Field Sobriety Test Validation

DWI field sobriety tests were initially developed and used by individual police units across the country. Extensive scientific research studies only bega in 1975 when the NHTSA contracted the Southern California Research Institute (SCRI) to assess the reliability and accuracy of these field sobriety tests. SCRI published reports in 1977, 1981 and 1983.

Six tests were used in the initial study, but only three of them, and only when administered in a standardized manner, were highly accurate and reliable for distinguishing a blood alcohol content (BAC) of above a 0.10. These three tests were the Horizontal Gaze Nystagmus (HGN), the Walk-and-Turn (WAT) and the One-Leg Stand (OLS).

NHTSA determined, through an analysis of the lab data provided by SCRI, that the HGN was 77% accurate, the WAT was 68% accurate and the OLS was 65% accurate. When used together, the HGN and WAT achieved 80% accuracy. Of course this means that 20% (one-fifth!) of the time, even the two tests together are inaccurate. And this is, of course, data obtained in a lab by scientists, not police officers.

The final phase of the study was a field validation where standardized procedures were developed. The NHTSA concluded that the three standardized tests were reliable in identifying people with BACs above a 0.10.

Three standardized field sobriety test (SFSTs) validation studies were commenced between 1995 and 1998, including studies in Colorado (1995), Florida (1997) and San Diego (1998). The results of the three studies supported the institutionalization of SFSTs.

Definition of Intoxication

The definition of “Intoxication” under Texas law is critically important in the field of DWI Defense. Many DWI defense strategies hinge on whether a defendant was “intoxicated” under the law. While the definition provided in Texas law is clear, the meaning of the definition is unfortunately complicated. Essentially, the law provides for three different ways for a person to be considered intoxicated:

  • not having the normal use of mental faculties by reason of the introduction of alcohol, a controlled substance, a drug, a dangerous drug, a combination of two or more of those substances, or any other substance into the body;
  • not having the normal use of physical faculties by reason of the introduction of alcohol, a controlled substance, a drug, a dangerous drug, a combination of two or more of those substances, or any other substance into the body;
  • having an alcohol concentration of 0.08 or more

While the third prong (having an alcohol concentration of 0.08 or more) is a clear line, the other two prongs are less clear. What “normal use of mental or physical faculties” means is a matter of interpretation and would vary from person to person.

Scroll down or click on a question below to learn more about issues related to the definition of intoxication and questions frequently asked of our DWI Defense Lawyer:

What is The Law on the Definition of Intoxication?

Section 49.01 of Title 10, Chapter 49 of the Texas Penal Code defines “intoxication” for the purposes of Texas DWI charges:

(2) “Intoxicated” means:
(A) not having the normal use of mental or physical faculties by reason of the introduction of alcohol, a controlled substance, a drug, a dangerous drug, a combination of two or more of those substances, or any other substance into the body; or
(B) having an alcohol concentration of 0.08 or more.

What complicates the definition of intoxication in Texas is that alcohol consumption is not necessary to be considered intoxicated. This results in the problem that drivers who have a blood alcohol concentration under 0.08 might still be considered intoxicated.

What is the Law on “Alcohol Concentration”?

Chapter 49 of Title 10 of the Texas Penal Code defines alcohol concentration in relation to breath, blood or urine:

(A) 210 liters of breath;
(B) 100 milliliters of blood; or
(C) 67 milliliters of urine.

How Many Drinks Does it Take To Be Intoxicated?

The number of drinks it takes for you to be intoxicated depends on several different physiological factors that are unique to your body. It also depends on the type of alcohol and the manner in which you drink it. For instance, you might be able to have five drinks over five hours and not be intoxicated, whereas if you have five drinks in five minutes, you will likely be quickly intoxicated.

Here are some guidelines: if you are a woman and under 100 pounds, you very well might be intoxicated after one drink, and you might be intoxicated for up to an hour. An average man will likely be intoxicated after having three standard in an hour. These are very generalized conclusions, however, and how many drinks it will take for you to be intoxicated will depend on additional factors like whether you had any food in your stomach, how much water you had been drinking, how much sleep you have had recently, the type of alcohol you were drinking, abnormalities in your body and many other factors.

How Can I Be Intoxicated If I Blew Under a 0.08? What If I Did Not Blow Or Give Blood?

