What To Do if You Are Pulled Over and/or Arrested for DWI

What To Do if You Are Pulled Over and/or Arrested for DWI

Nothing drives fear down the spine of a professional like being arrested for DWI.
No one ever wants to see flashing red and blue lights in the rearview mirror, especially when driving home late at night after having a few drinks with friends.

However, if you remain calm and follow these instructions, you may be able to avoid an arrest for DWI.

Or at least have a much better chance of beating your

….DWI case if you are arrested

  1. Pull your vehicle over to a safe, well-lit area as soon as possible, and turn on the overhead light inside your vehicle
  2. Roll down your window just a few inches, which is enough for you and the officer to communicate with each other
  3. Have your driver’s license and proof of insurance ready as soon as the officer approaches your vehicle. If you are fumbling around looking for these items while the officer stands there watching you, he will note in his report that you appeared confused and had trouble locating these items, and he will conclude it was a sign you were intoxicated
  4. Be polite and courteous, but do not answer any questions regarding your consumption of alcohol. You have a right to remain silent, and you have no legal obligation to do anything except provide the officer with your identification. Remember, anything you say and do is being video and audio recorded and will be used against you in court
  5. If the officer detects any odor of alcohol coming from you or your vehicle, or notices any other possible signs of intoxication, the officer will ask you to step out of your vehicle. Carefully exit your vehicle, and be very careful not to stumble, lose your balance, or lean against your vehicle to maintain your balance. Again, the officer is watching your every move, and will note in his report the slightest mistakes you make in order to bolster his claim that you were intoxicated
  6. The officer will ask you to perform some tests to determine if you are okay to drive home. In reality, the officer is not trying to find out if you are “okay to drive” with the intention of letting you go home. Instead, he is trying to collect evidence against you so he can arrest you for DWI
  7. Politely ask the officer, “Am I required by law to perform your tests?” The officer will have to reply that you are not required by law to perform field sobriety tests (any other response is a lie). You should then respond and say, “Well, I’m not familiar with your tests, and a lawyer friend of mine told me that sobriety tests are pretty unreliable, so I would prefer not to perform any tests until I can consult with an attorney. May I contact an attorney?”
  8. Do NOT let the officer persuade or coerce you into performing field sobriety tests. Such tests are unreliable, awkward to perform, and are specifically designed for you to fail and appear intoxicated. You officer will be videotaping you performing the test, and any sight mistake you make will be used against you in court
  9. At this point, you will probably be arrested for DWI. Cooperate with the officer and remain polite. Do not argue or protest at this point, as you have nothing to gain. If you resist, pull away, or struggle while being handcuffed or placed into the police car, you may be charged with an additional offense of resisting arrest
  10. After you are arrested, do not make any statements or answer any questions. Do not yell or scream at the police officer. Ask for an attorney
  11. The officer will read to you a document called a “Statutory Warning” and will ask you for a specimen of your breath or blood. Unless you are absolutely, 100% confident you are under the legal limit, you should always refuse a breath or a blood test
  12. After you refuse the breath or blood test, the police officer will seize your driver’s license and may apply for a search warrant to forcibly draw a sample of your blood for testing. If the officer obtains a search warrant, you cannot resist the blood draw. If you do, you will be charged with the separate offense of resisting a search. However, you should clearly state as often as possible that you do not consent to a blood test
  13. You will be booked into jail, and eventually taken before a Judge, who will tell you what you are charged with and will set your bond amount. The Judge will also set your bond conditions, which may include installing an ignition interlock device on your vehicle
  14. After you post bond and are released from jail, you should immediately contact and retain an experienced DWI lawyer who can take the necessary steps to protect your rights and fight your DWI case
Public Intoxication Laws and Procedures in Texas

Public Intoxication Laws and Procedures in Texas

In Texas, public intoxication is a Class C misdemeanor criminal offense. Section 49.02 of the Texas Penal Code states: “A person commits an offense if the person appears in a public place while intoxicated to the degree that the person may endanger the person or another.”

Three separate elements must all be present for a public intoxication offense:

  1. You must be in a “public place,”
  2. You must be “intoxicated,” and
  3. Your level of intoxication must be such that it may cause you to be a danger to yourself or to someone else.

The first element requires that you be in a “public place.” Texas law defines a “public place” as “any place to which the public or a substantial group of the public has access and includes, but is not limited to, streets, highways, and the common areas of schools, hospitals, apartment houses, office buildings, transport facilities, and shops.”

