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The Dreaded DWI



Picture this: you’re driving home from a wedding, dinner, nightclub, the river, or game night with friends, no matter from where your great night started, it’s about to take a turn for the worse when those flashing lights appear in your rearview mirror. 


Most people don’t go out and say, “I’m going to get really really drunk and then risk everyone’s life on my way home.” It’s been a long day and that second glass of wine was a heavier pour than you thought. Or the alcohol takes over and whispers to you “you’re fine to drive.” But in 2024, with Uber, Lyft, old school taxis, or a designated driver, there is not much sympathy for individuals who  get caught up in the DWI court system. While the mindset isn’t to go out and hurt people, the reality is that many people are hurt or even killed every year due to intoxicated drivers. 


With that in mind, it’s easy to become jaded and think that anyone who has had a drink should be subject to the punishment of DWI*, but that’s not the case. Many law abiding citizens  get punished with a wide net solution instead of a precision tool. If that is, you or could be you in the future, this blog explains what a Driving While Intoxicated stop looks like and what you should do. 


The law says:

“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.”


The law is a mouth full, but we are going to explain it simply to address the loss of normal mental or physical facilities. This example is to help understand the concept, not legal advice. If you require legal advice or help with a case, consult Citizen Defense, PLLC, or contact a lawyer in your area. 


Back to you being pulled over, let’s assume you were driving and were stopped for a legal reason like a missing headlight. You interact with the officer, and they believe that you are under the influence of alcohol, and a substance or the combination of the two. So the officer switches from an investigation of the stop to a DWI investigation. They will ask you to exit the vehicle and while asking innocuous questions like:

  • 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 at that restaurant? 


These seem like questions to fill the time while the officer waits for dispatch to give them the info they need to send you on your way. However, they are actually chipping away at your defenses and gathering information about you. If you were watching the game, they might ask, “how many drinks did you have?” The officer loves that restaurant you went to for dinner, it has  a great wine menu, so they might ask, “Did you try the house red?” Or perhaps you told them you live close by and you are coming from downtown, so they made the assumption that you’ve been driving for the last 40 minutes. 


Now the officer has enough information to claim you smell of alcohol and they have gotten you to admit to a drink. Officers will lean on their “DWI math” and could say something like, “In my experience, every single time a person is asked how many they have had they say two without fail.” So two can mean five or eight as far as the officer is concerned. 


The officer still needs more evidence, so they might ask you if you would like to do some tests to make sure that you can safely drive home. This is a lie, 99% of the time you will end up in jail. But the prompt to do tests makes you think there is a pass and fail, so you decide to do the “tests” because you are fine and will be on your way home in 15 minutes. A wrong assumption on your part. 


The Tests

Test one: The Horizontal Gaze Nystagmus exam 

 Not many people outside of lawyers, officers, and ophthalmologists know or care about this test. This is even more true when it comes to jurors. The officer is looking for Nystagmus prior to reaching 45 degrees. There is 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, and 45 degrees is estimated by using your nose as the center and looking at an angle away from it. 

The test is conducted on the side of the road, the dash-cam of the officer’s cruiser can’t see your eyes, and the chest camera only sees the officer moving their arm administering the test. Even if the camera catches your eyes, the bounce is difficult to see. So Jurors either take the officer’s word that they saw the bounce or ignore the test all together. 


The officer will place you in an unnatural standing position and ask you to remain there until they finish giving directions. The officer will then rattle off 13 different directions and ask you if you understand. One of two things happens at this point. 

1) You either leave the position because you know the directions are important and want to give them your attention, which is bad. 

2) 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 the directions, you look like a deer in headlights 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 nine heel-to-toe steps, making sure your heel touches your toes every step while counting out loud on each step. You must keep your arms down by your side and cannot use them for balance and cannot step off the line. When you reach the ninth step, leave your lead foot planted and take small choppy steps around it with your other foot, another unnatural movement for the body.You’ll then return to heel-to-toe stepping down the line with your arms by your side and count out loud. 


Final test: The One-Legged Stand

This one is simple as far as the directions go. Pick a leg and lift it six 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. 


You have now run the gauntlet and come out the other side with flying colors. What is your prize? Handcuffs and a DWI charge. 


The tests are evidence gathering tools, not determine-who-is-safe-or-not exams. 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.


*For clarification, we’re looking at a DWI, not a DUI. In Texas DUI is for anyone under the age of 21 that drinks and drives.

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