DWI FAQ

• REMAIN SILENT!  You are most likely being recorded on videotape.  As such, most police officers will try and get you to make statements they can later use as evidence against you.  Remember to always remain polite, but also exercise your right to not incriminate yourself.  It is in your interest to avoid giving any information to the investigating police officer which could be skewed and used against you later in court.
• ACT COURTEOUS.  It is ALWAYS the best policy to be nice, polite, and courteous to the police, even if they are not.  Having a cocky attitude can only lead to a bad result later.  You do not want to appear arrogant to a jury later if the case proceeds to trial.
• REFUSE ALL SOBRIETY TESTS.  You have an absolute right to refuse any and all of the field sobriety tests.  This includes the horizontal gaze nygstagmus test (the eye test), known as the "HGN."  These tests are highly discretionary, and most citizens cannot “pass” the SFSTs satisfactory to arresting officers no matter how well they do.  They are based subjectively by the investigating officer.  You have the right to refuse the field sobriety tests, and it in your interest to do so.  Some officers may appear to be agitated and frustrated.  Simply remain calm and politely tell him that you refuse.
• REFUSE TO GIVE A BREATH SPECIMEN.  According to the State of Texas Breath Testing Program officers will not ask you to give a breath specimen unless you are already under arrest for Driving While Intoxicated.  You are already arrested by this point, so there is little to no reason to give a breath specimen once at the jail.  The other device used is the Portable Breath Test (PBT).  The PBT is used by many officers to help determine whether to make an arrest, and is required by troopers employed by the Department of Public Safety (DPS).  The PBT cannot be used in a trial setting, regardless of the result. 
• REFUSE TO GIVE A BLOOD SPECIMEN.  NEVER submit to giving a Blood specimen.  There is no way for you to be 100% sure if the specimen will be properly stored once taken.  The blood vial  has to be correctly prepared, labeled, transported, and stored.  Many people voluntarily consent to the taking of a blood specimen, only to be shocked at how high the result is when it is finally tested.  At this point, it is difficult to determine whether the officers utilized the correct procedure when taking the blood specimen.

• Absolutely Not.  There is no legal requirement for you to perform the Standardized Field Sobriety Tests (SFST's).  You should not take the roadside tests, even if you think you will perform fine.
• The roadside tests (SFST's) are designed for failure!
• You do not know the exact "clues" the officer is looking for.  Therefore, you are putting yourself immediately at a disadvantage.
• You do not know whether the officer left out information when giving you the instructions before you take the test.
• There are approximately 47 different types of nystagmus, and 38 different causes.  There are many confounding factors which can skew this results of the HGN, so don't take it!

 

• The Standardized  Field Sobriety Tests (SFST's) are NOT scientific.  Carl has devoted a significant amount of time in studying how the tests are supposed to be demonstrated and instructed.  Therefore, he can properly evaluate whether the validity and accuracy of the result.
• The officer was NOT properly trained.  The officers are required to pass a very simple certification test in order to qualify to testify at a trial that they are "certified" to administer SFSTs.  Carl has passed the same certification that the officers have, and is therefore able to effectively examine how well they have instructed and demonstrated the tests.
• The officer did not demonstrate the SFST's in accordance with NHTSA.  The SFST's must be demonstrated in accordance with the strict NHTSA guidelines OR the results are COMPROMISED (as stated clearly within the NHTSA manual).

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).

Vehicle in Motion, Phase 1:

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

• Turning with a wide Radius
• Straddling the center or lane marker line
• Appearing to be drunk
• Almost striking an object or vehicle
• Weaving
• Driving on other than designated roadway
• Swerving
• Slow speed (driving 10 mph or more under the speed limit)
• Stopping, without cause, in the traffic lane
• Following too closely
• Drifting
• Tires on center or lane marker
• Braking erratically
• Driving into opposing or crossing traffic
• Signaling inconsistent with driving actions
• Slow response to traffic signals
• Stopping inappropriately (other than in traffic lane)
• Turning abruptly or illegally
• Accelerating or decelerating rapidly
• Headlights off

Personal Contact, Phase 2:

As the officer approaches the vehicle they are instructed to gather evidence by observing interviewing the driver in person with face to face observation.

