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Back to the Basics: Don’t Drink & Drive!

The State of Texas is unfortunately one of five states with the most drunk driving incidents. According to the Texas Department of Transportation, one person dies every 8 hours and 31 minutes in a Driving Under the Influence (DUI) alcohol-related incident. The Centers for Disease Control states that a quarter of deaths that occur among 20- 34-year-olds in the state of Texas result from drinking excessive alcohol. This is why Texas law is so severe when it comes to giving out Driving While Intoxicated, otherwise known as DWIs or Driving Under the Influence citations, otherwise known as DUIs and there are consequences that go with it. Texas surcharges are additional fines imposed on drivers for certain traffic offenses.

Driving While Intoxicated (DWI)

According to the Penal Code 49.04; a person commits an offense if the person is intoxicated while operating a motor vehicle in a public place. A motor vehicle can be defined as not only a car or a motorcycle but also includes a watercraft or boat. For a first-time offense the consequence is a class B misdemeanor with a minimum term of 72 hours of confinement, a fine up to $2,000 and your driver’s license can be suspended for up to a year. You might also be asked to attend an Alcohol Awareness Program and/or participate in community service.

A DWI is one of the penal codes in which there are enhanced penalties the more you commit the same crime. The enhanced penalties mean a bigger fine, more jail time, a driver’s license being revoked for a longer period of time and your community service being longer as well. If someone is seriously injured, then it is considered a felony charge, which can include a fine up to $10,000 and jail time of 2-10 years.

You can also be charged with a DWI even if you only have an open container and you have not had one sip of it. In the Penal Code 49.031 it is called possession of an alcoholic beverage in a motor vehicle. This kind of DWI is a class C misdemeanor. Even though this is a low class of crime, it is not harmless as it can impact your college applications and employment applications and licenses. If charged with this offense, you will be cited and must appear before a judge, as the charge will still be recorded on your record.

What is Driving Under the Influence (DUI)?

Some differences between Driving While Intoxicated, also known as a DWI and Driving Under the Influence, also known as DUI, is age, normally only minors can be charged with a DUI. According to the Penal Code 106.041; a minor can be charged if there is any detectable amount of alcohol in a minor’s system while they operate a vehicle, motorcycle, watercraft or boat in a public place.

For a first-time offense, it is classified as a class C misdemeanor, which means you can be given a fine up to $500, a 60-day driver’s license suspension, up to 40 hours of community service and mandatory attendance to an Alcohol Awareness Program.

A DUI charge can be a little bit tricky as there are stiffer punishments and the word minor is categorized as someone under the age of 16. If a minor is 17 or older, they can be fined as much as $2,000, jail time up to 180 days and driver’s license suspension of 90 days or up to 1 year. Also, if this is the minor’s third DUI offense, it is considered a Class B misdemeanor and holds the same consequence as above.

Do You Have to Submit to Being Tested During a Traffic Stop?

If you are not under arrest, you can legally refuse to submit blood alcohol contents, also known as a BAC test, whether it is a breathalyzer test, blood test or field sobriety test. There may still be some consequences for refusing a blood or breath test, such as a 180-day license suspension if it is your first offense or a two-year license suspension if it is your second or third offense. There is a 15-day window where you can request a hearing to prevent the revocation of your license. This 15-day window still applies if you take one of the tests and you fail it and you will also still have the right to a hearing.

Although these penalties are bad, it does make it more difficult for a prosecutor to convict you of a DWI based on the lack of blood alcohol contents and/or BAC evidence. Although it does make things difficult for the prosecutor, the prosecutor can always flip it and say your refusal is your admission to being guilty of being drunk driving. Refusing to submit to a BAC test, a breathalyzer test or a field sobriety test is a personal choice.

The only time police or sheriff may be able to take your sample without your consent is if you have previously been convicted of a DWI with a minor child in the car or if you have previously had a DWI accident in which someone needed to be taken to the hospital; or if you had two previous DWI convictions. These are some of the reasons a police officer or sheriff can take your sample without consent.

There is a law in Texas that is known as implied consent law. This law automatically consents you to give a blood or breath test sample upon being lawfully arrested for a DWI. All Texan drivers automatically consent to this when they obtain their driver’s license in the State of Texas.

Can a Breathalyzer be Untrustworthy?

