DWI Frequently Asked Questions

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When you operate a vehicle, having a clear state of mind is crucial. Police are often on the lookout for people who do not seem to be behaving correctly, and it can be hard to imagine what could have gone differently in those last moments leading up to an arrest for DWI. At the Wilder Law Firm, we understand the difficulty of this situation, and we are here to help. Our award-winning Dallas criminal defense lawyer has the experience your case needs to obtain the best possible outcome.

Dial (214) 855-7737 now if you have been arrested for DWI in Collin, Dallas, and Tarrant Counties. Let our team help you protect your future.

Below you will find answers to questions people have asked regarding DWI in Texas. If you have been charged with DWI, give yourself legal representation you can count on. Our firm offers over 20 years of experience to help you build a strong defense. Call today for a free consultation.

Yes. Even though Texas has the implied consent law, a person arrested for DWI may refuse the test requested.

This refusal can result in the following penalties:

  • 180-day suspension of your driving privilege if this is your first DWI arrest.
  • 2-year suspension of your driving privileges for a subsequent arrest within 10 years if you refused to submit to a test in your first arrest.
  • The prosecutor can admit your refusal into evidence in your DWI trial. The prosecutor will then argue that you refused the test because you knew you were intoxicated and that you would fail the test.

If you submit to a test and fail, your driving privileges can be suspended and the following penalties may occur:

  • 90-day suspension of your driving privilege if your driving record shows no prior alcohol-related arrests
  • 1-year suspension of your driving privilege if you have a prior conviction or suspension with the preceding 10 years
  • The prosecutor can admit the results of the test into evidence at your DWI trial

If you do not want to take a test, it is better to tell the officer that you want to talk to a lawyer before making the decision, as opposed to just refusing. Again, they most likely will not give you the opportunity to talk to a lawyer, but no test will be given.

Any lawyer you hire should be able to answer your DWI questions and have completed both the NHTSA approved Field Sobriety Test Student Course to be a practitioner and the NHTSA approved Field Sobriety Test Instructors Course to be an Instructor. Valuable knowledge on how to properly cross examine an officer is gained when the lawyer is trained exactly how an officer has been. If a lawyer is not dedicated enough to obtain this intensive training, do you think they really have your best interest at heart when representing you?

The police can never compel a breath test. An officer can compel a blood test only if there has been an accident where serious bodily injury, potential fatality, or death has occurred and the arrested person refused the test.

Texas law lets the officer choose which test to offer. If the officer asks you to take a breath test, and you say that you will only take a blood test but they refuse, they will count your blood test request as a breath test refusal. The officer will then confiscate your driver’s license, and your license will be subject to suspension. However, if this happens, the officer does not look fair in not giving you a blood test. Simply put, a blood test requires more work for the officer.

Section 724.019 of the Transportation Code states:

  • A person who submits to the taking of a specimen of breath, blood, urine, or another bodily substance at the request or order of a peace officer may, on request and within a reasonable time not to exceed two hours after the arrest, have a physician, qualified technician, chemist, or registered professional nurse selected by the person take for analysis an additional specimen of the person’s blood.
  • The person shall be allowed a reasonable opportunity to contact a person specified by the subsection above.
  • A peace officer or law enforcement agency is not required to transport for testing a person who requests that a blood specimen be taken under this section.
  • The failure or inability to obtain an additional specimen or analysis under this section does not preclude the admission of evidence relating to the analysis of the specimen taken at the request or order of the peace officer.
  • A peace officer, another person acting for or on behalf of the state, or a law enforcement agency is not liable for damages arising from a person’s request to have a blood specimen taken.

Do you find it interesting that the State of Texas has so much “confidence” in the breath machine that they give you the right to an independent blood test?

Do you find it interesting that the law does not require the officer to inform you of this right?

One officer even testified in front of a jury that he did not have to tell the arrested person of their right to an independent blood test. He further testified that my client could have read the transportation code and found out about this right.

