Texas DWI After Arrest: Blood Tests, License Suspensions, and Criminal Penalties

What Happens After a DWI Arrest in Texas?

A Texas DWI case does not end when the roadside investigation is over.

In many ways, that is when the most complicated part begins.

After an officer completes field sobriety testing and decides to make an arrest, the driver may be asked to provide a breath or blood specimen. The person may then face an administrative driver’s-license suspension, a criminal prosecution, increased insurance costs, court-ordered conditions, and potentially enhanced punishment based on alcohol concentration, prior convictions, an open container, or the presence of a child passenger.

In this follow-up episode of Andrew & Andrew on Texas Criminal Defense, attorneys Andrew Herreth and Andrew Decker continue their discussion of DWI law by focusing on the next stages of the case.

They explain how Texas defines intoxication, why a test result taken later may not necessarily establish a driver’s alcohol concentration at the time of driving, what happens when an officer requests breath or blood, how quickly a driver must act to challenge a license suspension, and how a seemingly ordinary misdemeanor can become a more serious charge.

The episode also returns to a warning emphasized throughout the series:

Do not drink and drive.

The purpose of understanding DWI law is not to help people drive after drinking. It is to explain how the legal system evaluates these cases and why anyone arrested should obtain advice quickly.

The Questions Officers Ask Before an Arrest

Before discussing chemical testing and penalties, the hosts return to an issue left over from the first DWI episode: roadside questioning.

Officers commonly ask questions such as:

• Where are you coming from?

• Where are you going?

• Have you been drinking?

• How many drinks have you had?

• When did you have your last drink?

• What did you drink?

• Have you taken any medication?

These questions may sound conversational.

They are not necessarily casual.

The answers can help the officer decide whether to expand a traffic stop into a DWI investigation and may later appear in the police report, probable-cause affidavit, breath-test paperwork, or trial testimony.

Decker points out that a driver’s location does not establish intoxication.

Leaving a bar does not prove the person consumed alcohol. A person may have been the designated driver, attended an event without drinking, or simply eaten dinner. Conversely, someone leaving a private residence may have consumed a significant amount of alcohol.

Where the person came from may influence the officer’s suspicion, but it does not answer the legal question of whether the driver was intoxicated.

Officers May Already Know Where the Driver Was

In some cases, an officer is parked near a bar, restaurant, nightclub, or entertainment district.

The officer may see the vehicle leave the parking lot and begin following it.

That makes minor traffic conduct especially important.

The officer may look for:

• failure to signal;

• speeding;

• rolling through a stop;

• crossing a lane marker;

• turning from the wrong lane;

• or another traffic violation.

The hosts give the example of a driver leaving a bar and failing to activate a turn signal far enough before an intersection.

Even when the traffic violation is unrelated to intoxication, it may provide the basis for the stop.

Once the officer approaches the vehicle, detects an odor, or receives an admission of drinking, the encounter may quickly become a DWI investigation.

“How Many Drinks Have You Had?”

The hosts joke that the answer is almost always two.

Drivers may believe that admitting to one or two drinks sounds responsible and will satisfy the officer.

It may not.

An admission to drinking confirms at least part of the officer’s suspicion and creates a timeline the State may later attempt to use.

The driver’s answer can lead to follow-up questions:

• What time did you begin?

• What time did you stop?

• What size were the drinks?

• Were they beer, wine, or liquor?

• Did you eat?

• Did you take medication?

• How much do you weigh?

Those questions become especially important when the State attempts to estimate the person’s alcohol concentration at an earlier time.

How Texas Can Prove Intoxication

The hosts describe two principal ways the State may attempt to prove intoxication in a DWI case.

The first is by alleging that the person did not have the normal use of mental or physical faculties because of alcohol, drugs, medication, another substance, or a combination of substances.

The second is by proving an alcohol concentration at or above the statutory threshold.

These theories are different.

A person may test below 0.08 and still be prosecuted under a loss-of-normal-faculties theory.

A person may appear outwardly coordinated but still face a per se allegation based on a qualifying alcohol-concentration result.

The State may pursue one or both theories depending on the evidence.

What Are “Normal” Mental and Physical Faculties?

The phrase sounds straightforward until it is applied to a real person.

How does an officer know what is normal for someone the officer has never met?

A driver may naturally:

• speak slowly;

• have poor balance;

• appear nervous;

• struggle with coordination;

• have a speech impediment;

• suffer from an old injury;

• process instructions differently;

• or display unusual mannerisms.

The roadside encounter may be the officer’s first and only observation of that individual.

The defense may therefore examine whether the officer truly observed a loss of normal faculties or merely conduct the officer interpreted as abnormal.

Relevant evidence may include:

• body-camera footage;

• dash-camera footage;

• witness testimony;

• medical records;

• prior injuries;

• medications;

• video from earlier in the evening;

• and the person’s normal speech or movement patterns.

The legal issue is not whether the driver performed every instruction perfectly.

It is whether the State can prove intoxication beyond a reasonable doubt.

The 0.08 Alcohol-Concentration Theory

The second method discussed is the alcohol-concentration theory.

For an adult driver, an alcohol concentration of 0.08 or more may satisfy the statutory definition of intoxication.

The hosts emphasize one critical point:

The relevant concentration is the concentration at the time of driving.

A breath or blood specimen is often collected later.

That delay may be:

• thirty minutes;

• one hour;

• two hours;

• or even longer.

The result therefore raises a timing question.

Was the driver’s alcohol concentration higher, lower, or approximately the same when operating the vehicle?

A Test Result Does Not Automatically Recreate the Time of Driving

Alcohol is absorbed and eliminated over time.

A person who recently finished drinking may still be absorbing alcohol when stopped.

Another person may already be eliminating alcohol.

A later test does not explain that timeline by itself.

The State may attempt to use retrograde extrapolation to estimate what the person’s alcohol concentration was earlier.

That analysis can depend on assumptions about:

• the time of the last drink;

• the number and strength of drinks;

• food consumption;

• body composition;

• absorption;

• elimination rate;

• and whether the person was still in the absorptive phase.

Herreth describes this as a kind of “fuzzy math” because the calculation may rely on information that is incomplete or uncertain.

Jurors may hear an expert explain a scientific estimate, but the reliability of the opinion depends on the quality of the underlying facts.

Why the Drinking Timeline Matters

Consider two drivers who each produce a 0.09 result two hours after being stopped.

The same number may have different implications.

One driver stopped drinking several hours before driving and may have been eliminating alcohol throughout the encounter.

The other consumed a final drink immediately before leaving and may still have been absorbing alcohol when stopped.

Without reliable information about timing, the test result does not automatically establish the earlier concentration.

This is why roadside questions about the last drink are not merely conversational.

The answers can become inputs in the State’s scientific theory.

DWI and DUI Are Not Always the Same in Texas

The hosts next distinguish adult DWI from alcohol-related offenses involving drivers under twenty-one.

Texas uses a zero-tolerance approach for underage drivers.

A person under twenty-one may face consequences when operating a motor vehicle with any detectable amount of alcohol in the system, even when the concentration is well below 0.08.

The hosts describe this as a DUI offense.

They also explain that a driver under twenty-one may still face an adult-style DWI charge if the evidence supports actual intoxication.

Age does not prevent a DWI prosecution.

It can instead create additional exposure because the person may face consequences for both underage alcohol involvement and intoxicated driving.

Zero Tolerance for Drivers Under Twenty-One

Decker gives the example of a nineteen-year-old who consumes one beer and later produces a low detectable alcohol result.

The person may not be legally intoxicated under the adult 0.08 threshold.

But the detectable alcohol may still trigger an underage license consequence.

The episode references warnings stating that a driver under twenty-one with a detectable amount of alcohol may face a suspension or denial of driving privileges.

The practical lesson is simple:

An underage driver should not assume that staying below 0.08 avoids legal consequences.

Underage Drivers May Face Multiple Charges

The hosts also note that an underage drinking-and-driving investigation may lead to additional allegations, including:

• minor in consumption;

• minor in possession;

• open-container violations;

• use of another person’s identification;

• or DWI if actual intoxication is alleged.

The exact charges depend on the facts.

A single traffic stop may therefore create several related cases or administrative consequences.

What Is the DIC-24 Warning?

After an officer decides to arrest someone for an intoxication-related offense, the officer may request a breath or blood specimen.

Before requesting the specimen, the officer generally provides a statutory warning commonly referred to as the DIC-24.

The hosts explain that the warning is supposed to be given orally and in writing.

It informs the arrested person of the request and describes potential consequences of refusing or providing a specimen that produces a prohibited result.

The warning is important because the person is being asked to make a decision with immediate legal consequences.

Breath or Blood?

The officer may request either a breath specimen or a blood specimen.

