1. If I am pulled over and I have been drinking what are my rights, and do I have to make any statements?
You have a right to remain silent and make no self incriminatory statements, exercise it!  You only need to provide the officer with your name, driver’s license and proof of insurance.  It is important that you understand that if you have had anything to drink and are pulled over by the police, anything you say or do may be being video recorded and you should be polite and courteous in your interactions with the officer.  Also, you must be aware that anything that you say, even things you may at the time believe to be helpful to your situation can be misconstrued as evidence of guilt by the officer, and later used as evidence to prosecute you for driving while intoxicated (DWI).  Many people erroneously believe they can appeal to the officer’s sensibilities and explain their way out of an arrest for driving while intoxicated (DWI), and in doing so often provide the prosecution with key evidence that is later used to seek and later obtain a DWI conviction  Further, police officers are specifically trained in interrogating motorists suspected of a DWI, and they are taught how to ask questions so that even seemingly innocent explanations or statements given in response, can be falsely distorted and viewed as evidence of guilt. Moreover, police officers are trained to delay making formal arrests, even after they have determined in their mind that they have  sufficient probable cause to make an arrest for DWI , and they do  this in order to continue the DWI investigation without being required to advise the suspected person of their constitutional rights, and their rights under Texas law which must be given when a person is actually formally arrested.  

2. What are the field sobriety tests that the police use in investigating individuals suspected of DWI?
There are two separate and distinct types of field sobriety exercises used by law enforcement to gather evidence and make driving while intoxicated (DWI) arrests: (i) standardized field sobriety tests, and (ii) non-standardized tests.  The “standardized” field tests were developed by the National Highway Traffic Safety Administration (NHTSA) and the battery includes: (1) the horizontal gaze nystagmus (HGN); (2) the walk and turn; and (3) the one leg stand.  NHTSA purported to “standardize” and “validate” these three tests in order to help officers accurately identify intoxicated drivers, however in practice, they often deviate from the standardized elements, which calls into question the integrity of any conclusion the officer formed based on their results.  Further, many officers will use these tests as an evidence gathering technique and will conduct the “tests” despite the fact that they have already subjectively made the decision that the person is intoxicated and will be arrested for DWI and the tests are not truly an objective evaluation of the individual in order to determine whether or not they are “safe” to drive.

The “non-standardized” tests consist of exercises such as counting, reciting the alphabet, a “test” named the Rhomberg, and other dexterity exercises are almost always conducted long after the officer has formed their opinion that the motorist is intoxicated, and are simply an attempt to secure additional evidence.  Due to the fact that these tests are not even “standardized,” the officer is not required to follow any protocol, and therefore the officer can conduct them with less fear of attack from a legal standard point.  Further, the police officers and prosecution will use a mistake reciting the alphabet or counting as powerful evidence of intoxication, and will argue to the jury that they are proof of intoxication despite the fact that it is not normal to recite the alphabet or count numbers in a police dominated atmosphere, which normally occurs late at night when the person is fatigued and facing arrest.

3. Can I refuse to the police officer’s request that I perform the field sobriety tests?
Yes, you have an absolute right to refuse to participate in all field tests.  While the police will often inform a motorist that they believe to be driving while intoxicated that they just want to “check you out to make sure that you are O.K to drive” many times the officers have already made up their mind to arrest that person, and are only seeking to conduct the “tests” as an evidence gathering technique, and therefore they are not truly an objective evaluation.  Further, a motorist must be aware that while you have a right to refuse to submit to these exercises, that decision could get you arrested.   However, if and when the opportunity presents itself, I can explain to the jury why I generally advise my clients to refuse to submit to these exercises.  This is advice stems from the fact that these “tests” are inherently inaccurate in their design and scoring, and that a person’s performance on these tests, in and of itself, has no bearing on whether they are able to safely operate a motor vehicle.  Quite frankly, the design of the tests and the scoring system employed, as well as the entire research upon which the “standardized” tests were allegedly “validated” is suspect and these exercises have become a powerful weapon in the arsenal of law enforcement in investigating and prosecuting persons suspected of driving while intoxicated (DWI).   An effective Texas DWI defense lawyer will be able to relate to you, and others, the faulty premises and research that provide the foundation upon which the “standardized” tests are based, and will be able to evaluate the officer’s performance in conducting these tests in order to determine whether or not they were conducted in accordance with the standardized protocol, and to effectively challenge any conclusion relying on these tests and to contest their use as evidence in court.

