DWI in Texas: What does it really mean?

DWI in TexasIt sounds simple enough: driving while intoxicated. A common thought is that it means what it says: driving while intoxicated.

But how does Texas law really define this offense?

First, driving doesn’t really mean driving. Rather, Texas law states that “operating” a motor vehicle in a public place while intoxicated is DWI. Courts have interpreted this to mean a lot less than actual driving of a motor vehicle. For example, a person behind the wheel with the ability to control the vehicle can be considered operating under the law. A person asleep in the front seat with the keys in the ignition, even with the car turned off, has been considered operating under the Texas statute.

What does “intoxicated” mean?

Most people associate this with being drunk or impaired. Again, Texas law defines “intoxication” very differently than one might think. It is defined by the Texas Penal Codes as: (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.

As one can see, this is a very broad, seemingly subjective, and multifaceted definition. It states one can be considered intoxicated by a: not having normal use of ones mental faculties, b: not having normal use of one’s physical faculties or c: having an alcohol concentration above .08 at the time of operating a motor vehicle in a public place. If a jury finds beyond a reasonable doubt any one of these three definitions it is legally enough for a conviction for DWI. In fact, in a trial, some jurors could believe a defendant is guilty because he did not have normal mental faculties and other jurors, in the same trial, could believe the defendant did not have normal physical faculties. If all of the jurors agree on intoxication by any of the three definitions, Texas law allows a conviction. There are many cases where there is no breath or blood test thereby making the State attempt to prove their case by the first two “not having normal use” definitions. This is where the field sobriety tests are normally used against a person charged to attempt to show that they did not have normal mental and/or physical faculties while they were operating a motor vehicle.

Many people wrongly believe that DWI is associated with blood alcohol concentration only. This gives a false sense of security as many drinkers rely on alcohol level charts and try to figure out how much they can drink and stay below the legal limit. As one can see from above, this is totally irrelevant when an officer stops you, smells alcohol and begins giving field sobriety tests trying to ascertain loss of normal physical and mental abilities.

So what to do? The reality is that drinking any amount of alcohol and then driving puts you at risk of being put though field sobriety tests and possibly arrested if you are stopped. This is especially true with the increased specialty enforcement of DWI throughout Texas.


Stopped for DWI?

Criminal LawDid you know that law enforcement cannot force you to submit to field sobriety tests? Police officers are trained to put you through three standard field sobriety tests if they believe you may be driving while intoxicated.

These tests are the Horizontal Gaze Nystagmus test, which is basically looking for a jerking motion in your eyes that law enforcement are trained to believe is a sign of intoxication. The Walk and Turn test, which has you walk nine steps back and forth down a line or imaginary while the officer looks for mistakes or “clues” such as not touching your heel to your toe on each step, stepping off the line, using arms for balance, etc. The third test, the One Leg Stand Test, which has you stand on one leg for thirty seconds.

Again, the officer is looking for mistakes or “clues” such as using arms for balance, hopping, or putting your foot down. The Horizontal Gaze Nystagmus test is, to say the least, controversial in its alleged accuracy in showing you may be intoxicated. Further, it must be administered in a precise manner to even be admissible in court under Texas law. The Walk and Turn and One Leg Stand tests are something you have probably never done before and now you are being asked to perform them under very stressful circumstances.

It takes few “clues” or mistakes for the officer based on his training, to believe you are intoxicated. In my opinon nearly everyone will make mistakes while attempting to perform these tests whether they are intoxicated or not.

Accordingly, you can just politely and respectfully say no when the officer requests that you perform these tests. Some people respond to this advice by saying: “well then I will be arrested because I didn’t do the tests.” You may be. But if the officer got you out of your vehicle for the field tests he probably already believes you are driving while intoxicated.

Further, if the officer does arrest you after you have refused these field sobriety tests then he is saying, by his actions, he had probable cause to arrest you based on the, probably minimal, evidence he has already observed.


Clearing Your Record

Anytime a person is arrested and booked into jail, a record is created. This record quickly proliferates to many databases and is easily accessible to the public. Many counties in the DFW and Houston areas have booking photos of each person arrested available online at no cost. Even if the case is ultimately dismissed, there is a finding of not guilty, or community supervision is successfully completed, the stigma of the arrest remains for all the public to see. Further, the reality is that the arrest record alone is often as harmful as being found guilty to many prospective employers.