The hosts suggest that blood may be more likely when the officer suspects substances other than alcohol, including:

• marijuana;

• prescription medication;

• benzodiazepines;

• over-the-counter medication;

• or a combination of alcohol and drugs.

Breath testing is designed primarily to estimate alcohol concentration.

Blood testing can potentially be used to look for a wider range of substances.

The choice may also depend on local resources.

Factors can include:

• whether a breath-test instrument is nearby;

• whether trained personnel are available;

• whether a hospital or approved blood-draw location is accessible;

• the agency’s ordinary practice;

• and whether officers are operating during a no-refusal initiative.

The hosts note that they plan to address the science and defense of breath and blood testing in greater depth with attorneys who specialize in those subjects.

Can a Driver Refuse?

The hosts explain that a driver may decline a voluntary request for breath or blood and insist that officers seek a warrant.

Decker frames refusal as the exercise of a constitutional right rather than disrespect toward the officer.

A person does not have to be belligerent or confrontational.

The driver can calmly state that he or she does not consent and that officers should obtain a warrant.

That decision, however, may carry administrative consequences.

The fact that a person has a right to refuse voluntary consent does not mean the refusal is consequence-free under Texas licensing law.

Refusal and Driver’s-License Suspension

The episode explains that refusal may trigger an administrative suspension of driving privileges.

The hosts contrast that with a shorter potential suspension when the person provides a specimen and the result is at or above the prohibited level.

These are administrative consequences separate from the criminal prosecution.

That distinction matters.

A person may face:

1. an administrative license case; and

2. a criminal DWI case.

The criminal charge could ultimately be dismissed, reduced, or tried while the license suspension proceeds on a separate track.

Similarly, successfully challenging the license suspension does not automatically dismiss the criminal case.

The 15-Day Deadline

One of the most important practical points in the episode is the deadline to request an Administrative License Revocation hearing.

The hosts state that a driver generally has fifteen days to request the hearing.

They emphasize that these are calendar days, not business days.

The clock begins running quickly.

A person may be arrested on Saturday, released Sunday, return to work Monday, and spend several days trying to understand what happened.

By the time the person contacts a lawyer, a substantial portion of the deadline may already be gone.

Failing to request the hearing on time may allow the suspension to take effect without a contested hearing.

Why an ALR Hearing Matters

An Administrative License Revocation hearing is commonly called an ALR hearing.

The hearing gives the driver an opportunity to challenge the proposed administrative suspension.

It may involve issues such as:

• whether there was reasonable suspicion for the stop;

• whether probable cause supported the arrest;

• whether the specimen was properly requested;

• whether the person refused;

• or whether a qualifying test result was obtained.

The hearing may also provide the defense with early access to testimony or evidence related to the stop.

Herreth notes that this can help a lawyer obtain information before the criminal case has fully developed.

Even when the suspension is not defeated, the hearing may reveal weaknesses, inconsistencies, or facts useful in the criminal defense.

Why the Driver Should Contact Counsel Quickly

A DWI defendant may be tempted to wait for a court date before hiring a lawyer.

That can be a serious mistake.

The ALR deadline may expire well before the first criminal setting.

Evidence may also disappear.

A lawyer may need to request:

• dash-camera footage;

• body-camera footage;

• dispatch records;

• breath-test records;

• blood-test records;

• surveillance footage;

• medical documentation;

• jail video;

• and witness information.

The earlier the defense becomes involved, the better the chance of preserving useful evidence and meeting administrative deadlines.

What Happens After the State Reviews the Case?

After the arrest, the prosecuting authority reviews the evidence.

For a misdemeanor DWI, the State may file a charging document in the appropriate county-level court.

The case then begins moving through the criminal-court process.

That process may include:

• arraignment or initial settings;

• discovery;

• bond conditions;

• pretrial motions;

• plea negotiations;

• license-related issues;

• expert review;

• suppression hearings;

• and trial preparation.

The severity of the charge depends on more than the fact of arrest.

Alcohol concentration, prior convictions, passenger age, open containers, and other allegations may change the punishment range.

A First DWI Commonly Begins as a Class B Misdemeanor

The hosts explain that a standard first-offense DWI commonly begins as a Class B misdemeanor.

At the moment of arrest, officers may not yet have a final blood result.

The case can therefore be filed initially at one level and later changed if laboratory evidence supports an enhancement.

A Class B misdemeanor can carry:

• county-jail exposure;

• a fine;

• probation conditions;

• license consequences;

• court costs;

• and other collateral effects.

The exact outcome depends on the case, the person’s history, the county, the evidence, and the disposition.

When a DWI Becomes a Class A Misdemeanor

The hosts discuss two common ways a misdemeanor DWI may become a Class A charge.

The first is an alleged alcohol concentration of 0.15 or more.

The second is a prior final DWI conviction.

A 0.15 allegation is significant because it can substantially increase the authorized jail term and fine.

A prior conviction can also elevate the next DWI charge.

The prosecution may use these enhancements as leverage during plea negotiations, making careful review of the proof especially important.

The Difference Between 0.08 and 0.15

An alcohol concentration at or above 0.08 may support the ordinary per se intoxication theory.

A concentration at or above 0.15 may elevate the grade of the offense.

That makes the reliability of the result especially important.

The defense may need to evaluate:

• the testing method;

• collection procedure;

• chain of custody;

• laboratory analysis;

• instrument maintenance;

• uncertainty of measurement;

• timing;

• and whether the result reflects the concentration at the time of driving.

A number that changes the punishment range should not be accepted without scrutiny.

Prior DWI Convictions

A second DWI may be punished more severely than a first.

The hosts explain that a prior final conviction can elevate a new charge to a Class A misdemeanor.

A third DWI can become a felony.

That progression does not necessarily require the first conviction to have been a Class B and the second to have been a Class A.

Two qualifying prior DWI convictions may create felony exposure for the next offense.

The State must still prove the prior convictions and satisfy any applicable legal requirements for using them as enhancements.

DWI With a Child Passenger

A driver can face felony exposure even without prior DWI convictions if the vehicle contains a young child.

The hosts discuss the example of a parent driving home from a family gathering with a child in the vehicle.

A person may view the evening as a normal family event and believe he or she is safe to drive.

An arrest can nevertheless produce a felony allegation when the child-passenger statute applies.

That allegation can affect:

• bond conditions;

• employment;

• professional licensing;

• immigration consequences;

• family-court issues;

• and plea negotiations.

The presence of a child transforms the case from an ordinary misdemeanor into a potentially life-changing felony.

Open Containers

The episode also discusses open-container allegations.

An open container can be a separate offense and may increase the minimum confinement associated with a DWI conviction in certain circumstances.

It may also be used as circumstantial evidence that the driver consumed alcohol.

But the existence of an open container does not necessarily establish when or by whom the alcohol was consumed.

Decker gives examples involving:

• a partially consumed bottle transported after a party;

• empty beer cans collected after fishing;

• containers placed in a cooler;

• and alcohol belonging to a passenger.

The surrounding facts matter.

The second half of this article will examine open-container evidence in greater detail, the financial and collateral consequences of DWI, insurance and occupational-license costs, stigma, mandatory monetary penalties, and why an experienced lawyer must distinguish genuine aggravating evidence from allegations used mainly as negotiating leverage.

Open-Container Evidence Must Be Evaluated in Context

An open container can make a DWI case look worse immediately.

To a prosecutor or juror, an open beer can, liquor bottle, or other alcoholic beverage inside the vehicle may seem to confirm that the driver was drinking while driving.

Sometimes that conclusion is fair.

A half-empty can in the center console, still within the driver’s reach, may be powerful circumstantial evidence.

But not every open container proves recent consumption by the driver.

The episode gives several examples that illustrate why context matters:

• a partially consumed bottle being transported after a party;

• empty beer cans collected after a day of fishing;

• cans stored in a cooler;

• alcohol belonging to a passenger;

• and containers left in the passenger compartment even though they were not being consumed while the vehicle was moving.

The legal and factual questions may include:

• Where was the container located?

• Was it within the driver’s reach?

• Was it empty or partially full?

• Was it cold?

• Did it belong to a passenger?

• Was there evidence the driver drank from it?

• Were there multiple occupants?

• Was the container sealed before the trip?

• Was it being transported for disposal or cleanup?

• Did the officer collect fingerprints, DNA, or other evidence tying it to the driver?

The mere presence of an open container may support the State’s case, but it does not answer every question.

“Cold to the Touch” Is Not Always as Powerful as It Sounds

Officers sometimes emphasize that a can or bottle was “cold to the touch.”

That phrase may be used to suggest recent consumption.

But temperature is not a clock.

