an Administrative License Revocation (ALR) hearing because I’m going to lose.False. ALR hearings are the administrative process used by DPS to suspend your driver’s license after you are arrested for DWI or BWI.It is true that DPS has a high success rate at these hearings. However, these hearings give you an invaluable tool to help defend your DWI case at trial. Specifically, if you timely request an ALR hearings and subpoena the arresting officer–then you get an opportunity to cross-examine the officer under oath and freeze his testimony for trial.If done properly, the ALR hearing transcripts can be used to impeach the arresting officer at trial and help set up your case for a verdict of “Not Guilty.”
- The arresting officer says I “failed” the Standard Field Sobriety Tests (SFST’s), that means I’m intoxicated.False. SFST‘s are a battery of tests administered by police to help determine if a driver is impaired. Theses tests include Horizontal Gaze Nystagmus (HGN), Walk-and-Turn (WAT); and One-leg Stand (OLG). Click here for a history on the development and use of these tests. To be sure–many drivers fail these tests because they are intoxicated.But there are alternate reasons why a person would “fail” these tests. Some people have medical or back problems that prevent them from performing well on these tests. Others are simply nervous performing these tests in the middle of the night on the side of a road. Finally, police officers sometimes fail to give proper instructions or conduct the tests inappropriately. The result is the officer will score your performance poorly and subjectively decide you are intoxicated–even if you are not.These issues must be explored during jury selection with prospective jurors to get a fair trial.
Some Final Thoughts
DWI is a problem not only for society, but also for anyone arrested on suspicion of driving impaired. It causes significant personal, financial, and emotional turmoil for anyone accused of this crime. It is best to make plans before you go out to designate a driver to avoid being arrested for DWI.
However, if you are arrested for DWI–here are some suggestions–ask for an attorney before answering any questions and always be courteous to law enforcement–they are just doing their jobs. If you disagree with the officer’s decision to arrest you for DWI, then remember you will get to defend yourself in a court of law.
I welcome comments and questions to this and other posts.
Genaro R. Cortez