DWI Lawyer Serving Fort Worth and Tarrant County
Fort Worth DWI Lawyer Benson Varghese walks you through how Varghese Summersett beats DWI cases in Tarrant County and North Texas in the video below.
The Texan recently interviewed me to help explain how someone in Texas can be charged with Driving While Intoxicated – even if they are less than a .08. In fact, there are a number of ways this can happen. Most drivers in Texas are unaware that you can be prosecuted and convicted for a DWI at blood alcohol concentrations lower than .08 if one of the other two (and very subjective) definitions of intoxication are met.
In this article, we will explain all the definitions of intoxication, how a person can be prosecuted for DWI, the implications of a DWI conviction, and of course, how to avoid a DWI in Texas – even after you’ve been arrested.
We’ve become so adept at handling DWI cases in North Texas, we now also have a team of DWI lawyers in Dallas, in addition to the team in Fort Worth.
Driving While Intoxicated Defense
Being charged with Driving While Intoxicated in Fort Worth, or anywhere in Texas, does not require an allegation that the driver intended to get behind the wheel while intoxicated. As a result, DWI charges are common. Our Fort Worth DWI lawyers have defended individuals from every walk of life who were arrested for a DWI – doctors, lawyers, pilots, nurses, firefighters, barbers, plumbers, even elected officials. If you or a loved one has been arrested for a DWI in or around Fort Worth, then this article is for you.
Why should you listen to us?
Before we get started, let’s talk about why we are an authority on DWIs, and in particular, DWIs in Tarrant County. First and foremost, we have tried more DWI cases to juries than almost anyone you’ll meet. The firm’s partners have tried over 300 DWI, Intoxication Assault, and Intoxication Manslaughter cases to juries in Tarrant County. To understand how adept we are at challenging evidence, it’s important to realize that 98 percent of DWI cases in Fort Worth are resolved through pleas. If there’s a weakness in a case, we will find it and leverage it for the best possible outcome. There’s no substitute for real-world trial experience when it comes to defending a case. The prosecutors know as soon as we walk in, that we’re coming in with vastly more experience than they have.
Take this result for example. You’d be hard-pressed to find a Not Guilty on a higher blood alcohol concentration by any attorney, anywhere: .359 BAC (over 4 times the legal limit). (March 2022 result).
Whether your case is one we take to trial, fight in a motion to suppress or negotiate a favorable outcome, we will be informative and transparent every step of the way. You’ll find that from our first conversation to the last, we are uniquely understanding, up-front, and talented. So let’s get to it.
What is a DWI in Texas?
A first-time DWI in Texas is, at the very least, a Class B misdemeanor, punishable by up to 180 days in jail. If you look up the definition of Driving While Intoxicated in Chapter 49 of the Penal Code, you’ll probably be surprised to see the definition makes no mention of the word “driving.” Instead, to prove a person was driving while intoxicated in Texas, a prosecutor must show the following:
- On or about a particular date
- The person accused
- A motor vehicle
- While intoxicated.
Being “intoxicated” means:
- The person lacked their “normal” mental faculties due to an intoxicant;
- The person lacked their “normal” physical faculties due to an intoxicant; OR
- The person had a blood alcohol concentration of a .08 or more.
I put the word “normal” in quotes because that is not a defined term and is one reason why a case without a breath or blood specimen might be ripe for attack.
Notice that the first two definitions of being intoxicated are completely subjective, and you can be charged with being intoxicated on any substance – prescription drugs, illicit drugs, a combination of drug and alcohol, or just on alcohol alone.
We’ve defended every one of these types of DWIs in Fort Worth.
What is a DUI in Texas?
If you have never been arrested for DWI or known someone who has, you might find yourself using the terms “DUI” and “DWI” interchangeably. In fact, what we consider Driving While Intoxicated in Texas, is often referred to as Driving Under the Influence in other states.
In Texas, DUI is reserved for individuals under the age of 21 who are found driving a vehicle with any detectable amount of alcohol in their system. It is a Class C offense punishable by up to a $500 fine.
|Driving Under the Influence (DUI)||Driving While Intoxicated (DWI)|
|Applies to drivers under 21||Age is not a factor|
|Charges stem from alcohol use only||Charges stem from any intoxicant, including alcohol, illicit drugs and prescription drugs|
|Class C Misdemeanor, punishable by a maximum $500 fine||Class B Misdemeanor, punishable by 3 to 180 days in the county jail|
|60 day license suspension||90 to 180 day license suspension|
|Section 106.041 Texas Alcoholic Beverage Code||Chapter 49.04, Texas Penal Code|
How do you beat a DWI in Texas?