A container may remain cold because:

• it was stored in ice;

• it was inside a cooler;

• the weather was cold;

• the vehicle’s air conditioning was running;

• or the container had been removed from refrigeration shortly before the trip.

Likewise, an aluminum can can change temperature quickly.

The fact that a container was cold may be relevant, but it does not necessarily establish that the driver was actively drinking during the drive.

A defense lawyer should ask what the officer actually observed and what conclusions are merely assumed.

Open Container as a Separate Offense

An open-container violation may be charged separately from DWI.

It is generally a lower-level offense, but it can still affect the overall case.

The State may use it in several ways:

• as a separate charge;

• as circumstantial evidence of alcohol consumption;

• as support for the officer’s probable-cause determination;

• or as negotiating leverage.

The defense must separate those uses.

A person may technically violate an open-container statute without being intoxicated.

Likewise, a person may be intoxicated even when no open container is present.

The offenses are related, but they are not identical.

Enhancements Can Become Negotiating Leverage

Herreth and Decker describe certain DWI allegations as tools the State may use to increase pressure during plea negotiations.

Those can include:

• a 0.15 alcohol-concentration allegation;

• a prior DWI conviction;

• an open container;

• a child passenger;

• or additional underage alcohol offenses.

Some enhancements reflect genuinely more serious conduct.

Others may depend on disputed evidence, technical statutory definitions, or facts that are less incriminating than they first appear.

An experienced defense lawyer should not assume that every enhancement is valid simply because it appears in the charging paperwork.

The lawyer should ask:

• Can the State prove the enhancement?

• Is the prior conviction legally usable?

• Is the blood or breath result reliable?

• Was the child under the statutory age?

• Does the alleged open container satisfy the legal definition?

• Was the container actually in the passenger area?

• Was the person operating the vehicle in a public place?

• Was the specimen collected lawfully?

The answer may significantly affect the punishment range and negotiation strategy.

A 0.15 Allegation Deserves Independent Scrutiny

A result at or above 0.15 can increase a first-offense DWI from a Class B misdemeanor to a Class A misdemeanor.

That difference is substantial.

The potential maximum jail term and fine increase, and prosecutors may approach the case more aggressively.

But a reported result should not be treated as infallible.

The defense may need to review:

• the instrument or laboratory used;

• calibration and maintenance records;

• collection procedure;

• tube type and preservatives;

• labeling;

• chain of custody;

• storage temperature;

• analyst qualifications;

• quality-control results;

• uncertainty of measurement;

• contamination risk;

• and timing relative to driving.

Even a technically accurate test taken later may not automatically prove the concentration at the time of operation.

The enhancement depends on more than seeing “0.15” in a report.

Measurement Uncertainty Near the Enhancement Threshold

Scientific measurements are not always infinitely precise.

A reported result may carry a recognized range of uncertainty.

That can matter when the result is near a statutory threshold.

For example, when a reported concentration is close to 0.15, the defense may examine whether the laboratory’s uncertainty range places the true value potentially below the enhancement line.

The legal significance of measurement uncertainty can depend on the jurisdiction, the evidence, and how the State presents the result.

But it is an issue that should not be ignored.

A result that doubles punishment exposure deserves careful scientific review.

Prior Convictions Must Be Proven

A second DWI and a felony DWI depend on prior qualifying convictions.

The State must establish that the prior convictions belong to the defendant and meet the legal requirements for enhancement.

Potential issues include:

• incorrect identity;

• incomplete records;

• invalid judgments;

• uncounseled prior convictions;

• name variations;

• date discrepancies;

• out-of-state offenses;

• and whether the earlier disposition legally counts as a final conviction.

The existence of an old arrest is not the same as a qualifying conviction.

The prosecution must prove what the law requires.

A Third DWI Can Become a Felony

The hosts explain that a person with two qualifying prior DWI convictions may face a felony on the next DWI allegation.

This can surprise people who think each new case simply moves from Class B to Class A and then remains a misdemeanor.

The third qualifying offense can create felony exposure.

That change affects nearly every aspect of the case:

• the court handling it;

• possible punishment;

• bond conditions;

• employment consequences;

• firearm rights;

• immigration issues;

• professional licensing;

• and long-term criminal history.

A felony allegation also gives the State significantly more leverage.

That makes a careful review of the prior convictions and the current evidence essential.

DWI With a Child Passenger

A DWI with a child passenger can be charged as a felony even when the driver has no prior DWI convictions.

The hosts use the example of a parent driving home from a family event with a child in the vehicle.

The driver may believe that the alcohol consumption was modest and that driving was safe.

But once the State alleges intoxication and a child passenger under the statutory age, the case becomes far more serious.

The consequences may extend beyond criminal court.

A child-passenger DWI can trigger concerns involving:

• child protective services;

• custody disputes;

• employment;

• professional licensing;

• school or volunteer positions;

• and reputational harm.

The offense can transform one evening into a long-term family crisis.

The State’s Case May Be Strong—or It May Be Overcharged

Not every enhancement is fabricated.

Some cases involve:

• very high alcohol concentrations;

• repeated prior offenses;

• obvious dangerous driving;

• open containers beside the driver;

• or children placed at serious risk.

Those cases can be difficult to defend.

But other cases are overcharged.

An allegation may rest on:

• a borderline test result;

• a prior conviction that does not qualify;

• a container belonging to a passenger;

• a child whose age was recorded incorrectly;

• or a blood draw obtained without proper warnings or lawful consent.

The defense lawyer’s role is to distinguish between genuinely aggravating facts and unsupported leverage.

The Financial Cost of a DWI

The hosts discuss an older public-service message claiming that a DWI can cost approximately $15,000.

They suggest that the total can realistically reach that level once all consequences are included.

Potential expenses include:

• attorney’s fees;

• bond;

• towing;

• vehicle storage;

• court costs;

• fines;

• administrative fees;

• occupational-license expenses;

• ignition-interlock costs;

• alcohol education;

• probation fees;

• drug or alcohol testing;

• increased insurance premiums;

• transportation costs;

• and lost work.

The criminal fine is only one component.

For many defendants, the indirect costs exceed the fine itself.

Insurance Premiums Can Increase Dramatically

A DWI arrest or conviction can affect automobile insurance.

The exact increase depends on:

• the insurer;

• the person’s driving history;

• age;

• location;

• vehicle;

• policy type;

• and final disposition.

Some drivers may lose coverage or need a high-risk policy.

Others may be required to provide proof of financial responsibility in a form associated with high-risk drivers.

The increase can last for years.

That makes insurance one of the largest long-term costs.

Occupational Licenses

A person whose license is suspended may qualify for an occupational or essential-needs license.

That is not the same as having full unrestricted driving privileges.

The process may require:

• filing a petition;

• obtaining a court order;

• paying fees;

• providing proof of insurance;

• carrying certified paperwork;

• and complying with time, route, or purpose restrictions.

The person may be allowed to drive for:

• work;

• school;

• medical care;

• essential household duties;

• or other approved purposes.

But obtaining the license creates additional expense and paperwork.

The hosts include occupational-license costs among the broader financial consequences of DWI.

Criminal Fines, Court Costs, and Additional State Charges

The episode discusses the difference between older driver-responsibility surcharges and newer monetary consequences associated with DWI convictions.

The hosts criticize the layering of financial penalties.

A defendant may face:

• the court’s criminal fine;

• court costs;

• probation fees;

• administrative expenses;

• and an additional state-imposed monetary obligation.

The exact laws have changed over time.

That is important because the transcript reflects the law as it existed when the episode was recorded.

Before publication, current statutes should be verified.

The broader point remains valid:

A DWI conviction can trigger multiple overlapping financial penalties rather than one simple fine.

The Double-Punishment Concern Discussed in the Episode

Decker mentions that defense lawyers were considering constitutional challenges to additional mandatory financial penalties, including an argument that imposing multiple monetary punishments might raise double-jeopardy or due-process concerns.

The episode does not identify a final appellate decision resolving that argument.

This should therefore be presented as a legal issue discussed at the time, not as settled law.

The page should avoid stating that any current DWI fine is unconstitutional unless supported by controlling authority.

Court Costs and Supervision Expenses

Court costs and probation-related expenses can accumulate.

Depending on the case, a defendant may pay for:

• community supervision;

• alcohol evaluation;

• education programs;

• substance-abuse treatment;

• random testing;

• ignition interlock;

• electronic monitoring;

• victim-impact panels;

• and administrative reporting.

Even when probation avoids immediate jail, it is not cost-free.

The financial burden can continue for months or years.

Employment Consequences

A DWI can affect employment even when driving is not the person’s primary job.

Potential problems include:

• missing work for court;

• inability to drive during a suspension;

• loss of a company vehicle;

• background-check consequences;

• mandatory reporting to an employer;

• loss of security clearance;

• and disciplinary action.

