I was arrested for DWI, but can they prove it?

I was arrested for DWI, but can they prove it?

What does the State of Texas have to prove if they want to convict you of DWI? The law is pretty simple but how they can prove it is more complex, as a DWI lawyer Arlington TX trusts can explain. The State of Texas has to prove that a person was “operating” a motor vehicle in a public place “while intoxicated”. See Texas Penal Code 49.04. The two biggest issues that arise are were you “operating” a motor vehicle and were you “intoxicated” while operating the motor vehicle.

First, most people assume that “operating” and “driving” are the same thing. They’re not. “Operating” can be as simple as turning the car on but not driving the car. Did you take action that would affection the operation of the vehicle? If the answer is “yes”, then you may be guilty of DWI. Could a police officer arrest you for sitting in your parked car with the engine on, the car in park, listening to the radio while you are intoxicated? Yes. Does this happen? All the time! You have to be careful in these situations because most people don’t know how broad “operating” can be.

Second, were you intoxicated? “Intoxicated” means having a blood alcohol concentration of .08 or more, right? Not exactly. This is only one of two ways you can be “intoxicated” under the law. If your blood or breath alcohol concentration is .08 or more, then you are legally intoxicated, even if you don’t look intoxicated. But what if you are below the .08 limit? They have to dismiss the case, right? Again, not exactly. The second way of proving “intoxication” is if you’ve lost the normal use of your mental or physical faculties due to the introduction of alcohol or drugs into your system. Imagine someone who never drinks but after only one glass of wine gets on the bar and starts dancing. It can be pretty obvious that this person is not “normal” and may be intoxicated. Even though that person’s blood alcohol concentration is not .08 or more, they can still be legally intoxicated under the law.

Finally, were you intoxicated “while” operating a motor vehicle? After you are pulled over and arrested for DWI, the police officer will take you to jail where he or she will ask you to consent to a blood or breath test. If you refuse to consent, then the officer can apply for a search warrant to get your blood. There are consequences to refusing the breath or blood test, and whether or not you should consent is up to you. If the police do get a sample of your breath or blood, then they will know what your alcohol concentration is at the time the sample was taken. If they don’t take your breath/blood until two hours after pulling you over, how do they know what your blood alcohol concentration was when you were actually driving? There is a way to give an estimated guess through what is called retrograde analysis, but a lot of the time there is not enough information available to the police and prosecutor to accurately calculate this number.

What is the punishment for DWI? On your first conviction, punishment is up to 6 months in jail and up to a $2,000 fine. While probation is almost always available, probation could be for up to 2 years and you can’t terminate probation early. On your second conviction, the punishment is doubled: up to one year in jail and up to a $4,000 fine. If you are convicted of a third DWI, then you are guilty of a felony. The range of punishment for a felony DWI is 2 to 10 years in prison and up to a $10,000 fine. Every subsequent DWI increases the range of punishment even more if you were sent to prison and didn’t get probation.

DWI’s can be very costly and very time consuming. Knowing how the police and prosecutor think and how they can prove their case helps you in making informed decisions on whether or not to “operate” a vehicle and what to do if you’ve been accused of DWI.   



Thanks to our friends and contributors from Brandy Austin Law Firm PLLC for their insight into DWIs.

Greenberg Law Offices