DWI | DUI | Intoxication Offenses Resource Center
If you are charged with driving while intoxicated (DWI) – sometimes called DUI or drunk driving – it is very important to understand all you can about the offense, the process, and your rights. We have provided this free resource center to clients and non-clients alike so that you can better understand your DWI charge, your options, and the possible consequences. We understand that being accused of any crime can be frustrating and frightening. A drunk driving charge can lead to severe penalties such as jail or even prison time, substantial fines, and a permanent criminal record. Furthermore, it can change your life forever by affecting your reputation, your family, and your financial prospects forever. Too many people don’t realize how serious these negative consequences can be until it’s too late. If you are facing a DWI offense, it is vitally important to protect yourself and your family. Dallas DUI Lawyer Mike Howard represents people charged with intoxication offenses throughout Dallas. Our goal is not only to get the best possible outcome, but also to ensure that you understand your rights, the legal process, and your options.
See Our DWI Offenses page for general information about DWI and intoxication offenses, common defenses, et cetera.
DWI Terms & Definitions
Alcohol Concentration – as defined by Texas Penal Code § 49.01, this is the number of grams of alcohol per 210 liters of breath, 100 millileters of blood, or 67 milliliters of urine. Put simply, this is the measurable amount of alcohol in your blood which is used as one of the thresholds for intoxication under Texas law.
ALR Suspension – as defined by Texas Administrative Code § 159.3, this is the administrative suspension of the driver’s license that results if an administrative judge finds by a preponderance of the evidence after a hearing that (a) the driver was intoxicated, and (b) that reasonable suspicion to stop or probable cause to arrest the driver existed.
Driving Under the Influence (DUI) – as defined by Texas Alcohol and Beverage Code § 106.041, a DUI is when a minor (for purposes of a DUI, a person under 21 years of age) operates a motor vehicle (or watercraft) in a public place while having any detectable amount of alcohol in the minor’s system. A DUI charge is generally a Class C misdemeanor (no jail time, up to a $500 fine).
Driving While Intoxicated (DWI) – as defined by Texas Penal Code § 49.04, a DWI is when an adult (for purposes of a DWI, a person 21 years or older) is intoxicated while operating a motor vehicle in a public place.
Intoxication or Intoxicated – as defined by Texas Penal Code § 49.01(2), for the purposes of a DUI or DWI intoxicated means 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 having an alcohol concentration of 0.08 or more.
Intoxilyzer or Breathalyzer – the machine that collects a sample of the accused person’s breath to analyze, using a process called infrared spectrometry, how much alcohol is contained in the breath. This is then converted by the machine into grams of alcohol per 210 liters of breath, as required by Texas Penal Code § 49.01(1)(a). This is then referred to as the blood alcohol concentration (or BAC). A BAC of 0.08 or higher is automatically “intoxicated” for the purposes of a DWI offense.
Motor Vehicle – as defined by Texas Penal Code § 49.01 and 32..34, 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.
Open Container – as defined by Texas Penal Code § 49.031, open container means a bottle, can, or other receptacle that contains any amount of alcoholic beverage and that is open, that has been opened, that has a broken seal, or the contents of which are partially removed.
Operate – as defined by Texas Transportation Code § 724.001, operate (a motor vehicle) means to drive or be in actual control of a motor vehicle or watercraft. Driving a car is clearly “operating” it, but what about idling at a stop, or parked with the engine on, or parked with the engine off and keys in the ignition, et cetera? Courts have further interpreted operating in the context of DWI cases to be very fact specific and case-by-case. In general courts look at the “totality of the circumstances” to see if the accused took some action that use enable the vehicle’s use.
Public Place – as defined by Texas Penal Code § 1.07, public place means any place to which the public or a substantial group of the public has access and includes, but is not limited to, streets, highways, and the common areas of schools, hospitals, apartment houses, office buildings, transport facilities, and shops.