Commercial drivers face especially serious risks because their license is central to employment.

Other professions may also require reporting arrests or convictions to a licensing board.

Professional Licensing

A DWI may need to be reported in professions involving:

• law;

• medicine;

• nursing;

• education;

• aviation;

• insurance;

• real estate;

• financial services;

• law enforcement;

• and other regulated fields.

The effect depends on the profession, the licensing rules, and the final disposition.

A first DWI does not automatically end every career.

But failing to disclose it when disclosure is required can create a second problem more serious than the original case.

Immigration Consequences

The immigration effect of a DWI varies.

A simple DWI may not always produce the same immigration consequences as offenses involving violence, drugs, or moral turpitude.

However, aggravating factors can change the analysis.

Examples include:

• child passengers;

• controlled substances;

• prior convictions;

• injury;

• felony allegations;

• or probation violations.

Noncitizens should receive individualized immigration advice before accepting any plea.

A criminal defense lawyer may need to coordinate with immigration counsel.

Travel and International Entry

Some countries may restrict entry based on a DWI conviction.

Canada is commonly associated with this issue.

The effect can depend on:

• the date of conviction;

• sentence completion;

• rehabilitation;

• multiple offenses;

• and current immigration rules.

This may matter greatly to people who travel for work or family.

Social Stigma

Herreth and Decker emphasize that DWI affects people from every background.

Decker describes representing drivers in vehicles ranging from an old Toyota Corolla to a newer Maserati and clients across racial, economic, and professional groups.

That universality does not eliminate stigma.

A DWI arrest can be embarrassing because it may suggest recklessness, substance abuse, or disregard for public safety.

The person may feel judged by:

• family;

• coworkers;

• employers;

• neighbors;

• and the broader community.

That stigma may appear before guilt has been proven.

The “Every Person Offense”

The hosts repeatedly call DWI an “every person offense.”

They do not mean that everyone who drinks and drives is innocent.

They mean that DWI cases frequently involve people with no previous criminal history who never imagined entering a courthouse.

A person may be:

• a parent;

• a teacher;

• a physician;

• a business owner;

• a student;

• a church member;

• or a community volunteer.

One bad decision—or one disputed officer opinion—can bring that person into the criminal justice system.

This is part of what makes DWI defense different from cases stereotypically associated with deliberate criminal conduct.

An Arrest Is Not a Conviction

A DWI arrest can feel like the end of the case.

The person may assume that the officer’s report and a chemical result make conviction inevitable.

That is not always true.

The defense may identify issues involving:

• the initial stop;

• the length of detention;

• roadside questioning;

• field sobriety testing;

• probable cause;

• the DIC-24 warning;

• consent;

• a warrant;

• specimen collection;

• laboratory analysis;

• retrograde extrapolation;

• prior convictions;

• and enhancements.

The strength of a case cannot be determined from the charge name alone.

Missing or Defective DIC-24 Warnings

Decker discusses a case in which he could not find evidence that the driver received the DIC-24 warning orally or in writing before consenting to a blood draw.

He describes preparing a suppression argument based on that omission.

This example shows why procedural documents matter.

The defense should determine:

• whether the warning exists;

• whether it was signed;

• whether the officer read it;

• whether the recording captured it;

• whether the correct version was used;

• whether the driver understood the request;

• and whether any consent was voluntary.

The absence of required warnings can create a significant legal issue, though the remedy will depend on current law and the facts.

Consent Is Not the Same as Submission to Authority

When a person is under arrest, surrounded by officers, and told that a specimen is being requested, the environment is inherently coercive.

A signed form does not automatically resolve whether consent was voluntary.

Relevant circumstances may include:

• tone of voice;

• threats;

• promises;

• misunderstanding;

• language barriers;

• intoxication;

• medical condition;

• whether the statutory warning was provided;

• and whether officers implied that refusal was impossible.

The defense may challenge the legality of the specimen even when paperwork contains the word “consent.”

Warrants and Blood Draws

When a person refuses, officers may seek a search warrant for blood.

A judge reviews an affidavit and determines whether probable cause exists.

The warrant process creates additional issues:

• Did the affidavit accurately describe the facts?

• Did it omit important information?

• Did the officer exaggerate field-test performance?

• Was the alleged traffic violation captured on video?

• Did the officer rely on boilerplate language?

• Was the warrant executed properly?

• Was the blood drawn within the warrant’s scope?

A warrant does not make every issue disappear.

It changes the legal analysis.

Medical Blood Versus Law-Enforcement Blood

Blood may be drawn for medical treatment or for law-enforcement purposes.

Those are different situations.

Medical blood may be collected because hospital staff need it for diagnosis or treatment.

Law-enforcement blood is collected as evidence.

The State may later seek medical records or medical blood results.

Legal questions may include:

• whether a warrant was required;

• whether an exception applied;

• whether the records were properly obtained;

• whether the blood was drawn for genuine treatment;

• and whether the testing method was suitable for forensic use.

The episode briefly references litigation involving medical-purpose blood and prior podcast discussion of related authority.

Breath and Blood Evidence Require Specialized Review

The hosts state that future episodes should feature lawyers who focus specifically on breath and blood testing.

That is a sound editorial point.

These cases may involve complex subjects such as:

• gas chromatography;

• breath partition ratios;

• instrument calibration;

• reference standards;

• quality control;

• serum-versus-whole-blood differences;

• contamination;

• preservatives;

• uncertainty;

• pharmacology;

• and retrograde extrapolation.

A general criminal defense lawyer may understand the legal framework but still need a toxicologist, chemist, or specialized attorney for a detailed scientific challenge.

Early Action Can Produce Early Discovery

Herreth notes that requesting an ALR hearing may help the defense obtain information sooner.

Depending on the case and local procedure, the lawyer may receive or seek:

• the officer’s sworn report;

• refusal paperwork;

• test records;

• video;

• witness testimony;

• and documents supporting the suspension.

That early information can influence the criminal case.

The defense may discover:

• conflicting timelines;

• missing warnings;

• weak reasonable suspicion;

• poor field-test administration;

• or inconsistent testimony.

The ALR matter is therefore not merely about driving privileges.

The Administrative and Criminal Cases Are Separate

One of the most important concepts for defendants is that the license case and criminal case are different proceedings.

A person can:

• win the ALR hearing but still face prosecution;

• lose the ALR hearing but later obtain a dismissal;

• receive an occupational license while the criminal case is pending;

• or resolve the criminal case before the administrative suspension ends.

Different burdens, evidence rules, deadlines, and decision-makers may apply.

A defendant should not assume that the outcome of one automatically controls the other.

Why Waiting Is Dangerous

The first court date may be weeks away.

The ALR deadline may be only fifteen days.

That mismatch creates a trap.

A person who waits for a court notice may lose the opportunity to contest the administrative suspension.

Meanwhile:

• video may be overwritten;

• witnesses may disappear;

• surveillance may be deleted;

• and memory may fade.

The episode’s practical advice is to contact counsel quickly after release.

The Lawyer Must Be Honest About the Evidence

The earlier DWI episode emphasized that video can be favorable or devastating.

The same honesty applies here.

A lawyer should not promise a dismissal simply because:

• the driver refused;

• the blood draw took time;

• the officer failed to use perfect language;

• or the result was barely over 0.08.

Some cases contain strong evidence.

Others have meaningful defenses.

The lawyer’s job is to identify which is which and explain the risks accurately.

Plea Negotiations and Leverage

Enhancements affect plea negotiations.

A prosecutor may offer to:

• waive a 0.15 allegation;

• dismiss an open-container count;

• reduce a child-passenger allegation;

• avoid filing a felony;

• or recommend less confinement.

The value of such an offer depends on whether the State could prove the allegation in the first place.

A lawyer should not treat removal of a weak enhancement as a major concession without evaluating the evidence.

At the same time, a strong enhancement can create real risk that must be considered.

Saving a Client’s Criminal History

Herreth discusses the sadness of seeing an otherwise law-abiding person pulled into the criminal system over a DWI allegation.

For many clients, the primary goal is not merely avoiding jail.

It is protecting:

• employment;

• licensing;

• reputation;

• driving privileges;

• family stability;

• and a clean record.

That may require litigation, negotiation, treatment, mitigation, or trial preparation.

There is no single strategy for every case.

Prevention Is Still the Best Strategy

Both hosts repeatedly make clear that the episode is not intended to help people drive after drinking.

They urge listeners to use:

• a designated driver;

• rideshare;

• a cab;

• or another safe alternative.

Decker observes that even an expensive ride home is far cheaper than hiring a lawyer and dealing with the consequences of a DWI.

That remains the strongest advice in the episode.

Conclusion

The roadside investigation may end when the officer places the driver under arrest, but the DWI case is only beginning.

