Frequently Asked DWI Questions
Frequently Asked DWI Questions
Schneider & McKinney, P.C.
5300 Memorial Drive, Suite 750, Houston, TX 77007, (713) 951-9994
The information contained on this page is to answer some questions you may have concerning local and state DWI laws.
Should I refuse to take a breath test?
The simple and most direct answer is, yes. Obviously, if you do not take a breath test, the prosecution will not have that evidence to use against you. Additionally, even if you take the breath test and pass, you will not be released. Keep in mind that by the time the officer asks you to submit to a breath test, you have already been arrested and you are on your way to the booking desk whether or not you take the breath test. The point is you cannot do yourself much good by taking their test, unless you are virtually certain you will pass.
With that said, however, there can be serious consequences for refusing. The political activist group, Mothers Against Drunk Driving (MADD), and all its various Political Action Committees (PACs), have been extremely successful in pushing stringent legislation through the legislative branch of government in most states, especially Texas. And, it seems we are headed for the days when a breath test refusal will automatically result in a driver’s license suspension without the benefit of a hearing (a little thing we call Due Process). The collateral consequences for a DWI are very serious, affecting the rest of one’s life in some cases, and seem to be getting more devastating following each legislative session.
Is the Breath Test machine accurate?
The current machine used in by the Houston Police Department and the Harris County Sheriff’s Department, as well as the Constables in the eight precincts in and around the city, use the Intoxilyzer 5000. The way it works is by reading the amount of light that passes through what is called the sample chamber, which is about the size of a toilet paper tube. The amount of light passing through the chamber is affected by the amount of alcohol in the air of the chamber. The machine itself will accurately read the amount of alcohol in the sample chamber. What it cannot accurately tell you is the amount of alcohol in a person’s body. The machine, by way of a computer program, attempts to equate the amount of alcohol in the sample chamber to the amount of alcohol in 210 liters of breath, or approximately a 55 gallon drum. If the machine reads the equivalent of one gram (one cubic centimeter) of alcohol per 210 liters (approximately 55 gallons) of breath, then it will register as .10. To register a .08, the machine attempts to equate the alcohol detected in the chamber to 80 milligrams (4/5 of a cubic centimeter) of alcohol in 210 liters (approximately 55 gallons) of breath. Although the machine may accurately measure the amount of alcohol in the chamber, the chances of inaccuracy in calculating the amount of alcohol in the human body can be astronomical.
What happens if the police did not read me my rights when they arrested me?
The police are not required to read you your rights unless they want to talk to you once you are in custody. Everyone has heard of the “Miranda Rights.” This phrase comes from the case of Miranda v. Arizona, where the United States Supreme Court stated that before a law enforcement officer can question a person who is in custody, they must tell them their rights. From this case came the paragraph everyone hears on television and in the movies: “you have the right to remain silent; anything you say can and will be used against you at your trial; you have the right to a lawyer; if you cannot afford a lawyer, one will be appointed; you have the right to terminate the interview at any time; do you understand your rights?” The case of Miranda v. Arizona dealt with confessions and not arrests. So, it is not necessary for the police to read you your rights at the time of arrest. That is just something that can, and often does, happen. However, it is not a prerequisite for a lawful arrest.
Will I be able to get my case dismissed because I was not read my rights?
Most likely, no. As discussed above, reading your rights is not necessary for a lawful arrest. However, if you were “interrogated” (legal term with a legal definition) after being placed in “custody” (another legal term with a legal definition), your statements may not be admissible at your trial, which can lead to a dismissal of your case.
Will I go to jail?
You have the best chance of avoiding jail by hiring an experience Texas criminal defense lawyer.
How long will a DWI be on my record?
For the rest of your life, unless you receive a pardon from the governor or the legislature changes the laws regarding the expunction of records.
Do I have to do the sobriety tests the police make you do?
No. A police officer cannot require you to perform any sobriety test, including taking the breath test. Most police officers, however, do not tell you that you do not have to perform their physical sobriety tests. They will simply order you to follow their instructions, leading you to believe you have no choice in the matter. You do have a choice.
I have prior DWI’s, what will happen?
A third DWI is most likely a felony and you could spend up to 10 years in prison and receive up to a $10,000.00 fine. As long as at least one prior DWI was committed within ten years of the commission of the current DWI, you can be charged with a felony DWI. If all of your prior DWI’s are ten years old or older, then the priors cannot be used against you for purposes of enhancing your current DWI to a DWI second offense or a felony DWI.
I lost my Texas license due to a DWI. May I obtain a license in another state?
In most cases, no. Most states follow an interstate compact or, agreement among states, to honor the license suspensions of other states.