How can you get a DWI dismissed in Texas?
Our Fort Worth DWI lawyers have gotten more than our fair share of DWIs dismissed, acquitted, and reduced. The reason for this is two-fold: First, we have a tremendous amount of trial experience in DWIs. Second, we are adept at finding weaknesses in cases that other attorneys often overlook.
Outright dismissals are rare. From 2014 to 2019, there was an average of just over 5,000 misdemeanor DWI cases filed in Tarrant County each year. Of those, only about 100 cases were dismissed each year. Here are some of the top ways we’ve gotten DWI cases dismissed in Fort Worth.
Named one of the Best DUI Lawyers in Fort Worth in 2021, 2022, and 2023 by Expertise.com
In coming to this conclusion. Expertise.com noted we have represented individuals such as doctors, elected officials, and lawyers. Indeed, we are proud of the fact that we are the lawyers that lawyers call. They also give us top marks for Responsiveness, Friendliness, Helpfulness, and Detail. Finally, they found our 575+ 5-Star reviews on Google combined with the nearly 100 other top reviews on Facebook and Avvo to be compelling in awarding us this honor every year since 2021.
How to Beat a DWI in Texas:
Lack of Reasonable Suspicion to Detain
An officer has to have reasonable suspicion to stop you. Reasonable suspicion means the officer has “specific and articulable facts” that an offense has occurred. Officers sometimes get this wrong. Recently, we had a case where a driver was pulled over after not stopping before exiting a driveway at a shopping center. In this case, the sidewalk only extended on one side of the driveway, not both, which means the driver did not have to stop before leaving the parking lot. The officer got it wrong and we got the case kicked out. We have also had numerous instances in which a video negates the officer’s claimed basis for the stop.
Lack of Probable Cause to Arrest
An officer has to have probable cause to arrest you. This is a common area for us to attack. Most attorneys focus only on their client’s performance on the field sobriety tests. We have, however, had a number of cases where we got the results of the field sobriety tests kicked out because the officer administered the test wrong. It’s critical to do these tests right if a judge or jury is going to rely on them. On top of that, a person’s “normal” may be different based on a number of factors including the time of day, amount of rest, and past or present medical conditions – none of which the officer is really taking into account in the field. If we can show the officer failed to properly develop probable cause to arrest you, we can get the evidence against you thrown out through a Motion to Suppress.
The Lack of a Breath or Blood Specimen
It is rare in Fort Worth, but every once in a while, we will see a case where the officer failed to get a warrant when a person refused to give a breath or blood sample. These cases are perfect to be attacked because the only evidence the prosecutors have is subjective.
Lack of Probable Cause in the Search Warrant for Blood
The affidavit for a search warrant for blood must also establish probable cause in order for the magistrate to allow for a blood draw pursuant to the warrant. If the warrant lacks probable cause, it can be attacked through a motion to suppress.
False Information in the Search Warrant
If the officer includes false information in the search warrant affidavit, the affidavit can be contested through a Franks Hearing. This is an evidentiary hearing to determine whether the officer intentionally or knowingly – or with reckless disregard for the truth – made false statements in his or her affidavit.
Improper Breath Test, Blood Draw, or Lab Techniques
We stay abreast of issues with labs, lab techs, problems with testing equipment locally, as well as testing procedures. We look for issues with the testing that could get breath or blood results kicked out – which we have done successfully on multiple occasions.
Intoxication at the Time – Not Later
If the police are able to determine you were operating a motor vehicle, the police will then investigate whether you were intoxicated at the time of operation. The passage of time is the most important factor in this situation. The more time there is between tests for intoxication and the operation of a vehicle, the harder it is to determine intoxication at the time of operation. As soon as you consume alcohol, your body will start to metabolize it. Depending on what time your last drink was, what else is in your stomach, how much you had to drink, what you had to drink, how much unabsorbed alcohol was in your system, and how much time passed between your last drink and the time of driving, your Blood/Breath Alcohol Concentration (BAC) may:
- Be higher at the time of driving than when you are test
- Be lower at the time of driving than when you are tested
- The same at the time of driving and when you are tested.