The next decisions can have immediate and long-term consequences.

The officer may ask for breath or blood.

The driver may consent, refuse, or require a warrant.

A refusal can trigger an administrative license suspension.

A qualifying test result can trigger a different suspension.

The deadline to request an ALR hearing can expire in only fifteen calendar days.

At the same time, the criminal case begins developing.

The State may allege intoxication through loss of normal faculties, an alcohol concentration of 0.08 or more, or both.

A first DWI may begin as a Class B misdemeanor, but it can become more serious based on:

• an alcohol concentration of 0.15 or more;

• a prior DWI conviction;

• multiple prior convictions;

• a child passenger;

• or other aggravating allegations.

Open-container evidence can strengthen the State’s narrative, but it must be evaluated in context.

A cold can does not necessarily prove recent consumption.

An empty container in a cooler does not necessarily belong to the driver.

A partially consumed bottle transported after a party does not answer when or by whom it was consumed.

Every enhancement must be proven.

Beyond the criminal charge, a DWI can affect nearly every area of life.

The total financial burden may include attorney’s fees, court costs, fines, insurance increases, occupational-license expenses, ignition interlock, supervision fees, testing, treatment, and lost work.

Professional licenses, employment, travel, immigration status, and family relationships may also be affected.

That is why the hosts call DWI an “every person offense.”

It can reach people who have never been arrested, never considered themselves criminals, and never imagined needing a defense lawyer.

But an arrest is not a conviction.

The legality of the stop, the officer’s observations, the DIC-24 warning, the breath or blood request, the specimen collection, the scientific testing, the timing, the prior convictions, and every enhancement remain subject to review.

The most urgent practical point is speed.

A person arrested for DWI should not wait for the first court date before seeking advice.

The administrative deadline may arrive first.

Evidence can disappear.

A lawyer may need to act immediately to preserve video, request an ALR hearing, examine warnings, and begin investigating the case.

The best DWI case is the one that never happens.

Do not drink and drive.

But when an arrest occurs, the accused is entitled to insist that the State prove the case lawfully, scientifically, and beyond a reasonable doubt.

Key Takeaways

• Texas may attempt to prove intoxication through loss of normal mental or physical faculties, an alcohol concentration of 0.08 or more, or both.

• An officer who has never met the driver may have limited knowledge of that person’s normal speech, balance, movement, or behavior.

• The relevant alcohol concentration is the concentration at the time of driving, not merely the concentration when a later specimen was collected.

• Retrograde extrapolation depends on assumptions about drinking time, amount, food, absorption, and elimination.

• Drivers under twenty-one may face zero-tolerance consequences for any detectable amount of alcohol.

• A driver under twenty-one can still be charged with DWI if the State alleges actual intoxication.

• Underage alcohol investigations may also produce minor-in-consumption, minor-in-possession, identification, or open-container allegations.

• The DIC-24 is the statutory warning associated with a breath or blood request after an intoxication-related arrest.

• The warning is generally supposed to be provided orally and in writing.

• Missing or defective warnings may create suppression or consent issues depending on current law and the facts.

• Blood may be requested when officers suspect drugs, medication, or a combination of substances.

• Breath testing primarily addresses alcohol, while blood may be analyzed for a broader range of substances.

• A driver may refuse a voluntary specimen request and require officers to seek a warrant, but refusal may carry license consequences.

• The license case and the criminal case are separate.

• The deadline to request an ALR hearing is generally fifteen calendar days, making early legal advice critical.

• An ALR hearing may help challenge the suspension and obtain early discovery.

• A standard first-offense DWI commonly begins as a Class B misdemeanor.

• An alleged alcohol concentration of 0.15 or more may elevate a first DWI to a Class A misdemeanor.

• A prior final DWI conviction may elevate a later charge.

• Two qualifying prior convictions can make the next DWI a felony.

• The State must prove prior convictions are valid, qualifying, and attributable to the defendant.

• DWI with a child passenger can create felony exposure even for a person with no prior DWI convictions.

• A child-passenger allegation may affect family, employment, and licensing matters in addition to the criminal case.

• An open container may be a separate offense and circumstantial evidence, but it does not automatically prove the driver consumed alcohol while driving.

• Container location, ownership, temperature, contents, and access should be examined.

• A 0.15 enhancement deserves careful scientific review, especially when the result is near the threshold.

• Blood and breath results may be challenged through collection, maintenance, calibration, chain-of-custody, laboratory, and timing evidence.

• Consent to blood collection should be evaluated in light of warnings, custody, coercion, language, and the total circumstances.

• A warrant changes the analysis but does not eliminate challenges to the affidavit or execution.

• Medical blood and law-enforcement blood involve different factual and legal issues.

• DWI costs may include legal fees, towing, fines, court costs, occupational licensing, interlock, testing, probation, and higher insurance premiums.

• Employment, professional licensing, immigration, travel, and reputation may be affected.

• DWI can involve people from every economic, professional, and social background.

• An arrest is not a conviction.

• Early investigation is critical because license deadlines run quickly and evidence may disappear.

• The safest and least expensive option is always to use a designated driver, rideshare, taxi, or another sober transportation plan.

Texas DWI After Arrest: Blood Tests, License Suspensions, and Criminal Penalties

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Andrew Herreth 0:20

Hello, everyone. Welcome to another edition of Andrew and Andrew on Texas Criminal Defense. Andrew Decker is joining me as always. How you doing, man?

Andrew Decker 0:30

I'm good. I'm good. How are you doing, Andrew?

Andrew Herreth 0:31

Doing great. Doing great. You know, last time we talked a little bit about some DWI laws, some some considerations when you're being pulled over and arrested for DWI, and this is going to be another DWI episode. We're going to talk more about you know the next phases of a DWI case.

Andrew Decker 0:51

Sure, and part of it is is DWIs are one of the most common cases that we as defense attorneys see. I call it the every person offense. Why? Because if you've left a dinner or a friend's house and you get home and you went, maybe shouldn't have done that. You might have been DWI, right? Or

Andrew Herreth 1:12

you know, I mean, it's it's an officer's opinion a lot of times. So you could have two glasses of wine at dinner, go driving, and for some non-intoxicated related driving event,

Andrew Decker 1:27

find yourself facing a right, right. We'll get to that. That's how do we prove intoxication? Right. But we realize we left a few things out in the first episode. We want to hit before continuing on.

Andrew Herreth 1:37

Yeah.

Andrew Decker 1:37

And one of those is officers get to ask you all sorts of questions,

Andrew Herreth 1:43

right? Yeah, yeah. I mean, just like anybody else coming up to you on the street, they can they can ask you your name and what's going on.

Andrew Decker 1:50

So the most common question is, "Where are you coming from tonight?

Andrew Herreth 1:53

Right.

Andrew Decker 1:54

What difference does it make if I'm doing 60-five and a 40? Where I'm coming from?

Andrew Herreth 1:59

Yeah, it doesn't. It doesn't.

Andrew Decker 2:01

You've got me for 25 over the speed limit. It's more than 10% over. I'm going to pay the fine. Let's move on down the road. Give

Andrew Herreth 2:07

me my ticket, man.

Andrew Decker 2:08

Right. Right.

Andrew Herreth 2:09

Yeah. I so I tell them I'm I'm I'm coming from my drug dealer's house in that situation, and and and I do not I

Andrew Decker 2:16

do not recommend stating that to a cop.

Andrew Herreth 2:18

Yeah. It's not. It's but it's just me being a smart, a smart Alec. But never a good situation to start off conversation like that. But they do get the right; they have the right to ask you some general questions when you've been pulled over, just to kind of assess the situation. Right,

Andrew Decker 2:37

kind of for any reason. Where are you coming from? Where are you headed to?

Andrew Herreth 2:41

How you doing tonight? How

Andrew Decker 2:42

you doing tonight? If it if it's if it's after about 10 o'clock on any night, and they smell any alcohol or they see any, they're gonna go. Have you been drinking tonight?

Andrew Herreth 2:53

Yeah, yeah. And and you know, like I don't know, you can't reproduce a smelling cord, and we probably talked about it in the first part of the DWI, it just drives me crazy.

Andrew Decker 3:03

Right, you know how much it was moderate, a little bit, and then suddenly at the end of the report, it was a strong odor of alcohol. I've literally seen it change in a report from beginning to end.