Standardized Field Sobriety Tests – commonly abbreviated as SFSTs, these are the tests officers give to suspected drunk drivers in the field (usually on the side of the road unless that is not a safe environment). They are “standardized” meaning the tests, procedures, grading, and results are the same all across the country. The National Highway Traffic Safety Association controls the training and certification curriculum for police officers to be certified to give SFSTs. The SFSTs replaced the patchwork of tests administered by officers before standardization (tip you head back and touch your nose, et cetera). The SFSTs consist of three tests: (1) the horizontal gaze nystagmus test, which measure the involuntary twitching of the eye that can be caused by alcohol (or many other causes); (2) the walk and turn test, where the suspect walks heel-to-toe on an imaginary or real line for nine steps, makes a very specific type of turn, and then walks nine heel-to-toe steps back; and (3) the one-leg stand test, where the suspect balances on one leg for approximately 30 seconds.
When a person is pulled over for suspected drunk driving, they usually don’t even realize the first DWI test the officer conducts: the initial conversation. Police officers are trained to engage the driver in conversation for long enough to determine several factors: do they smell the odor of alcohol, is that odor coming from the driver’s breath or person, and is the driver’s speech slurred, slowed, or otherwise not normal. The officer is also trained to look at the driver’s eyes to determine if they appear “glassy” or if the pupils are dilated.
Another test many people don’t even realize they are performing is getting out of the vehicle. Officers are trained to observe the driver as they exit the vehicle to judge their balance. Losing your balance or using the vehicle for support when you exit the vehicle can both be used against you by the officer.
The standardized field sobriety tests (or SFSTs) are what most people think of when they think of DWI testing. SFSTs are defined above, but include the horizontal gaze nystagmus test, the walk-and-turn test, and the one-leg stand test. Sometimes an officer may supplement the SFSTs with additional tests like the alphabet (usually starting with the letter D and ending with the letter T) or counting backwards (usually from 38 and 22).
Sometimes at the scene (before or after arrest) the officer may ask the driver for a breath sample from a portable breath device (PBT). PBT results are not admissible in Texas courts, so they cannot be used as evidence in a trial, but officers often use them to help them decide whether to make make an arrest.
After arrest the driver is usually taken to the police station where they are asked to provide a breath sample using a machine called the Intoxilyzer 5000 (sometimes called a breathalyzer). These machines are supposed to be calibrated, regularly tested, and operated by only qualified individuals. Unlike the portable breath test machines, breath test results from the Intoxilyzer 5000 are admissible in court (however a skilled attorney can challenge the results based on lack of or improper calibration, infrequent or improper testing, or use by unqualified individuals). You have the right to refuse to provide a breath sample. Refusal affects the time period of the initial (ALR) driver’s license suspension. If you refuse a breath test the officer can get a warrant to take your blood for a blood alcohol test.
Sometimes in addition to and sometimes instead of a breath sample, officers can request a blood sample using a process called gas chromatography to test the driver’s blood sample against a known control sample. Like with the Intoxilyzer 5000, the blood test equipment must be correctly calibrated, tested, and operated only by qualified individuals. Blood samples are also sometimes taken in the hospital, such as after a car accident. Blood tests can be taken by consent, or if you refuse (or are unable) to consent, by warrant.
Driver’s License Suspensions
ALR Suspension – There are two separate driver’s license suspensions that are associated with a DWI. The first possible suspension is the Administrative License Revocation (ALR). If you are arrested for suspicion of DWI and refuse to provide to provide a breath or blood sample, or if you provide a breath or blood sample and the result is 0.08 or higher, your license will be automatically suspended. The suspension period differs based on whether you refuse or consent to the breath/blood test. Under Texas Transportation Code § 724.035, if you refuse to provide a breath or blood sample and have had no alcohol or drug-related law enforcement contact during the preceding 10 years, the suspension is for 180 days (1 year if you have had alcohol or drug-related law enforcement contact during the preceding 10 years). Under Texas Transportation Code § 524.022, if an adult voluntarily provides a sample and the test result is 0.08 or higher, the suspension is for 90 days if it’s their first time, or 1 year if they’ve had one or more alcohol or drug-related contact with law enforcement in the preceding 10 years.