Remember, “public place” is different from “public property.” Private property can still be a “public place” if the public has access to it. Here is how I explain it to my clients: A public place is pretty much anywhere in the world except inside of your own house with the doors locked. In other words, you can be arrested for public intoxication almost anywhere, including the front yard of your house, inside of a vehicle, or inside of a bar or a hotel.

The second element requires you to be “intoxicated,” which is defined in Texas as “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 having an alcohol concentration of 0.08 or more.” Breath or blood tests are almost never offered or administered after being arrested for public intoxication (they aren’t required by law to be administered) so public intoxication cases require at least some evidence that you did not have the normal use of your mental faculties or your physical faculties due to drinking alcohol, taking drugs, or a combination of both.

The third element is that your intoxication must be to such a degree that you may pose a danger to yourself or to another person.  The key word is “may.”  There only needs to be evidence that you might potentially pose some hypothetical danger to yourself or to someone else due to your alleged intoxication (e.g., you might fall down and hurt yourself, you might go drive a vehicle while intoxicated, you might pass out and become the victim of a robbery or sexual assault, etc.). There does not need to be evidence or proof that you were actually posing a specific, imminent danger to anyone.

A police officer only needs “probable cause” to arrest you for the offense of public intoxication. Probable cause is a very low burden of proof. The officer only needs to think you might be intoxicated in a public place, and that is enough to arrest you, take you to jail, and charge you with the crime. A police officer has no obligation to administer field sobriety tests, a breath or blood test, or any other kind of test before arresting and charging you with public intoxication. They can arrest and charge you based solely on their observations of you.

What happens when you are arrested for public intoxication in Texas:

  1. If detained or arrested for the offense of public intoxication, you almost certainly will be taken to jail, where you will spend anywhere from 6-12 hours or more before you are allowed to be released.
  2. Some jails require you (or a friend or family member) to deposit a Cash Bond in order for you to be released. Generally, the Cash Bond will be in an amount between $200.00 and $500.00, and will be held by the Court until the final disposition of your case. The Cash Bond will be used to pay any fines and court costs that may be assessed by the Court.
  3. When being released, you will either be given a date to appear in Court, or you will be notified to contact the Court within a certain number of days. You need to contact and hire a lawyer BEFORE your Court date or your deadline to appear in Court.

In some rare circumstances, a police officer who detains and charges you with the offense of public intoxication will allow you to be released to a friend or family member who agrees to take you somewhere safe and assume responsibility for you.

While this means you avoid a night in jail, it doesn’t mean you avoid a criminal charge. The police officer will issue you a citation for the offense of public intoxication and a summons to appear in Court before he or she releases you to your friend or family member. This situation is very rare, because a police officer will not want to wait around for a ride that may or may not show up to take you home. It is easier for them to just arrest you and drop you off at the jail.

It doesn’t take much for a police officer to arrest you for public intoxication, but once the case goes to Court the prosecutor has a much higher burden of proof, and must prove all three elements beyond a reasonable doubt (which is a very high burden of proof).

Generally, the evidence presented against you in Court will be the testimony of the police officer who arrested you.  The officer will testify that he smelled alcohol on your breath, and observed you having bloodshot eyes, slurred speech, and unsteady balance (whether or not these things were actually present). The officer will testify that based on his training and experience, you were intoxicated and did not have the normal use of your mental or physical faculties.

Occasionally, there may also be video of you from a dashboard camera or body camera worn by the police officer. There might also be witnesses who will testify that you appeared intoxicated, out of control, belligerent, etc. The police officer and any other witnesses presented by the prosecutor are subject to cross examination by your defense attorney.

What is the punishment for a Public Intoxication charge in Texas:

  • If convicted of public intoxication, the punishment is a fine of up to $500.00 plus court costs.
  • Under some circumstances, a public intoxication charge can be enhanced to a Class B misdemeanor, which carries a punishment of up to 180 days in jail and a fine of up to $2,000.00.
  • More importantly, since public intoxication is a criminal offense under the Texas Penal Code, a conviction will be reported on your criminal history, and will cause you to have the dreaded “criminal record” that can be viewed by the public, employers, etc.

Therefore, it is very important that you retain an experienced, skilled criminal defense attorney who has handled thousands of public intoxication cases, and who will aggressively negotiate a dismissal of your public intoxication charge and prevent you from having a permanent criminal record.