Andrew Herreth 3:13

Yeah, I've had I've had clients who just had like Diet Cokes spilled on them, you know, and the the officer said, "No, well, smells like alcohol. And she's like, "No, it was a diet coke, no alcohol. Yeah. So so literally, you know, this smell thing just kind of drives me crazy. But but

Andrew Decker 3:34

they but they get to ask you questions, and we feel like we need to answer them. But really, does where I came from really have any bearing on whether or not, first of all, I was speeding or, or not oh not stopping at a stop sign, and then second, where I came from may be no indication of if I was drinking or how much I was drinking. We we've all been at a place, well, a bar or or an event where there was alcohol involved, where for some reason we didn't drink because we're the designated driver, or just we knew we had to drive home, or we just didn't feel it. Now we may have been eating gross bar food. We may feel disgusting. We may smell like smoke. We may even smell like alcohol because of where we've been and where we've sat and everything else. But being at a bar doesn't mean I've been drinking. Secondly, I can be at home for a day and be wasted.

Andrew Herreth 4:35

Yeah. So

Andrew Decker 4:36

if I say I just left the house, does that mean which which anybody knows me knows that's not going to be true, but but where I came from doesn't indicate if I'm intoxicated.

Andrew Herreth 4:49

Most of the time, the police officers already know. They've been parking out in that parking lot on the street. They see you leave. They know where you came from. Right.

Andrew Decker 4:58

Literally, they'll watch you leave. The bar follow you for a block, and sure enough, you didn't turn on your signal to turn right at 100 feet from the intersection. Well, it's only

Andrew Herreth 5:09

an intoxicated driver.

Andrew Decker 5:11

It's and it's only a 200 foot you know block. You know, so you literally have to like as soon as you're under the block, turn on your blinker and then stop. Make sure you stop at the line. You know, and then make the right hand turn. Otherwise, you are definitely that's definitely a sign of intoxication.

Andrew Herreth 5:25

Yeah.

Andrew Decker 5:26

So, so those are questions they get to ask and the things they're looking for. But Andrew, we've covered a lot of that already in the last episode. So they they get there. We've talked about the walk and turn and the one leg stand and all those things last time, but but how do they actually prove you're intoxicated here in the great state of Texas? Yeah,

Andrew Herreth 5:50

well, there's two ways. So why don't each of us take

Andrew Decker 5:53

one? Okay.

Andrew Herreth 5:54

So the probably the the hardest, the one that I'm always trying to argue is when an individual doesn't have the normal use of their mental or physical faculties by reason of the introduction of alcohol or some other substance into their system, and and and I'll let you go ahead and say the the next one.

Andrew Decker 6:17

Well, I want to I want to ask how do you know what someone's normal mental and physical faculties are if you've never met them except for on the side of a road.

Andrew Herreth 6:26

Exactly, and that's why I'm always trying to do something to get the second way to define intoxication in Texas kicked, because that's what I want to argue.

Andrew Decker 6:36

Right. So, so the the other way, the second way, probably the the most common way, the one that we all think about is the blood alcohol content, the BAC, and that would be that can they prove that your blood alcohol is over at or over a 08 Anything over that is considered a default intoxicated in the state of Texas for driving,

Andrew Herreth 7:04

and and because this is it's a driving driving while intoxicated charge that 08 needs to be stressed to a jury. It has to be at the time of driving,

Andrew Decker 7:16

right? Not at the time I took the blood test or the breath test or something to that effect,

Andrew Herreth 7:20

right? Which typically could be hours after you're stopped by the police officer.

Andrew Decker 7:25

Correct, and so those become questions of when did you finish drinking, how much did you drink, and then and then we get into things called extrapolation. You know, like at what point did you reach your your your highest point of intoxication? So when they took the test, were you still going up and being drunk, or were you coming down and being drunk? You know, politicians

Andrew Herreth 7:45

always talk about fuzzy math, and that's what reminds me of like fuzzy math. Like, wait a second, that's not that doesn't really add up to me somehow,

Andrew Decker 7:54

right? It always well, anytime, anytime you have to start talking about extrapolation and and figuring out what the blood alcohol was two hours ago, based on whether they drank earlier or later, all I see is jurors kind of glazing over because at that point I don't think they care. If they're really looking at the number and only the number, they've already made a decision.

Andrew Herreth 8:17

Yeah, yeah. So when so BAC over a 08 is one way to prove intoxication, but is that the way? Is that still the standard when an individual has been pulled over and they're under the age of you know 21 or 18

Andrew Decker 8:38

or all right? So so so that's a different question. We've been talking about a DWI driving while intoxicated, and and that's an assumption, right? We're talking about someone who's 21 or older. So I've reached my 21st birthday or later than if I'm driving while intoxicated. I facing a DWI, but let's say that I'm 19 and somehow I got a hold of my big brother's ID and and had a beer.

Andrew Herreth 9:07

That never happens, by the way.

Andrew Decker 9:09

What that I've only had a beer?

Andrew Herreth 9:11

No, no, no. That that a 19 year old sneaks alcohol, you know, by stealing their older brother's

Andrew Decker 9:18

right right

Andrew Herreth 9:18

ID.

Andrew Decker 9:19

So so hold on. Let's back up. Let's back up one second. So, so the having one beer reminds me one other question that they're going to ask. You know, they ask, "Have you been drinking? How many drinks have you had? And what's the answer? Two.

Andrew Decker 9:29

It's always two. We don't know how that's possible. And and

Andrew Herreth 9:33

everybody ever stopped for DWI has only had two.

Andrew Decker 9:37

It is. It's bizarre. It is bizarre. Every every every recording, I've seen one guy say three, and I was like, "Holy cow, that guy is going to be just completely over the limit. And amazingly, he was right at like a point oh nine, so he probably had three. He was being honest. It was strange, but but if I'm 19. I've had a beer, one, a Bud Light, so it's like 4%

Andrew Herreth 10:07

water,

Andrew Decker 10:08

4% alcohol by volume. I like mine with lime. I know, I know, we all we all have our things, man. But if I'm drinking a Bud Light, it's probably with lime. And but I've had one, and I'm 19 years old, and the officer pulls me over, and he can just catch that hint of alcohol on my breath, and they do a blood test or a breath test, and I come out at a .01.

Andrew Herreth 10:32

Yeah,

Andrew Decker 10:33

what am I?

Andrew Herreth 10:34

You're driving under the influence,

Andrew Decker 10:36

right? I'm under 21, and I have alcohol in my system. That's an automatic automatic fail.

Andrew Herreth 10:41

Yeah, so zero tolerance, right? Zero tolerance system if you're not of legal drinking age,

Andrew Decker 10:48

right? And and and there's actually warnings, and we'll get to to the full ones. It's kind of the next step. The DIC 2424 warnings tell you if you are younger than 21 years of age and have any detectable amount of alcohol in your system, your license, permit, or privilege to operate a motor vehicle will be suspended or denied for not less than 60 days.

Andrew Herreth 11:10

Yeah.

Andrew Decker 11:11

So, so if you're again, we've stressed this earlier. Don't drink and drive.

Andrew Herreth 11:16

That's super important. Yeah. We're not we're not trying to tell you how to get around, you know this this law we have against driving while intoxicated. Please get a designated driver, call an Uber, get cab, whatever.

Andrew Decker 11:32

Because even an Uber for for a 50 mile trip is going to cost you less than hiring either one of us or any other attorney we know to handle a DWI or a DUI if you're under 21. So if you're under 21, don't don't drink and drive. If you're over 21, don't drink and drive. Save yourself the hassle. Um, so so if you're under 21, it's DUI. In some states, the DUI DWI is alcohol or non-alcohol,

Andrew Herreth 12:02

right?

Andrew Decker 12:03

But in Texas, it's it's an age question, not a not an not an intoxicant question.

Andrew Herreth 12:09

And to be clear, you can still be charged with a DWI even if you're not of legal drinking age,

Andrew Decker 12:18

right? Because you were still drinking and driving, and were you intoxicated?

Andrew Herreth 12:23

Yeah, but if you have any detectable amount, if it's under that point oh eight, then odds are it's going to be a DUI, which is Class C misdemeanor, much less punishment than a DUI, and

Andrew Decker 12:38

also probably throw in a minoring

Andrew Herreth 12:41

consumption, and and if you're

Andrew Decker 12:43

like most miners, you're still carrying some in your car, so that's a minor in possession. And so, don't don't do it. Don't do it.

Andrew Herreth 12:50

Yeah.

Andrew Decker 12:50

But let's talk about those DIC 24 warnings.

Andrew Herreth 12:54

DIC 24 You know, they are going to be read to an individual who they must be

Andrew Decker 13:01

provided to you orally and in writing.

Andrew Herreth 13:04

Yeah. So after you complete the standardized field sobriety test, and you know, obviously, we're assuming in that situation you the officer is determined that you failed. Let's be clear: once the officer is administering the field sobriety tests. Odds are he's already made the determination. You're gonna fail.