4. I keep hearing  from the police, government agencies, the media and others that there is now a no-refusal policy in effect where I live and therefore I must consent to a police officer’s request for a sample of by breath if I am arrested for DWI, is this true?
No!  Regardless of what you have heard from the government or in the media, you DO have the right to refuse to voluntarily provide law enforcement with a specimen of your breath or blood to be analyzed in order to determine your blood alcohol concentration.  The Supreme Court has made it clear that a compelled intrusion beneath the skin of a person to obtain a sample of blood to be used in the investigation of persons suspected of driving while intoxicated is a search within the meaning of the Fourth Amendment. Therefore, law enforcement is generally required to seek and obtain an evidentiary search warrant issued by a neutral and detached magistrate before they may obtain your blood without your consent.  Therefore, any statement that implies that due to the existence of a no refusal programs in your jurisdiction that you can no longer refuse an officer’s request that you submit to a breath test or that if you do the police will automatically get a warrant is propaganda, and misstates the law.

5.  What will happen to my driver’s license if I refuse to submit to a breath or blood test, or provide one that tests over the legal limit?
Under the Texas implied consent law if an individual under arrest for DWI or other offenses relating to operating a motor vehicle while intoxicated either refuses to provide a specimen of their breath or blood, or if they provide a sample that tests above the legal limit, the Texas Department of Public Safety will seek to suspend that persons driver’s license thorough the administrative license revocation process.  These proceedings are civil in nature and are separate and distinct from the criminal case.  Therefore, in order to be represented by counsel at such a hearing, one must retain an attorney to represent them in the administrative license revocation process.  These matters as quasi-criminal, in that they seek to suspend your license as a civil penalty through an administrative process and there are only a few attorney’s that actually throughly understand the differing rules of procedure and decision that apply in these matters.  If you were arrested for DWI or another offense related to operating a motor vehicle while intoxicated you only have fifteen (15) days following your arrest to request a hearing and save your driver’s license and ability to drive from an automatic suspension which will take effect forty (40) days following your arrest should you fail to properly request this hearing.  This is another compelling reason that if you or someone for which you care is arrested for DWI or another offense relating to operating a motor vehicle while intoxicated that you take the matter seriously and retain a knowledgeable and skilled DWI attorney who will ensure your rights are protected throughout this process and fight to save your driver’s license from suspension at the ALR hearing.