The state does not have to show that your blood alcohol concentration was above a 0.08 BAC if they can prove that you did not have “the normal use of mental or physical faculties by reason of the introduction of alcohol, a controlled substance, a drug, a dangerous drug, a combination of two or more of those substances, or any other substance into the body.”

What this means is that if you did not provide the police with any physical evidence like a blood or breath sample, you can still be “intoxicated” and thus convicted of a DWI if the state can prove that you were not acting “normal” because you had been drinking. Even if you gave a blood or breath sample and the sample produced results under a 0.08 BAC, then you can be convicted under the same theory.

Definition of Motor Vehicle

In order to be convicted of DWI in Texas, the state must show that a person is “intoxicated while operating a motor vehicle in a public place.” The important definitions in the DWI offense statute are “intoxicated,” “operating,” “motor vehicle” and “public place.”

The definition of intoxication is the most frequent basis of challenging a DWI case (learn more about the definition of intoxication), but the definition of a “motor vehicle” comes up as the basis of challenging a DWI case sometimes as well.

Some DWI-related offenses (that are technically not DWI, but they are very similar) do not require the operation of motor vehicles. These include Boating While Intoxicated, Flying While Intoxicated and Assembling or Operating an Amusement Ride While Intoxicated.

Frequently asked questions about motor vehicles and their place in the DWI laws in Texas are below.

What is the Texas Law That Defines “Motor Vehicle”?

Chapter 49 of Title 10 of the Texas Penal Code defines a motor vehicle as follows:

(3) “Motor vehicle” has the meaning assigned by Section 32.34(a)

Section 32.34(a) defines a motor vehicle as follows:

(2) “Motor vehicle” means a device in, on, or by which a person or property is or may be transported or drawn on a highway, except a device used exclusively on stationary rails or tracks.

Thus, motor vehicles for the purposes of the DWI statute in Texas includes any “device in, on, or by which a person or property is or may be transported or drawn on a highway, except a device used exclusively on stationary rails or tracks.”

Can I Get a Charged with Boating While Intoxicated?

Yes, you can be charged with boating while intoxicated. Section 49.06 of the Texas Penal Code actually describes an entirely separate offense for boating while intoxicated. Boating While Intoxicated is defined as follows: “A person commits an offense if the person is intoxicated while operating a watercraft.” Obviously, this is very similar to a DWI offense, but it is technically a separate statutory offense, an it does not require a “motor vehicle.”

Can I Be a Charged with Flying While Intoxicated?

Yes, similar to the Boating While Intoxicated offense, you can be charged with Flying While Intoxicated under the offense described in Section 49.05 of the Texas Penal Code. Flying While Intoxicated is defined as follows: A person commits an offense if the person is intoxicated while operating an aircraft.”

What Other DWI Offense Do Not Require the Operation of a Motor Vehicle?

Assembling or Operating an Amusement Ride While Intoxicated is an offense described in Section 49.065 of the Texas Penal Code as an offense where “a person is intoxicated while operating an amusement ride or while assembling a mobile amusement ride.” Intoxication Assault and Intoxication Manslaughter do not require the operation of a motor vehicle if the person is charged with operating an aircraft, watercraft, or amusement ride while intoxicated.”

Consequences of a DWI Conviction

Whether you plead guilty, no contest or a jury finds you guilty, the consequences for a DWI conviction can be staggering. Even if you have nothing else on your criminal record and this is your first DWI, you are facing costs as much as $50,000 or more. I have outlined below a summary of the consequences after a first DWI conviction, but if you are facing a second DWI or more, then the consequences can be even greater.

At the outset, it is important to know the criminal penalties described in the DWI statute. As a Class B Misdemeanor, the range of punishment for a standard DWI first conviction is up to 180 days in county jail and up to a $2,000 fine (learn more about the ranges of punishment in Texas law). In addition, Section 49.04 of the Texas Penal Code specifies that the minimum term of confinement is 72 hours in jail. Some or all of your jail term may be probated (depending on the judge and the specific DWI offense you are facing), meaning that you may or may not have to spend time in jail if you agree to community supervision (commonly referred to as probation). The criminal penalties can be enhanced in a variety of ways, including an enhancement for a BAC over .15, for DWI with a Child Passenger or having an open container in the car. All DWI offenses can be enhanced if you have a prior conviction for DWI. There is also a complex web of driver’s license penalties that you will be facing, some of which are described briefly below.

