DWI FAQs

In 2019, the Texas Legislature enacted House Bill 3582 which finally did make it to where people charged and arrested for a Texas DWI can receive deferred adjudication under certain circumstances. There are mandatory interlock provisions unless the judge makes a particular finding otherwise based on certain factors that may dictate otherwise. Additionally, even if one does receive deferred for a DWI charge, it can still be used for purposed of enhancement if arrested again later. Certain waiting periods will apply, and some offenses and factors may preclude one from taking advantage of this including if it is a DWI where there is a previous conviction, one where it alleged to have been a .15 BAC (or higher) offense, a state jail felony DWI with Child Passenger offense, if at the time the driver had a commercial driver’s license or commercial learner’s permit.

House Bill 3016 was passed in 2017 in the Texas Legislature will be allowed certain 1st-time offenders charged and convicted of DWI to seal their record with an Order of Non-Disclosure. The law does preclude even some first-time offenders, including those with a BAC that is higher than .15, and those where an accident or collision resulted. Additionally, individuals charged with boating while intoxicated (BWI) or flying while intoxicated (FWI) are also ineligible for relief under this law. To qualify, an individual convicted of a DWI must have the following to qualify under this area of the law: the following factors would preclude one from being able to file a Non-Disclosure under HB 3016 following a conviction for DWI:

• Not a finding of a BAC of a .15 or higher;
• It was a first-time DWI offense and not a subsequent DWI (does not apply to DWI-2nd, 3rd or more – only to 1st-time offenders);
• The DWI offense didn’t result in an accident with another person resulted in a motor vehicle accident involving another person (this includes a passenger of the defendant).
• Must have no previous criminal history has never been convicted of or placed on deferred adjudication community supervision (probation) for any another offense—this does not include a traffic offense (punishable by fine only);
• Successfully paid all associated court costs, fines, restitution, or fees;
• Successfully wait the statutory waiting period, which is determined based on the facts of the case;
• The presiding judge believes granting nondisclosure is in the best interest of justice;

In every other circumstance where you are being detained and investigated by police, you can ask for an attorney and if you ask for an attorney, they have to cease questioning. This is not true in a DWI case. You're not entitled to an attorney at that point. You're not entitled to an attorney until after they read you the DIC warnings at the jail. However, I do think it is a good idea to state that you do not feel comfortable performing the tests without the advice of an attorney, just for the record. Jurors generally never hold it against someone that they asked to talk to an attorney.

If you refuse to do the field sobriety tests, you're going to be arrested for DWI. However, it is likely that you will be arrested either way and this way you avoid further incriminating yourself.

When talking with a friend or family member of the defendant at or near the time of the traffic stop, it is important to advise them to always be nice and courteous to the police officer if they encounter the officer. Remind them not to interfere with the peace officer’s duties. Not to volunteer any information about drinking or where the client has been. Be observant of the people present at the time of the arrest. Be observant of the weather and road conditions.  

