If you were pulled over for a traffic stop for weaving or swerving in traffic, leading to an arrest for a DWI, you might have many questions about what happens next and how you can avoid this in the future. Getting arrested for DWI can be frightening. But you aren't alone in this. Thousands of Texans face DWI arrests every year. Houston has one of the highest rates of DWI-related crashes in the state and the U.S., so enforcement is a priority for the police here. Unfortunately, sometimes people who aren't intoxicated get caught up in these sweeps.
The legal portion of a DWI isn't something you should try to handle on your own. You need to hire a Texas lawyer experienced in DWI as quickly as possible. A skilled and board certified DWI lawyer is your best opportunity to avoid a conviction, possible jail time, a license suspension, and hefty fines.
What Happens During a DWI Traffic Stop?
A traffic stop for a suspected DWI in Texas will typically follow the same pattern each time. First, the police will stop you for a traffic violation. They'll observe your behavior, coordination, and speech. They may ask you to take a field sobriety test, and then they may ask you to take a blood or breath BAC test before arresting you. It's important to remember that much of the analysis leading up to a DWI arrest is largely subjective. Just because the police arrest you for DWI doesn't mean that a court will convict you. A lawyer with expertise in DWI cases can help.
Reasonable Suspicion for a Traffic Stop
A police officer can't just pull you over for no reason. If they see a red car, a Honda, or a “baby on board” sticker, they can't decide to pull you over because they hate babies or the color red. A police officer making a traffic stop must have reasonable suspicion that you've committed a crime. “Reasonable suspicion” occurs when an objective person would believe that someone is engaging in illegal behavior, given the circumstances and the relevant facts of that particular situation.
Reasonable suspicion also can't just be suspicion or a hunch alone. A police officer must articulate specific facts that justify a reasonable belief that you're engaged in a crime or engaged in a crime. In other words, the police officer stopping you must be able to give specific reasons why they believed you committed a traffic violation or other crime. Weaving in traffic or between lanes can give the police reasonable suspicion to make a stop. Other traffic violations can also lead to reasonable suspicion for a stop, including driving over the speed limit, failing to signal, running a stop sign, driving too slowly, or driving recklessly.
Engagement with the Police Officer During a Traffic Stop
Texas law defines “intoxicated” as either:
- You have a blood alcohol concentration (BAC) of .08% or higher, or
- You don't have the normal use of your mental or physical faculties because of the consumption of alcohol, drugs, or both combined.
During the traffic stop, the police officer will observe you during your interactions. They will watch and listen for poor coordination, bloodshot eyes, visible alcohol or drugs in the car, demeanor, slurred speech, and more to decide if you may be intoxicated. If they smell alcohol or drugs on you or in your car, the officer will also observe that. Based on all of this, if the police officer believes they have probable cause to believe you may be intoxicated, they may ask you to complete some field sobriety tests.
Field Sobriety Tests
Law enforcement officers conduct field sobriety tests to try to figure out if you're intoxicated. A police officer may ask you to perform a few field sobriety tests during your traffic stop if you admit to drinking, smell like alcohol, have bloodshot eyes, slur your words, or exhibit some other behavior that may indicate you're intoxicated. Field sobriety tests often include the:
- One Leg Stand,
- Horizontal Gaze Nystagmus Test, and
- Walk and Turn Test.
After a DWI arrest, many people think that failing a field sobriety test means they will face a DWI conviction. But this isn't true. Field sobriety tests are completely objective, relying on the observations and judgment of the police officer conducting them. Sober people can fail field sobriety tests too. Some common reasons for failing a test while sober include:
- Poor or contradictory instructions from the police officer,
- Fatigue or exhaustion,
- Medical conditions such as hearing loss, a speech impediment or communication impairment, arthritis or another mobility issue, bad knees, a bad hip, or a bad back,
- Balance or coordination issues not related to intoxication,
- Your footwear,
- The condition of the road or shoulder where the officer conducts the test,
- Traffic on the road near where the officer conducts the test,
- Bad weather,
- An uneven, cracked, or gravel road surface, and
- Your weight or size.
If you fail a field sobriety test, the police officer may ask you to take a blood or breath BAC test. However, it's important to remember that sober people also fail field sobriety tests. Failing does not equal a DWI conviction.
Blood Alcohol Concentration Testing
If you fail a field sobriety test, or even if you pass, the police officer may ask you to take a breath or blood BAC test. While you can refuse, the police will likely obtain a warrant for a blood test. No BAC test is ever completely reliable; however, it is typically easier for your attorney to attack the results of a breath BAC test in court. So, if you can choose between a breath test or a blood test, it's usually best to take the breath test. Breath BAC tests can be inaccurate because:
- The breath test equipment wasn't properly maintained or calibrated,
- The police officer conducting the test didn't have proper training on how to use the equipment or used it improperly,
- Food or medication you ingest, including over-the-counter medications, can change the results,
- Medical conditions like diabetes and reflux can affect breath test results, and
- Your size, gender, age, and medical conditions can change the results.