Would you trust this officer’s opinion? The jury did not either. The verdict? Not Guilty.

These shortcomings are not meant to be exhaustive. But this illustrates the need to hire a qualified attorney who is knowledgeable in all aspects of DWI law.

If you do not want to take the test or are unsure to do so, ask the officer for permission to call a lawyer before you make your decision. They will not likely give you the opportunity. Our firm has only seen one police officer honor this request. This is when the debate begins.

You have not refused to take the test, but you must be polite and courteous as you stand firm with your request to talk to a lawyer before deciding whether to take a test. The officer will repeat that you are not entitled to a lawyer at this point in time, and that the decision is yours and yours alone. Just keep requesting to speak to a lawyer.

The officer will eventually tell you that if you do not agree to take the test, he will consider your actions to constitute a refusal. That is his job, but you will have set the stage for a jury trial.

This is because:

  • The prosecutor cannot argue that you refused the test because you knew you would fail
  • Many, if not most, jurors sympathize with those who make this request

If you refuse to take the chemical test, you will be charged with DWI, but even if you pass the chemical test, you could still be charged with DWI. You were arrested because the officer determined you had lost control of your physical faculties and/or mental faculties when he stopped you. At this point, the officer did not know what alcohol level was in your body.

If you pass a breath test, you will not lose your license. If you refuse, you will likely have to schedule an ALR (Administrative License Revocation) hearing where you may or may not lose your driver’s license. It is important to request an ALR hearing.

Neither DPS (Department of Public Safety) nor the manufacturer of the machine will allow anyone other than law enforcement to test the machine for its accuracy and reliability. The manufacturer does not warrant the intoxilyzer for any particular purpose. The machine is not warranted for accurate and reliable breath testing.

Proponents of the intoxilyzer state that the machine will only read light absorbed by alcohol, while opponents state the machine often misreads other substances in the breath, thus giving an inaccurate reading. Normally, a procedure is only acceptable when open and available for the scientific community to test and retest, yet this is not permitted with the intoxilyzer. What are they trying to hide?

The intoxilyzer is capable of preserving breath samples at a cost of less than $2.00, but DPS purposefully discards samples even when they could exonerate innocent people from sentencing. Further, re-testing of the breath sample could be done by a more accurate process known as gas chromatography, but they do not.

The intoxilyzer also assumes that everyone has a blood/breath ratio of 2100 parts of alcohol per 1 part of alcohol in the breath. A person with a lower blood/breath ratio will be adversely affected because the intoxilyzer will erroneously read too high, thus a person who should test at .05 or .06 could actually test well above a .10. Scientists have even documented people with blood/breath ratios as low as 1100/1.

Because the temperature of your body can affect what the intoxilyzer reads, a person with a fever will also have a higher breath test reading than normal even though your body temperature has nothing to do with the amount of alcohol you have consumed.

The bottom line is this device is fast and cheap. If a person passes a breath test, some police agencies will release them without filing any charges. It is much easier to do this than file a DWI, request a blood test, and later have to explain why they arrested a person whose blood test came back under the legal limit.

The State of Texas uses a machine called the Intoxilyzer 5000, which is commonly referred to as the “breathalyzer.” The Intoxilyzer 5000 (I called it the Intoxicator or Intoxiliar because of its inaccuracies) costs about $7,500 and can last as long as 10 years.

It works on the theory of infrared spectroscopy where compounds absorb different light frequencies (wavelengths). A light bulb positioned at one end of a cylinder sends light through filter wheels in the cylinder to a receiver on the other side. Alcohol will absorb certain wavelengths of light, allowing the machine to detect wavelengths of light absorbed by alcohol.

The machine must convert the reading to an amount great enough for us to understand. The difference in light emitted and received is computed through a computer program in the machine to come up a value that can be compared to a .08. The conversion the machine makes on the differences in light would be the equivalent of taking the paper towel tube and increasing its size to that of a 55 gallon drum. Any error would then be exaggerated by that amount.

