The Law Offices of Michael Pool, PLLC 
701 N. Riverside
Fort Worth, Texas 76111
(817)466-9662


Effective affordable representation you can trust.

Honest representation for those accused of a criminal offense.




DWI

    Knowledge of the procedures for a DWI stop, what the officer is looking for, and what you as the driver/defendant are required to do may prevent you from being arrested or allow the possibility that your case may be declined, dismissed, or reduced, or you may be found not guilty at trial.  It is important to understand that every case is different, and the results on one case may not be the same as another.  The information contained below is intended to give a better understanding of the DWI process and procedures, however this will be explained in greater detail with an emphasis on your case at your FREE initial consultation.

    A law enforcement officer must have reasonable suspicion to believe that an offense was committed or is being committed to pull the car over.  When a defendant is pulled over, the officer must have probable cause to believe the driver is intoxicated before an arrest can be made for driving while intoxicated.  The officer is trained and experienced in looking for signs of intoxication.  Signs of intoxication may include: driving behavior, smell of alcohol on driver's breath, smell of alcohol coming from inside car, slurred speech, bloodshot watery eyes, and slow to respond to questions.  
    Once an officer observes signs of intoxication, the driver will be asked to step out of the car to allow the officer to investigate a possible DWI offense.  The officer will continue to look for additional signs of intoxication, such as, swayed balance, unstable walk, inability to stand, and the smell of alcohol.  The officer will request that the driver submit to standardized field sobriety tests.  The officer may request that the driver submit to other field sobriety tests or a portable breath test (PBT).  
    Based on the officer's observations during the initial detention (the driver's behavior, the driver's performance on the various field sobriety tests, the PBT, etc.), the officer may form the opinion that the driver is intoxicated, and the driver is placed under arrest for further investigation of driving while intoxicated.  The driver is transported to the police station for more tests and the vehicle is towed to the impound lot.  At the station, more field sobriety tests are requested, a statutory warning is read to the driver, the driver is requested to submit to a breath test (rarely, a blood test is requested), Miranda warnings are given, and the driver is asked a series of questions about the events that led to the driving and arrest.  After these questions, a breath test is given, if not refused.  The driver is then taken to a holding cell to await a magistrate, who will set a bond.

    If you are stopped by an officer after you have been drinking, be courteous, cooperate with the officer, and stay calm.  Everything you say or do will be recorded by the officer using his in-car camera.  You have the right to refuse to submit to any and all field sobriety tests.  You have the right to refuse to submit to any blood or breath tests.  The officer can obtain a search warrant for your blood, however most officers will not go through the trouble to get one.  Any tests you submit to will provide evidence to help the state's attorneys prosecute you for driving while intoxicated.  The state will attempt to persuade the jury that the law states you have given implied consent to submit to any field sobriety tests and breath or blood tests.  However, you have the right to refuse them, and this will also be explained to the jury.  

    Law enforcement officers are trained to administer many field sobriety tests, however only three of these tests are admissible in court.  These standardized field sobriety tests (SFSTs) are the horizontal gaze nystagmus (HGN), the walk and turn (WAT), and the one-leg stand (OLS).  Officers may also ask you to recite the alphabet, count backward, touch your nose, or other tests.  In addition, the officer may also administer the vertical gaze nystagmus test or a portable breath test.  These tests are not standardized and the results are not admissible in court.  Again, since your performance on these tests will potentially provide the state with evidence to prosecute your case, you should refuse all tests.  

    The state must prove ALL 7 elements to convict you for driving while intoxicated: (1) you (your identity), (2) on or about a certain date, (3) in _____ County, Texas, (4) operated, (5) a motor vehicle, (6) in a public place, (7) WHILE INTOXICATED.  In order to prove intoxication, the state will attempt to show: (1) loss of normal use of your mental faculties, (2) loss of normal use of your physical faculties, OR (3) that you submitted a breath or blood sample with a BAC of 0.08 or higher.  The state only has to prove ONE of these to show you were intoxicated.  The purpose of field sobriety tests is to show you have lost the normal use of your mental and/or physical faculties.  Therefore, it is important to refuse to submit to these tests, as well as breath or blood tests.

IT IS VERY IMPORTANT TO UNDERSTAND YOU ONLY HAVE 15 DAYS FROM THE DATE OF YOUR ARREST TO REQUEST AN ADMINISTRATIVE LICENSE REVOCATION HEARING.  This procedure is explained in very small print at the bottom of a form you should have received after you were released.  This form is the DIC-25, or NOTICE OF SUSPENSION/TEMPORARY DRIVING PERMIT.  You may request this hearing yourself by calling the number provided, however you should discuss this hearing with an attorney to understand the procedure for requesting a hearing, requesting and receiving discovery for the hearing, and actually representing your side at the hearing.  This is a civil hearing at which the Department of Public Safety will attempt to prove their case, resulting in your drivers license being suspended for a period of time, depending on the facts of your case.  See below for details concerning drivers license suspensions.  It is important to fight your suspension at this hearing to avoid additional penalties and fees.  Call my office immediately to ensure this hearing is timely requested to avoid automatic drivers license suspension.

