DUI/DWI in Txas: What Every Driver Needs to Know

by Jacque Crouse

It’s a criminal charge that cuts across all social classes and income levels, and it receives a lot of publicity and attention in the media. But despite all the hype given to DWI cases, most people really aren’t sure where to turn if someone in their family is arrested and charged.

As with most criminal charges, the first step is to find an attorney who is well acquainted with the criminal laws in Texas and who perhaps specializes in DWI/DUI cases. The laws governing DWI and DUI are not the same in every state, and Texas is different from many others, according to Houston attorney Doug Murphy, who is one of only four board-certified DWI/DUI attorneys in Texas.

“In Texas, there are limited instances of DUI,” he explains.  “The legal age to drink alcohol is 21, and if a driver under 21 is stopped, any alcohol use at all is considered DUI.”

A driver under 21 may be stopped and charged with DUI (Driving Under the Influence) even though they do not meet the legal standard for DWI (Driving While Intoxicated).  Murphy said if an officer smells alcohol on the young person’s breath, it is enough to charge DUI.  Only those under 21 are charged with DUI in Texas, because it is not illegal to have had a drink and drive, only to be intoxicated, if a person is of legal drinking age.

George Trimber, a criminal defense attorney in Fort Worth, has seen a seasonal shift from portable breathalyzer tests to blood tests.

“During the holidays that are perceived to be times when high volumes of DWI arrests occur, in this area of the state, law enforcement officers seem to be moving toward going for the court order and getting blood tests rather than to rely on the breathalyzer,” he says. “I think that is probably a trend across the state.”

The legal level of blood alcohol for a DWI in Texas is .08, which changed from .10 about 10 years ago.

“In order to continue to receive certain federal funds, the limit had to be .08, and most states complied and changed the legal limit to .08 if it was higher,” Murphy says. But, police may arrest someone for DWI based on one of three things:  Loss of mental faculties, loss of physical faculties, or the .08 standard.

“The catch is, the officer has to arrest you before they can ask for the breath or blood test,” he says.

The person is administered a field sobriety test that Murphy says is actually quite difficult to pass.   Then, he is arrested and the breath or blood test is requested by officers. Even though the test may show the person does not have .08 blood alcohol levels, that person still will spend the night in jail, Murphy says, and bond out the next day.

“People assume that because someone has an arrest, they had a DWI,” he says.   “That just isn’t true.”

He also notes that he has seen law enforcement officers try to move forward on cases in which a person’s blood alcohol was as low as .05.

“They will say that even though it was lower than .08, they still believe the person had lost normal use of mental or physical faculties,” he says

In Texas, about a third of all DWI/DUI arrests are made by Department of Public Safety officers, according to Tela Mange, a public affairs officer with the organization.

Statistics from the U.S. Department of Transportation show that in Texas in 2008, there were 3,382 traffic fatalities, and that 1,463 (43 percent) of those involved alcohol. About 38 percent, or 1,269, involved blood alcohol levels of at least .08.

“It is a big priority for us,” Mange says.

The breath test is controversial as to its reliability and accuracy, but is often used by DPS, Trimber says.

“DPS especially uses the portable breathalyzers that are not accurate,” he says.  “If you refuse to test (breath or blood), then they will confiscate your license and then you have to address that issue.”

If a person has a blood alcohol level of .151 or higher, there is a mandatory requirement that they have a breath alcohol interlock ignition system installed on their vehicle, usually for the term of their probation, Trimber says.

“And there is no early release from probation in a DWI conviction, felony or misdemeanor,” he says.

Murphy notes that DWI task forces often receive federal funding, and continuation of that funding depends on the number of arrests those task forces make.

“If the numbers don’t exceed the year before, they don’t get the amount of funding they may have expected,” he says.  “And all it takes to be arrested is for an officer to believe you are intoxicated.  Pretty much after they smell alcohol it is a foregone conclusion, but that doesn’t mean a person is guilty of DWI.”