Dallas DWI Lawyer Blog | Attorney

Under Texas law, a person cannot be found guilty of driving while intoxicated unless there is sufficient proof that he/she "operated" a motor vehicle while intoxicated.  See, Texas Penal Code section 49.94.  The question often while arise in some DWI cases, "what does it mean to operate a motor vehicle."  For example, let's say a person goes to a bar and has a few drinks.  Then he/she walks out to his/her car but decides it is not a good idea to drive home.  Instead, they get into the car, turn it on to listen to the radio and falls asleep intending to "sleep it off."  The question is, "can the state charge you with driving while intoxicated?"  The answer is YES.

Take a look at the cases below:

Freeman v. State, 69 S.W. 3d 374 (Tex. App--Dallas 2002)--In this case an officer observed a driver asleep in a parked vehicle with the motor running.  The vehicle was parked against a curb with the motor running and the lights on.  The court ruled that based on the totality of the circumstances it appeared that the defendant exerted personal effort in a manner that showed his intentional use of the vehicle for the purpose of driving and therefore sufficient proof of "operating" a motor vehicle.

Stagg v. DPS, 81 S.W.3d 441 (Tex. App.--Austin 2002)--Here an officer observed a vehicle stopped in a lane of traffic with the engine running, the lights on and no apparent mechanical flaws with the vehicle.  The court ruled that although no one actually witness the vehicle in motion, that the totality of the circumstances was enough to establish "operating."

Hearne v. State, 80 S.W. 3d 677 (Tex. App.--Houston [1st Dist.] 2002)--Here the defendant was found asleep behind the wheel with one hand on his head and the other on his waist.  Further, the vehicle was running but in park.  The court ruled that because the vehicle was running, registered to the defendant, the defendant was in the driver's seat and since no one else was around that there was enough to establish "operating."

What do the three cases above mean?  Well, legally speaking, it is no difficult for officers' to show that a person was "operating" a motor vehicle.  However, just because an officer can establish the legal sufficiency of a crime DOES NOT mean that the state will be able to establish factual sufficiency.

The jury can and will determine if the facts prove an element of a crime.  Therefore, under the original hypothetical above, the state could most likely charge the person with DWI.  However, a great argument could be made to a jury that the person was not "operating a motor vehicle but was merely doing the right thing by not driving off.  These factual arguments can be very powerful in certain DWI cases.

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Many people often ask me, "If I am stopped by an officer and suspected of drunk driving, what are my rights?"  This is a very good question because under Texas Law a police officer DOES NOT have to tell you about your rights when questioning you about drunk driving.  Additionally, Texas law does not require an officer to allow you to speak to an attorney while he or she is investigation a DWI.

So, If you are stopped by a officer and he or she begins questioning you about drinking, i.e., "have you been drinking?", then we recommend that you know and follow the following 7 points about your rights at the time you are stopped.

1. Texas law requires you to produce a driver's license and current insurance card to the officer.
2. You are allowed to tell the officer that you have committed no crime and request that your license and insurance be returned to you so that you may leave.
3. If the officer says you are NOT allowed to leave: Tell him/her that you invoke your right to remain silent and will not answer any question concerning drinking and driving and that you WILL NOT CONSENT to ANY sobriety testing
4. You have a right to REFUSE ANY Request for a Breath or Blood test
5. You DO NOT have to Consent to a search of your vehicle
6. You DO NOT have to answer any questions or Sign ANY paperwork
7. You have a right to immediately request an attorney. 

These 7 points are not intended to help citizens avoid drunk driving convictions.  They are intended only to make the public aware of the rights a person has if questioned for drunk driving.

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Does a citizen have an obligation to give a breath or blood test if asked by an officer during a DWI investigation?  To answer this question, an explanation of the "Implied Consent Law" in Texas is needed.  Below, please find an article from out Plano DWI Law blog detailing the Texas Implied Consent Law.

Texas Implied Consent Law.  By Dallas DWI Lawyer Troy P. Burleson

As I have reported in multiples posts, local counties are experimenting with mandatory blood tests from citizens suspected of DWI who refuse a breath test. These mandatory blood draws are likely to be challenged on state and United States constitutional grounds. As counties increasingly use this overly invasive tactic (forcible inserting a needle into citizens' veins), challenges to these policies are sure to follow.