IT IS ALSO IMPORTANT TO REMEMBER EVERYTHING YOU DO DURING THE INVESTIGATION IS BEING RECORDED.  The officer begins recording before he gets out of his car.  Everything you say will be recorded and used against you as evidence in a trial.  The administration and results of all field sobriety tests are recorded to be used against you in a trial.  The officer is attempting to prove loss of mental or physical faculties, such as slurred speech, swayed balance, unsteady walk, inability to comprehend questions or answer questions appropriately, and failed performance on field sobriety tests.



TEXAS PENAL CODE CHAPTER 49. Intoxication and Alcoholic Beverage Offenses
(NOTE: THIS IS NOT A COMPLETE RECITATION OF CHAPTER 49)

Sec. 49.01. Definitions
    (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 substances into the body; or
        (B) having an alcohol concentration of 0.08 or more.

Sec. 49.02.  PUBLIC INTOXICATION.
        (a)  A person commits an offense if the person appears in a public place while intoxicated to the degree that the person may endanger the person or another.
        (a-1)  For the purposes of this section, a premises licensed or permitted under the Alcoholic Beverage Code is a public place.
        (b)  It is a defense to prosecution under this section that the alcohol or other substance was administered for therapeutic purposes and as a part of the person's professional medical treatment by a licensed physician.
        (c)  Except as provided by Subsection (e), an offense under this section is a Class C misdemeanor.
        (d)  An offense under this section is not a lesser included offense under Section 49.04.
        (e)  An offense under this section committed by a person younger than 21 years of age is punishable in the same manner as if the minor committed an offense to which Section 106.071, Alcoholic Beverage Code, applies.

Sec. 49.04. Driving While Intoxicated
    (a) A person commits an offense if the person is intoxicated while operating a motor vehicle in a public place.
    (b) Except as provided by Subsection (c) and (d) and Section 49.09, an offense under this section is a Class B Misdemeanor, with a minimum term of confinement of 72 hours.
    (c) If it is shown on the trial of an offense under this section that at the time of the offense the person operating the motor vehicle had an open container of alcohol in the person's immedicate possession, the offense is a Class B Misdemeanor, with a minimum term of confinement of six days.
    (d)  If it is shown on the trial of an offense under this section that an analysis of a specimen of the person's blood, breath, or urine showed an alcohol concentration level of 0.15 or more at the time the analysis was performed, the offense is a Class A misdemeanor.

Sec. 49.045. Driving While Intoxicated With a Child Passenger

    (a) A person commits an offense if:
        (1) the person is intoxicated while operating a motor vehicle in a public place; and
        (2) the vehicle being operated by the person is occupied by a passenger who is younger than 15 years of age.
    (b) An offense under this section is a state jail felony.

Sec. 49.07. Intoxication Assault
    (a) A person commmits an offense if the person, by accident or mistake:
        (1) while operating an aircraft, watercraft, or amusement ride while intoxicated, or while operating a motor vehicle in a public place while intoxicated, by reason of that intoxication causes serious bodily injury to another; ...
    (b) In this section, "serious bodily injury" means injury that causes a substantial risk of death or that causes serious permanent disfigurement or protracted loss or impairment of the function of any bodily member or organ.
    (c) An offense under this section is a felony of the third degree.

Sec. 49.08. Intoxication Manslaughter
    (a) A person commits an offense if the person:
        (1) operates a motor vehicle in a public place, operates an aircraft, a watercraft, or an amusement ride, or assembles a mobile amusement ride; and
        (2) is intoxicated and by reason of that intoxication causes the death of another by accident or mistake.
    (b) An offense under this section is a felony of the second degree.

