The Driving While Intoxicated Lawyers at Rush & Gransee will thoroughly evaluate your case to determine there are any legal or factual issues that can be advanced in your defense that may result in either a dismissal or an acquittal.

ISSUES PARTICULAR TO DWI
1. 15 Day Deadline – After an arrest for DWI you have 15 days in which you, or your attorney, need to request a hearing with DPS, this hearing is referred to as an Administrative License Revocation hearing or "ALR". If this is not done, your drivers license will be suspended 40 days after your arrest. An added benefit of requesting a "ALR" hearing from DPS is that we will be able to obtain copies of the police reports and breath test results if applicable.  Also, the "ALR" hearing may give your attorney an opportunity to cross exam the arresting police officer without the officer being prepped by the prosecutor of the DWI charge. If the Officer makes statements during the "ALR" hearing that are useful, in the pending DWI case, a transcript can be ordered for later use in the DWI trial. If you are successful at the "ALR" hearing your license will not be suspended unless you are convicted of DWI.

2. Breath Test Results – It is currently illegal to operate a motor vehicle in Texas with an alcohol concentration of .08 grams of alcohol or more per 210 liters of breath. The machine used most often to test the breath of suspected intoxicated drivers is called an intoxilyzer 5000. The intoxilyzer has many opponents who contend that it is not accurate. Many experts agree that the intoxilyzer machine has a margin of error in the range of .005 grams of alcohol per 210 liters of breath; in addition a normal person’s blood alcohol level can vary by .02 grams per hour. Therefore, in many cases a driver may have an intoxilyzer reading over the legal limit when in reality they may have been up to .025 grams lower at the time he/she was driving. The intoxilyzer test only indicates what someone’s alcohol level may have been at the time of the test; the state will try to extrapolate the results of the test back to the time that the defendant was driving. Therefore, in many cases a driver may have an intoxilyzer reading over the legal limit when in reality at the time he/she was driving he/she was under the legal limit when driving. A breath test result over .08 does not mean that you are guilty. Some studies have shown that individuals alcohol levels can rise by up to .08 grams after stopping drinking. It is therefore possible for someone to be under the legal limit when driving but be over the legal limit when taking the breath test.

3. Breath Test Refusal – If a defendant refuses to take the breath test the officer will normally attempt to videotape the suspect while performing field sobriety tests. The field sobriety tests have been standardized and the officer will be looking for even the smallest mistakes to use against the defendant. The State will try to prove their case against the accused by arguing that he/she had lost the normal use of their physical or mental faculties by reason of the introduction of alcohol into their system.

4. Field Sobriety Tests - The field sobriety tests are often referred to as the standardized field sobriety tests. The standardized field sobriety tests are comprised of the horizontal gaze and nystagmus, the nine-step walk and turn, and the one legged stand. Any other tests performed have not been shown to be predictive of intoxication.

5. Implied Consent – In Texas, driving is considered a privilege. Because driving is considered a privilege the law provides that upon a proper request you shall take the intoxilyzer test. To be considered a proper request the police officer must not make any efforts to persuade you to take the intoxilyzer. If the officer does not properly request that you take the test it may be possible to have the court rule that the breath test results are inadmissible, thereby improving your chances of being found not guilty.

6. Driver’s License Suspensions – Various fact scenarios can result in differing periods of driver’s license suspension. Occasionally it is possible that there will be no period of suspension. There are too many factors that effect the periods of suspension so that each case has to be reviewed individually. Factors that affect the period of drivers license suspension include: defendant’s driving history; defendant’s criminal history; age of defendant; and, whether the defendant took the breath test or refused.

7. Punishment Range – A first DWI has a range of punishment of $0.0 to $2000.00 fine and from 72 hours to 180 days confinement, also there is a requirement that a minimum of 24 hours of community service be imposed. If there was an open container of alcohol in the possession of the driver the minimum period of confinement is 6 days. Subsequent DWI’s have increased punishment ranges. Upon a second conviction for DWI the legislature now requires that a defendant serve 72 hours in jail as a condition of probation; however, some courts have gotten creative to get around this requirement.

8. Occupational Licenses – The drivers license suspension period varies greatly depending on the facts and circumstances of each case. If a defendant has never been previously arrested for driving while intoxicated and wins the DPS hearing (which is requested as described above in #1) it is likely that his/her license will not be suspended. The Defendant’s license will be suspended if: a DPS hearing is not requested; or, the defendant loses the DPS hearing; or, the defendant is convicted for a second or third DWI. If a defendant’s license is suspended it may be possible to obtain an occupational license that will allow the holder to drive for work, for school, and essential household duties. Issues surrounding whether a particular person can obtain an occupational license are too numerous for a discussion here and must be addressed on a case by case basis.

9. Videotape – It is important to obtain copies and review any videotape made of the defendant.

10. Reasonable Suspicion - Each case must be evaluated to determine whether the arresting officer made a valid arrest or detention. Often police officers stop drivers for invalid reasons; such as, going to slow, weaving within a lane, and looking generally suspicious. If the police officer cannot articulate a valid reason for stopping a driver, the court should not allow the prosecutor to use any evidence obtained as a result of the invalid detention. A DWI charge is normally dismissed by the prosecution after the granting of a motion to suppress if based upon an invalid detentionl.

We handle Driving While Intoxicated (DWI) cases throughout Texas, including the cities of San Antonio, Sequin, New Braunfels, Kenedy, Floresville, Hondo, Junction, Cotulla, Boerne, Uvalde and Wilson County, Bexar County, Guadalupe County, Hays County, Kendal County, Kerr County, and Medina County, and Uvalde County.