The statute for intoxication and alcoholic beverage offenses can be found in Chapter 49 of the Texas Penal Code. More specifically:
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 Subsections (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 immediate 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.
What is the Difference Between a DUI and a DWI in Texas?
In most states, driving under the influence (DUI) and driving while intoxicated (DWI) are interchangeable. In Texas, however, the main difference is that DUI applies to minors’ rights and alcohol-related offenses. DWI applies to adults who are 21 years old and over. The Texas Alcoholic Beverage Code § 106.04 provides:
(a) A minor commits an offense if he consumes an alcoholic beverage.
(b) It is an affirmative defense to prosecution under this section that the alcoholic beverage was consumed in the visible presence of the minor’s adult parent, guardian, or spouse.
What Typically Happens when Someone gets Pulled Over on Suspicion of DWI in Texas?
When someone gets pulled over on suspicion of DWI in Texas, police officers are expected to follow a certain DWI protocol. Police officers are generally trained in the NHTSA Manual protocol, which is the authoritative treatise or book on how to handle a DWI stop. Basically, officers are taught to follow the vehicle for a set period of time and observe it for clues. They observe to see whether the driver is drifting within their lane, weaving in their lane, crossing the medians, or failing to use their blinkers. Surprisingly, the NHTSA manual does not label speeding as a clue. Interesting enough, you can speed and not be be considered as driving while intoxicated during that driving phase.
The second part of getting pulled over is the approach of the defendant or accused. Officers observe the driver to see if they fumble with their license, whether there is any smell or odor of intoxicants, and whether their eyes are glassy or blood-shot. Once they gather those clues, they ask the driver to perform a standard field sobriety tests (SFST). Afterward, they rate the driver on how the number of clues they observed. After those three phases are over and they make their observations, they’ll determine whether they have enough evidence or probable cause to make an arrest for driving while intoxicated.
What are the Roadside Breath Test and Standardized Field Sobriety Tests? Is Someone Required to do Those in Texas?
A driver is not required to perform a roadside test or standardized field sobriety test. There is no requirement that a person has to do these. There is a lot of propaganda out there. We’ve all heard the term of “no refusal week” or “no refusal weekend” in your respective jurisdiction or county. However, that’s not the law. That’s a policy given by a municipality or county telling the public that if they refuse to provide a specimen, the arresting officer or officer that’s making the observations will ask the court, judge, or magistrate “on call” for an arrest warrant. There’s no extra penalty for it. At the end of the day, you’re always entitled to exercise your Fourth Amendment right of the Constitution, which is the right not to be searched or seized without a warrant or probable cause.
If you’re consulting a criminal defense attorney, you’ll want to give them as much ammunition as possible to defend your case. Whether you blow over a .08% BAC or fail your exam, your license will get revoked. If you choose to say no, your license will still get revoked. The difference is 90 days versus 180 days. As a result, the best thing you can do is say no. If the officer has probable cause to make the arrest, then your attorney can find more ways to defend you. Therefore, the answer is No.
What is the Difference Between a Roadside Test and a Field Sobriety Test at the Station?
In Texas, a roadside breath test is known as a preliminary breath test (PBT). PBTs are not admissible tests because Texas courts find them unreliable. However, the tests help with the totality of a person’s circumstance analysis, and ultimately help solidify the officer’s probable cause to make an arrest.
Texas subscribes to two machines for breath testing. One is called the Intoxilyzer 5000 and other is the Intoxilyzer 9000. These particular machines are considered admissible for DWI exams. As mentioned, you can always refuse, but based on their observations a police officer can apply for a warrant and require the individual to submit to a blood draw.
Can I Refuse to Give Police a Breath or Blood Test in Texas?
A person can always refuse to perform a breath or blood test in Test and assert their fourth Amendment right. The Fourth Amendment prohibits unreasonable search and seizures without a probable cause and warrant. As a DWI attorney, my advice is to say no to any of these exams, even if there is any sort of city or municipal “no refusal” policy at the time.