FAQ

The DWI DUDE answers the most frequently asked questions about DWI. If you have a question you want the DWI DUDE to answer please click here.

Question: " I have always wondered what I would do if they demanded blood and came at me with a needle.   This would scare me, and even if I was not intoxicated, I might feel threatened and explode or resist. Can they legally stop and demand blood on the spot?   I have heard stories on the radio like….they will take blood even without my consent.   Is that legal?   I can not be the only person who does not like needles…….or would not want them to take my blood in any way.  What should I do specifically about blood taking if I am ever pulled over?"

Answer: Texas Law provides for the taking of blood without a warrant in Intoxication Manslaughter (fatalities) and Intoxication Assault (serious bodily injury) cases.  The only issue in those situations is whether or not the officer has a belief that intoxication is involved.  They cannot just take your blood without some indication that you are under the influence of an intoxicating substance.  Otherwise, a blood draw would be allowed in every auto accident not resulting in death or injury.  That law was written to assure that the blood draw could be done without delay in case there was no judge or magistrate available to sign a warrant and the evidence would be lost.

The latest fade in the "War on DWI" is the Blood Search Warrant.  In Texas and throughout the nation, Law Enforcement agencies have found a loophole to circumvent the restriction on taking blood except in those most serious cases described above.  By obtaining a Blood Search Warrant signed by a Magistrate the police have effectively extended the Statutorily allowed blood draw to any and all DWI cases. 

The biggest concern I have is whether or not the Magistrate is "unbiased and neutral".  Is the Magistrate being paid especially for this purpose?  Does the Magistrate approve every Blood Search Warrant that is submitted for approval?  Does the Blood Search Warrant Affidavit (the application for the warrant) actually contain enough information to justify the intrusion of taking the blood from a citizen's body.

Unfortunately, the legal battle must be fought in court after the blood has already been taken.  Fortunately, our criminal justice system allows for this fight to occur.  But remember I can only attack the Blood Search Warrant if you stand up for your Constitutional Rights and refuse to give your consent for the blood draw.  You must force the police to get the Blood Search Warrant in order to give me the forum to fight the legal battle to suppress the evidence.

That doesn't mean you get to use physical force to resist the blood draw.  Once the police have the Blood Search Warrant in hand they can take your blood and are authorized to use physical force to do so.  You can also be charged with the criminal offense of "Resisting a Search" by failing to cooperate with the Blood Search Warrant.  I advise clients to respectfully submit to a valid Blood Search Warrant.  The system allows me to fight the legal battle in front of a different Judge than the one that signed the Blood Search Warrant.

As the "War on DWI" continues to escalate you can expect for even more Draconian measures to be created by the Law Enforcement agencies.  The best weapon we have to resist this movement is to educate the citizenry and to ask for the public to keep tabs on pending legislation that may further restrict our rights as citizens.  There is a need to prevent the catastrophic harm caused by drunken drivers.  But caution must be exercised when we risk damage to our Constitutional Rights and individual freedom. 

I believe that historically once the people lose individual freedoms to their Government they seldom reclaim them.  I don't have a simple solution to the problem of drunk driving but I remain concerned about the cost of these Blood Search Warrants to the rest of our society.

Question: What are the cops looking for to indicate driving while intoxicated?

Answer: The Standardized Field Sobriety Test (SFST) Program divides the DWI investigation into three parts: 1) Vehicle in Motion (VIM -driving facts); 2) Personal Contact (PC - your appearance); and 3) Arrest Decision (SFSTs - HGN, WAT, and OLS).

During the VIM portion of the investigation the officer is watching the vehicle for the following clues.  The list of clues or cues, as originally published by the National Highway Traffic Safety Administration (NHTSA) is as follows:

1. Turning with a wide Radius
2. Straddling the center or lane marker line
3. Appearing to be drunk
4. Almost striking an object or vehicle
5. Weaving
6. Driving on other than designated roadway
7. Swerving
8. Slow speed (driving 10 mph or more under the speed limit)
9. Stopping, without cause, in the traffic lane
10. Following too closely
11. Drifting
12. Tires on center or lane marker
13. Braking erratically
14. Driving into opposing or crossing traffic
15. Signaling inconsistent with driving actions
16. Slow response to traffic signals
17. Stopping inappropriately (other than in traffic lane)
18. Turning abruptly or illegally
19. Accelerating or decelerating rapidly
20. Headlights off

You will notice that "speeding" is not one of the listed clues, nor is defective tail lights or license plate lights. In other words, many DWI investigations begin with non-DWI traffic stops.  The DWI investigation then begins due to issues that begin during the Person Contact portion of the stop.