If you haven't had anything to drink, you may want to ask for a blood test to ensure the most accurate result and avoid the possibility of a false positive BAC result with a breath test.
If the police conduct a blood BAC test and your results indicate a BAC of .08% or higher, your attorney can still challenge the results. Blood BAC results may be inaccurate or unreliable if:
- The police didn't maintain the proper chain of custody with your blood samples,
- The tech drawing your blood wasn't properly trained or failed to follow proper procedures,
- They failed to draw enough blood to retest the samples and destroyed all of the original samples in testing,
- They drew blood from an artery rather than a vein. Arteries are more likely to show a higher or unreliable BAC,
- They failed to properly add an anticoagulant to the sample to keep it from clotting,
- The tech drawing your blood used an alcohol swab, which can affect the results,
- The individual evaluating your sample wasn't properly trained on the equipment or failed to follow proper procedures,
- The technician failed to recalibrate plasma test results to whole blood values,
- They failed to store your blood samples properly, or
- They failed to properly maintain, recalibrate, or clean the equipment used to evaluate your blood.
Remember, a BAC result over .08% does not mean you'll automatically face a DWI conviction. A skilled DWI lawyer can evaluate your case and determine the best course of action, including how to challenge your BAC results in court.
The DWI Arrest and Probable Cause
If the police believe that they have probable cause to believe you are intoxicated, whether with or without BAC testing, they will likely arrest you for suspicion of DWI. The police need probable cause to search you or your car, administer a BAC test, obtain a warrant for a BAC test, or arrest you for suspicion of DWI.
“Probable cause” for an arrest can't simply be a hunch or a feeling. The police officer must reasonably believe that you are intoxicated based on the facts and circumstances of the situation at hand. The probable cause standard is higher than the “reasonable belief” standard needed for a traffic stop. However, if your BAC is over .08%, the police likely have probable cause to believe you were driving while intoxicated.
Urgent Steps to Take After a DWI Arrest
After an arrest for DWI after weaving, there are some urgent steps you should take. You should request an Administrative License Revocation (ALR) hearing, and you should hire a lawyer who is an expert in DWI defense.
Requesting an ALR Hearing After a DWI
Under Texas law, the suspension of your license after a DWI happens administratively and separately from your criminal prosecution. You can challenge the suspension of your license in an Administrative License Revocation hearing if you request a hearing within 15 days of your DWI arrest.
After your DWI arrest, the police will take your Texas driver's license and give you a pink sheet of paper that will serve as a temporary license. This temporary license is good for only 40 days and will allow you to continue to drive during that time. However, after 40 days, Texas automatically suspends your license until you resolve your DWI charge. If you request an ALR hearing to challenge the suspension of your license, you can continue to drive with your pink, temporary license until your ALR hearing.
What Happens During an ALR Hearing?
During the ALR hearing, the prosecutor must support the suspension of your license by showing three elements:
- The police officer had “reasonable suspicion” to support your initial traffic stop.
- The police officer had “probable cause” to arrest you.
- Your BAC was over .08%.
The court will likely reinstate your license if the state can't meet these three elements.
An ALR hearing is somewhat less formal than a trial, but it is still a formal court proceeding requiring that all parties conform to the rules of the court and the rules of evidence. That's why an ALR hearing can be difficult to navigate without an attorney successfully. Unfortunately, not all DWI lawyers will represent you during an ALR hearing. Some will only handle DWI criminal cases. So, when interviewing attorneys, be sure to ensure that the lawyer you select will also handle your ALR hearing.
An ALR hearing can also give you and your lawyer a sneak peek at the evidence the prosecutor may use against you at trial, including the arresting officer's testimony. Moreover, a win at an ALR hearing means it's likely the state may drop its DWI case against you.
Hire an Experienced Texas DWI Attorney
If you're arrested for DWI in Texas, you need an attorney who is an expert in Texas DWI defense. You should hire a lawyer with:
- Extensive litigation experience,
- ALR hearing experience,
- Advanced technical knowledge about BAC testing,
- Experience handling complex DWI cases, and
- Advanced education on the complex constitutional issues that arise in DWI cases.
Attorney Doug Murphy has been protecting the rights of Texans charged with DWI for more than two decades. He is also an expert in DWI defense and is one of only two Texas attorneys who is Board Certified in both Criminal Defense Law and DWI Defense.
Doug also works to educate people about DWI defense outside of the courtroom. He received the Sharon Levine Unsung Heroes Award from the Harris County Criminal Lawyers Association after he helped expose problems with the Houston Police Department's Blood Alcohol Testing vans. Doug's work with others on this important issue led to the police department decommissioning the vans. He's also active in the legal community, serving with the Texas Criminal Defense Lawyers Association and the Harris County Criminal Lawyers Association board.
If you've been arrested for DWI after a traffic stop for weaving in traffic, you need the help and guidance of an expert in DWI defense. Find out why the Houston media calls Doug the “Drinking Driver's Best Friend.” Call the Doug Murphy Law Firm, P.C. today at 713-229-8333 or contact Doug Murphy online to schedule a consultation.