However, a review of the Texas Transportation Code reveals that a citizen does have a right to refuse a breath or blood test. Below are three relevant sections from chapter 724 of the Texas Transportation Code which controls the law and procedures for blood and breath testing in Texas:

1) Implied Consent Law:

Most citizens do not know that as a condition of being issued a Texas driver’s license, they gave “implied consent” that they would submit to a breath or blood test if asked to do so by a police officer. Here is the Implied Consent law:

§ 724.011. CONSENT TO TAKING OF SPECIMEN. (a) If a
person is arrested for an offense arising out of acts alleged to
have been committed while the person was operating a motor vehicle
in a public place, or a watercraft, while intoxicated, or an offense
under Section 106.041, Alcoholic Beverage Code, the person is
deemed to have consented, subject to this chapter, to submit to the
taking of one or more specimens of the person's breath or blood for
analysis to determine the alcohol concentration or the presence in
the person's body of a controlled substance, drug, dangerous drug,
or other substance.
(b) A person arrested for an offense described by Subsection
(a) may consent to submit to the taking of any other type of
specimen to determine the person's alcohol concentration.

Acts 1995, 74th Leg., ch. 165, § 1, eff. Sept. 1, 1995. Amended
by Acts 1997, 75th Leg., ch. 1013, § 32, eff. Sept. 1, 1997.

2) Your Right to Withdraw your Implied Consent and Refuse a Breath or Blood Test:

Although you gave implied consent to submit to a breath or blood test when you received your driver’s license, the Transportation Code allows you to WITHDRAW your implied consent and refuse a breath or blood test. Below is the relevant section from the Texas Transportation Code:

>§ 724.013. PROHIBITION ON TAKING SPECIMEN IF PERSON
REFUSES; EXCEPTION. Except as provided by Section 724.012(b), a
specimen may not be taken if a person refuses to submit to the
taking of a specimen designated by a peace officer.

Acts 1995, 74th Leg., ch. 165, § 1, eff. Sept. 1, 1995.

This section of the Transportation Code clearly states that a

“specimen may not be taken”

if a citizen refuses to submit to the test. Therefore, according to the Transportation Code, you have an ABSOLUTE RIGHT to refuse a blood or breath test.

As indicated in 724.013 of the code, there are some exceptions that prohibit a person from refusing a blood or breath sample. Below are the exceptions from Section 724.012(b) of the Texas Transportation Code:

EXCEPTION:
(b) A peace officer shall require the taking of a specimen
of the person's breath or blood if:
(1) the officer arrests the person for an offense
under Chapter 49, Penal Code, involving the operation of a motor
vehicle or a watercraft;
(2) the person was the operator of a motor vehicle or a
watercraft involved in an accident that the officer reasonably
believes occurred as a result of the offense;
(3) at the time of the arrest the officer reasonably
believes that as a direct result of the accident:
(A) any individual has died or will die; or
(B) an individual other than the person has
suffered serious bodily injury; and
(4) the person refuses the officer's request to submit
to the taking of a specimen voluntarily.

Conclusion:

I am having a hard time understanding the stance of certain district attorneys and counties who seem to believe a citizen does not have a right to refuse a blood or breath test. It seems clear that unless you are 1) involved in an accident, 2) in which an individual has died, will die or suffered serious bodily injury, and 3) you are arrested for DWI then you do have a right to refuse a blood or breath test result (See the above sections from chapter 724 of the Texas Transportation Code). Therefore, I believe it is only a matter of time before these mandatory blood test policies are challenged in the Texas appeals courts.

Currently, the law allows a police officer to obtain a warrant from a judge or magistrate and obtain your blood. As reported, many local prosecutors and district attorneys believe that citizens do not have a right to refuse a scientific test, such as breath or blood.

3) Exceptions to your Right to Refuse a blood or breath test:

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Before the State can convict a citizen of the offense of Driving While Intoxicated, the prosecution must prove the following elements beyond a reasonable doubt:

The State MUST prove that:

1. The Defendant;
2. Operated a Motor Vehicle;
3. In a Public Place;
4. In the Texas County where the Defendant is charged;
5. While the Defendant was Intoxicated.

In Texas, the term "Intoxicated" means either:

1. The defendant lost the normal use of his/her mental OR physical faculties due to the introduction of alcohol, a drug, a dangerous drug, a controlled substance or any other substance into hi or her body; OR
2. Had a blood or breath alcohol concentration over the legal limit of 0.08.

