You've been out for a fun night with friends. You had dinner, a couple of drinks, and then maybe another after-dinner drink. You head home, happy, tired, and relaxed, only to see those flashing blue and red lights in your rear-view mirror. You panic, wondering if you've had too much to drink, start to pull over, and then you panic again and pull back onto the road, trying to drive away. We all know that fleeing the police is a bad idea. That doesn't mean that you can't panic at the moment and make the wrong choice.
At this point, it's important to remember that you are innocent until proven guilty, and you do have legal options. While it can be tempting just to plead guilty to any charges and slink away in shame, a DWI and other crimes on your record can have life-long consequences. Fortunately, a skilled Texas DWI lawyer with extensive experience in criminal defense law can help your case reach the best possible conclusion under the circumstances.
What Typically Happens During a DWI Stop
Contrary to popular belief, Texas law enforcement officers can't just pull you over for a traffic or DWI stop if they feel like it. They also can't pull you over because they don't like your make and model of car or the way you look. The police must have a “reasonable suspicion” that you committed a crime. It's a good idea to understand what happens during a routine traffic stop to see that a good defense attorney can attack a DWI arrest from several angles. Your arrest will often rely in part on the subjective judgments of your arresting officer. But people make mistakes. Field sobriety tests, and even blood alcohol concentration tests, are not infallible.
- The Traffic Stop
Traffic violations like swerving between lanes, failing to signal, failure to stop at a traffic light or stop sign, and speeding are all traffic violations that qualify as “reasonable suspicion” for the police to pull you over. Once the police stop you, they'll observe your behavior, coordination, and demeanor to determine if they suspect you may be driving while intoxicated. The police will be watching for:
- Slurred speech,
- Bloodshot eyes or dilated pupils,
- Aggressive speech or behavior,
- A lack of physical coordination,
- Drugs or open containers of alcohol visible in the car, and
- A smell of alcohol or drugs coming from you or your car.
If the police believe you may be intoxicated, they will ask you to submit to some field sobriety tests.
- Field Sobriety Tests
The field sobriety tests the police conduct during a traffic stop can be both standardized or non-standard. But courts won't typically admit non-standard tests as evidence at trial. Non-standard tests include things like asking you to do math in your head, counting backward, or saying the alphabet backward. Standard field sobriety tests include:
- Horizontal Gaze Nystagmus (HGN)
- The Walk and Turn
- The One-leg Stand
- BAC Testing
After the field sobriety tests, if the police believe that you are intoxicated, they will ask you to take a blood or breath BAC test. Regardless of the results, it's important to remember that BAC tests aren't always accurate. These tests can be subject to human and equipment errors, including:
- Improper training of police or techs performing blood or breath tests,
- Someone breaks the chain of custody,
- Someone improperly stores the blood samples,
- The tech improperly collects a blood sample or fails to follow protocols,
- The BAC breath test equipment wasn't properly cleaned or calibrated, or
- The tests use up the entire blood sample, preventing retesting of the blood.
An experienced DWI defense attorney can evaluate your case, determine whether the state's BAC evidence is weak, and decide your best possible defense.
- The Arrest
If the police have “probable cause” to believe you are intoxicated, they will arrest you for DWI. If you refuse BAC testing, the police may arrest you anyway or, they may seek a warrant for a blood test. “Probable cause,” according to the U.S. Supreme Court, means that the police have a reasonable belief that you committed a crime, considering all the facts and circumstances. Probable cause:
[E]xists where the facts and circumstances within the officers' knowledge, and of which they have reasonably trustworthy information, are sufficient in themselves to warrant a belief by a man of reasonable caution that a crime is being committed.
Brinegar v. U.S., 338 U.S. 160 (1949). Without proper probable cause, your attorney can attack the arrest or BAC warrant as an unconstitutional search and seizure.
- Penalties for a DWI Conviction
A first DWI conviction in Texas without aggravating circumstances is typically a Class B misdemeanor, carrying a penalty of up to 180 days in jail and up to a $2,000 fine. On top of that, you'll also face a mandatory administrative fine of $3,000 for a first DWI conviction in 36 months and a license suspension.
In Texas, a second DWI conviction is generally a Class A misdemeanor, carrying up to one year in jail and up to $4,000 in court-imposed fines. You can also face a license suspension and an administrative fine of $3,000 for a first DWI conviction in 36 months and a $4,500 fine for a subsequent DWI conviction in 36 months. If your BAC is over .15%, the fine is $6,000 for a first or subsequent offense. These administrative fines are not subject to the court's discretion.
What Can Happen if You Flee or Refuse to Stop
While a DWI traffic stop is never fun, the outcome isn't inevitable. Even if your BAC is over the legal limit, that doesn't mean you'll face a DWI conviction. However, if you fail to stop for the police or try to flee after your stop, the police will arrest you. You can also face a whole host of additional charges with serious penalties, including:
Fleeing and Eluding a Police Officer
Under Texas law, willfully failing to stop or attempting to elude a pursuing police officer is a crime:
(a) A person commits an offense if the person operates a motor vehicle and wilfully [sic] fails or refuses to bring the vehicle to a stop or flees, or attempts to elude, a pursuing police vehicle when given a visual or audible signal to bring the vehicle to a stop.
