If you were pulled over for speeding and then ultimately ended up arrested on suspicion of driving while intoxicated, you may be reeling right now. An arrest for DWI can be scary and overwhelming. You aren't alone. Thousands of people face an arrest for DWI in Texas each year, and Houston has one of the highest drunk driving accident rates in the country. The good news is that this isn't something you need to handle on your own. It's best that you hire an experienced and board certified Texas DWI lawyer as soon as possible for the best chance to avoid a conviction, hefty fines, a suspended license, and possible jail time.
The DWI Arrest
When you're facing a DWI arrest after a stop for speeding, your interaction with the police will typically follow a predictable pattern involving the initial stop, a discussion with the officer, a request to perform field sobriety tests, a request to take a breath, or blood BAC test, and then an arrest.
If the police see you driving down the road, they can't just pull you over because they don't like the color of your car or the bumper sticker on the back. Rather, they must have reasonable suspicion that you've committed a crime. The police have “reasonable suspicion” when an objective person would believe that someone is engaged in illegal behavior, given the relevant facts and circumstances of that particular situation.
A police officer can't have a hunch or a suspicion. Rather, they must give specific facts, considered in the context of the situation, that justify a reasonable belief that a crime occurred or was occurring. In other words, for reasonable suspicion, the police must be able to give specific reasons why they believed you committed a crime. Speeding, however, can give the police reasonable suspicion to make a stop. So can other traffic violations like running a stop sign, driving under the speed limit, swerving out of a lane, failing to signal, or reckless driving.
Observations of a Police Officer
Once a police officer pulls you over, they will observe your appearance, demeanor, speech patterns, and motor coordination to determine if you may be intoxicated. In Texas, the legal definition of “intoxicated” means that you either:
- Have a blood alcohol concentration (BAC) of .08% or higher, or
- You no longer have the normal use of your physical or mental faculties because of alcohol, drugs, or a combination of the two.
After speaking with you, if the police officer suspects that you may be intoxicated, they will ask you to perform some field sobriety tests.
Field Sobriety Tests
Police officers use field sobriety tests to try to determine if you're intoxicated. They will often ask you to perform one if you smell like alcohol, you admit to drinking, you have bloodshot eyes, slurred speech, or some other reason that you may be impaired. These tests may include:
- Horizontal Gaze Nystagmus,
- Walk and Turn, and
- One Leg Stand.
If you've failed a field sobriety test, you may think that the DWI case against you is insurmountable, but this isn't the case. These tests are notoriously subjective, and sober people fail field sobriety tests too. You can fail a field sobriety test because:
- You're nervous,
- The officer gave you poor instructions,
- You have balance or coordination issues,
- You have a medical condition like arthritis, a speech impediment, poor hearing, bad knees, or other mobility or communication impairment,
- You're tired,
- You've had caffeine,
- The road surface is uneven, gravel, or cracked,
- You're wearing inappropriate footwear,
- You're older or heavier,
- There's heavy traffic on the road, or
- The weather is bad.
Remember, completely sober people fail these tests all the time. However, if you fail a field sobriety test, the police officer may ask you to take a BAC test.
After the field sobriety testing, the police will ask you if you'll agree to take a BAC test. If you refuse, they will likely obtain a warrant for a blood test and obtain one from you. If the police offer you a choice between a blood test and a breath test, it's typically a good idea to take the breath test if you have been drinking. A breath BAC test is easier to attack in court. Breath tests can be unreliable because:
- The equipment must be properly maintained and calibrated,
- Police officers may not be well-trained on how to use the equipment,
- The food you eat can affect the results,
- Your age, weight, and gender can affect the results,
- A medical condition affected the results, and
- Prescription or over-the-counter drug use changed the results.
As a result, if you haven't been drinking and haven't taken any controlled substance, you may want to insist on a blood test, which can be more accurate. If you have a blood BAC test with a result of .08% or higher, your attorney can still attack the reliability of the results for many reasons, including if:
- The technician drew blood from an artery rather than a vein, which is more likely to show a higher BAC,
- The tech didn't properly use an anticoagulant in the blood sample,
- The tech used an alcohol swab before drawing blood,
- The technicians didn't have the proper training to draw blood,
- The evaluating technician didn't have the proper training to evaluate the blood sample or run the equipment,
- The tech didn't properly recalibrate plasma test results to whole blood values,
- The techs did not properly store the blood samples,
- The police didn't maintain a proper chain of custody for the blood samples,
- Police didn't obtain extra samples for retesting, and
- The techs didn't properly clean or calibrate the testing equipment.
Don't assume that a BAC result over .08% means that a court will convict you of a DWI. An experienced DWI lawyer will know how to best approach the case with a positive BAC result.