“A No Refusal Weekend” simply is a local policy that a certain police department may announce to the general public (on the news, on the radio, etc.) that they are employing a policy, during a certain time interval– usually on major holidays – whereby if someone is arrested during this time period for a charge of Driving While Intoxicated – if the person refuses to give a chemical specimen of their breath or blood – the officers must  instead have to proceed with obtaining a search warrant to be a signed by a magistrate Judge that will allow for the collection of a blood sample. It does NOT, HOWEVER, take away the ability for the citizen accused from exercising their right to refuse to give a voluntary sample. What “No Refusal” DOES NOT mean is that a person IS FORCED to give up any of their constitutional and/or statutory rights, including their right to refuse to voluntarily give a chemical specimen of breath or blood following an arrest for DWI. Usually, it just means a specific police department will have the proper protocol in place, usually in order to encourage and PRESSURE an individual into giving their consent. All it means, simply put, is they usually will have the required mechanism in place, so to speak, in order to expedite the process to make it a bit quicker. Usually it only means they may have a Judge on hand ready to sign a search warrant when presented (instead of having to find one that is available and not asleep), a phlebotomist (or another qualified technician) available to draw the blood after the search warrant is signed (rather than actually have to transport someone to a hospital to find a nurse to facilitate the blood draw procedure). IT DOES NOT, HOWEVER, OBVIATE WITH WHAT IS REQUIRED BY LAW. Even during a “No Refusal” period – an individual CAN AND SHOULD STILL decline to give a chemical specimen. Because of this prevailing myth and how far it has propagated over the years -  it has resulted in how most people now believe they MUST give a breath or blood sample when asked by a police officer after they are already under arrest – all because they have heard somewhere of the “No Refusal” policy. Very often is the case now the citizen accused simply agrees to voluntarily give a chemical specimen of breath or blood – simply because they THINK THEY ARE REQUIRED TO BY LAW. THIS IS NOT THE CASE. If you are arrested for DWI, regardless of, if it is a “No Refusal” period or not – YOU ALWAYS HAVE THE RIGHT TO DECLINE TO GIVE A VOLUNTARY CHEMICAL SPECIMEN. Do not be erroneously led to believe that just because whatever you have heard on the news about “No Refusals” – you do not have a decision in the matter, and therefore will be forced to give a sample REGARDLESS. Many individuals now, which was not the case years ago, agree to voluntarily give a sample of their breath, ONLY because they mistakenly understood the law about their right to REFUSE. SO - Be educated about the process! In fact, one CAN – AND SHOULD REFUSE TO GIVE A CHEMICAL SPECIMEN OF BREATH OR BLOOD if arrested for a DWI. The law states that one can choose to NOT give a voluntary chemical specimen of breath or blood. “NO refusal” weekend or not – the law and procedure that must take place is still the same. Recent Texas and the United States Supreme Court cases have mandated that - without proper exigent circumstances - a police officer MUST OBTAIN A SEARCH WARRANT if an individual DOES NOT voluntarily consent to give a chemical specimen. There is a myriad of reasons for why one should exercise their right – and “CHOOSE TO REFUSE.” One reason is the very real and distinct possibility that some error may occur in the legal process of obtaining a search warrant. Another possibility is that all of the requisite legal items that are necessary to properly obtain a search warrant may not be able to be achieved. If a search warrant is obtained, do not argue with an officer, be polite, and strictly maintain that you are not giving your consent voluntarily. If they do obtain a search warrant, the reality is that it will take significantly longer – and it may be as long as a couple, or even a few hours before they legally obtain everything required before the blood draw is to take place. During this time period, usually alcohol will eliminate from your system, and in all likelihood – your “BAC” – your “Blood-Alcohol Content” Level will be lower than at this point, compared to if you had to just your voluntary consent initially. If they do get a search warrant, an experienced DWI attorney can examine its contents to scrutinize if it meets proper legal standards. If all necessary and legal requirements are NOT MET, the search warrant can be attacked in court. Thus, if you find yourself in this position – please be informed of exactly what a “No Refusal Weekend” or a “No Refusal Policy” entails before voluntarily giving a chemical specimen. Do not do the job of the police officers for them. You have rights, and it is within your power to assert them. I am Carl David Ceder, I am Board Certified in Criminal Law by the Texas Legal Specialization – and I am passionate about trying to educate the general public about what YOUR RIGHTS ARE WHEN DEALING WITH THE POLICE. Therefore, always “CHOOSE TO REFUSE – even if it is “No Refusal” weekend.

You should absolutely not admit to taking ANY prescription medication while operating a motor vehicle, even if you have a valid prescription from a doctor Remember, there are three different avenues with which the state can try to prove DWI. If a person admits to taking some form of prescription medication and even has a BAC that is lower than .08, then the state usually will argue what is usually termed the synergistic effect. This means that even though you were not above a .08 at the time of the operation of the vehicle, the synergistic effect of the alcohol you did drink along with whatever medication is in a person’s system, the state loves to argue how the synergistic effect caused the person to lose the normal use of their mental and/or physical faculties due to the consumptions of the combination of the drugs and alcohol in the system. The law does not say that an intoxicating substance has to be illegal for a DWI. It can be a prescription drug or even caffeine. If you had two glasses of wine at dinner and you’re not intoxicated, but you admit to taking a Xanax that night, you are alerting them that they should send your blood for drug testing. Otherwise, they would likely only test for alcohol and you would be below the legal limit. The law in Texas allows for prosecution if you are intoxicated by the introduction of alcohol, drugs, dangerous drugs or a combination. Valium, Xanax, and Loritab are but a few of other commonly prescribed drugs which people may legally possess with a valid prescription from their physician yet still result in an arrest if they are driving while intoxicated. You could have taken medication the night before you got pulled over and the half-life might still be in your system, even though you're not seeing the effects of it. If you drink, drive, and get pulled over, even if you’re below a 0.08, they are going to claim that you are guilty of DWI due to the combination of the drug and alcohol. Remain silent so you don't give them admission on how you were operating the vehicle and where is it connecting in the context?