(b) A signal under this section that is given by a police officer pursuing a vehicle may be by hand, voice, emergency light, or siren. The officer giving the signal must be in uniform and prominently display the officer's badge of office. The officer's vehicle must bear the insignia of a law enforcement agency, regardless of whether the vehicle displays an emergency light.
Tex. Tn. Code § 545.521 (2009). Fleeing and eluding a police officer is typically a Class B misdemeanor in Texas. However, if you recklessly place someone else in “imminent danger of serious bodily injury” or if you are intoxicated, the crime becomes a Class A misdemeanor:
(c) Except as provided by Subsection (d), an offense under this section is a Class B misdemeanor.
(d) An offense under this section is a Class A misdemeanor if the person, during the commission of the offense, recklessly engages in conduct that places another in imminent danger of serious bodily injury.
(e) A person is presumed to have recklessly engaged in conduct placing another in imminent danger of serious bodily injury under Subsection (d) if the person while intoxicated knowingly operated a motor vehicle during the commission of the offense. In this subsection, “intoxicated” has the meaning assigned by Section 49.01, Penal Code.
Id. at § 545.521 (c-e). You will face charges for fleeing and eluding a police officer on top of DWI charges.
Penalties for Fleeing and Eluding a Police Officer
For a Class B misdemeanor conviction in Texas, you can face up to 180 days in jail and up to a $2,000 fine. For a Class A misdemeanor conviction, you can face up to one year in jail and up to a $4,0000 fine. These penalties are on top of those you can face for a DWI conviction.
If you flee from the police, you could also face charges for evading arrest. Under Texas law, police can charge you with evading arrest if:
A person commits an offense if he intentionally flees from a person he knows is a peace officer or federal special investigator attempting lawfully to arrest or detain him.
Tex. Penal Code § 38.04 (2011).
Penalties for Evading Arrest
The penalties for evading arrest can be serious. While the offense is typically a Class A misdemeanor, it becomes a state jail felony if:
- You have a previous conviction, or
- You were using a vehicle or watercraft while fleeing, and this is your first conviction.
A Class A misdemeanor can result in up to one year in jail and up to a $4,000 fine, while a state jail felony can result in up to two years in jail and up to a $10,000 fine.
Evading arrest becomes a third-degree felony if:
- You use a vehicle or watercraft to flee, and you have a previous conviction, or
- Someone else is injured as a direct result of your flight.
A third-degree felony can result in at least two years in prison, up to ten years in prison, and a $10,000 fine. Evading arrest is a second-degree felony if someone dies as a direct result of your flight while evading arrest. A second-degree felony can result in prison for at least two years and up to twenty years and a $10,000 fine. If convicted, these penalties will be on top of any possible penalties for a DWI.
Possible Defenses to Fleeing or Evading Arrest
As hopeless as it may seem, you do have possible defenses to a charge of feeling and eluding a police officer, including:
- You didn't hear or see the officer's signal to stop.
- The pursuing car wasn't marked, and you reasonably believed it wasn't an official police vehicle.
- The police officer wasn't wearing a uniform or prominently displaying a badge, and you reasonably believed they weren't a real law enforcement officer.
- Based on the time and location of the stop, you feared for your personal safety if you stopped at that location.
- You eventually stopped voluntarily and complied with officer instructions and requests after stopping.
An experienced DWI and criminal defense attorney can evaluate your case and determine your best possible defenses to the charges.
You Need an Expert in DWI and Criminal Defense Law
If you're facing a DWI or other charge related to fleeing during the stop or arrest, you have legal options. Don't let anyone strongarm you into a conviction by convincing you you'll face harsher penalties if you don't plead guilty. You need a Texas DWI defense attorney who is an expert in Texas criminal law and DWI defense.
Attorney Doug Murphy is an expert in Texas DWI Defense and Criminal Defense Law. He is one of only two Texas attorneys who is Board Certified in both specialties, making him a recognized expert in these fields. Doug gained Board Certification after many hours of trial practice, a rigorous written and practice examination process, and the recommendations of his fellow lawyers and judges in the community.
Doug also has decades of experience in litigation, defending Texans charged with DWI and other crimes. Best Lawyers in America also recently named Doug a “Lawyer of the Year” for 2021 for DWI defense. Thompson Reuters named him a Texas Super Lawyer in Texas Monthly in 2009 and every year from 2013-2020. Thomson Reuters has named Doug to Texas Rising Stars and Texas Super Lawyers more than a dozen times.
Doug is recognized by his peers and the wider Houston community as one of the best in his field. He can help you too. Call the Doug Murphy Law Firm today at 713-229-8333 and set up a consultation. Let Doug help you navigate this challenging time.