Here is a more detailed (but not comprehensive) list of penalties arising out of a DWI conviction for a misdemeanor DWI conviction that you should consider:

  • Jail time of up to 180 days for a base DWI offense, which if enhanced can be up to one year or, if enhanced to a felony, even more time in the state penitentiary. If probated, you will have to remain on probation for a term of months to years.
  • Criminal fines of up to $2,000 for a based offense, or up to $4,000 if enhanced to a felony, up to $10,000
  • You will have a criminal conviction on your record that you cannot expunge or remove. Your employer, potential future employers and the general public will be able to see this if they do a background check. This can cost you a future job or even the loss of your current one. If you are facing a job loss, we consider this a High-Stakes Misdemeanor Defense.
  • The loss of driver’s license. A judge may suspend your license as a result of a DWI conviction. To reinstate your license, you will have to pay a driver’s license reinstatement fee of $125. If you want to be able to drive while your license is suspended, you will have to apply for an occupational driver’s license. This is a complicated procedure, and unless you handle it yourself, you will have to pay a lawyer (we do not charge our DWI clients for this service, but otherwise we charge $200-500). You will also have to pay: county fees of $200-250 (in Dallas, the fee is $232 for misdemeanors) and a fee for SR-22 insurance.
  • Court Costs, usually between $200 and $500
  • Monthly probation reporting (involving missed time at work and paying for parking every time you come in)
  • Multiple Court Appearances (this is more missed time at work and paying for parking every time you come in)
  • 24-100 hours of Community Service
  • M.A.D.D. Victim Impact Panel (3hrs)
  • Monthly probation fees ($25-60 per month)
  • Ignition Interlock Device ($75 per month per vehicle). This is a device that is installed on your car and prevents your car from operating unless you blow into the device and the device determines that you do not have any alcohol on your breath. You can be ordered to have this installed while you are on bond or under community supervision. The results are reported immediately to the court, and if you do not blow clean, your bond or your probation can be revoked. The average time to dispose a DWI case takes 8 months to one year, if you do not go to trial. If you go to trial, it frequently takes two years or more. Probation times vary, but you can get up to two years. Therefore, you are looking at 2-4 years of having an interlock on your car, but the device can be removed earlier under certain circumstances. On average, you are probably looking at 20 months of interlock fees, totaling $1,500. This can be greater if you are on you are enhanced, and you could even be required to have a Soberlink or ankle monitor device, entailing even higher monthly fees. Learn more about interlock devices
  • A night in jail when you are arrested ($500 bail)
  • Impound fees to get your car back ($85)
  • Embarrassment & loss of Self Esteem
  • Loss of social standing
  • Attorney’s Fees in the thousands of dollars
  • License Surcharge of $1000 per year for three years.
  • “Home Visits” by probation officer
  • Interference with employment – time missed from work
  • Increased Insurance rates/Cancellation of Insurance (300% for 4 years)
  • Stress and Anxiety of pending case

DWI Probation Law

What is the Law About DWI Probation in Texas?

The Texas Code of Criminal Procedure Article 42.12 describes community supervision (commonly referred to as “probation”) under Texas law. Section 42.12 allows DWI sentences to be probated by placing people who are convicted under community supervision. So, many people who are convicted of DWI do not spend time in jail. However, there are minimum jail terms required under certain circumstances. These are described below. Section 13 specifically describes DWI community supervision rules. Section 20 discusses the authority of the judge to grant early release to a probationer (learn more about early probation release).

What Is the Minimum Time in Jail for A DWI Conviction?

Section 13(a) requires a judge to include the following as terms of probation for anyone convicted of DWI:

(1) not less than 72 hours of continuous confinement in county jail if the defendant was punished under Section 49.09(a); not less than five days of confinement in county jail if the defendant was punished under Section 49.09(a) and was subject to Section 49.09(h); not less than 10 days of confinement in county jail if the defendant was punished under Section 49.09(b) or (c); or not less than 30 days of confinement in county jail if the defendant was convicted under Section 49.07; and
(2) an evaluation by a supervision officer or by a person, program, or facility approved by the Texas Commission on Alcohol and Drug Abuse for the purpose of having the facility prescribe and carry out a course of conduct necessary for the rehabilitation of the defendant’s drug or alcohol dependence condition.