Driving under the influence of any drug, whether illegal or not, or any combination of drugs and/or alcohol is illegal in Texas if it causes one to be legally intoxicated under the law. The types of drugs, or dosage, does not matter, it only needs to be alleged that the consumption of the substances of the drugs and medications that were consumed caused impairment by the loss of their "normal" use of their mental and/or physical faculties. of drug or combination of medications you take, which can impair your driving ability and result in an arrest includes both illegal and legal prescription drugs and even over-the-counter medication. Any drug or prescription medication you consume can seriously affect the central nervous system, brain, reaction time, and perhaps even your judgment in driving. It does not matter whether the substance is legal or contraband, from marijuana to simply over the counter allergy, cold, or flu medication may result in a person in Texas being stopped by a police officer and possibly arrested for a charge of DWI. It is essential to always remember that even driving while being under the influence of medication, regardless of whether one has a valid prescription, can lead to a DWI arrest. Furthermore, if an individual operates a vehicle, even if they have only taken their recommended dosage of prescription medication, but perhaps where they at some point later consumed some alcohol, such as having wine at dinner, they could still likewise be charged with a DWI. In this scenario, the state would almost assuredly argue the effect of the combined substances, and the consumption of them together led to the loss of one's normal" physical and/or mental use of their faculties. Always remember that any driver in Texas can be charged with DWI, even if their blood alcohol concentration (BAC) level is below the legal limit of a .08 BAC amount. Charges of DWI often brings up images of people who have clearly have had way too much to drink, are clearly intoxicated, and then get behind the wheel to drive their car home. However, it is imperative to remember how alcohol is just one of the many substances that can cause intoxication. Texas, a charge of DWI can be made if an individual is impaired by narcotics or prescription drugs, and is just as serious of a charge in comparison to one where only alcohol is alleged.

I have personally conducted at least a dozen jury trials throughout the Dallas Fort Worth Metroplex where the alleged BAC (Blood- Alcohol Content) for my clients have been BELOW a .08. I’ve also tried many cases where the alcohol level was a 0.0 - just like with Tiger Woods. I personally conducted a jury trial where my client blew into the Intoxilyer 5000, in Dallas County, a 0.0 - and the DA not only would not reduce or dismiss the charges, but I had argued the case in front of a Jury Trial - which ultimately did result in an acquittal (a Not Guilty verdict). Many ask - how can this be? It is because of how the law of intoxication, as it pertains to DWI in Texas (and also most states) are written. Under Texas law, intoxication is defined as someone losing ANY of their normal use of their mental or physical faculties by reason of the introduction to 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. Basically, there are 3 ways the State can prove intoxication, and having a BAC (Blood-Alcohol Concentration) of a .08 is just one of the 3 prongs they can proceed with. The key component to the first two avenues (loss of normal use of mental and/or physical faculties) is the last prong “Introduction of… ANY OTHER SUBSTANCE INTO THE BODY.” This last prong is incredibly ambiguous and allows for very wide interpretation by a police officer when making the decision to make an arrest. I read about a California case recently where someone was arrested where the ingested substance was caffeine ONLY. Technically, because of how broadly written the definition of “intoxication” is - in that anyone that has lost the normal use of their mental or physical faculties due to the introduction of (again, especially via the last prong) - ANY OTHER SUBSTANCE INTO THE BODY. The law does not define what that substance has to be Many people erroneously think that a person can only be arrested for a DWI or a DUI if they have consumed AT LEAST SOME AMOUNT OF alcohol. Nothing can be further from the truth. Tiger Woods’ is a prime example. Often people get arrested for ingesting medicine they have been prescribed by an actual physician. One can be arrested for DWI if they have introduced virtually any substance into their body if its consumption has led to the loss of their normal use of their mental and/or physical faculties. A person does not have to have a BAC of a .08 or greater.

Whether or not you should admit to drinking is something many DWI attorneys have varying opinions on. If and there are signs of the consumption of alcohol, but not necessarily signs of intoxication, but yet you say you've had nothing to drink, the officer may think to believe automatically that everything you say after that is a complete lie. However, if you admit to having 10 drinks, you will certainly incriminate yourself. Even if you admit to drinking, you are not required to recount how many drinks you had. In my opinion, no one should ever admit to drinking more than two drinks. Anything beyond that makes your case more difficult in court. Police officers also commonly ask what I usually refer to as the DWI Trick Question. This is when they usually will ask the question, most often in a benign fashion, as if it had no consequence whatsoever, on a scale of 1-10 – with 1 being not intoxicated at all and 10 being very intoxicated, where do you think you would be on that range? Do not answer this question! If you do – the only answer you should give is zero (or possibly one, the lowest on the scale you were given would not be damaging in my opinion). Anything else, technically speaking, if you rate yourself higher than a 1 would be mean that you are legally intoxicated under Texas law. It is very common for people to answer somewhere in the middle, often they base it on how many drinks they may have had, or just don’t think about it too much and give some answer other than 1 because the reality is most people do not know the definition of intoxication in Texas, and moreover, they have no clue why a police officer would ask such a seemingly odd question. Most people answer with some number above one, and in this scenario, you are voluntarily making an admission that you are intoxicated under the Texas law, even if that is not what you meant to convey If the DWI Trick question is posed to you then, always answer zero (even if they ask on a scale of 1-10, if you say zero which is even lower, this further complicates the purpose of the question.