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By Megan Breckenridge, Staff Writer
SULLO & SULLO, LLP
HOUSTON—In 2008, the National Highway Traffic Safety Administration (NHTSA) reported a total of 37,261 auto accident fatalities in the United States; 11,773 (32 percent) of which involved a driver whose blood alcohol content was above the legal limit. Perhaps even more disturbing are statistics that show Texas as the national leader in alcohol-related crashes, with 1,269 drunk driving deaths documented that year.
Given this information, it’s easy to see why alcohol and drug-related traffic offenses, commonly known as Driving While Intoxicated (DWI), are frequently prosecuted criminal offenses in Texas. If the alcohol concentration in a person's blood, breath or urine is .08 percent or higher, the person is considered intoxicated by law.
In some cases under Texas DWI law, the legal definition of intoxication is met even if a person's blood alcohol concentration is lower than .08 percent. Having alcohol, drugs or a controlled substance in one's body that causes loss of normal use of mental or physical faculties is also considered intoxication. If a person is operating a vehicle, vessel or even water skis in a public place, he or she is considered to be DWI, which is a Class B misdemeanor in Texas. Boating and operating an aircraft while intoxicated are also considered to be crimes.
The minimum amount of jail time in Texas for DWI is 72 hours, unless there is an open container of alcohol in the person's possession, in which case the jail time is at least six days. Consuming any amount of alcohol while operating a motor vehicle is also an offense in Texas.
In addition to jail time, a person who is convicted of DWI the first time will have his or her driver's license suspended for 90 days up to one year. Even if there is no conviction, the positive indication of alcohol from a blood, breath or urine test will result in automatic suspension of the person's driver's license. The option to complete a court-approved DWI education course within 180 days of conviction may be offered as a means of avoiding this suspension. A person who fails to complete such a program when sentenced to do so may lose his or her license. If the case presents unusual facts (i.e.—an accident, alcohol problem, bad driving record, etc.), additional conditions may be imposed. Most conditions are designed to address a problem that appears from the facts or alcohol/drug evaluation that is performed on the subject after conviction and include, but are not limited to, the installation of an ignition interlock device; alcohol treatment; an order to consume no alcohol; confinement; and restitution.
A DWI Second Offense is considered a Class A Misdemeanor, and requires the court to order, as a condition of release from jail on bond, the installation and maintenance of an ignition interlock device. This machine requires a breath sample before it will allow an individual to start his or her car, and periodic samples while driving to monitor and ensure sobriety. New technology has made the devices “user sensitive” so that another person cannot blow into the machine for the accused.
A DWI Third Offense (or greater) is considered a Third Degree Felony in Texas, and may include a jail sentence of not less than two years nor more than ten years, along with many other stipulations and restrictions.
Refusing to submit to a blood, breath or urine test in Texas also carries penalties. If an officer has reason to believe that a person is driving while intoxicated, and the driver refuses to submit to a test, the person's driver's license may be suspended for a minimum of 180 days if the person is 21 years of age or older, and for at least 180 days if the person is under 21. The period of license suspension increases with every subsequent test that shows an alcohol concentration above the legal limit, and with each time a person refuses to submit to alcohol testing. For example, if a person refuses to be tested for intoxication and there has been an alcohol or drug related conviction or license suspension within the previous five years, the person will lose his or her license automatically for one year. Under any circumstances, however, the person is entitled to a hearing.
In spite of these consequences, the number of DWI arrestees in Texas refusing to submit to a test has remained at roughly 50 percent. As a result, law enforcement agencies and prosecutors’ offices across the state have begun to use search warrants to obtain blood samples when suspects refuse to submit to a breathalyzer test, in a new program called “No-Refusal Weekends”. According to the Harris County District Attorney’s Office, the initiative aims to “ensure a breath or blood sample from every suspect pulled over for suspected DWI, full prosecution of these offenders, and, more importantly, a decrease in the number of fatalities over holidays.”
During no-refusal operations, which to date have been held during major holiday weekends, if a suspect is arrested on suspicion of DWI and refuses to submit to a breath or blood test, the arresting officer prepares an affidavit in support of a search warrant application. The affidavit must recite facts that demonstrate that the officer has probable cause to believe that the suspect is under the influence, and that evidence of alcohol or drugs will be found in their blood. The officer then presents the affidavit to a judge who reviews if for probable cause. In practice, the police rarely appear in person to swear to the affidavit. Rather, the typical practice is for them to fax it or recite it over the phone to a judge who is “on call” for the operation. Once the warrant is approved, the arresting officer can obtain a blood sample without the suspect’s consent.
No-Refusal Weekends have been met with opposition from citizens claiming they are a violation of basic rights and the Constitutional ban on unreasonable search and seizure. Proponents, however, argue that not only will the program pull offenders from the streets, it may serve as a deterrent to those who previously thought they could side-step the law.
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