By Megan Breckenridge, Staff Writer
SULLO & SULLO, LLP
SULLO & SULLO, LLP
HOUSTON—In
2008, the National Highway Traffic Safety Administration (NHTSA)
reported a total of 37,261 auto accident fatalities in the United
States; 11,773 (32 percent) of which involved a driver whose blood
alcohol content was above the legal limit. Perhaps even more disturbing
are statistics that show Texas as the national leader in alcohol-related
crashes, with 1,269 drunk driving deaths documented that year.
Given
this information, it’s easy to see why alcohol and drug-related traffic
offenses, commonly known as Driving While Intoxicated (DWI), are
frequently prosecuted criminal offenses in Texas. If the alcohol
concentration in a person's blood, breath or urine is .08 percent or
higher, the person is considered intoxicated by law.
In
some cases under Texas DWI law, the legal definition of intoxication is
met even if a person's blood alcohol concentration is lower than .08
percent. Having alcohol, drugs or a controlled substance in one's body
that causes loss of normal use of mental or physical faculties is also
considered intoxication. If a person is operating a vehicle, vessel or
even water skis in a public place, he or she is considered to be DWI,
which is a Class B misdemeanor in Texas. Boating and operating an
aircraft while intoxicated are also considered to be crimes.
The
minimum amount of jail time in Texas for DWI is 72 hours, unless there
is an open container of alcohol in the person's possession, in which
case the jail time is at least six days. Consuming any amount of alcohol
while operating a motor vehicle is also an offense in Texas.
In
addition to jail time, a person who is convicted of DWI the first time
will have his or her driver's license suspended for 90 days up to one
year. Even if there is no conviction, the positive indication of alcohol
from a blood, breath or urine test will result in automatic suspension
of the person's driver's license. The option to complete a
court-approved DWI education course within 180 days of conviction may be
offered as a means of avoiding this suspension. A person who fails to
complete such a program when sentenced to do so may lose his or her
license. If the case presents unusual facts (i.e.—an accident, alcohol
problem, bad driving record, etc.), additional conditions may be
imposed. Most conditions are designed to address a problem that appears
from the facts or alcohol/drug evaluation that is performed on the
subject after conviction and include, but are not limited to, the
installation of an ignition interlock device; alcohol treatment; an
order to consume no alcohol; confinement; and restitution.
A
DWI Second Offense is considered a Class A Misdemeanor, and requires
the court to order, as a condition of release from jail on bond, the
installation and maintenance of an ignition interlock device. This
machine requires a breath sample before it will allow an individual to
start his or her car, and periodic samples while driving to monitor and
ensure sobriety. New technology has made the devices “user sensitive” so
that another person cannot blow into the machine for the accused.
A
DWI Third Offense (or greater) is considered a Third Degree Felony in
Texas, and may include a jail sentence of not less than two years nor
more than ten years, along with many other stipulations and
restrictions.
Refusing
to submit to a blood, breath or urine test in Texas also carries
penalties. If an officer has reason to believe that a person is driving
while intoxicated, and the driver refuses to submit to a test, the
person's driver's license may be suspended
for a minimum of 180 days if the person is 21 years of age or older,
and for at least 180 days if the person is under 21. The period of
license suspension increases with every subsequent test that shows an
alcohol concentration above the legal limit, and with each time a person
refuses to submit to alcohol testing. For example, if a person refuses
to be tested for intoxication and there has been an alcohol or drug
related conviction or license suspension within the previous five years,
the person will lose his or her license automatically for one year.
Under any circumstances, however, the person is entitled to a hearing.
In
spite of these consequences, the number of DWI arrestees in Texas
refusing to submit to a test has remained at roughly 50 percent. As a
result, law enforcement agencies and prosecutors’ offices across the
state have begun to use search warrants to obtain blood samples when
suspects refuse to submit to a breathalyzer test, in a new program
called “No-Refusal Weekends”. According to the Harris County District
Attorney’s Office, the initiative aims to “ensure a breath or blood
sample from every suspect pulled over for suspected DWI, full
prosecution of these offenders, and, more importantly, a decrease in the
number of fatalities over holidays.”
During
no-refusal operations, which to date have been held during major
holiday weekends, if a suspect is arrested on suspicion of DWI and
refuses to submit to a breath or blood test, the arresting officer
prepares an affidavit in support of a search warrant application. The
affidavit must recite facts that demonstrate that the officer has
probable cause to believe that the suspect is under the influence, and
that evidence of alcohol or drugs will be found in their blood. The
officer then presents the affidavit to a judge who reviews if for
probable cause. In practice, the police rarely appear in person to swear
to the affidavit. Rather, the typical practice is for them to fax it or
recite it over the phone to a judge who is “on call” for the operation.
Once the warrant is approved, the arresting officer can obtain a blood
sample without the suspect’s consent.
No-Refusal
Weekends have been met with opposition from citizens claiming they are a
violation of basic rights and the Constitutional ban on unreasonable
search and seizure. Proponents, however, argue that not only will the
program pull offenders from the streets, it may serve as a deterrent to
those who previously thought they could side-step the law.
