2023 Travis County DWI Guide Part 1 - Charge and Arrest
The DWI arrest usually begins the legal process. There are situations where a person is charged, a warrant is issued and the arrest happens later, but this is not common. Typically, the DWI charge and arrest occurs at the same time. It is usually a warrantless arrest, which does have some implications later on in the process.
The first thing to consider is – how did your vehicle catch the attention of the police? Perhaps you were swerving. Perhaps you ran through a stop sign or were speeding. Police only need to observe a class C traffic violation to initiate a traffic stop. Often, police are patrolling an area (like 6th street on a Friday night), where they know people will be drinking. They will then pull over vehicles they see commit a minor infraction, because they know there is a good chance the driver has been drinking. These are called “pretextual stops”. The police aren’t really trying to catch someone speeding; they’re trying to catch a DWI, but courts allow this kind of behavior as long as there is any legitimate reason for the stop.
Another common way to catch the attention of police is to be involved in an accident. Whether it is a single car accident or there is another vehicle involved, police are going to investigate a crash. They will often suspect alcohol immediately and investigate all involved drivers for DWI.
A third way drivers catch the attention of police is by simply falling asleep in their car. This could be in a parking lot, the middle of the road, or even your own driveway. Even though you might not be breaking any laws by sleeping in your car, police still have the right to approach and do a “wellness check” – basically to make sure you’re ok. Sometimes these vehicles are reported in 911 calls by concerned neighbors or business owners. For a DWI to be charged, you must be “operating” the vehicle, but Courts have found that even having the car running with the heater on is enough to satisfy this requirement.
Once the police have the right to initiate contact because of one of the reasons above or some other event that gives them probable cause to approach, they can begin a DWI investigation only if they have reason to suspect intoxication. This could be because of any number of reasons – like odor of alcohol in the car or on the breath, empty containers, slurred speech, admission of drinking, etc. Even if you say “I had one beer 3 hours ago”, this can be enough to begin a DWI investigation. Usually, it’s best not to make statements at this stage.
Stages of a DWI investigation
There are 3 stages of a DWI investigation. Vehicle in Motion, Personal Contact, and Prearrest screening. Each will be discussed below.
Vehicle in Motion
In DWI cases that begin with the police following a vehicle, the first stage of a DWI investigation begins with the officer observing signs of intoxication based on driving. For example, is the car swerving, crossing the yellow line, speeding, following too closely behind another vehicle, or doing anything reckless? The officer has a wide latitude here as almost anything can be viewed as a sign of intoxication. To give an example, driving too fast AND driving too slow are both “signs” of intoxication.
From the attorney’s perspective, we usually view this stage with probable cause in mind. That is – did the officer have probable cause to make the stop. This will be handled in more detail in the section on pretrial motions. For the purpose of this section, just keep in mind that the DWI investigation begins even before you have been pulled over.
This stage of the investigation occurs when the officer approaches the vehicle and speaks to the driver. The officer will observe the behavior of the driver and inspect whatever is in plain sight in the vehicle. They will ask the driver if he/she has been drinking, where they are coming from/going, etc. They will often ask – “Without looking at a clock, what time is it?” The reason for these questions is to look for evidence of intoxication.
If you’ve had any alcohol, it’s usually best to politely decline to answer. The officer will often frame the question as one you must answer, but this is not true. You have the right to not speak to police. If you have not had ANY alcohol, it can be ok to answer DWI-related questions, but tread carefully here. Even without alcohol, police can charge you with DWI if they suspect that you have ingested drugs, including prescription drugs. More on that in the section on drug DWIs.
The Pre-arrest investigation is where the standard field sobriety tests (SFSTs) come in. Once again, you have the right to refuse a prearrest investigation. Often it is in your interest to do so. If the investigation progresses to this point, officers have often made the decision to arrest already. If you have had ZERO alcohol, it can be appropriate here to politely ask to proceed to a breathalyzer test. Otherwise, your best option is often to refuse to participate. This almost certainly guarantees arrest, but this way you do not create additional evidence that could hurt you in court.
The SFSTs include a gaze nystagmus test, the walk-and-turn, and the one-leg-stand, the Romberg Balance test. They can be thought of as “DWI theater”. They are not pass/fail so much as an attempt by the officer to gather as much evidence as possible that a person is intoxicated. With each test, the officer is looking for “clues” of intoxication. For most of the tests, a sober person would often demonstrate enough clues to justify a DWI arrest.
Each test will be discussed in turn below, and if you have already gone through with these tests in your case, just think to yourself how would it look when the video of the test is shown to the jury. Consider also that while these tests are designed in sterile conditions, they are administered in the elements – wind, rain, cold, uneven surfaces, irritable cops, and bad shoes can all have an effect on these tests. And police officers are often looking for any excuse to arrest. They usually won’t give you the benefit of the doubt.