Suspension Upon Conviction – a second driver’s license suspension is tied to a DWI conviction as follows:
If you are convicted of DWI, DWI with Child, or Intoxication Assault, your driver’s license will be suspended for:
90 days – 1 year for a first-time DWI
180 days – 2 years for a second DWI offense (DWI with a previous conviction for DWI) or a 3rd or more DWI offense
1 year – 2 years for a DWI 2nd or 3rd or more if second or subsequent offense was committed within 5 years
DWI Charges & penalties
DWI 1st (DWI First Offense) is a Class B misdemeanor which can result in between 72 hours – 180 days in jail and up to a $2,000 fine
DWI 1st with Open Container is a Class B misdemeanor which can result in between 6 – 180 days in jail and up to a $2,000 fine
DWI with 0.15+ BAC is a Class A misdemeanor which can result in up to 1 year in the county jail and up a $4,000 fine
DWI 2nd (DWI Second Offense) is generally a Class A misdemeanor which can result in between 30 days – 1 year in the county jail and up a $4,000 fine
DWI 3rd or More is generally a third-degree felony which can result in between 2 and 10 years in prison and up to a $10,000 fine
DWI with Child Passenger (DWI Child Under 15) is generally a state jail felony which can result in between 180 days and 2 years in prison and up to a $10,000 fine
Intoxication Assault is generally a third-degree felony which can result in between 2 and 10 years in prison and up to a $10,000 fine
Intoxication Manslaughter is generally a second-degree felony which can result in between 2 and 20 years in prison and up to a $10,000 fine
DWI Probation Mandatory Confinement
If you are sentenced to community supervision (probation) for a DWI-related offense, under Texas Code of Criminal Procedure Art. 42A.401, you may be subject to mandatory days in jail as a condition of probation:
at least 72 hours for a DWI 2nd offense
at least 5 days for a DWI 2nd offense committed within 5 years of the previous DWI offense
at least 10 days for DWI 3rd (3 or more DWI offenses) or one DWI offense committed after a previous intoxication manslaughter offense.
at least 30 days for intoxication assault
at least 120 days for intoxication manslaughter
About Mike Howard
Federal and State Court Criminal Defense Attorney in Dallas
I strive to help my clients through difficult times with compassion and integrity. I pride myself on standing up for people facing criminal accusations and helping them navigate all that comes with being thrown into the criminal justice system: the power of the police and prosecution bearing down on them, the fear of the unknown, and the high stakes of possibly losing their liberty. I understand that innocent people get accused, charged, and convicted when they don’t have someone standing with and fighting for them. I focus on my clients as individuals by taking the time to understand not just the facts of their case, but who they are and what they need. Knowing that the legal process of a criminal case can be intimidating, I explain the process, my client’s legal rights, and their options. Client communication is extremely important to me, so I make sure my staff an I do everything possible to quickly answer questions and return messages. And perhaps more important than anything else, I am willing to fight a case in the courtroom and have a track record of delivering fantastic results at trial. Not every client and case needs to go to trial, but when your lawyer has a reputation as a skillful trial lawyer who fights for their clients, it makes all the difference in the world.
I began my career fighting for people who couldn’t afford a lawyer in the civil arena at Legal Aid of NorthWest Texas and then in the criminal justice system at the Dallas County Public Defender’s Office. I loved being a public defender, but I soon realized that I could not represent my clients the way I felt they deserved while handling such a crushing caseload, so I left the Public Defender’s Office to create my own law firm where I could do things my way. I have created a client-centered law firm where my staff and I focus on each client as an individual to ensure we always serve the best interests of our clients.”
Awards and Accolades
Named “Best in Dallas” for Criminal Defense by D Magazine, 2016 – 2020
Named a “Super Lawyer” by Texas Monthly/Super Lawyers Magazine.
A perfect 10.0 rating on AVVO and a 4.9 Star Rating on Google.
What Makes Us Different
Many lawyers take advantage of their clients never having hired a lawyer before and not knowing what to expect from the criminal justice process. We take the opposite approach: a knowledgeable client is a happy client, so we provide a wealth of information in the way of articles about criminal offenses, blog posts, and videos for free on our website.
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The information contained on this website is for informational purposes and should not be construed as legal advice, a substitute for legal advice, or as creating an attorney/client relationship between the reader and the Law Office of Mike Howard. Consult an attorney about your specific situation and the facts involved for comprehensive legal advice.