What Happens During a DWI Arrest?
Most people don’t intend to get drunk and then drive, but while intentions are innocent, many find themselves behind the wheel, putting their life and other lives in danger.
It’s easy to think that anyone who has had a drink should be subject to the punishment of DWI, but that’s not always the case.
The Law
“PENAL CODE TITLE 10. OFFENSES AGAINST PUBLIC HEALTH, SAFETY, AND MORALS CHAPTER 49. INTOXICATION AND ALCOHOLIC BEVERAGE OFFENSES
Sec. 49.01. DEFINITIONS. In this chapter:
(1) "Alcohol concentration" means the number of grams of alcohol per:
(A) 210 liters of breath;
(B) 100 milliliters of blood; or
(C) 67 milliliters of urine.
(2) "Intoxicated" means:
(A) 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 substance into the body; or
(B) having an alcohol concentration of 0.08 or more.
Sec. 49.04. DRIVING WHILE INTOXICATED.
(a) A person commits an offense if the person is intoxicated while operating a motor vehicle in a public place.
(b) Except as provided by Subsections (c) and (d) and Section 49.09, an offense under this section is a Class B misdemeanor, with a minimum term of confinement of 72 hours.
(c) If it is shown on the trial of an offense under this section that at the time of the offense the person operating the motor vehicle had an open container of alcohol in the person's immediate possession, the offense is a Class B misdemeanor, with a minimum term of confinement of six days.
(d) If it is shown on the trial of an offense under this section that an analysis of a specimen of the person's blood, breath, or urine showed an alcohol concentration level of 0.15 or more at the time the analysis was performed, the offense is a Class A misdemeanor.”
That is a mouth full but we are going to try and break it down. In this blog we are going to cover the loss of your normal mental or physical facilities. We have additional information on Blood alcohol concentrations and all the other portions of DWI in other blogs. Remember this is just an example to help understand the concept but for Legal advice or help with a case consult CentralTexasJustice.com or a Lawyer in your area.
The gist of it is that you are driving and are stopped for a legal reason (you guessed it we will have a blog on stops here as well). At some point during the stop the Officer develops a suspicion that you are under the influence of alcohol, an illegal substance or the combination of the two. The Officer switches from an investigation of the stop to a DWI investigation. They will remove you from the vehicle and begin to ask innocuous questions. “Where are you coming from? Do you live close? Were you watching the game tonight? What did you have for dinner, did you try the specialty drink?” These seem like questions to fill the time while the Officer waits for dispatch to give them the info they need. However, they are chipping away at your defenses and gathering a base line for you. If you were watching the game, how many drinks did you have. The Officer loves that restaurant they have a great wine menu did you try the house red? Where do you live and where are you coming from? How long have you been driving? All may seem innocent enough but can give the Officers enough information to support an arrest.
The Officer claims you smell of alcohol and they have gotten you to admit to a drink. The Officer wants more information. They ask you if you would like to do some tests to make sure that you can safely drive home. This is a lie. If you do these tests; YOU ARE GOING TO JAIL 99% OF THE TIME. But the prompt to do a test makes you think there is a pass and fail, so you decide to do the “test” because you are fine and will be on your way home in 15 minutes. YOU ARE WRONG!
Test #1: Horizontal Gaze Nystagmus
The first test will be the Horizontal Gaze Nystagmus exam. They might as well have named it the Blah Blah Blah Blah exam, because no one outside of Lawyers, Officers and ophthalmologist know or care what that is. This is even more true when it comes to jurors. The Officer is looking for Nystagmus prior to reaching 45 degrees. There is a lot of science behind this test but it boils down to following a pen tip or small focal point with only your eyes and looking for an involuntary bounce. Specifically, a bounce that happens prior to reaching 45 degrees. 45 degrees is estimated by using your nose as the center and looking at an angle away from it. The test is being performed on the side of the road. The dash cam of the Officer’s cruiser can’t see your eyes and the Body Cam only sees the officer moving their arm administering the test. Even if the camera catches your eyes the bounce is difficult to see. Jurors either take the officers word that they saw the bounce or ignore the test all together.
Test #2: The Walk & Turn
The officer will place you in a position no normal human has ever stood in on their own and ask you to remain there until they finish the directions. The Officer will then rattle off 13 different directions and ask you if you understand. One of two things happens at this point. You either leave the position because you know the directions are important and want to give them your attention, which is bad. Or you focus on maintaining the position because staying in it is important and miss everything the officer said, which is also bad. Then when asked if you understood, you look like a deer in head lights but say yes, because not understanding would also look bad. The test is to imagine a straight line or use a painted stripe on the road to take 9 heel-to-toe steps, making sure your heel touches your toes every step. Count out loud on each step. Keep your arms down by your side and do not use them for balance. Do not step off the line. When you reach the 9th step leave your lead foot planted and take small choppy steps around it with your other foot. (Another thing a person has never done normally) Then return heel to toe stepping down the line with your arms by your side and count out loud. GO!
Test #3: The One-Legged Stand
This one is simple as far as the directions go. Pick a leg and lift it 6 inches off the ground. Keep your toe level to the ground and count out loud until the Officer tells you to stop. If you put your foot down simply pick it up and resume the test.
The Aftermath
You have run the gauntlet and come out the other side with flying colors. What is your prize? Handcuffs and a DWI charge. The reason is that the tests are evidence gathering tools, but rarely used as a determination to allow somebody to go back home. So back to that part about you passing the test and going home. The truth is that the Officer is being cautious, even if you do well on the test, alcohol is a volume and time-based substance. A person could drink a handle of alcohol seconds before being pulled over. They smell of alcohol but are still sober at this moment. If they “pass the test” and the Officer lets them go, now the alcohol has had time to set in. Now they are a risk to everyone and are actually breaking the law. No one wants their name in the paper or news saying Officer X stopped driver Y minutes before driver Y fatally crashed into a bus full of Nuns, Children and Puppies.
So, what should you do? As we always say, if you are being investigated say nothing and do nothing. Give the Officer your identifying information and no more. It is not your job to help them arrest you. This choice has legal consequences of its own and we will cover that, but we are not in the business of telling people to build cases against themselves. If you have received a DWI or have questions with a legal matter reach out to a local attorney or call us at 512-522-2030.