Andrew Decker 13:25

Yeah, he he may not tell you that. He may not tell anybody else that. But he's kind of made his decision by the time he gets you out of the car. It's kind of strange. So so the DIC 24 as I said, has to be provided to the person in writing and orally, and literally, you know, we've talked about your motion to suppress. I filed a motion to suppress it. Might be heard in a in a few weeks because I have a guy that had an accident, and there's no evidence anywhere in the file that he was provided written or oral form of DIC 24

Andrew Herreth 14:03

yeah,

Andrew Decker 14:03

and he consented to a blood draw.

Andrew Herreth 14:06

Interesting, you know.

Andrew Decker 14:08

And the only the only consent is is on the can we draw your blood? Basically, the medical form. Oh, uh huh. So so

Andrew Herreth 14:17

you're gonna have gonna have some interesting arguments there. Yeah,

Andrew Decker 14:19

yeah. The prosecutor turned a little. Literally, you could see his face turned pale when he was flipping through his file and couldn't find a DIC 24

Andrew Herreth 14:28

Yeah, and and you know, especially in light of of the Martinez case that we just spoke about with Michelle Ochoa, one of our prior episodes. I think that's an interesting argument. You know, the as a prosecutor, of course, it's been a number of years. I would always say the the you know there's an exception. It's it's a they pulled it for medical diagnosis purposes. Of course, you got to prove that it was actually done that way, and there's implied consent, and there's issues there. Most of that's

Andrew Decker 15:00

gone away now. Now, now, now, now, they have to give you the warning, and they have to give you an option. And and and we hear these enough that we can almost say them by memory. They say you are under arrest for an offense arising out of acts alleged to have been committed while you were operating a motor vehicle in a public place or a watercraft while intoxicated, or an offense under Section six oh sorry one oh 6.041 and it goes on alcoholic beverage code.

Andrew Herreth 15:30

So the and I know that you particularly like that first paragraph, right? Right. EIC 20

Andrew Decker 15:38

right. Someday we're going to talk about Miranda, and I'm going to I'm going to talk about this specifically because literally Miranda is supposed to be provided at any time that you're under arrest, and you're going to be asked, you're going to be interrogated while in custody, and so they they tell you you are under arrest for an offense. I think at that point there should be a hard stop. They read Miranda and then continue, and we'll we'll talk about that later. Just every time it irks me, I'm like, it should be a Miranda right there because they're then going to ask you questions that could incriminate you in a criminal matter.

Andrew Herreth 16:15

You know, yeah, and I and that's interesting too. Just kind of a sidebar. You know, we ask individuals, other attorneys, to. to to appear on our on our podcast, and part of the pre-interview process, we we asked them like, is there a certain field of law that just kind of gets you going, you know? And and I, you know, Jerry Goldstein had a really great answer when we interviewed him in episode three, and that sounds like it's going to be that's going to be one of your you know that that topic really gets your goat going. It

Andrew Decker 16:48

does. I'm going to go to preaching without even trying here in a minute. But they're going to ask you the DIC 24 after reading it. They're going to say we are now requesting a sample of your breath or your blood, and they're actually going to tell you which one they want, but they're going to say either or. And and what I think is is that if they suspect that it's anything beyond alcohol, they're going for your blood. They're going to ask for your blood,

Andrew Herreth 17:17

right? To

Andrew Decker 17:17

see if there's some THC

Andrew Herreth 17:22

Xanax or. Xanax, anything,

Andrew Decker 17:24

any well, and Benadryl.

Andrew Herreth 17:27

Oh yeah, you know,

Andrew Decker 17:28

over the counter. You take a few Benadryl and you you you down a vodka twist at the at the bar, and you may you may be intoxicated because those two things mix up, and you're suddenly really sleepy while driving. But I think if it's if they really suspect it's just alcohol, they're probably going to ask you to go blow in the breathalyzer. That that may vary depending on where you are. Is there a breath machine close by? Is there a hospital close by to do a blood draw. Is there? So it's not exact, but that's kind of my my feeling on why they're going to ask for one or the other generally.

Andrew Herreth 18:09

And you know we're gonna we're gonna move on past the breath or blood issue. We probably what I think would be good for our podcast is to get other attorneys in to who are experts in fighting the breathalyzer machine? Who are experts in fighting the blood draws and blood tests? To talk specifically about each of those methods that the state tries to prove BAC. But Andrew, so that that kind of wraps up the arrest. The officer is going to complete his field sobriety test. Going to ask for a breath or blood test by reading the DIC 24 You're going to be arrest arrested. What happens next? What's the next step in the process?

Andrew Decker 18:50

So you're going to find out on that DIC 24 and in some other forms that if you say no to that blood draw, and and you have a right to say no.

Andrew Herreth 19:03

Yeah,

Andrew Decker 19:04

you're not being rude. You're not being ugly. You have a constitutional right to say no. Get a warrant.

Andrew Herreth 19:11

Right.

Andrew Decker 19:12

You're not being mean. the The founding fathers, and I know as all men, so we say founding fathers, they did that to you for for you for a purpose so that you didn't have to just give the police evidence.

Andrew Herreth 19:25

Yeah.

Andrew Decker 19:26

So tell them get a warrant. It's going to be okay. But if you ask for a warrant, they're going to automatically suspend your license, the the Department of Public Safety, for 180 days. So some people go well. I don't want to do that, so I'll blow or I'll give you my blood. And if it's over a 08 you then lose your license for 90 days. So so if you get to an attorney soon enough within the first 15 days, we can go to we can appeal that at an administrative license revocation hearing. We call them an ALR to try not to have that administrative license revocation,

Andrew Herreth 20:07

right? And that's really important too, because a lot of times that's a that's a way for us to get some discovery just a little bit quicker. And so that's a good point. If you are ever arrested for a DWI, go and find an attorney just as soon as you get out of jail or bond out because it's really important for us to jump on the case immediately. We've got to request an AOR hearing

Andrew Decker 20:33

within 15 days, not business days, days.

Andrew Herreth 20:36

Right.

Andrew Decker 20:36

So you get arrested on a Saturday, you get out on Sunday, you go to work on Monday, going, "Oh my God, I don't believe what I'm doing. What am I doing? And and and about Wednesday, you come out of enough of a fog to think call an attorney you've already used four or five days.

Andrew Herreth 20:52

Yeah,

Andrew Decker 20:52

you're you're burning clock quick, and that that that ALR is coming.

Andrew Herreth 20:58

Yeah. Okay. So next, you know, the the state's going to review their case. If they think they have a good case, they're going to file an information in the county court or with a county clerk's office. You're going to be brought into court. So, Andrew typically a DWI starts out as a Class B misdemeanor,

Andrew Decker 21:19

right? And usually, that's actually how it. What you get arrested for is a is a class B DWI,

Andrew Herreth 21:25

right? Because a lot of times officers, if they're looking for blood tests, they taking a blood test. They don't know what those the results are yet. But depending on that result, it could be a class A misdemeanor. Correct. Right. Right. So

Andrew Decker 21:38

so we can jump to a class A for for a couple of reasons, one if that blood alcohol level is over a 015 not quite double the legal limit, then then we we've crossed over into a class A, and the difference for the for for for people who don't know, a class B maxes out at a at 180 days in the county jail and a $2,000 fine, a class A maxes out at a year in jail and a $4,000 fine. So you double your consequences in terms of jail time and fine time by going to a point one five. You also, if you have a, if you already have a DWI on your

Andrew Herreth 22:23

record, right,

Andrew Decker 22:23

a final conviction for a DWI, and you get arrested another time, you are now having a DWI second,

Andrew Herreth 22:31

yeah,

Andrew Decker 22:32

and that's also automatically a Class A misdemeanor, and you we can go up from there. A third is a felony.

Andrew Herreth 22:41

Yeah,

Andrew Decker 22:42

a third. It

Andrew Herreth 22:43

doesn't matter. Like you don't have to have a class B, then a class A conviction to get to the felony. Like two class B convictions were DWI. Your third one, no matter what, is a felony.

Andrew Decker 22:54

Is a felony. Another way to get a felony, you can be at a 09 just over the legal limit, but you have somebody who's under 14? So you went to the family picnic, and you have your have your toddler in the back seat, and you're like, "Hey, you know, I'm okay. But you've spent the day at the family picnic chugging beers with Uncle Tom, and suddenly you're facing a felony because you had someone under 14 in your car,

Andrew Herreth 23:19

right?

Andrew Decker 23:20

So those those enhancements come quick, and I I've literally seen men driving their family home, and the issue for them truly became I can't take a felony because I had my kids in the car and they were at a family event.

Andrew Herreth 23:41

Yeah,

Andrew Decker 23:42

talk about a terrible, terrible way to end a family day.

