DWI is one of the charges that happens a whole lot in Texas, and Texas City is part of Galveston County. In Galveston, a lot of DWI traffic stops happen right on the Seawall. In Texas we call it DWI, driving while intoxicated. In some other states they call it a DUI.
There are a lot of different types of DWIs, but the main statute is Texas Penal Code Section 49.04. Here's what it says, what the State has to prove, and how that proof usually shows up in a Galveston County case.
The statute
Texas Penal Code Section 49.04 starts off by saying a person commits an offense if the person is intoxicated while operating a motor vehicle in a public place.
So the pieces are: the person was intoxicated, the person was operating, it was a motor vehicle, and it was in a public place.
What "intoxicated" means: two ways to prove it
The Texas Penal Code defines intoxication in more than one way.
The number. Having an alcohol concentration of 0.08 or more, typically in your breath or blood. That's how they're going to try to test for it.
The eyeball test. If they don't get a blood test, and that does happen sometimes, the State can try to prove you lost the normal use of your mental faculties or your physical faculties due to the introduction of alcohol into your body.
Sometimes even a result below 0.08 could result in a conviction, because that 0.08 number only applies to alcohol. It could be some other substance, like PCP, methamphetamine, codeine cough syrup, or even a prescription drug. I've seen people who were prescribed Xanax get charged with DWI.
Why the video is normally the most important evidence
When somebody gets pulled over, or there's a crash, the officer has body camera footage from a camera on their lapel, and maybe the dash cam on their police car. That is normally the most important evidence in a DWI case.
If you do not look intoxicated on that video, then even a high blood test case can be beaten in some instances. If you look really bad on the video, sometimes even a result below 0.08 could result in a conviction.
The field sobriety tests
There are three standardized field sobriety tests that are typically administered, whether it's Galveston police or the Galveston County Sheriff's Office:
- Horizontal gaze nystagmus (HGN): an eye test that measures the involuntary jerking of the eyes, kind of like windshield wiper blades bouncing and skipping on a dry windshield.
- Walk and turn: a nine-step, walk-a-straight-line test with eight different clues, like starting too soon, using your arms for balance, taking the wrong number of steps, or an improper turn.
- One leg stand: lift one foot about six inches off the ground, point your toe, and count until told to stop, typically for about 30 seconds. There are four clues, like putting your foot down, swaying, hopping, or using your arms for balance.
On the walk and turn, officers say you have to listen and comprehend, which tests both your mental and physical faculties. They call that a divided attention test. What we look at is whether they were administered in an accurate and fair way, whether the officer explained them correctly, and whether there are reasons, like back problems or an old ankle surgery, that a person couldn't do the test the way someone with normal physical capabilities could.
Breath and blood
A portable breath test on the side of the road is not admissible in court, and there's no requirement for an officer to do one before an arrest.
After an arrest, the officer reads a document called the DIC-24 and asks for a breath or blood sample. The breath test that is admissible is done on the Intoxilyzer 9000, a large, certified machine normally kept back at the jail.
If you don't agree to give a sample, officers can ask a judge to sign a blood warrant based on probable cause. The gray-top blood tube isn't always mixed properly, and there can be clotting that the Department of Public Safety notes in its records. Blood is then tested using gas chromatography, and there are a lot of different things that can go wrong in that kind of testing.
What decides the punishment range
Texas Penal Code Section 49.04 also sets out the punishment levels. The higher levels apply if certain things are shown at trial:
- Standard first-time DWI (other than the repeat-offender provisions): a Class B misdemeanor with a minimum term of confinement of 72 hours. Normally a Class B ranges from zero to 180 days, up to a $2,000 fine, or probation for two years, but DWI has that 72-hour minimum.
- Open container: if there's an open alcohol container in your immediate possession, it's still a Class B, but the minimum term of confinement is six days.
- 0.15 or more: if an analysis of blood, breath, or urine showed an alcohol concentration of 0.15 or more at the time of the analysis, the offense is a Class A misdemeanor.
Notice what the 0.15 section doesn't say. It doesn't carry over the 72-hour or six-day minimum. So the lowest amount of jail time on an enhanced 0.15 DWI is actually less than on a straight DWI. The Legislature probably didn't mean to do that, but it did.
That 72-hour minimum can be a problem. Some counties make sure it is strictly followed, and other counties will give you credit for time you've already served. But the statute doesn't say that if you get probation, you have to serve the 72 hours. Probation, even deferred adjudication probation, is a possibility, and if that's the case, you're not going to have to do that 72 hours.
The stop comes first
Before any of that, the officer needs reasonable suspicion for the traffic stop, like speeding caught on radar or lidar, or failure to maintain a single lane. In Galveston County, a failure to maintain a single lane stop is probably the most likely way we're going to get a DWI case dismissed, because the officer has to show not just that you drifted into the other lane, but that it was done in an unsafe manner.
Crash cases are probably the hardest to get dismissed based on the stop, because officers typically have the ability to investigate a crash.
This post is for educational purposes only and is not legal advice.