Attorney Paul Key
Over 20 Years of Experience

DWI/DUI

First, let's clear something up: In Texas the offense for operating a motor vehicle while intoxicated is called "Driving While Intoxicated" or "DWI." Other states call the same offense "DUI." In Texas DUI is the offense for someone under the age of 21 who operates a vehicle with any detectable amount of alcohol, regardless of whether he's intoxicated.

People are arrested for DWI in Texas more than for any other offense. Whether you're man or woman, black or white, or rich or poor, if you drink and you have an automobile, then you run the risk of being arrested for DWI, especially these days and especially in North Texas.

First offense DWI in Texas is a modified class-b misdemeanor. If you are convicted, you can be punished with anywhere from 72 hours in jail up to 180 days in jail and up to $2000.00 fine. Any part of the sentence may be suspended, where you would, instead of serving the sentence, be placed on community supervision and ordered to take certain classes, attend counseling, perform community service, perhaps have an ignition interlock device placed on your car, and report at the whim of a probation officer. There are other consequences to a DWI arrest or conviction. One of these consequences is a license suspension. You have two opportunities to have your license suspended when arrested for DWI in Texas. You can have it suspended administratively for up to 90 days (see ALR, below), whether or not you are ever convicted of DWI, and you may have it suspended again for 90 days to a year if you are convicted of DWI.

My minimum fee for a DWI in Collin County, Texas is $2000.00. Often it will be considerably higher. Remember, though, that whatever fee I quote you for a DWI will include my fees for the ALR and occupational license and will include a trial, whether by judge or by jury.

The officer said I failed the tests. How can I defend it?
The problem with DWI is that it is often based merely on the subjective opinion of the arresting officer. He may have based that opinion on his "training and experience," but often it's based more on his bias and haste. For all the training these guys crow about, I can't tell you how many times I've reviewed arrests where the officer simply didn't know or didn't follow the fundamental requirements of field sobriety testing. Using field sobriety tests to determine intoxication is pretty suspect, even if administered correctly. They become really suspect when the officer is not administering the test in the prescribed manner. The theory behind the tests is that if the officer administers the tests in the prescribed manner, and if he uses the prescribed clues to evaluate the performance, then supposedly the tests are useful to determine intoxication where it is not otherwise readily apparent. An officer will tell you, "Yeah, see, you might look at someone and think he's just fine, but I, with my training and experience, can have them perform these tests, and I can see signs if intoxication that you can't." The idea is that these tests have been verified by having multiple subjects take the tests and then confirming the officers' calls with alcohol testing. The problem is that the tests are premised on their being correctly administered, which is very frequently not the case. The tests are essentially like a complicated version of Simon Says or Mother May I, where the subject receives a bunch of complicated instructions and then tries to perform the physical aspects of the tests while remembering the mental aspects. For example, for the walk-and-turn test, one of the things the officer looks for is whether the subject begins the test before being told (i.e., Simon didn't say), the theory being that a non-intoxicated person wouldn't do such a thing. During the instructions, though, the officer is supposed to tell the subject on three separate occasions to not start until told to do so. He's also supposed to confirm that particular instruction with the subject: "Don't start until I tell you to begin. Do you understand?" Very frequently, however, that aspect of the test is mentioned only once and not specifically confirmed. If that subject then starts before being told to do so, that officer will say that starting too soon was a clue that the subject was intoxicated, which is simply not true. The tests were validated based upon the assumption that the officer would repeat that particular instruction three times and confirm that instruction specifically with the test taker. No one's ever done a study to see if someone can receive that instruction one time, along with a barrage of other instructions, and not mess it up. It is a normal reaction to start to do something that you're being told to do. Otherwise, we wouldn't have games like Simon Says or Mother May I.

I've got to be able to drive to go to work or school. What can I do?
If your license is suspended for a first-time DWI, I can get you what's commonly referred to as an" occupational license," which will allow you to drive during certain times and in certain places even though your license is suspended.