So if you have been convicted of any prior DWI-related offense (including BWI, FWI etc.), you will have to serve a minimum of 72 continuous hours in jail. This is 72 continuous hours, that is 3 full days. For instance, you cannot report at 8pm and be out by 12:01am midnight after serving only 16 hours. If you have been convicted of a second or subsequent offense relating to the operating of a motor vehicle while intoxicated committed within five years, you will have to serve a minimum of five days in jail. For Felony DWIs, not less than 10 days, and not less than 30 days for Intoxication Assault. Intoxication Manslaughter entails a term in jail of not less than 120 days under Section 13(b).

Can I Get Released Early From My Probation?

Section 20 of Texas Code of Criminal Procedure Section 42.12 discusses the authority of the judge to grant early release to a probationer. Section 20, however, says that Early Release from Probation does not apply to DWI convictions. So, no, you cannot be released early from probation on a DWI conviction. However, you may be eligible to go on “non-reporting” status. Contact us for more information.

What are the Usual Probation Conditions for DWI

Let’s take a look at the typical DWI conditions of probation:

  • DWI Education Class – two 4-hour classes
  • M.A.D.D. Victim Impact Panel – 3-hour session
  • Community Service (24-100 hours)
  • Fines and Court Costs ($1,000)
  • Alcohol/Drug Evaluation – 30 minutes to one hour (done at orientation)
  • No alcohol
  • Ignition Interlock Device (learn more about interlock devices)
  • Crime Stoppers fee

In addition, you will have other probation conditions that all misdemeanor offenses share. Courts typically require you to:

  • submission of random drug tests (referred to as UA’s
  • commit no other offense
  • avoid injurious/vicious behavior and people of “immoral” character (what this means is anyone’s guess)
  • report monthly to a court probation officer
  • permit home and work inspections by probation officer
  • stay employed
  • receive permission before leaving the county or state
  • pay all fines and court costs
  • support your dependents
  • notify the court if your place of employment or home address changes

What is the Amount of Time I Will be Required to Be On Probation?

The length of time that you will have to be on probation varies depending on a number of factors, but you can expect it to be anywhere from a year to two years (or longer if the sentence is enhanced). The typical range of time for probation varies from county to county in Texas, and many factors will determine what is likely in your particular case. Please call us now at (888) 239-9305 to speak with an attorney about your specific case or contact us online to schedule a free consultation.

Have You Been Accused of a Probation Violation?

If you have been accused of a probation violation, you are entitled to a hearing by a judge. The state must prove that you violated the terms of your probation by a preponderance of the evidence. If you have violated your DWI Probation, or if you are worried that you may have violated your DWI probation, or if you are accused of violating your DWI probation, please call us immediately. The sooner you call us the better. We will have more options earlier on, and the longer you wait the harder the fight may become. Learn more about probation violations in general
The most common kind of probation violations in DWI cases are violations stemming from a “dirty blow” on an interlock device. Learn more about how to prevent probation violations on an interlock device

Occupational Driver’s License (ODL) in Texas

If your license is suspended in Texas, you may be eligible for an Occupational Driver’s License (known as an ODL). An ODL is a form of restricted license that allows you to drive during certain periods of time and only for certain “essential” needs like taking care of children, going to work, court appointments, doctor appointments and the like. We have compiled more information about ODLs below.

License suspensions typically occur as as result of failing to request an ALR Hearing after a DWI arrest, or after losing an ALR hearing or after a DWI conviction. The rules for obtaining an ODL are different depending on your particular circumstances, and they can be extremely complex. No matter what, you will have to file a Petition for an Occupational Driver’s License with a court. If the license suspension occurred as a result of a DWI conviction, you can only petition the court in which you were convicted.

DPS will require that you have an SR-22 on file during the period your license is suspended. You may choose any company that offers SR-22 insurance. However, there are important things you should know about SR-22 insurance before you purchase it.