6. What are the criminal penalties a DWI conviction and why should I hire a DWI defense attorney to represent me?
Under the DWI laws in Texas the offense of DWI can be classified as either a felony or misdemeanor, depending on the individuals past criminal history or if there was a child under the age of 15 in the car or if an accident resulted in seriously bodily injury (intoxicated assault) or death (intoxication manslaughter).  Chapter 49 of the Texas Penal Code codifies the laws as they apply to operating motor vehicles such as automobiles, boats and airplanes while intoxicated.  Generally speaking the laws in Texas classify the offense of DWI as follows:
   (a)  First offense: Class B misdemeanor which can be punished with a fine not to exceed $2,000 and confinement in jail for a period of 3 to 180 days, and can result in a driver’s license suspension not to exceed one year in length.  Also, if there is an open container allegation, the minimum potential period of confinement is increased from 3 to 6 days in length.  If the sentence is probated and the person is placed on probation the period could be for up to 2 years.
   (b)  First Offense with Alcohol Concentration exceeding 0.15 (aggravated DWI): As of September 1, 2011 the DWI laws in Texas created a heightened Class A misdemeanor offense for individuals who have an alcohol concentration that is measured to be above 0.15 at the time of analysis.  Because this is a Class A misdemeanor a person can potentially receive a fine of up to $4,000 and a period of confinement of up to one year and a driver’s license suspension of up to one year.  Also, if convicted of this offense one will be required by law to install and maintain an ignition interlock device on any vehicle which they own or have access to.   If the sentence is probated and the person is placed on probation the period could be for up to 2 years.
   (c)  Second Offense: if you are arrested for DWI and have a prior conviction you are also faxing a Class A misdemeanor and could be fined up to four thousand dollars and ordered incarcerated for up to a one year period.  You will be ordered to install an ignition interlock as a condition of pre-trial release or bond.  Even If the sentence is probated and the person is placed on probation the period could be up to 2 years in duration.
   (d)  DWI with Child Passenger: Regardless of whether you have previously been convicted or your blood alcohol level, if you are arrested for the offense of driving while intoxicated (DWI) and there is a child present in the vehicle under the age of 15 years you will be facing a felony charge under the Texas DWI laws.  This offense is classified as a state jail felony and carries the potential of a fine not to exceed $10,000 and a term of incarceration in a state jail facility for a period of not less than 180 days and up to 2 years.  Also, if you are sentenced to state jail the law does not authorize any “good time” credits and generally the sentence must be served day for day.  If the sentence is probated and the person is placed on probation the period could be for a period of 2 to five years in duration.
   (e)  DWI with Two (2) Prior Convictions:  if you are arrested for DWI in Texas and have two prior convictions for that offense than you will be charged with the third degree felony offense of driving while intoxicated (DWI).  In Texas a third degree felony carries with it the potential of a fine not to exceed $10,000 and a term of confinement in the Texas Department of Corrections for a period between 2 and 10 years in duration and even if the sentence is probated an individual may be placed on probation for a period of up to 10 years.

   (f)  DWI with Two (2) Prior Convictions:  if you are arrested for DWI in Texas and have two prior convictions for that offense than you will be charged with a felony offense of the third degree  for driving while intoxicated (DWI).  In Texas a third degree felony carries with it the potential of a fine not to exceed $10,000 and a term of confinement in the Texas Department of Corrections for a period of 2 and 10 years long.  Even if the sentence is probated an individual may be placed on probation for a period of up to 10 years and will have to install and maintain alcohol monitors on their vehicle and perhaps person or home.  Also, a person’s drivers license may be suspended for up to two years as a result of the conviction.
   (g)  DWI Where Death Occurs:  In Texas when an offense relating to the operation of a motor vehicle results in death to another is known as intoxication manslaughter and is generally punished as a second-degree felony.  Therefore, a person charged with intoxication manslaughter may receive a fine not to exceed $10,000 and may be confined for a period ranging from 2 to 20 years in prison.  Even if an if an individual receives probation they are facing a jail sanction as a term of the probation and could be placed on probation for up to 10 years.

As you can see the laws in Texas treat DWI seriously and there are many collateral civil proceedings which call for immediate attention and one needs to hire a skillful and knowledgeable DWI defense attorney as soon as possible following an arrest for any intoxication related offense.  In Texas there is no deferred adjudication for DWI and a conviction will last for a lifetime.

7. What some of the consequences of a DWI conviction beyond the criminal penalties?
Under the DWI laws in Texas, there are several collateral consequences that apply should an individual be convicted of driving while intoxicated.  These include: significant increases in your auto insurance rates, if you are not dropped outright; the imposition of surcharges which will be accessed by the DPS, which at minimum will require that you pay at least $1,000 yearly for the three years following the conviction; you may be denied entry or face difficulties traveling into certain countries.  It is important to note that in addition to the above mentioned collateral consequences that once you are finally convicted of a crime, the conviction will always appear on your criminal record and this can lead to the loss of your present employment, as well as your ability to obtain promotions or future employment.