In Texas, there are two main avenues to limit the arrest and case record from public view: expunction and non-disclosure. An expunction is the complete erasure of the arrest and case record from government databases and downline reporting companies. In general, an expunction is available to a person under any one of the following circumstances: the person is found not guilty of the charge at trial, the person is found guilty but later pardoned by the governor’s office, the case is not filed and a specified time period has passed (depending on the level of the offense) or the attorney representing the state agrees to it, the case was dismissed because the person charged completed an approved program under the Government Code, or because the case was dismissed because of mistake, false information or other similar reasoning indicating an absence of probable cause. If a case falls under any of the above categories the Court must grant an expunction if requested. Further, once the expunction is final, the person may legally deny the occurrence of the arrest and the existence of the expunction order unless they are questioned under oath in a criminal proceeding in which case they may state that the matter has been expunged. Texas also has in place expunction procedures available to victims of identity theft where someone has used their identity and created a criminal history.

Nondisclosure is a partial erasure of the record. It prohibits the information from the public but allows law enforcement and many state agencies to have access to it. Nondisclosure is applicable to offenses where deferred adjudication community supervision (probation) was granted and the case was dismissed after successful completion of the deferred adjudication. After the case is dismissed, there is a five-year wait on all felonies and a two-year wait on some misdemeanors, during which time the person must not have picked up any new convictions or probations, before a nondisclosure can be filed. Further, certain offenses, for example, cases involving family violence, kidnapping, stalking or cases that require sex offender registration, are not eligible for non-disclosure. Until 2015 all nondisclosure requests were discretionary with the court from which the case was heard. However, effective September 2015, if the case is the only deferred case the person has had, not including traffic offenses, and the community supervision is successfully completed, the judge must sign the Order for Nondisclosure. Otherwise, there is no right to a nondisclosure but a “best interest of justice” analysis. If the District Attorney agrees, most Judges will agree to the non-disclosure. If the District Attorney doesn’t agree then it is up to the Petitioner to prove that it is in the “best interest of justice” to grant the nondisclosure. Texas also enacted in 2015 a nondisclosure for first-time convictions where a defendant has successfully completed probation (but did not receive a deferred dismissal). This law excludes most alcohol related offense. The conviction nondisclosure also falls under the “best interest of justice” analysis.

A person’s background check can be the difference between getting a job or not getting a job. It can affect many other things in one’s daily life. If you have been arrested for an offense and fall into one of the above categories, you should definitely take action to clear your record.


The Great Texas Warrant Roundup

Have you heard about The Great Texas Warrant Roundup? For the last several years, the state of Texas has sponsored the Roundup, with more than 300 jurisdictions taking part in the Roundup as of 2015. The 2016 Roundup is just around the corner! Although no official dates for the 2016 Roundup have been announced, we can assume, from past years, the 2016 Roundup may likely take place between the third week of February and the third week in March. Historically, there are usually two weeks at the end of February designated as the amnesty or grace period of the Roundup. Then during the first 2-3 weeks in March, the enforcement phase begins. During the enforcement phase, the primary focus of law enforcement will be to arrest those whose names are on the outstanding warrant list.

Because of this, all those with outstanding warrants are strongly encouraged to post a bond, then resolve their tickets. While this might seem like the best way to take care of the situation, don’t forget there is significant financial incentive for agencies to encourage you to do just that. Dallas/Fort Worth and surrounding areas typically bring in between $1 and $2.5 million in fines and fees during the Roundup. Across the state of Texas, the combined amount is close to $20 million. Law enforcement agencies will arrest thousands of residents who neglected to take the Roundup seriously.

If you have any unpaid tickets or are unsure, you can reach out to Bailey & Galyen. We have several locations in the metroplex.  Our goal is to keep that traffic violation off your record so you are not penalized in the future by possible surcharges, license suspension and higher insurance rates.



Beginning January 1,2016 Texans with a concealed handgun license (CHL), now to be called license to carry (LTC), will be able to openly carry their handgun in most public places as long as the handgun is in a shoulder or belt holster. Surprisingly, with the passage of this law Texas becomes the 45th state in the nation to allow some form of open carry. This law is essentially an extension of the current concealed carry law that Texas enacted many years ago. The requirements to obtain a LTC remain the same; 6 months Texas residency, no felony conviction, 21 years old, training course, etc. The law makes no distinction between a loaded and unloaded firearm.

The new law, as with the old law, allows a person with a LTC to carry their handgun onto private property as long as the owner of the property does not display specific signage prohibiting it. Further, a private property owner could disallow only open carry while allowing concealed carry and vice versa. To prohibit any firearms on private property requires the owner to display two separate signs addressing each. There are other exceptions to where a person may carry a handgun. These apply whether the firearm is concealed or openly carried.

A person with a LTC may not do so at places that have a permit to serve alcohol and derives 51 percent or more of its income from the sale of alcohol (bars), on the premises where a high school, collegiate, or professional sporting event or interscholastic event is taking place, on the premises of a correctional facility, on the premises of a licensed hospital or nursing home, at an amusement park, on the premises of a church, synagogue or established place of religious worship and at a meeting of a governmental entity. It is also illegal to carry while intoxicated.