Further explanation: Retrograde Extrapolation
An experienced DWI lawyer will have access to experts in the field to determine if and how this “retrograde extrapolation” could be applied. It’s possible that you could have provided a sample over the limit even though you weren’t intoxicated when you were driving – an important distinction to make when trying to get your case dismissed.
Lack of Proof
Ultimately, a DWI case in Texas may be defeated by showing the State cannot prove the accusation beyond a reasonable doubt. This is typically done through a jury trial but can also be achieved by attacking the admissibility of evidence in pre-trial hearings.
What are the three standardized field sobriety tests in a Texas DWI investigation?
The three Standardized Field Sobriety Tests (SFSTs) commonly used by law enforcement officers are:
- Horizontal Gaze Nystagmus (HGN) Test: As mentioned in the previous message, the HGN test involves observing the eyes of a suspect as they follow a slowly moving object such as a pen or flashlight, horizontally.
- Walk-and-Turn (WAT) Test: In the WAT test, the subject is directed to take nine steps, heel-to-toe, along a straight line, and then turn on one foot and return in the same manner in the opposite direction. This test is designed to measure a person’s ability to follow directions and remember a series of steps while dividing attention between physical and mental tasks.
- One-Leg Stand (OLS) Test: In the OLS test, the subject is asked to stand with one foot approximately six inches off the ground and count aloud by thousands (One thousand-one, one thousand-two, etc.) until told to put the foot down. The officer times the subject for 30 seconds. The test measures the subject’s ability to perform a simple physical task while following instructions.
Field Sobriety Tests Explained
Field Sobriety Tests (FSTs) as Divided Attention Tests
Field Sobriety Tests (FSTs) are often referred to as “divided attention tests.” But what does this mean, and why is it significant in the context of detecting impairment? Let’s delve into the concept.
Understanding Divided Attention
Divided attention refers to the ability of an individual to focus on two or more tasks simultaneously. In everyday life, we often perform activities that require divided attention, such as talking on the phone while cooking or watching the road while adjusting the radio in a car.
Why Divided Attention is Important in FSTs
Alcohol and certain drugs can impair an individual’s ability to divide their attention between multiple tasks. This is a crucial aspect of driving, where one must constantly monitor various elements like speed, other vehicles, traffic signals, and more, all while physically controlling the vehicle.
FSTs are designed to test this ability by requiring the individual to concentrate on both mental and physical tasks simultaneously.
Learn more about each test in these tabs.
What is the Horizontal Gaze Nystagmus Test?
The Horizontal Gaze Nystagmus (HGN) test is a field sobriety test often used by law enforcement officers to determine if a driver is impaired, typically by alcohol. Nystagmus is an involuntary jerking or bouncing of the eyeball that occurs when there is a disturbance of the inner ear system or the oculomotor control of the eye. Horizontal gaze nystagmus is a type of nystagmus characterized by the side-to-side movement of the eyes.
Administration of the HGN Test
The HGN test is typically administered as follows:
1. The officer asks the subject to follow a slowly moving object, like a pen or small flashlight, with their eyes. The object is moved horizontally, about 12 to 15 inches from the subject’s face.
2. The officer is looking for three signs (or clues) of impairment in each eye:
- Lack of smooth pursuit: This means the eye cannot follow a moving object smoothly.
- Distinct nystagmus at maximum deviation: This is when the eye, at far lateral gaze, begins to jerk distinctly.
- Onset of nystagmus prior to 45 degrees: This refers to the point at which the eye begins to jerk. If it begins prior to 45 degrees, it’s considered a sign of impairment.
Clues and Decision Points for the horizontal gaze nystagmus
In the HGN test, the presence of four or more clues indicates that the suspect likely has a Blood Alcohol Concentration (BAC) of 0.08 or greater. A maximum of six clues can be observed (three for each eye).