Sec. 49.09. Enhanced Offenses and Penalties
    (a) Except as provided by Subsection (b), an offense under Section 49.04 ... is a Class A Misdemeanor with a minimum term of confinement of 30 days, if it is shown on the trial of the offense that the person has previously been convicted one time of an offense relating to the operating of a motor vehicle while intoxicated ...
    (b) An offense under Section 49.04 ... is a felony of the third degree if it is shown on the trial of the offense that the person has previously been convicted:
        (1) one time of an offense under Section 49.08 or an offense under the laws of another state if the offense contains elements that are substantially similar to the elements of an offense under Section 49.08; or
        (2) two times of any other offense relating to the operating of a motor vehicle while intoxicated, operating an aircraft while intoxicated, operating a watercraft while intoxicated, or operating or assembling an amusement ride while intoxicated.
    (b-1)  An offense under Section 49.07 is a felony of the second degree if it is shown on the trial of the offense that the person caused serious bodily injury to a peace officer, a firefighter, or emergency medical services personnel while in the actual discharge of an official duty. 
    (b-2)  An offense under Section 49.08 is a felony of the first degree if it is shown on the trial of the offense that the person caused the death of a person described by Subsection (b-1).
    (b-3)  For the purposes of Subsection (b-1):
        (1)  "Emergency medical services personnel" has the meaning assigned by Section 773.003, Health and Safety Code.
        (2)  "Firefighter" means:   
            (A)  an individual employed by this state or by a political or legal subdivision of this state who is subject to certification by the Texas Commission on Fire Protection; or
            (B)  a member of an organized volunteer fire-fighting unit that:
                (i)  renders fire-fighting services without remuneration; and
                (ii)  conducts a minimum of two drills each month, each at least two hours long.
    (b-4)  An offense under Section 49.07 is a felony of the second degree if it is shown on the trial of the offense that the person caused serious bodily injury to another in the nature of a traumatic brain injury that results in a persistent vegetative state.
    (h) [If you are convicted of a second or subsequent offense relating to the operating of a motor vehicle while intoxicated commited within five years of the date on which the most recent preceding offense was committed, the Court shall enter an order that requires the defendant to install an Interlock device on each motor vehicle owned or operated by the defendant.]

Sec. 49.10. No Defense
    (a) In a prosecution under Section ... 49.04, ... or 49.08, the fact that the defendant is or has been entitled to use the alcohol, controlled substance, drug, dangerous drug, or other substance is not a defense.



DRIVER'S LICENSE SUSPENSIONS FOR DWI OFFENSES:

(1) For Administrative License Revocation (ALR) Hearings conducted by the State Offense of Administrative Hearings:
    (a) For Adults:
        (i) If you provide a breath or blood sample and the result shows a BAC of 0.08 or higher, your license will be suspended for:
            (A) 90 days if you have not had an alcohol-related or drug-related enforcement contact within 10 years of the date of your arrest; or
            (B) one year if you have had an alcohol-related or drug-related enforcement contact within 10 years of the date of your arrest;
        (ii) If you refuse to provide a sample of breath or blood, your license will be suspended for:
            (A) 180 days; or
            (B) 2 years if you have had an alcohol-related or drug-related enforcement contact within 10 years of the date of your arrest.
    (b) For Minors (under 21 years of age):
        (i) For first offense:
            (A) If you provide a breath or blood sample and the result shows any detectable amount of alcohol, your license will be suspended for 60 days;
            (B) If you provide a breath or blood sample and the result shows a BAC of 0.08 or higher, your license will be suspended for 60 days;
            (C) if you refuse to provide a sample of bteath or blood, your license will be suspended for 180 days.
        (ii) For second or subsequent offenses:
            (A) If you provide a breath or blood sample and the result shows any detectable amount of alcohol, your license will be suspended for 120 days if only one previous conviction or 180 days if two or more previous convictions;
            (B) If you provide a breath or blood sample and the result shows a BAC of 0.08 or higher, your license will be suspended for 120 days if only one previous conviction or 180 days if two or more previous convictions;
            (C) if you refuse to provide a sample of bteath or blood, your license will be suspended for 2 years, if you have one or more alcohol-related or drug-related enforcement contacts during the 10 years before your arrest.

(2) Upon a conviction for DWI:
    (a) First DWI conviction:
        (1) If you receive probation AND attend the required DWI Education Course, your license will not be suspended as a result of a conviction;
        (2) If you do not receive probation and attend the required DWI Education Course, your license will be suspended for 90 days to one year;
        (3) If you are under 21 years of age and do not receive probation, your license will be suspended for one year;
        (4) If you are under 21 years of age and receive probation AND attend the required DWI Education Course AND install Interlock, your license will be suspended for 90 days;
        (5) If you are under 21 years of age and receive probation AND do not install Interlock, your license will be suspended for one year.
    (b) Second or subsequent DWI conviction:
        (1) If the second or subsequent DWI offense was committed within 5 years of the previous DWI offense, your license will be suspended for one to two years;
        (2) If the second or subsequent DWI offense was not committed within 5 years of the previous DWI offense, your license will be suspended for 180 days to two years.
        (3) Installation of Interlock will be required.