School grounds or buildings where a school activity is being conducted, polling places, government court or court offices, the premises of a racetrack, a secured area of an airport and within 1000 feet of a premises designated as a place of execution on the day a sentence of death is set to be imposed are also prohibited. The new law prohibits openly carrying on the premises of an institution of higher education or private or independent institution of higher education or any public or private driveway, street, sidewalk or walkway, parking lot, parking garage or other parking area of these institutions. However, a law which becomes effective on August 1, 2016 will allow a LTC holder to possess a concealed handgun essentially anywhere on a college campus.

Colleges will have some discretion in making rules concerning exactly where a person may carry. Current law allows one to carry a concealed handgun only on driveways, walkways, sidewalks and parking areas of a university campus. Since one must be 21 years of age to obtain a LTC, many students could not obtain a license anyway. Further, open carry is not permitted by an individual who is acting as a personal protection officer under Chapter 1702 Occupations code and is not wearing a uniform.

Obviously the big change is the open carry portion of the law. In day to day life it will be interesting to see which private businesses and places of large public drawings will prohibit open carry.


Traffic Laws You Should Know

The rules of the road in Texas are governed primarily by the Texas Transportation Code. This is the law, along with city ordinances, that police officers are trained to enforce. The only review of these laws for most Texas drivers was in their driver’s education course. Below are some of the traffic laws that are violated in very high numbers simply because drivers do not know that they are the law.

1. WIDE RIGHT TURN. In this situation you are approaching an intersection with the intent to make a right turn. The street you are turning onto has several lanes going each direction. Many drivers will swing out and turn into the first or second lane toward the center of the road. This is a legal violation that law enforcement refers to as a “wide right turn” In my estimation a majority of drivers violate this law when making right hand turns as they are simply unaware of the law. The Transportation Code provides:
Sec. 545.101. TURNING AT INTERSECTION. (a) To make a right turn at an intersection, an operator shall make both the approach and the turn as closely as practicable to the right-hand curb or edge of the roadway.
As you can see, you are required to turn “as closely as practicable” into the lane nearest to the right hand curb or edge of the roadway. The “practicable” exception could be if you were pulling a trailer and could not make the turn without going into the center or left lane to complete the turn.

2. TURN SIGNALS: In this situation you approach an intersection with the intent to turn right. However, you do not turn on your signal until you are at the intersection. This is a Fail to Signal violation as the Transportation Code requires that you signal your intent to turn at least 100 feet before initiating the turn. The Transportation Codes states:
Sec. 545.104. SIGNALING TURNS; USE OF TURN SIGNALS. (a) An operator shall use the signal authorized by Section 545.106 to indicate an intention to turn, change lanes, or start from a parked position.
(b) An operator intending to turn a vehicle right or left shall signal continuously for not less than the last 100 feet of movement of the vehicle before the turn.
Interestingly, the 100 foot requirement only applies to turns and not lane changes. Although you are required to signal your intent to change lanes, the law is silent on how long before the lane change your signal must be given.

3. FOLLOWING TOO CLOSELY: This is one of the most difficult to assess violations in the Texas Transportation Code. The law reads as follows:
Sec. 545.062. FOLLOWING DISTANCE. (a) An operator shall, if following another vehicle, maintain an assured clear distance between the two vehicles so that, considering the speed of the vehicles, traffic, and the conditions of the highway, the operator can safely stop without colliding with the preceding vehicle or veering into another vehicle, object, or person on or near the highway.

This broadly written law puts law enforcement in the position of making a judgment call on if your vehicle is too close to the one in front of you. The best advice is always keep several car lengths of distance between you and the car in front of you.

4. DRIVING ON SHOULDER: You are approaching a slower vehicle on a two lane road. You want to pass this vehicle but there are cars in the opposite lane of traffic that won’t allow you to pass on the opposite lane of traffic. You then proceed to pass on the shoulder. This is a violation of the law.

Sec. 545.058. DRIVING ON IMPROVED SHOULDER. (a) An operator may drive on an improved shoulder to the right of the main traveled portion of a roadway if that operation is necessary and may be done safely, but only:
(1) to stop, stand, or park;
(2) to accelerate before entering the main traveled lane of traffic;
(3) to decelerate before making a right turn;
(4) to pass another vehicle that is slowing or stopped on the main traveled portion of the highway, disabled, or preparing to make a left turn;
(5) to allow another vehicle traveling faster to pass;
(6) as permitted or required by an official traffic-control device; or
(7) to avoid a collision.
The law does not allow you to pass on the shoulder unless the car you are passing is disabled or slowing in the lane of travel to turn left. However, the slower car is allowed to use the shoulder to allow you to pass in the main lane of travel. You can use the shoulder to slow down before making a right hand turn. Finally, you may use the shoulder when required to avoid a collision.