Our office has enjoyed great success in DWI trials during cross examination by showing that there were no "drunk driving" facts in the case. Many officers have spread the word that it is better to follow the potential "DWI victim" for some distance in order to observe traffic violations that are on the list.  This allows the testifying officer to beef up the probable cause to make and support the actual DWI arrest.

Think of thousands of traffic violations that occur each and every day in your city. Add in the odor of an alcoholic beverage and you have the average "Drunk Driving" arrest. 

Personal Contact-phase 2

As the officer approaches the vehicle they are instructed to gather evidence by observing and interviewing the driver.  The officer is using face to face observation and will be

Looking for:

• Blood shot eyes
• Soiled clothing
• Fumbling fingers
• Alcohol containers
• Drugs or drug paraphernalia
• Bruises bumps or scratches
• Unusual actions

Listening for:

• Slurred speech
• Admission of drinking
• Inconsistent responses
• Abusive language
• Unusual statements

Smelling for:

• Alcoholic beverages
• Marijuana
• Cover up like breath sprays
• Unusual odors

The officer will ask questions in attempt to interview you. He may ask you to produce two things simultaneously, such as your license and registration, and is alert for a driver who:

• Forgets to produce both documents upon request
• Produces documents other that the ones requested
• Fails to see the license, registration, or both while searching through wallet, or purse, etc
• Fumbles or drops wallet, purse, license or registration
• Is unable to retrieve documents with finger tips

The officer may ask interrupting questions or distracting questions such as ‘What time is it’ as you are searching for your documents.  The officer is now observing to see if the driver:

• Ignores the question and concentrates on the license or registration search
• Forgets to resume search after answering the question
• Supplies grossly incorrect answer to the question

If the driver seems impaired due any of the above reasons, the officer will ask the driver to exit the vehicle.  As the driver exits, the officer will gather evidence of impairment from a driver who:

• Shows angry or unusual reactions
• Cannot follow instructions
• Cannot open the door
• Leaves the vehicle in gear
• “Climbs” out of vehicle
• Leans against vehicle
• Keeps hands on vehicle for balance 

Arrest Decision-Phase 3

 Phase 3 consists of the Field Sobriety Tests and the Preliminary Breath Tests both designed to gather probable cause to arrest the suspect for DWI.

HGN-Always begins with the left eye. Each eye is examined for 3 specific clues.  The maximum number of clues in one eye is 3 and the maximum number per suspect is 6. According to the NHTSA manual of 2006, if 4 or more clues are evident it is likely that the suspect is impaired above the legal limit of .08.

The clues the officer is watching for:

When the eye moves side to side does it move smoothly or does it jerk noticeably?

When the eye moves as far to the side as possible and is kept at that position, does it jerk distinctly?

As the eye moves toward the side does it start to jerk prior to a 45 degree angle?

VGN- is involuntary jerking of the eyes when moving up and down.

Walk and Turn-

Administered and interpreted in a standardized manner, ie, the same way every time. Officers administering the Walk and Turn test observe the suspect’s performance for 8 clues:

• Can’t balance during instructions
• Starts too soon
• Stops while walking
• Doesn’t touch heel to toe
• Steps off the line
• Uses arms to balance
• Loses balance on turn or turns incorrectly and
• Takes the wrong number of steps

One Leg Stand- Requires the suspect to stand on one leg and count to 30 out loud as “one thousand and one, one thousand and two, one thousand and three, etc…”

The officer carefully observes the suspect’s performance and looks for 4 specific clues:

• Sways while balancing
• Uses arms to balance
• Hops
• Puts foot down

PBT-Preliminary Breath Testing-is to demonstrate the association of alcohol with the observable evidence of the suspect’s impairment.  In Texas PBT results are not admissible as evidence in court, but can be used to gather probable cause to make an arrest.  

*This is different than the breath test they do after you're arrested at jail or in the BAT mobile on the Intoxilyzer 5000. The PBT is used to gather evidence to arrest you.

Article from KTVZ.com-DUI Training:What Cops Look For....

If you are looking for an exceptionally trained and educated, DWI / DUI attorney to aggressively represent you on your DWI case or any criminal matter, call 512.278.0935 (Austin) or 210-DWI-DUDE (210.394.3833) (San Antonio) or contact my assistant Ashley by e-mail at ashley@dwidude.com.