Administrative License Revocation (ALR)
Throughout, I will refer to this process as "the ALR" or "the administrative case." They're the same thing.

Upon being arrested for DWI in Texas, two processes start: One is the penal process, which I described above. The other is an administrative process. The administrative process deals solely with the issue of whether your license will be suspended for having refused a breath or blood test or whether you submitted to such a test and the result was .08 or greater.

Fighting the administrative case is key to fighting the criminal case in that they both deal with the same set of facts. When a client hires me to defend a DWI charge in Texas, my fee will also include the defense of the administrative case.

In order to be able to defend the administrative case, however, you must request a hearing within 15 days from the date that you were served with the notice of suspension (20 days if served by mail). You would typically be served with the notice of suspension at the same time you were arrested, assuming you refused to take the test or you submitted to a breath test. If you submitted to a blood test, however, you should not be served with a notice of suspension until the results from that test are known, which is typically at least a month or more after you were arrested. Many officers, despite their "training and experience," don't seem to understand this and will often serve you with a notice of suspension at the time of arrest, even though you did not refuse and the results are unknown.

The administrative case is prosecuted by attorneys who work directly for the Department of Public Safety. You are only entitled to a hearing in front of an administrative judge. These judges are employed by the State Office of Administrative Hearings, and, while a distinct minority of them are truly independent judges, the vast majority of them that I have encountered are former DPS ALR prosecutors and are mere "rubber stamps" for DPS.

Generally speaking, your odds at actually winning the ALR hearing are not good. Anyone who tells you differently is not shooting straight with you. Now, your particular case may be good because of your circumstances, but, in most cases, it will be difficult to win the ALR. This is so for several reasons. First, as I mentioned, the judge is often a rubber stamp for DPS. It's not too hard to prove something to someone who is predisposed to believe it. Second, the burden of proof for the ALR case is much lower than the burden of proof in the criminal case. The main reason, though, is that the issues to be proven don't require much proof at all. DPS only has to prove: 1. That the officer had a valid reason to stop you, which in most cases is not at issue. For example, and traffic violation such as speeding is valid reason to stop someone. 2. That probable cause existed to arrest you for DWI. This is a very low standard It's nothing like having to prove beyond a reasonable doubt that you were, in fact, intoxicated. 3. That he offered you a breath or blood test. 4. That you refused to take such a test or that you took it and the result was .08 or greater. This last one is important because, unlike in the criminal case, no one really even has to believe that you were .08 or greater, but rather that the machine said you were.

If you don't fight the administrative case or if you lose, then your license will be suspended for 90 days if you tested over .08 or 180 days if you refused to take the test. If you have any prior intoxication offenses, then the suspensions may be up to two years, depending on the circumstances.

If beating the ALR case is so hard, then why fight it at all?
Well, you can't win if you don't try, and we do win some of them. When we do, it's great for the client. The main reason to fight the ALR, though, is that it is good preparation for the criminal case, which, ultimately is much more important. It is good preparation because, while the issues to be proven are different, both cases rely on the same set of facts. The discovery process in the administrative case is much more favorable to the defense than it is in the criminal case, meaning that we are entitled to much more information.

I thought my license would be suspended in 40 days no matter what.
If you do not request a hearing with 15 days of your date of arrest (typically), then the suspension will start 40 days after the date of arrest.

It's too late to fight my administrative case. What can I do?
If you're still within 40 days of your date of arrest for DWI, then your license is still not suspended and you may lawfully drive. In order to be able to continue to lawfully drive, I can generally get you an occupation license.

The office that arrested me for DWI said I refused to submit to a test, but I didn't.
You see this a lot. Whether or not you refused is a question of fact. Some people are merely unable to provide a sufficient breath specimen for the machine to be able to measure it. I've never seen a circumstance like that one where the officer gave that person the benefit of the doubt.