Breathalyzers are used to aid a police officer or sheriff in whether there is probable cause for him or her to give you a DWI/DUI arrest during a traffic stop. These types of tests are called preliminary breath tests and are easy to use and administer but it has come to light that their reliability can be faulty, as they require maintenance and regular calibration if a police officer or sheriff is not keeping up-to-date maintenance on the test and it can provide faulty readings. These tests are different from the test you will be given at the police or sheriff’s station.

The factors that can also play into the test results that can be later on challenged in Court are machine error, human error and environmental factors. Your defense attorney can use these factors to challenge the breathalyzer test that was administered during your traffic stop.

Machine Error

Breathalyzers are like any other piece of technology they will carry a margin of error. The margin for error on a breathalyzer can be as high as 14% which is a lot of error room. Another error from the machine could be the semiconductor. These sensors on the breathalyzer are known to give false positives from substances called ketones. Ketones are more likely to be present on the breath of someone doing a low-carb diet. It is also known that people who are diabetic and who take this test are more likely to register a false positive.

There are also everyday normal substances that can give a false positive; for example, mouthwashes, breath fresheners and toothache medicine that can emit alcohol vapor and can affect the readings. Smoking a cigarette can also make the test read higher than alcohol alone. And of course, like all machines, there could be a defective breathalyzer that always gives out false readings and the police or sheriff officer was not aware of the defect in the breathalyzer.

Environmental Factors

Breath analyzers have to be calibrated regularly, as they respond to ambient temperatures change. If the temperature is not calibrated right when taking a breath test the breathalyzer could give off a false positive. Breathalyzers are usually calibrated to the outside temperature to benchmark where the positive and false readings would be as the foundation of breath testing is that the inside and outside body should be the same temperature. This is faulty as there is an overestimation of 8% of blood alcohol content.

Human Factor

For there to be an accurate reading, a breath test should be performed multiple times to produce a reliable reading. This can be an issue though, as like all people, a police officer or sheriff might want to cut corners or the officer might have a bias that you are intoxicated. And so, the police officer or sheriff would rather not waste time administering the test more than once.

Contesting a Breathalyzer Test

Results provided by a portable breath test are not admissible in court, meaning an officer cannot use this test result at trial. But the results from a portable breath test do allow the police officer or sheriff to arrest you. If a police officer or sheriff administers the breath test without having probable cause, then the breath test results would be thrown out and not admissible in court.

The police officer or sheriff’s procedure for administering the breath test is that he or she should allow you 15 minutes before giving you the test. The 15-minute window is allowed so that you cannot accidentally alter the results of a breathalyzer by smoking a cigarette, burping or even removing cough drops. If an officer fails to allow the 15 minutes, then it can have grounds for suppressing the breathalyzer results as evidence. This can also show they lacked the proper training in administering the breath test properly. Also, if too much time had passed since the defendant drank, drove and the test was administered. The test could be thrown out in court as improper administering of it. If the defendant has a history of diabetes or is on a strict low-carb diet, and it triggers a false positive, you can challenge your medical condition, indicating your condition caused the false positive.

What Happens if You Submit to a Blood Test?

After you are arrested and taken to the nearest police or sheriff’s station, you are then offered to be given an official breath or blood test. If you decide to give a blood test instead, the officer will provide a warrant to obtain the blood test. To get the blood test, the police officer or sheriff may have to draw up an affidavit explaining why they think you are intoxicated. The officer will have to get a judge to sign a warrant to draw your blood and then wait for a registered nurse or an authorized person to draw your blood. This all takes time, sometimes as long as a couple of hours. The time it takes to accomplish all of this can be beneficial to you as the BAC can reduce over this time period, making the test less effective.

Need Help? Call Us Now!

Do not forget when you or anyone you know is facing a criminal charge of DWI or DUI, you have the Law Office of Bryan Fagan by your side to help you build the best defense case for you. We can explain everything you need to know about how best to defend your case against a DWI or a DUI charge. Therefore, do not hesitate to call us if you find yourself or someone you know who is facing these criminal charges as they can hold serious consequences on your driving record. We will work with you to give you the best type of defense that can help you solve your case. It is vital to have someone explain to you the result of your charge and guide you in the best possible way.

At the Law Office of Bryan Fagan, you are given a free consultation at your convenience via Zoom, over the phone or in-person. We will provide you with as much advice and information so you can have the best possible result in your case.

Call us today at: 281-810-9760.

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