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Under Texas law, if you provide a breath test to an officer and you disagree with the results, you have a RIGHT to request a blood test.

Very few people understand that they have a right to request a blood test of their own if they are charged with DWI and give a breath test.  Under Texas law, a Defendant has a right to request a separate blood test of their own if they take and fail a breath test.

However, this is rarely done.  The reason is two fold.  First, Texas law DOES NOT require officers to inform citizens of their right to obtain a blood test after they fail a breath test.  Most people don't know this provision in the law and officers don't tell them about it.  Second, even if you are informed about your right to a subsequent blood test, the officer has no duty to take you to a hospital, or any other medical facility, to give a blood test.  The defendant, from jail, has to contact someone to perform the blood test.  As such, even if a person does request a subsequent blood test it is often impossible to make arrangements to get a test done.

Here is relevant Texas law on a Defendant's Right to His/Her Own Blood Test:

McKinnon v. State, 709 S.W.2d 805 (Tex. App.--Fort Worth 1986, no pet.).  ...the arresting officer does not have a duty to advise the suspect of his right to have his own blood test. 

Crawford v. State,  643 S.W.2d 178 (Tex. App.--Tyler 1982, no pet.).   Failure or inability of defendant to obtain a blood test will not preclude admission of breath test evidence.  Failure of arresting officer to inform defendant of his right to a blood test is not a reversible error, though it would have been a better practice for officers to inform defendant of such right.

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The Fourth Amendment to the United State's Constitution prohibits illegal and unnecessary search and seizures without due process of law.  DWI roadblocks or checkpoints have been used in various states in an attempt to crack down on drunk driving.  However, stopping citizens without justification can be impermissible under both Federal and State law.  As the law currently stands, the use of roadblocks is limited and highly regulated.

For a DWI roadblock to be legal, the roadblock must be established under a political accountable authority, usually a governor of a state, and have specific guidelines set out by said authority. The roadblock must have standardized procedures in order to serve a stated purpose that minimized an officers discretion on who and when to stop.

The following cases summarize Texas Law concerning DWI roadblocks.

Michigan v. Dep't of State Police, 496 U.S. 444 (1990).  united States Supreme Court upheld the constitutionality of sobriety checkpoints established pursuant to guidelines established by a political accountable authority (the Governor of the State).

State v. Sanchez, 856 S.W.2d 166 (Tex. Crim. App. 1993).  in the absence of evidence of authoritatively standardized procedures followed in operating the subject roadblock (driver's license/insurance) in order to serve its stated purpose and minimize the officer's discretion, and int he absence of testimony or empirical evidence demonstrating the effectiveness of the roadblock, the court of appeals erred in concluding that the roadblock was reasonable under the Forth Amendment.

Holt v. State, 887 S.W.2d 16 (Tex. Crim. App. 1994).  Sobriety checkpoints are unreasonable and unconstitutional under the Forth Amendment unless and until a politically accountable state governing body enacts constitutional guidelines foe such checkpoints.

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If you are suspected of drunk driving in Texas then you will probably be asked to voluntarily give a sample of your breath or blood.  However, you can refuse to give a sample.  if you do refuse then the police officer who arrested you may be able to get a warrant from a judge or magistrate to force you to provide a breath sample.  We have reported quite a bit on so called "no refusal" weekends in our blags here. 

Here is some law that enables the State to obtain a warrant and force you to give a blood sample.

Beeman v. State, 86 S.W.3d 613 (Tex. Crim. App. 2002).  Defendant refused to consent or submit to a breath test.  The officer obtained a search warrant for defendants' blood.  Over defendant's objection, the specimen was drawn at a local hospital.  Defendant argued that the Implied Consent law exclusively controlled how an officer could obtain a breath or blood specimen following a person's arrest for DWI.  The Court ruled that nothing precludes an officer from obtaining a warrant if probable cause exists irrespective of whether a driver consents.

Dye v. State, No. 08-02-00018-CR, 2003 Tex. App. LEXIS 1556 (Tex. App.--El Paso Feb. 20, 2003, no pet.).  The officer obtained an evidentiary search warrant to conduct a blood test.  Defendant moved to suppress the test result arguing it was conducted in Violation of Tex. Transportation Code section 724.012 and 724.013.  The court found that Sections 724.012 and 724.013 became moot when a valid search warrant is secured by an officer.