8. If I am arrested for driving while intoxicated what are my options for getting out of jail?
It depends on the jurisdiction, and the facts and circumstances of the individual matter at issue, but a criminal defense attorney that knows how the law in this area can be of great assistance.  While many jurisdictions may offer a personal recognizance (PR) bond, however, while this leads to the release of the accused from jail without an upfront fee, the attendant fees and reporting requirements exact a cost far greater than had the individual simply paid a commercial surety bondsman a percentage of the overall amount of the bond to secure the person’s release from jail while the charges are pending.  As a full service boutique criminal law firm the Law Office of Christopher W. Simpkins is able to post a surety bond on behalf of our client and are able to seek reductions in the amount when appropriate.  Lastly, one may post a “cash-bond” if they have sufficient cash on hand and available to commit to serving as collateral in the proceeding, rendering the money inaccessible, in almost all cases a cash bond is not the best option for the client.

9.  What are special conditions of bond and pre-trial release that may be possibly placed individuals arrested for DWI?
It depends.   The conditions of bond imposed on persons charged with DWI can depend on numerous factors, such as: whether the charge is a first offense or whether the person has any prior DWI related convictions, the blood alcohol concentration level alleged, as well as the individual policies and procedures of the particular judge or jurisdiction in which your DWI case is pending. For individuals that have a prior DWI related convictions one condition is clear, and that is that you will be required to have ignition interlock device installed on your vehicle as a requirement of your bond.  Further, if you are restricted to only driving a vehicle with an ignition interlock alcohol monitoring device attached, you will be prohibited from driving any other motor vehicle that is not equipped with such a device.  Moreover, even if you do not own or have access to a vehicle, the judge can still order you to submit to another method of remote alcohol monitoring as a condition of your bond.  Additionally, some judge’s may impose special conditions of bond or pre-trial release relating to alcohol monitoring or pre-trial supervision for first time offenders charged with DWI in cases that involve allegations of high levels of blood alcohol concentrations  (such as cases involving a result greater than of 0.15 grams per 100 ml or blood or 210 liters of breath or greater) and in certain DWI cases involving motor vehicle accidents.  

The bond conditions and attendant maze of requirements can seem endless and overwhelming without the guidance and skill of an experienced DWI defense attorney in your corner.  Christopher Simpkins knows the law and how to apply it so that you may comply with the conditions of bond in your case.  He will throughly discuss with you and explain the available options and actions necessary to ensure that you are able to comply with any and all conditions of your bond while allowing you to continue to meet the obligations of your day to day life.  
You do not have to, and should not go through this process alone.  Christopher Simpkins is a skilled DWI defense attorney, who has dedicated his legal career to defending individuals against criminal charges with a specific emphasis on DWI defense.  Further, as a dedicated criminal defense attorney Christopher Simpkins knows not only the law that applies to DWI offenses in Texas, but also has firsthand experience and knowledge as to how different judges in different courts and jurisdictions will approach the pre-trial conditions of release imposed upon individuals released on bond for DWI in their courts. Mr. Simpkins will use his knowledge, skill and experience to provide you with the insight and feedback necessary make  to navigate through the process of complying with the conditions of your pre-trial release on bond and will advise you on how to do so in the in the most efficient and expeditious manner possible.