Gaze Nystagmus Test
The nystagmus test is the one where the officer holds an item like a pen in front of the driver’s face and asks them to follow it with their eyes, not their head. The officer isn’t trying to see how well you can track the pen. Instead, he is looking for a “jerkiness” of the pupils – an involuntary affect of drinking alcohol. The common form is horizontal nystagmus (side to side). Less common is vertical nystagmus (up and down), which can occur at high levels of intoxication, or with certain drugs.
The important word here is involuntary. If you have nystagmus, there’s nothing you can do to make your pupils act smoothly. It’s just a biological phenomenon. For this reason, it’s best to simply refuse the test if you’ve been drinking at all. There’s also another reason to refuse. The bodycams worn by the officers are not typically good enough to show nystagmus. Therefore, the officer might claim to find nystagmus whether it’s present or not.
The Walk and Turn
You would probably “fail” the walk and turn test even if you’re sober. The officer asks you to take nine “heel-to-toe steps”, do a little pirouette, then take nine “heel-to-toe steps” back. You might think he’s asking to see if you can walk a straight line, but the officer will count it against you if you simply don’t follow all the instructions by, say, taking 8 steps instead of 9 or not turning correctly. Additionally, for many people a knee or leg condition might make this test difficult even when sober. The officer will ask if you have a condition, but may not believe you when you answer in the affirmative. It almost always best to refuse this test also. Seeing a trend?
The One Leg Stand
For the one-leg stand, the officer asks you to lift your leg in front of you while you hold your hands at your sides for 30 seconds. This is another one that many people will not be able to do when completely sober. Also, it may be your natural inclination to hold your arms out for balance, but this will count against you. Also swaying or putting your foot down will count as a “clue”. Because such a high percentage of sober people would fail this test, it is (intentionally) flawed and designed for people to fail. Once again, best to avoid it.
Romberg Balance Test
The last test I will discuss is sometimes used in Travis County but not always. For the Romberg Balance test, the officer asks you to tilt your head back, close your eyes, and estimate 30 seconds. This is in contrast to the other tests where the officer is the one keeping the time. For this reason, a person may continue with the test until the officer says to stop, and this will be counted as a “clue” of intoxication. The Romberg test is simultaneously testing balance and the ability to gauge the passage of time. As with the other tests, you guessed it, it’s best to politely refuse.
BAC Test (Breath or Blood)
Usually at the conclusion of the prearrest investigation, you will arrive at the most crucial point for gathering evidence of intoxication. That is the blood or breath test for Blood Alcohol Content (BAC). If your BAC is above .08, this is enough on its own to count as intoxication for the purpose of DWI. Note that an officer can find that you are intoxicated even if you are below .08, but have consumed any amount of drugs or alcohol. The officer will typically first offer a preliminary breath test of PBT. Although the PBT is not admissible in court, it can serve to bolster probable cause for the arrest and will be viewed by the prosecutor during plea negotiations.
As mentioned previously, it can be ok to agree to a PBT if you have had no alcohol that day. However, if you have had any amount, it’s usually best to refuse. You are probably not a good judge of whether or not you have had “too much”.
After the PBT test – if you refuse or fail, the officer may ask for a second specimen of breath. For this specimen, the officer will read you a warning that if you refuse or fail the test, your license could be suspended. This test is admissible in court. If you failed the PBT previously, you should definitely refuse the second test.
If you refuse to offer a breath specimen, officers will often seek a blood draw warrant. For a long time, there was ALWAYS a magistrate on hand in Travis County ready to sign a blood draw warrant. This evolved from “no refusal weekends” to basically 7 days a week. Recently, this trend has reversed somewhat. Although there is usually a magistrate to sign a blood draw warrant, it is not always the case. If there is no judge to sign a warrant, the police will not have the right to draw blood. In that case, they may still arrest for DWI, but the prosecutors would need to move forward without a test showing BAC. This can be extremely helpful for defense in plea negotiations and trial.
Another factor to keep in mind is that officers must show intoxication when a person is operating a motor vehicle. Blood alcohol content is continually going up and down. Just because BAC was over .08 the time of the test, does not mean it was that high when the driver was operating the vehicle.
As discussed previously, a .08 BAC is enough for intoxication. A BAC of .15 can bump it from a class B to class A misdemeanor with higher maximum penalties, and other hassles such as a required ignition interlock device while on bond. While an extremely high BAC (above .20 or even .30) does not technically increase penalties in the eyes of the law, the prosecutor can and will factor in an especially high BAC when negotiating a plea or deciding whether to take a case to trial.