Texas law provides that DWI suspects can have their alcohol concentration tested either by a urine, blood, or breath test. Urine testing is the least accurate and is rarely ever performed. In the scientific community, it is considered to be the least reliable method of testing.

Blood testing is thought of by the majority of the scientific community to be the most reliable and accurate method of determining a person’s alcohol concentration. Although this is the least desirable method for the police due to its inconvenience, blood testing allows the arrested person to have his or her own expert re-test the blood sample for accuracy.

Breath testing is the most convenient method for the police. However, the reliability and accuracy of breath testing is continually debated in the scientific community. In addition, breath samples are not preserved for a subsequent test to check the first test’s reliability and accuracy. Therefore, it is impossible to use subsequent testing to prove that the breath test was faulty, which could result in an innocent person being unjustly convicted. The state of Texas could save each breath sample for less than $2.00, but they choose not to do so!

In short, the police like to use the cheapest, most convenient, non-preserved, scientifically-debated chemical test when your freedom is on the line!

If the test shows any amount of alcohol, the minor’s driving privileges will be suspended for at least 60 days.


Class C Misdemeanor. If you are under 18, the court requires your parents or guardian to be with you at every court appearance, regardless of if you have a lawyer or not. The court can compel their presence. If convicted, a minor can be fined and will be required to complete between 20-40 hours of community service related to education or prevention of misuse of alcohol. The minor will also have to attend an alcohol awareness program within 90 days.

If the minor is under 18, the court may require the parent or guardian to attend this program with the minor. If the minor fails to complete this course within 90 days, the court may suspend the license for an additional 6 months. For a first offense, the minor may receive deferred adjudication for DUI, although it will be considered a conviction. If this is the only offense the minor receives, he is entitled to have it expunged from his record after his 21st birthday.


Class C Misdemeanor. All penalties are the same with 2 exceptions. First, the number of community service hours is increased to 40-60 hours. Second, and more importantly, a second, or any subsequent conviction may not be expunged from your record, but the minor still may receive deferred adjudication.


Class B Misdemeanor. Deferred adjudication is not available now. If the minor is between 18-20 at the time of the 3rd offense, they face confinement in jail up to 180 days and/or between $500-$2,000 fine in addition to the license suspension.

In Texas, the judge is required to suspend driving privileges for at least 90 days and require an ignition interlock as a condition of probation. If the judge does not do this, DPS automatically suspends the license for one year.

Yes, with the following consequences:

  • Suspension of your driving privileges for not less than 120 days if this is your first arrest for an alcohol-related driving offense. If you were arrested but do not have a driver’s license, the state will not issue a driver license to you for 120 days.
  • A 240-day suspension of your driving privileges if your record reflects one or more drug or alcohol-related offenses during the 5-year period preceding your arrest.

Yes. Texas law operates under the principle of implied consent – if you’re driving in Texas, you’ve consented to taking a breath test, regardless of your age.

Anyone under 21 is a minor, although a person between 18 and 20 may be prosecuted under adult DWI laws.

Yes. A minor only needs to drive under any detectable amount of alcohol to be convicted. If all alcohol has left their body but the breath still smells of alcohol, they could get a DUI.

If you’re convicted, the DWI will be on your record forever. If found not guilty, you can have the DWI expunged from your record and nobody will ever know it happened.

If convicted, your insurance rates will probably be raised anywhere between 300 and 500%. You may also be dropped by your insurance company.

It is illegal for both drivers and passengers to possess any open container of alcohol unless you’re a passenger in a bus, taxi, limousine, or living quarters of a mobile home.

The State of Texas must prove your guilt beyond a reasonable doubt, which is the highest burden of proof in the American justice system. Simply put, if a juror even has a single reasonable doubt to your guilt, they must find you not guilty.