Looking for:

• Blood shot eyes
• Fumbling Fingers
• Bruises
• Bumps
• Scratches
• Alcohol Containers
• Soiled Clothing
• Drugs
• Drug paraphernalia
• Any Unusual Actions

Listening for:

• Slurred Speech
• Abusive Language
• Unusual Statements
• Admission of drinking
• Inconsistent responses

Smelling for:

• Alcohol
• Breath Sprays
• Marijuana
• Drugs
• Unusual odors

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

• Shows Angry or Unusual Reactions
• Leaves the Vehicle in Gear
• Cannot Open the Door
• Cannot follow instructions
• Climbs Out of Vehicle
• Leans Against Vehicle

Arrest Decision, Phase 3:

Phase 3 consists of the demonstration and performance on the Standardized Field Sobriety Tests (SFST's) and the Preliminary Breath Test, 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.

Walk and Turn - Officers administering the Walk and Turn test observe the suspect’s performance for 8 clues:

• Can’t Balance During Instructions
• Stops While Walking
• Stops While Walking
• Fails to Touch Heal to Toe
• Steps Off Line
• Uses Arms for Balance
• Incorrect Number of Steps
• Loses Balance

One-Leg Stand - Requires the suspect to stand on one leg and count to 30.

The officer observes the performance and looks for 4 specific clues:

• Sways 
• Hops
• Uses arms to balance
• Puts Foot Down

If you are being placed under arrested, try and relax as much as possible.  There is nothing you can do, you are going to jail.  It does not matter what you say, do, or blow into!  The main thing is exercise your right to remain silent, and DO NOT TAKE A BREATH OR BLOOD TEST! 

It is not difficult to make arrangements to get out of jail.  Carl will answer his phone around the clock to help facilitate the process of the jail release.  Carl or someone from his staff will answer the phone promptly, unless he is conducting a courtroom hearing ,or in trial.

A driver has 15 days to contest the suspension of the driver's license.  It is a requirement under due process.  However, unless it is requested, the driver waives this right.  By contesting the suspension, the action is put on hold and will nothing will happen until we have a hearing in front of an administrative law judge (ALJ).  Please click here for more info.

1. By the arresting officer presuming erratic driving behavior is related to alcohol.

2. By the arresting officer believing odor of alcohol alone is evidence of intoxication.

3. By the arresting officer failing to question driver about relevant medical conditions that may affect the roadside tests.

4. By the arresting officer failing to disqualify people who are physically unable to perform the SFST's. 

5. By the arresting officer being aware of, but failing to eliminate, distractions during SFST's (uneven surfaces, loose gravel, environmental issues (wind, rain, darkness).  

6. By the arresting officer failing to give proper instructions when demonstrating the SFST's. If any one of the SFST elements is changed, the validity of the test is compromised! 

7. By the arresting officer failing to give proper instructions when the test is administered.  Again, if any of the SFST elements is changed, the validity is compromised!  

8. By the arresting officer failing to follow proper protocol pursuant to the NHTSA Manual.  Once again, if any of the SFST elements is changed, the validity is compromised! 

9. By the arresting officer administerting invalid "tests" which are not supported by research studies.  Many DWI cops will use tasks that they know have been rejected by the researchers and are not part of the "standardized" program, yet they do them anyway.

Watch out for lawyers who will guarantee you specifics on the front-end, but will fail to deliver results with an end result.  Some lawyers will take your money, then allow you to plead "guilty" without a fight.  Some lawyers sign you up after the arrest, make many promises, then you never hear from them again.  With these lawyers, communication is rare, and you never seem to hear from them regarding how to best fight the DWI arrest.  Carl will stay with you throughout your entire case, and give you the effective courtroom representation you deserve. He will evaluate all the pertinent facts, and help you make an informed decision with what is in your best interest with how to proceed.

Carl has the ability to fight ANY DWI arrest, regardless of the facts.  Nobody beats a DWI charge without fighting.  That is why he is committed to always staying on the cutting edge of DWI defense, regularly attending seminars that hone skills to fight any charge.  Carl is Certified in NHTSA Standardized Field Sobriety Testing, which is the same certification arresting officers receive at the police academy when learning how to properly conduct a DWI invesigation.  He has also received Certification as a Field Sobriety Testing Instructor, which means he is qualified to actually teach Standardized Field Sobriety Testing to police officers.  Carl is also a Certified Technician of the Intoxilyzer 5000, which is the Breath Testing device used by law enforcement in Texas.  Additionally, Carl has received Advanced Training in the Horizontal Gaze Nystagmus (HGN) Test, which is one of the Standardized Field Sobriety Tests used by police officers to determine whether someone may have been Driving While Intoxicated. He has also completed a NHTSA Drug Evaluation and Classification (DRE) Course, which is the functional equivalent to the ARIDE Program (Advanced Roadside Impaired Driving Enforcement).  Carl also has a knowledge and understanding regarding how best to fight a DWI case where a blood specimen is obtained, either voluntarily, through a search warrant, or on a "no refusal" weekend.  Carl will thoroughly evaluate your case to develop strategies to attack your case from every angle.  If the case proceeds to a jury trial, Carl has a strong track record for success and has conducted jury trials in 10 counties in the State of Texas.  He will be with you until the end, leaving no stone unturned.