Scientific Certainty or Uncertainty
Studies have suggested that the HGN test is the most accurate of the Standardized Field Sobriety Tests (SFSTs). The National Highway Traffic Safety Administration (NHTSA) has indicated that if the HGN test is administered properly, it is approximately 77% accurate. However, it is important to note that the accuracy of the test can be influenced by a number of factors, including the individual’s health conditions, the use of certain medications, and the officer’s training and experience in administering the test.
Common Mistakes and Reasons for Mistakes by Officers Administering the HGN Test
Common mistakes in the administration of the HGN test can include:
- Not properly positioning the stimulus (pen or flashlight) at the correct distance from the suspect’s face or not moving it at the correct speed.
- Misinterpreting the angle of onset of nystagmus.
- Not checking for equal pupil size and resting nystagmus, which could indicate a medical disorder or injury.
- Not providing proper instructions to the suspect or failing to ensure they understand them.
The reasons for these mistakes can include inadequate training, rushing through the test, or not fully understanding the physiological basis of the HGN.
Furthermore, interpreting the results requires a certain level of subjectivity, and results can be influenced by environmental factors like wind or dust that could cause eye irritation and nystagmus. Also, some people naturally exhibit nystagmus even when sober, and certain medical conditions or medications can cause similar eye movements, which can lead to false positives.
What is the Walk-and-Turn Test?
The Walk-and-Turn (WAT) test is a divided attention test, which means it is designed to assess a subject’s ability to perform a task that requires their attention to be divided between mental and physical tasks. This mirrors the kind of multitasking involved in driving a vehicle, as drivers must simultaneously control the vehicle and respond to changing situations on the road.
Administration of the Walk and Turn Test
The test typically proceeds as follows:
The officer gives verbal instructions to the subject to stand with their feet in a heel-to-toe manner, keep their arms at their sides, and listen to the instructions without starting until instructed to do so.
The officer instructs the subject to take nine heel-to-toe steps along a straight line, turn around keeping one foot on the line, and return with nine heel-to-toe steps.
Walk and Turn Clues and Decision Points
The officer is looking for eight signs (or clues) of impairment during the WAT test:
- Cannot keep balance while listening to instructions
- Starts before the instructions are finished
- Stops while walking
- Does not touch heel-to-toe
- Steps off the line
- Uses arms to balance
- Loses balance while turning or does not turn correctly
- Takes the incorrect number of steps
If a subject exhibits two or more clues during the test, or cannot complete it, it’s likely that their Blood Alcohol Concentration (BAC) is above the legal limit of 0.08.
Walk and Turn Scientific Certainty or Uncertainty
The National Highway Traffic Safety Administration (NHTSA) conducted numerous field validation studies and found that the Walk-and-Turn test, when used in conjunction with other SFSTs, was between 66% and 68% accurate at detecting subjects with a BAC of 0.08 or greater when the correct clues were observed.
Common Mistakes and Reasons for Mistakes in the Administration of the Walk and Turn
Common mistakes in the administration of the WAT test can include:
- Failing to properly demonstrate the test
- Failing to ensure the subject understands the instructions
- Administering the test on an uneven or non-level surface
- Incorrect scoring of the subject’s performance
Mistakes in the administration of the WAT test are often due to a lack of training or a misunderstanding the instructions for administering the test. In addition, because the test requires the officer to observe and remember the subject’s performance on several elements, it can be prone to errors in observation or memory. Environmental conditions (e.g., weather, lighting) may also affect the officer’s ability to properly administer and assess the test.
What is the One Leg Stand Test?
The One Leg Stand Test is one of the three standardized field sobriety tests used by law enforcement officers to determine if a driver is impaired. The divided attention test gauges a person’s balance, attention, and physical control, which can be affected by intoxication.
Administration of the One Leg Stand Test
Initial Instructions: The officer instructs the individual to stand with their feet together and arms at their sides.
Demonstration: The officer demonstrates the test by raising one leg approximately six inches off the ground.
Execution: The individual is then asked to perform the test, counting out loud until told to stop. Notice the officer does not tell the subject what the clues of intoxication are.
Clues Indicating Impairment
There are several clues officers look for during the test:
Swaying: The individual sways while balancing.
Using Arms: The individual uses their arms to balance.
Hopping: The individual hops on one foot.
Putting Foot Down: The individual places their raised foot down before being instructed.
If the individual exhibits two or more of the aforementioned clues, it’s likely they’re impaired. This becomes a decision point for the officer to proceed with further testing or arrest.
