Frequently Asked Questions about Drunk Driving
Should I give a Sample of My Breath and Blow into the Machine?
The short answer is “no.” Here’s why.
Advantages of Refusing to Blow:
- First, you prevent police agencies from getting scientific evidence of the amount of alcohol in your bloodstream. Specifically, if the breathalyzer machine shows that your blood alcohol content is 0.08% or higher, then you’ve just given the prosecution a lot of help in proving that you were driving while intoxicated. This is because one of the definitions of “intoxicated” depends only on your blood alcohol content. If your blood alcohol content is 0.08 or higher, then you are “intoxicated” as far as Texas DWI law is concerned.
- Second, even if the breathalyzer machine shows that your blood alcohol content is less than 0.08, you’ll still probably spend the night in jail.
- Third, if the breathalyzer machine shows that your blood alcohol content is less than 0.08, the arresting officer will then probably ask for a Drug Recognition Expert (“DRE”) officer to examine you to see if you are intoxicated by something other than alcohol.
Disadvantages of Refusing to Blow:
- First, your refusal to blow is admissible against you in court. The prosecution will ask the jury “why would an innocent person refuse to blow?” The logical answer to this question is that even though you knew you were innocent, you believed at the time the police asked you to blow that the test is not accurate. There’s evidence to back up that belief.
- Second, when the Department of Public Safety (DPS) seeks to suspend your license, a refusal to blow will result in a suspension of 180 days if you have not had a drug or alcohol related law enforcement contact for 10 years. But a person who blows and fails will usually (more than 75% of the time) have his or her license suspended for 90 days anyway. This is not much of a disadvantage if you are arrested for DWI for your first time, since you can usually get an occupational driver’s license without much trouble, and you would need that occupational license regardless of whether you blow and fail, or refuse to blow.
Advantages to Blowing:
- Particularly if you are arrested for DWI for the first time, you only get the advantages to blowing if your result is lower than 0.08. The trouble is: how will you know in advance whether your result will be higher or lower? You won’t.
- Just the same, here are the advantages available to those citizens whose ability to predict the future is amazing: (1) if your result is lower than 0.08, then DPS won’t ask to have your license suspended; (2) if your result is lower than 0.08, that will weaken the State’s case against you somewhat. It doesn’t mean that they won’t file a case against you, because they can still allege that you did not have the normal use of your mental or physical faculties.
Could I Lose My Driver’s License?
Yes. DPS will move to suspend your driver’s license if any kind of test is done and your blood alcohol concentration is shown to be 0.08 grams of alcohol per 210 liters of air or per deciliter of blood.
If you blew, DPS has to prove that it is a little more likely than not that: (1) you were lawfully stopped and lawfully arrested; and (2) that your blood alcohol content was 0.08 or higher while you were driving.
If you refused to blow, then DPS only has to prove that it’s a little more likely than not that: (1) the police officer had reasonable suspicion to stop you; (2) the officer had mere probable cause to believe you had been driving while intoxicated; (3) that you were given a chance to blow; and (4) that you refused to blow. The difference, proof-wise, between whether you blew or not is that if you blew, DPS has a tiny bit higher burden of proof.
More than 75% of the time, the Administrative Law Judge rules in favor of DPS, and against the driver.
You can request a hearing in front of a judge to challenge DPS’s efforts to suspend your license. But you only have fifteen days after you were arrested to request this hearing. If you wait longer, you lose the right to challenge the suspension.
Can I Drive During the Suspension Period?
Yes, but you must petition a court for an occupational driver’s license. This license will permit you to drive if you prove that you have an essential need to drive. By law, you may drive no more than four hours per day to go to work and school and perform other necessary household chores and duties. You may petition the court to waive the four-hour limit and request up to 12 hours in a day to drive, providing that you show an essential need.
What is the first thing I should do, now that I am out of jail on a DWI charge?
Call an experienced, qualified DWI lawyer. Ask him if he routinely requests “live” ALR hearings. If he doesn’t, find one who does. If you haven’t hired a lawyer within 15 days of your arrest, fax in a request to DPS for a “live” hearing. The fax number is 512-424-2650. If you can’t fax your request in, then call DPS at 1-800-394-9913 and ask for a “live” hearing. If you don’t request a hearing within 15 days of being arrested, you will automatically lose your driver license on the 40th day following your arrest.
Click here to see summaries of Bill Mange’s drunk driving case results.
None of the information here should be substituted for an actual consultation with an attorney.