5. PASSING EMERGENCY VEHICLE. This law was passed in 2003 and has drawn the ire of many motorists. In this scenario you are driving down the highway in the right lane when you notice a police car with his emergency lights on that has another driver stopped on the right hand shoulder. You continue in the same lane at the same speed as you pass the police vehicle. You have violated the law. The law states:
Sec. 545.157. PASSING AUTHORIZED EMERGENCY VEHICLE. (a) On approaching a stationary authorized emergency vehicle using visual signals that meet the requirements of Sections 547.305 and 547.702, an operator, unless otherwise directed by a police officer, shall:
(1) vacate the lane closest to the emergency vehicle when driving on a highway with two or more lanes traveling in the direction of the emergency vehicle; or
(2) slow to a speed not to exceed:
(A) 20 miles per hour less than the posted speed limit when the posted speed limit is 25 miles per hour or more; or
(B) five miles per hour when the posted speed limit is less than 25 miles per hour.
This law requires you, when on a road with two or more lanes traveling in the direction of the emergency vehicle, to put a lane between you and the officer if you are going to maintain your speed. If you are on a two lane road or remain in the lane next to the officer, you must slow to a speed 20 miles per hours less that posted speed if the speed limit is 25 or more.

The above are just a few of the most often violated portions of the Texas Transportation Code. Reviewing the laws periodically will certainly give you the knowledge to better understand what violations law enforcement are looking for.


Traffic Tickets in Texas – You Should Not Just Pay the Fine. Consult an Attorney.

by John Robinson

Many people consider traffic tickets and their associated fines just part of life. Some people just pay the fine without a second thought. If a person rarely gets a ticket, this may not be that big of a problem. However, as little as two tickets in three years can become a big problem. Not only do traffic violations have an impact on a person’s automobile insurance, they can also get a driver’s license suspended before the person realizes it is going to happen.

The Texas Transportation Code provides for the “Driver Responsibility Program” in Chapter 708. This is essentially a tax and penalty system that applies to a driver upon a certain number of moving violations within a fixed time period via a “point” system. The State of Texas began keeping track of points for all traffic convictions after September 1, 2003.

Basically, the Driver Responsibility Program creates a “point” system that applies to each traffic violation conviction a person receives. Two points are recorded for a moving violation conviction in Texas or from another state. Three points are recorded if the violation involved an accident. Nonmoving violations, such as driving without a seat belt, having an expired inspection, having an expired registration and equipment violations, do not accrue points. Once a driver reaches six points within a 36-month period, a surcharge (code word for penalty) is applied. This surcharge is $100 for the first six points and $25 for each additional point. This surcharge must be paid to the Texas Department of Public Safety each year for three years. If you do not pay surcharge, the Department of Public Safety automatically suspends your driver’s license.

Certain offenses are treated more seriously. If you receive a single conviction of Driving While License Suspended (DWLS) or No Financial Responsibility (No Insurance), the point system doesn’t apply — you owe a surcharge of $250 per year for three years. Driving with No Valid Operators License (No DL) will also result in a surcharge of $100 per year for three years.

Points only apply to convictions. This is why it is very important to try to get your ticket dismissed or get deferred adjudication. Even though a deferred sentence involves a fee paid to the city in which the violation occurred, the ticket does not result in a conviction. Only convictions are sent to the Department of Public Safety to be entered into the system for points.

At Bailey and Galyen, we strive to avoid a conviction on each traffic ticket that we represent in court. If you are charged with a traffic offense, call Bailey and Galyen to minimize the damage.

Our DWI Attorneys offer a free initial consultation to all clients. We are available 24 hours a day, seven days a week to protect your rights when you have been charged with a DWI. Complete the form below or call us to set up an appointment. Evening and weekend consultations are available upon request. Se habla Español.

Our attorneys protect the rights of clients across south Texas, including in Dallas – Ft. Worth, Houston, Bedford, Arlington, Grand Prairie, Carrollton, Weatherford,Mesquite, and Plano, TX.

Your Rights When Stopped for Suspicion of Drinking and Driving

Your first right is to remain silent. The first question the officer will likely ask you is if you have been drinking. You don’t have to answer that question and you cannot be arrested or have your license suspended for not answering the question.

The police officer may then ask you to take a field sobriety test. You have the right to refuse to take the field sobriety test, though police officers will seldom, if ever, tell you this.

You do not have the right to consult an attorney before taking a field sobriety or blood alcohol test, but can make the request anyway. The law does not prohibit an officer from allowing you to call an attorney before submitting to any test.

If the officer places you under arrest, you must immediately be advised of your Miranda rights, including the right to a lawyer, the right to remain silent, the right to have an attorney present and the right to terminate an interview at any time.