Probable Cause and the Arrest for DWI
If your BAC is over .08%, the police have probable cause to believe you were driving while intoxicated; they will likely place you under arrest. The police need probable cause for an arrest, but also to search you or your car, administer a BAC breath or blood test, and support a warrant for a BAC blood test.
Probable cause means that the police have a reasonable belief that you were intoxicated, considering the facts and circumstances. The police can't simply have a hunch, and they can't simply have the “reasonable suspicion” they need for a traffic stop. The circumstances and facts must support these suspicions.
How to Avoid a DWI Arrest
If you're driving in Texas, it's a good idea to know how to avoid a DWI arrest in the first place. You can follow a few tips to reduce the risk that the police will pull you over. Of course, the first tip is to avoid drinking and then driving in the first place. Even if you've only had one drink with dinner, consider having someone else drive or call a cab to get you home.
Follow the Rules of the Road
You can also avoid a DWI if you follow all applicable traffic laws. Pay close attention to your speed, the lanes, traffic signals, and stop signs, particularly if you're driving at night, leaving a sporting event, or leaving a well-known area for evening entertainment like downtown Houston, Montrose, or Rice Village.
Don't Drive While You're Tired
Often our motor coordination, speech, and driving ability change with exhaustion and drowsiness in the same way they do with intoxication. If you've had a long day at work or on an outing with your family, you follow that up with dinner and then drive home late at night; a police officer could easily pull you over thinking that your car wandered out of your lane because you're drunk. When they pull you over, your speech can be slightly slow or slurred because of exhaustion and not because of drinking. However, because the Texas DWI law defines intoxication as either a BAC over .08% or not having the normal use of your faculties, you could easily find yourself wrongfully arrested. So, if you're overly tired, have someone else drive or arrange to take an Uber home. If you must drive, have a passenger keep you alert or drive with the window down.
What to Do After a DWI Arrest
If you do face a DWI arrest after speeding, there are a couple of things you should deal with as soon as possible, including requesting an Administrative License Revocation (ALR) hearing and hiring an expert in DWI defense.
Request an ALR Hearing
In Texas, your license revocation happens in an administrative proceeding separate from your DWI prosecution and trial. After your arrest, the police will confiscate your license and give you a pink sheet. This sheet of paper will serve as your temporary license for 40 days. After that time, the state automatically revokes your license, at least until the resolution of your DWI case. However, if you request an ALR hearing within 15 days after your arrest, you can continue driving until your ALR hearing.
If you request an ALR hearing, you can contest the suspension of your license in a formal hearing. At the hearing, the prosecutor will need to show by a preponderance of the evidence that:
- The police had reasonable suspicion for the initial traffic stop,
- The police had probable cause for your arrest, and
- Your BAC was over .08%.
If the prosecutor can't demonstrate these three elements, the court will likely reinstate your license.
While an ALR hearing is less formal than a trial, it's also a good chance for you and your attorney to preview the evidence the state intends to use against you at your DWI trial. Your attorney will also be able to lock the arresting officer's testimony in place. Finally, if you win this hearing, the state is much more likely to drop your DWI case entirely or agree to a favorable plea.
Hire an Experienced Texas DWI Attorney
After a DWI arrest, one of the most important actions you can take is to hire a lawyer who is an expert in Texas DWI defense. It's also important to note that not all attorneys will agree to represent clients in an ALR hearing. You want to hire an attorney with a breadth of experience in litigation and DWI defense who will represent you in both your ALR hearing and your DWI case. You also need a lawyer with a deep understanding of the technical aspects of BAC testing as well as the educational savvy to handle the complex constitutional and legal issues involved in DWI cases.
Attorney Doug Murphy is a dedicated leader in the Houston legal community and is passionate about DWI defense. Doug is one of only two attorneys in Texas Board Certified in both Criminal Defense Law and DWI Defense, meaning his peers regard him as an expert in his fields. Doug is also a past President for the Harris County Criminal Lawyers Association and leads as the Dean of the National College for DUI Defense, which conducts it's annual summer session at Harvard Law School. He also served on the board of director with the Texas Criminal Defense Lawyers Association and the Harris County Criminal Lawyers Association.
Doug has more than twenty years of criminal defense and DWI trial experience, serving as an impassioned advocate for his Texas clients.
Doug also works tirelessly for clients outside of the courtroom. The Harris County Criminal Lawyers Association awarded him the Sharon Levine Unsung Heroes Award after he helped expose flaws in the Houston Police Department's Blood Alcohol Testing vans. This exposure led to the police department decommissioning the vans.
If you're facing a DWI arrest after speeding, you need an expert in DWI defense for both your ALR administrative hearing and your DWI case. The Houston Press calls Doug the “Drinking Driver's Best Friend.” He can help you too. Call the Doug Murphy Law Firm, P.C. at 713-229-8333 or contact Doug Murphy online to schedule your case evaluation and consultation.