Andrew Herreth 23:46

So, and also just some minor enhancements. You know, like if you had a an open container in your vehicle, it's going to add just a little bit more. You know, Andrew and myself, we we think of those really these enhancements as just bargaining chips or leverage that the state's trying to use in order to play a case out quickly. You really need to get a a good attorney who's familiar with the DWI law to not blink in the face of of that leverage that the state's trying to use. And

Andrew Decker 24:18

the open container is an automatic issue, so so if they pull you over and you've got an open, you know, 40 sitting in your console and it's half drunk and you smell like alcohol, they're going to use that to prove that you've been drinking and driving. That one I get

Andrew Herreth 24:38

right,

Andrew Decker 24:38

but what if I've got my son's 21 He he goes to the University of Texas, so he drinks the the local Austin beverage of choice, Tito's. Little shout out. And so so if if he at 21 has been at a party on a Saturday night. And then it's now Sunday, and they're cleaning up the party. And he's like, "Ooh, I don't want to get rid of this because it's only a half-drank bottle of Tito's. Yeah, and puts it in the car right behind the driver's seat and drives home. They can say that's an open container.

Andrew Herreth 25:14

Yeah,

Andrew Decker 25:15

why? Because it's inside the passenger compartment. It's the seal has been broken. He doesn't even have to be drinking at the time. They can go. He's got an open container. The other example that that I kind of look at is is that if I've been at the lake fishing and lots of people drink beer while they're fishing, I don't because I think it's hot and so I want to drink like water and Gatorade. But if I'm if I'm fishing, and I've had a few beers, and truly it's been over the course of the day, I may be at like a .02, really very little alcohol in my system, but I decide not to litter, so I throw those few cans in the back of my car. Why? Because I'm trying to be a good public servant,

Andrew Herreth 25:56

or in the cooler in the back, or or in the cooler in

Andrew Decker 25:59

the back of my car, they can say, "Well, those are an open container,

Andrew Herreth 26:04

right?

Andrew Decker 26:04

And so often I I ask the officer, "What what do you mean it's an open container? And they're like, "Well, it's it was a can and it was still cold. It's almost impossible. The aluminum can gets to room temperature before you finish drinking the drink.

Andrew Herreth 26:20

Sitting in ice water in the cooler, right?

Andrew Decker 26:23

Or or it's you know 40 degrees outside. So yes, everything's cold. And and I've literally had these discussions.

Andrew Herreth 26:29

Yeah.

Andrew Decker 26:29

Um. So so yeah, the open container is something they try to use to prove. Well, first of all, it's an offense to drive with an open container in your car. That is an

Andrew Herreth 26:38

offense by itself. It's a class C misdemeanor. It's just like a ticket,

Andrew Decker 26:41

but they they will use it to prove that you try to try to

Andrew Herreth 26:47

yeah. It's like evidence of intoxication. Right, I'm I'm actually or whatever.

Andrew Decker 26:51

Not not embellish. That's not the word I'm looking for. I'm actually looking for there's a legal term bolster. Bolster is the word I'm looking for. They'll kind of bolster their evidence. There's me blanking on legal terms. Bolster.

Andrew Herreth 27:03

Out frequently. I'm still not at the point where I can read your mind. Thank God. Maybe someday. No, no.

Andrew Decker 27:09

And and and Lord forbid that I ever be able to read your mind. Yeah. Um. Uh. But but but they kind of bolster their evidence by saying there's an open container in the back. Well, when did I drink it? Uh. You know how long has it been there? So,

Andrew Herreth 27:23

anyways, it takes a it takes a an experienced attorney to be able to look at the prosecutor and and and really work through you know these quote unquote enhancements on your DWI charge to to get at what's actually justice in your particular case, Andrew. We talked a little bit about driver's license suspensions. Just briefly, before we wrap up, what are some other collateral consequences that you know of with regards to a DWI case? Well, first of

Andrew Decker 27:56

all, your insurance is going to

Andrew Herreth 27:58

spike. Yeah, just

Andrew Decker 28:00

just know it. Back four or five, maybe six years ago, there was a commercial that said a DWI will cost you $15,000 Yes, probably

Andrew Herreth 28:10

all an insurance cost. It

Andrew Decker 28:11

will cost you $15,000 You are going to pay your attorney. You are going to pay for an occupational license. Your insurance is going to go up, and then if you if you end up with a conviction, this one's changed recently. It's no longer a surcharge. Now you get a fine from the state.

Andrew Herreth 28:30

Yeah, and and you mentioned that you know it used to be a surcharge attached to your license suspension. They've gone away with that program, and now it's a mandatory fine, which sounds pretty ridiculous to me, right?

Andrew Decker 28:45

Because you're going to get fined by the by the the county court right there where you are, up to 2000 or 4000 Assuming we're we're we're just dealing with misdemeanors, we're dealing with felonies at this point. You can get that fine. They're gonna you're gonna pay court costs of around 350 $400 and then, and then now they just get to tack on this this fine, and they're already some of our brothers and sisters in the Texas Criminal Defense Lawyers Association who are drafting, and that came into effect September one of this year.

Andrew Herreth 29:19

So fairly new,

Andrew Decker 29:20

pretty new. Who are already drafting and looking for the you know basically the first case out of the box that it comes down to to argue that that's double jeopardy. You're being punished twice without due process.

Andrew Herreth 29:34

Right. Yeah. So you know that that is another collateral consequence if you are convicted for DWI, and you know, kind of Andrew mentioned it earlier. This is like this law affects everyday people the same. Like anybody can be pulled over, suspected of DWI, arrested. Having to hire an attorney, go into court, being convicted, and so the social stigma that's attached to this to an allegation such as this is pretty huge.

Andrew Decker 30:09

And truly, up and down the scale, I've had in in my few years of being an attorney, I've had an 84 Toyota Corolla.

Andrew Herreth 30:18

Right.

Andrew Decker 30:18

So that car was 30 years old. I also had about a two-year-old Maserati.

Andrew Herreth 30:25

Yeah,

Andrew Decker 30:26

as being driven. I've Hispanic, Hispanic, male, female, black, Asian, white. It doesn't matter. It is. It is. Could happen anybody, and it's part of the reason why. Again, I tell you, don't drink and drive. It's you don't want to have to hire me or Andrew Herreth or anybody else to defend this. It's just too simple. Run us out of business by not doing

Andrew Herreth 30:54

it. Right, and you know, like I'm okay with representing, you know, what what I guess every the the average person would consider an actual criminal. I don't. I really don't want to have to represent a normal law-abiding church-going community, you know, community service type worker type of individual on a DWI and try to save their criminal history. But we will, we will absolutely. Yeah,

Andrew Decker 31:23

don't don't take that. I don't want to. As Andrew Herreth wouldn't do it, he will gladly, gladly, gladly do it. And

Andrew Herreth 31:30

we do, and we do every day. But it's it really is sad to me to see that somebody like that, who you wouldn't find in a criminal courthouse, having to be drugged through the process because of the arresting officer's opinion.

Andrew Decker 31:44

Right, right. So I think we've covered most of what we need to cover in DWI between our last episode and this episode. But obviously, if you have questions about it, you can you can reach out to us. You can go on our website, Texas Crem Defense. There's actually a place to contact the show. Write us a question. We'll be glad to answer it. We might even bring it up on the on another show or or an addendum at some point.

Andrew Herreth 32:07

Right.

Andrew Decker 32:08

You can obviously find us on Facebook. Find us on Google. We're on now Google

Andrew Herreth 32:16

Google Podcasts. Google

Andrew Decker 32:17

Podcast. I didn't even know what that is, so that's why I had to look at mr. Herreth oddly, and on iTunes podcast, your favorite podcast app. These are terms I'm way never thought you would

Andrew Herreth 32:32

ever be talking about that, right? Yeah, y'all, please go to Apple Podcasts, go to Google Podcasts, leave us a rating. Hopefully, it's a five star. If not, just go to texascrimdefence.com. Send us a message. What do we? What do we? What can we change for you? If you have any questions, like Andrew said, if we get any really good questions, we'll start reading those on the on the air and talking about that. So, if there's a topic of the law that you're interested in that you want to hear, maybe an interview of or or a podcast episode about. You can message us at texascrimdefense.com. You can reach us, reach out to us personally there. And again, go to Apple Podcasts, Google Podcasts, leave us a rating for Andrew Decker. My name is Andrew Herreth. You've been listening to Andrew and Andrew on Texas Criminal Defense Podcast. Have a great day!

Andrew Decker 33:28

Thanks for listening both those episodes on DWI. Our next episode will be with a friend of mine, Tobias Lopez, an attorney in Tarrant County, who argued to the Second Court of Appeals about the harassment, electronic harassment statute, and they found it unconstitutional. And we're going to get to hear about his experience in that next time on Andrew and Andrew on Texas Criminal Defense.