The law allows you to drive with an ODL for a maximum of four hours per 24 hour period, but the Court may waive the minimum and allow up to a maximum of twelve hours based upon certain essential needs.
The courts in Dallas and Collin County prefer to use a driving schedule. For example:

  • Monday – Friday – 8 a.m. – 8 p.m. (12 hours)
  • Saturday – Sunday – 9 a.m. – 9 p.m. (12 hours)

Links to answers about some frequently asked questions about ODLs are below.

Other Important Notes about ODLs

It is important to note that the court order is NOT the occupational license. It is the order granting the occupational license. The court order and all other required items must be submitted to the Department of Public Safety for issuance of an occupational license. The court order may be used as a license for 30 days from the date of the Judge’s signature while DPS processes the occupational license request.

There are certain limitations on your ability to get an ODL. Under certain circumstances, you will not be eligible for an ODL (usually this occurs if you have had more than one ODL because of a DWI conviction). And depending on whether you have had prior license suspensions, you may have a waiting period before an ODL can take effect. These factors and others can make the ODL process complex.

Important Information about SR-22 Insurance

Financial Responsibility Form SR-22
This is what an SR-22 Financial Responsibility Form looks like

An SR-22 (also known as a Financial Responsibility Form) is an endorsement that is attached to an insurance policy. Many people mistakenly believe that it is a separate insurance policy, but in fact it is a tool used by the Texas Department of Public Safety (DPS) that transfers the responsibility of monitoring the policy status to the company that issued the SR-22.

If you want to get an Occupational Driver’s License (ODL), you will need to get SR-22 insurance. DPS requires you to send in a Financial Responsibility Certificate after you get an ODL.

When an SR-22 is issued and filed with DPS, the company that issued the SR-22 monitors the status of the policy to which the SR-22 is attached. The SR-22 remains effective until the issuing company notifies DPS that the policy has terminated. Many insurance companies consider the SR-22 to be high-risk and will not be happy if you try to get them to issue the form, and this will usually flag the policy for non-renewal. Other companies may issue the SR-22 but move your policy into a high-risk category, significantly raising your rates–and don’t forget, all drivers and vehicles on a policy are forced into the high-risk pool.

Some insurance agents will try to sell you a non-owners policy written through the Texas Automobile Insurance Plan Association (TAIPA)–the “state pool.” This causes numerous problems. The process forces a company to provide the SR-22 to you, so many of these companies are actively looking for a reason to cancel your policy, something that is very easy to do. Since the assigned company is not required to provide insurance for a driver with a suspended license, they can simply cancel the policy and remove themselves from the risk. Additionally, it might take weeks before you actually receive the SR-22.

When you choose a company to provide you with an SR-22, find a company that will email you a copy of the SR-22 in addition to the SR-37. This will save annoyance and hassle. You can visit the Texas Department of Insurance for a complete list of insurance companies that provide SR-22s.

There are several other considerations in choosing a proper SR-22 insurance source. I’m always happy to discuss, so please give me a call at (888) 239-9305 or contact the Dallas office via email here.

Avoiding Interlock Violations

Ignition Interlock Devices (also known as Deep Lung Devices) are commonly ordered by judges to be installed in the cars of people accused of DWI while on bond or on community supervision for DWI offenses. Interlock devices may also be a condition of an occupational license.

The interlock device will require you to blow into it before your car is able to start. If the device detects the presence of alcohol on your breath, the device will prevent the car from being started. If this occurs while you are on bond or community supervision for DWI and the device detects alcohol, this is known as “blowing dirty,” and such a failed test almost always requires an appearance before the judge. At the court appearance the judge may revoke your bond or probation, likely putting you back in jail, or revoke your ODL.

However, breath testing devices are susceptible to false positives, especially when residual mouth alcohol is present. For instance, if you were to drink a teaspoon of liquor, your blood alcohol would not rise more than a trace, but it could increase the results of a breath alcohol test by 0.50% BAC for 15 minutes! A 0.50% BAC would be enough to kill someone, but obviously one teaspoon of liquor would have no noticeable effect. Residual mouth alcohol disappears entirely in 15 minutes. Alcohol in your blood disappears very gradually, at a steady rate of about 0.02 an hour.

As a result, it’s usually mandatory to blow 15 minutes after any dirty blow. If you took another breath test in 15 minutes, your residual mouth alcohol would be fully absorbed, and your measured alcohol level would drop back down to zero. If the device continues to detect the presence of alcohol, you will likely be in big trouble with the court.