Yes, absolutely. You could be affected by:

  • Nervousness
  • Scared
  • Fatigue
  • Illness
  • Traffic
  • Wind
  • Dust in your eyes
  • Headlights
  • The police officers strobe lights
  • Weather conditions
  • Back problems
  • Leg and/or knee injuries
  • Inner ear disorders
  • Ankle and/or foot problems
  • Road or sidewalk conditions
  • Weight
  • Age
  • Footwear
  • Lack of coordination

Your Miranda rights only apply once an officer tries to question you. If an officer asked you questions but should have read your Miranda rights first, those questions will be inadmissible in court.

You have to pass these tests in the officer’s opinion. Most officers would rather be safe than sorry when it comes to intoxicated driving and are more likely to arrest people smelling of alcohol regardless of field sobriety test results.

If you know that you can pass the tests when asked to perform them, you should attempt them. Once you pass them, the officer should let you go on your way. However, many people cannot even pass these tests while sober. If you’re not sure what to do, tell the officer you’d like to contact a lawyer. They will most likely let you, since you haven’t refused to perform them.

Another approach is to ask the officer if you’re required to take the field sobriety tests. The honest answer: no, you’re not. Any other answer could lead a jury to think the officer is deceptive. You can then ask if the tests are 100% accurate – the answer here again is no.

Stay polite and courteous, but do not apologize or admit to anything. Don’t try to talk your way out of anything, as you will probably incriminate yourself by accident. If the officer wants you to perform field sobriety tests, he’s already made up his mind.

It is only against the law to have a BAC of .08 or greater at the time of driving. Depending on the time between being stopped and taking a test, the alcohol concentration may not be completely accurate. It is common for chemical tests to be performed up to 90 minutes after driving. The test could be accurate, but it’s equally possible for the test to be inaccurate by up to .03.

A person is charged when they do not have the normal use of their own faculties – not mental and physical abilities relative to anybody else. Additionally, everyone has a “range” of what’s normal for them.

Alcohol concentration is defined by law as:

  • Number of grams of alcohol per 100 milliliters of blood;
  • Number of grams of alcohol per 210 liters of breath; or
  • Number of grams of alcohol per 67 milliliters of urine.

Only an alcohol expert can determine if your blood alcohol concentration (BAC) is greater than .08. Also, these tests are not equal: one could prove your innocence while the other could imply that you’re guilty. This factor alone demonstrates the importance of hiring an experienced attorney.

In Texas, the legal definition of intoxication is:

  • Not having the normal use of mental or physical faculties by reason of the introduction of alcohol, a controlled substance, a drug, a dangerous drug, a combination of two or more of those substances, or any other substances into the body; or
  • Having an alcohol concentration of 0.08 or more.

The prosecutor only needs to prove one of these three definitions (mental impairment, physical impairment, alcohol concentration) to convict you. For example, if you did not take a blood or breath test and were physically functioning normally but the jury believes you were mentally impaired, you should be convicted. You do not necessarily have to be “drunk” to be intoxicated.

According to the National Highway Traffic and Safety Administration, intoxicated drivers exhibit the following signs:

  • Speed slower than 10 MPH below the posted limit
  • Driving into opposing or crossing traffic
  • Headlights off at night
  • Braking erratically
  • Straddling center of lane marker
  • Stopping in lane for no apparent reason
  • Appearing to be drunk
  • Drinking in the car
  • Face close to the windshield
  • Tightly gripping the steering wheel
  • Slouching in the seat
  • Gesturing erratically or obscenely
  • Eye fixation
  • Head protruding from the car
  • Almost striking object or vehicle
  • Weaving or swerving
  • Driving on other than designated roadway
  • Accelerating or decelerating rapidly
  • Turning with wide radius
  • Following too closely
  • Drifting
  • Tires on center or lane marker
  • Slow response to traffic signals
  • Signaling inconsistent with driving actions
  • Stopping inappropriately (other than in traffic lane)
  • Turning abruptly or illegally

Speeding is not a recognized sign of intoxication