10.  What is the machine used in Texas to test my breath and determine its alcohol concentration, and is it accurate and reliable?
In Texas the only authorized device used to measure a persons breath for alcohol concentration (BrAC) for evidential purposes in DWI cases and other offenses relating to operating a motor vehicle while intoxicated is the Intoxilyzer 5000 EN series, manufactured by a company called CMI, Inc.  While CMI still offers support for this a machine it is important to note that the company no longer manufactures the unit or distributes it.  The machine employs a scientific concept referred to as infrared spectrometry which is based on the principle that different chemical molecules will absorb light energy at different frequencies in order to measure the amount of alcohol present within the persons breath sample.  To do this, the machine seeks to obtain a sample of a persons alveolar air (deep-lung air) and shoots a beam of infrared light through the sample of breath to measure the amount of the light that is absorbed within a specific band range which it associates with Ethyl alcohol (which is 3.380 to 3.398 microns).  Simply stated the machine assumes that the more light that is absorbed in that range, the higher the persons alcohol concentration.  However, this assumption is factually inaccurate for several reasons. First, the machine assumes that all substances that are present within this range are ethanol and lacks the capacity to exclude numerous substances other than alcohol that will measure on a humans breath within this range and thousands others that occur naturally that would measure within this range.  Moreover, the machine assumes that everyone tested on it is a hypothetically average person psychologically.  However, as we all know every human is different in size, weight, gender, age, and vary in muscular development, alcohol tolerance, lung capacity, temperature and the “partition” ratio among their blood alcohol level and breath (the number of times that a unit appears in the blood vs the number of times the same item appears in the breath) and many other factors. 

These assumptions as to human “averages” can lead to the machine overstating the amount of alcohol present within a persons breath sample to that actually contained in their blood. The first inaccurate physiological assumption is that all persons being tested have the exact same ratio of alcohol present in their alveolar or deep lung breath as that present in their blood.  Again, it has been scientifically demonstrated that while most people have a blood to breath partition ration of 1:2100 or greater (which is the unit the machine assumes for every person), this fact is of little comfort to those who have a lower ratio and therefore will receive a falsely elevated alcohol measurement.  Also, the Intoxilyzer 5000 does not measure the breath expiry temperature (despite the ability to do so) and instead assumes that all persons being tested have a breath temperature of 34 degrees centigrade.  Again, this assumption is false and can lead to perfectly healthy peoples breath test scores to be falsely exaggerated as it has been scientifically demonstrated that healthy individuals can have breath exit temperatures well above this level and therefore they will receive inflated readings from the breath test machine used in Texas for evidence in DWI prosecutions.  These are just several examples of the assumptions upon which the Intoxiliyzer 5000 relies and there are other faulty assumptions that a knowledgeable a DWI attorney who understand the underlying science and methodology employed in the Texas Breath Testing program can investigate and develop in order to present a compelling and effective defense in a breath test case.  Remember, under Texas law while it does specify that all persons are intoxicated when they have 0.08 grams of alcohol per 2100 liters of their breath, it does not say .08 as measured by an Intoxilyzer 5000 specifically and therefore no jury is obligated to believe that the results it purports to be accurate are actually representative of actual measurement.  That is why you need an attorney who knows not only the law as it applies to DWI, but the science as well.  

Moreover, the manufacturer of the Intoxilyzer 5000 (CMI) does not even warranty the machines  to be fit for a particular purpose of measuring the amount of alcohol present in a sample of a persons breath in order to quantify its alcohol concentration.  Instead the machine is only warrantied for “parts and labor.”  Moreover, CMI has refused to provide the “source code” employed by the machine and has vigorously fought to keep defense attorney’s from gaining access to it.  This is important because the source code is a representation of the instructions employed by the machines microprocessors in calculating the measured alcohol concentration.  Further, the machine does not preserve a sample of the persons breath for independent analysis (despite its ability to do so at a relatively low cost), so in practice one can face the daunting task of having to disprove a machine with limited information, and one should retain an attorney that understands the science and knows the technical regulations that govern this process,  Christopher Simpkins is a proud member of the National College for DUI Defense (NCDD) who possesses a demonstrated involvement and commitment to providing a competent and effective representation in DWI cases and has obtained dismissal of all chargers in numerous DWI cases involving breath tests conducted on the Intoxilyzer 5000.