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If you are charged with DWI in Texas and refuse to give a breath or a blood test it could have certain consequences at trial.  Under Texas law, if you refuse a request from an officer to provide a breath or blood specimen then the State may inform the jury, during trial, that you refused to take a test.  The jury then can decide how to evaluate the fact that you refused to take a test.

As you might expect, the State will argue that you did not take a test because you knew you would fail.  Then, the State will ask the jury to hold the fact that you refused a test against you during their deliberations.

Generally speaking juries very rarely will find a person guilty of DWI simply because they refused to take a breath or a blood test.  There are many arguments that can be made to rebut the State's contention that you refused to take a test because you thought you would fail.  For instance, the law does not require a person to submit to a blood or breath test. You may refuse one for any reason.  Also, many people refuse to take a breath test because they do not trust a government machine, cannot retest the machine or have been told never to take a breath test.

The two most common ways to rebut the State's argument about a refusal is to point out to the jury that EVEN IF YOU PASSED a breath test you would have been charged with DWI anyway.  For an explanation click here.  Finally, the state can get a warrant for you blood if you refuse a breath test.  Therefore, if the State wanted they could have provided a sample for the jury.  Since police rarely follow up on warrant threats this is usually a good argument for the defense to make to the jury.

Follow the link below for a recap on Texas Law concerning a refusal to give a breath or blood specimen.

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Texas Law states that the arresting officer has the authority to offer a breath test, a blood test or no test at all.  The officer had absolute authority as to which test, if any is offered.  A person suspected of DWI cannot choose which test, breath or blood, to take.  Also, a person cannot demand that a test be given.  The law states that a person's due process rights are not denied if the officer refuses to give a breath or blood test.

Here is some helpful law:

Graham v. State, 710 S.W.2d 588 (Tex. Crim. app. 1986). The Court found that there was no requirement is statutory law, in the State constitution, or in the due process clause of the Federal Constitution, that a person who has been arrested for driving while intoxicated has the absolute right to request and be administered at State expense, any kind of test that might reflect whether he is intoxicated.

Johnson v. State, 913 S.W.2d 736 (Tex. App.--Waco 1996, no pet.).  Officer's failure to give defendant a breath or blood test did not deny his due process rights.  Neither Implied consent statute nor regulations require a sample of breath or blood be taken from person arrested for driving while intoxicated.

Coggins v. State, 160 S.W.3d 177 (Tex. app.--Texarkana 2005, no pet.).  Officer gets the right to choose which specimen, if any, to offer.

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DWI is different that most other crimes in the State of Texas in that a person suspected of drunk driving DOES NOT have a right to an attorney while being initially questioned by a police officer.  Under Texas law, a citizens right to counsel does not attach until the police officer decides to bring formal charges against the person.  Therefore, you do not have a right, except under very specific circumstances, to speak with an attorney when the officer is initially questioning you or before you do sobriety tests or even give a breath or blood test.

For a review of the law concerning your right to counsel in a DWI follow the link below.

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Before a breath test can be admitted into evidence against a defendant, there must be evidence to show that the test is relevant and valid. The State must produce a witness to testify that the recorded test was valid. That witness usually is a technical supervisor whose job it is to maintain and test the breath test machine.

4 things must be shown in evidence before a breath test result is allowed into evidence. 

The technical supervisor must testify under oath that:

1) There are no error messages on the test result;

2) The test result is printed clearly;

3) The Air Blanks on the test read 0; and

4) The test was signed by the operator of the breath test.

Notice anything missing? There is no mention about the ACCURACY of the test. This is a game that is played by the State in every DWI breath test case. The technical supervisor will never testify that the result of the test, say .10 for example, is ACCURATE. However, the supervisor will testify that because the 4 items above are present the test is VALID. This wrangling of words causes problems with defense attorneys and some juries for obvious reasons. Who cares if the test was signed or not? Isn’t it more important that the test is actually correct if we are going to us it to potentially send a person to jail?

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If you or someone you love has been arrested and charged with DWI in Texas then you probably have many questions concerning the DWI laws in Texas. This section of our blog is dedicated to giving citizens and other criminal attorneys valuable legal resources that may help answer some questions concerning Texas DWI laws.

Below, is a list of legal topics that we have frequently been asked to explain by clients. We have attempted to summarize some of the legal principals and guiding case law concerning these topics. We hope you find the information informative.

LIST of DWI Topics

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