Accuracy of the Test
The One Leg Stand Test, when administered correctly, has an accuracy rate of approximately 65-68%. This means that in about two-thirds of cases, the test correctly identifies an impaired individual.
Scientific Certainty or Uncertainty
While the test is based on observable physical and cognitive impairments, it’s not infallible. External factors like injury, age, footwear, and road conditions can affect performance. Thus, while it’s scientifically grounded, there’s an inherent margin of error.
Common Mistakes in Administration
- Improper Instructions: Not clearly explaining the test procedures.
- Environmental Factors: Administering the test on an uneven surface.
- Physical Limitations: Not considering an individual’s physical disabilities or limitations.
Common Attacks on Cross Examination
There are many ways to attack the One Leg Stand. A few of the methods that have worked for us included:
Questioning the Officer’s Training: Ensuring they’re certified and trained in field sobriety testing.
Highlighting External Factors: Emphasizing conditions that could have affected the test’s outcome.
Challenging Subjectivity: Arguing that the clues are subjective and open to interpretation.
What are the elements of a DWI in Texas?
If you look up the definition of Driving While Intoxicated in Chapter 49 of the Penal Code, you’ll probably be surprised to see the definition makes no mention of the word “driving.” Instead, to prove a person was driving while intoxicated in Texas, a prosecutor must show the following:
- On or about a particular date
- The person accused
- A motor vehicle
- While intoxicated.
Why is there such a big range in the cost of DWI attorneys?
The greater demand there is for a particular attorney, the higher their prices are going to be. What creates a high demand for a DWI lawyer? More than anything else, trial experience, particularly if that trial experience is in the county where you are charged with a DWI.
What is the punishment for a first-time DWI in Texas?
|Driving While Intoxicated||3-180 days in jail, up to $2,000 fine|
|Driving While Intoxicated BAC >/= .15||0-365 days in jail, up to $4,000 fine|
|DWI – Child Passenger||0-2 years in State Jail, up to $10,000 fine|
|Intoxication Assault||2-10 years in prison, up to $10,000 fine|
|Intoxication Manslaughter||2-20 years in prison, up to $10,000 fine|
- You may be sentenced to up to 180 days (Class B misdemeanor) or 1 year (Class A Misdemeanor which is the .15 or greater offense).
- You may be granted up to two years of deferred adjudication on a Class B misdemeanor.
- You may be granted up to two years of probation on a Class A or Class B misdemeanor.
- If your case has significant legal issues, your charge might be reduced to Obstruction of a Highway
- If your case has a legal issue that results in the judge throwing out evidence, your case may be dismissed.
Every DWI in Texas starts with an arrest before the case is formally filed with the District Attorney’s Office. Depending on what county you are in, you may bond out quickly, in a matter of hours, or in a matter of days. Once you have bonded out, however, if you follow your attorney’s advice, the chances of staying out of jail as punishment for the charge are very good on a first-time misdemeanor DWI charge.
A first-time DWI, after attorney costs, license fees, fines, court costs, probation fees, class fees, increased insurance rates, etc, can easily set you back $15,000 to $20,000.
After you are placed under arrest, the officer will ask you for breath or blood. If you refuse, the officer will likely (but not always) seek a warrant for your blood. If the officer gets a warrant, don’t fight the blood draw – we can fight the results in court.
You will be taken back to jail after the blood draw (which usually happens in a hospital) and a bond will be set. This might be a monetary bond, or you might be released on personal recognizance. You will have bond conditions to live by, ranging from not drinking alcohol while the case is pending to having an ignition interlock device on your vehicle while the case is pending.
An Administrative License Revocation hearing is a hearing at which an Administrative Judge (so not the judge on the criminal case) hears evidence as to whether you license should be suspended. It does not require a conviction and in most case it doesn’t even require proof that you were in fact intoxicated. Learn more about ALR hearings here: watch this ALR video.
A first-time DWI is generally a misdemeanor in Texas. Typically a first-time DWI will be filed as a Class B misdemeanor. This charge can be enhanced to a Class A misdemeanor in Texas if the blood alcohol concentration (at the time of testing) was a .15 or greater.
A first-time DWI can actually be filed as a felony in Texas if there is a child passenger in the vehicle.