Look at their qualifications, certifications, training, and ask them the tough questions about your specific case and how they will handle it.

• Possible Questions:

• Do they have any experience on the breath testing program as used in Texas?
• Have they ever gained an acquittal in a jury trial on a breath test case?
• How many DWI cases have they tried to a jury AS A CRIMINAL DEFENSE ATTORNEY?
• Of those tried, how many were won?  What is their track record for success?
• What are some relevant trial stories from the past relevant and similar to your case?
• Have they ever performed studies and/or analysis on an Intoxilyzer 5000?
• Are they a certified Practitioner in NHTSA Standardized Field Sobriety Tests (SFST's)?
• Are they a certified Instructor in NHTSA Standardized Field Sobriety Tests (SFST's)?
• Have they received any advanced training in DWI breath or blood testing?
• Have they received any advanced training as a Drug Recognition Expert (DRE)?
• Can they explain ways the breath test can lead to false-positive results?  Can they explain what RFI interference, retrograde extrapolation, mouth alcohol, the sample chamber, interferent alerts, the diagnostic test, the slope detector, the partition ratio, the filter wheel, etc. and how it relates to the Intoxilyzer 5000?

Many states, unlike Texas, refer to their major drunk driving offense as DUI (Driving Under the Influence), not DWI.  As such, many people incorrectly apply the term DUI to DWI in Texas, not aware of the difference. It is easy to confuse the two terms. The most important difference is that a DUI in Texas is available only for a minor (someone who is under 21 years of age). In addition, police do not have to prove the minor is intoxicated to charge them with a DUI. The arresting officer only has to "detect the presence of alcohol."  The standard is that vague. The controlling statute is the Alcohol Beverage Code § 106.04.

In Texas, DWI (Driving While Intoxicated), is a crime that has a range of punishment of up to 180 days in jail, and a $2,000 fine.  DWI carries much stricter and harsher punishment than DUI.  Most notably, a 1st DWI arrest is a Class B misdemeanor, while a DUI is charged as a Class C.  In order for the state to convict someone of DWI, they must prove any one of 3 things (not a combination of all 3):

• The driver of a motor vehicle either had above a .08 BAC;
• The driver of a motor vehicle lost the normal use of their mental faculties due to the introduction of alcohol, a drug, or a combination of the two;
• The driver of a motor vehicle lost the normal use of their physical faculties due to the introduction of alcohol, a drug, or a combination of the two. 

 

If you are arrested for either of the charges, you should immediately contact a qualified DWI/DUI defense attorney to advise you of what your rights are.  Do not attempt to handle the situation yourself or think you can handle it alone. You need someone to help walk you through the process.  Carl David Ceder has handled and has had success with both DWI and DUI cases, and has actually "Not Guilty" verdicts on both in numerous counties around the State of Texas.  Carl will fight to PROTECT YOUR RIGHTS, whether your case is a DWI or a DUI arrest.

There is almost always a videotape associated with a DWI arrest.  Sometimes obtaining a copy of the video takes a lengthy amount of time, sometimes months. Shortly after the video is obtained, a meeting is advisable with Carl to review the arrest to develop a strategy for fighting the charge.  The video is crucial to the success and/or failure for any DWI case.  The performance of the officer in administering the SFST's should be scutinized, at the very least.  It is vital to hire someone that has experience in evaluating the pros and cons of what is shown on the video of the arrest.

YES!!!  No case is without hope.  It's that simple.  The ramifications are too high and penalties too steep to just concede without a fight.  The police must administer the SFST's in accordance with a strict set of guidelines and rules set out by NHTSA (National Highway Traffic Safety Administration).  VERY OFTEN, the police cut corners when making a DWI arrest.  It is abundantly clear that if the officer deviates from the required NHTSA protocol...THE VALIDITY IS COMPROMISED!  All too often the tests are not demonstrated, instructed, and performed according to the strict NHTSA guidelines. Often, NHTSA standards can exclude you as a candidate to even perform the SFST's at all because of medical or physical conditions.  As well, an experienced DWI attorney can possibly attack the probable cause for the reason of the traffic stop.  If there was not sufficient reason for the initial stop according to the law, the case must be dismissed.  Carl has won numerous "motions to suppress" based on a lack of probable cause for the stop itself.  Thus, it always important to consult an attorney that has the requisite experience to fight your case.