Although many states use the terms DUI (Driving Under the Influence) and DWI (Driving While Intoxicated) interchangeably, the terms have a subtle distinction in Texas. DUI generally refers to a minor (under 21) who is arrested while driving and the officer has some reason to believe he or she has been drinking. A police officer may ticket, or arrest a minor for DUI on the basis of just about anything suggesting that the minor has been drinking. Fortunately, these cases are normally referred to a justice of the peace or municipal court. Competent counsel can have the child placed on deferred adjudication - meaning a period of community supervision with a dismissal upon successful completion - accompanied by programs designed to divert the minor from a future of "driving while intoxicated" and require several hours of community service.
On the other hand, DWI (Driving While Intoxicated) requires that the accused be arrested upon a determination of probable cause that the individual either has lost "the normal use of mental or physical faculties" due to ingestion of alcohol or drugs or that the individual has a blood alcohol level over .08%.
Proof of a blood alcohol level requires either a blood or breath test. The bar here (pardon the pun) is very low. Many individuals will have a blood alcohol level of .08% after consuming nothing more than two glasses of wine with dinner or a couple of beers on the way home from work. Metabolism varies among people. The speed with which people absorb alcohol (get drunk) and the rate at which the eliminate alcohol (get sober) also varies.
Regardless, it is not illegal for an adult to be intoxicated nor to drive (unless in public and creating a danger). It is only when they are done at the same time that DWI is committed. Consequently, if a driver has had anything to drink it is best to refuse either a breath or blood test. AND HE CAN!!!
The refusal may result in the suspension of his or her driver's license even if the accused is later found not guilty, but it will make the prosecutor's job much more difficult at trial if they have no scientific evidence of intoxication. And the suspension is much less severe than the mandatory sentences which will certainly come as a result of a conviction or guilty plea.
THE MESSAGE....if you have had any alcohol to drink and you are stopped by the police, DON'T BLOW! On the other hand, if you know you haven't been drinking for the last several hours and that you are completely sober, have a ball...the result should exonerate you.
You will probably be asked to take a number of sobriety tests on the roadside or at the Police Station. The message here is the same as above. If you know you will fail, or you have had something to drink and aren't sure you'll pass... REFUSE!.. YOU CAN!!!
Don't DO anything or SAY anything except ask for a lawyer REPEATEDLY!!
Remember that even on the roadside, you are probably being tape recorded. So if you are drunk - or think you might be - BE POLITE and SHUT UP!!!If arrested, call us as soon as you are allowed to use the phone. We'll handle the rest.
