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DWI Arrest

DWI Process – Stage 1: The DWI Arrest

The first stage of the DWI process begins with an investigation by a police officer or some other DWI law enforcement official. This investigation includes an observation of driving behaviors before the officer pulls a suspect over, roadside questioning, the administration of field sobriety tests and ultimately the decision of whether or not to make an arrest.

If the officer decides to arrest you, he or she will transport you to a police station. The officer may ask for you to give a sample of your breath or blood, which you may refuse. However, if you refuse, you Texas license (or privilege to obtain a Texas license) will be suspended. The officers may also obtain a warrant to take your blood if you refuse to provide a breath or blood sample. In addition, the officers may ask you to perform additional field sobriety tests at the police station. These are usually recorded. Eventually, an arrested person will be booked into jail and a magistrate judge will set a bond. Learn more about other stages of the DWI process

We continue with a more in-depth discussion of each part of the DWI Arrest below.

Before You Are Pulled Over

Typically, people first encounter the police when they are pulled over. However, while this is the first time you probably encountered the police, the process actually began when the officer made the decision to “investigate” you. The officer is legally required to have a reasonable suspicion of intoxication or violation of some other traffic law in order to make the stop. So the officer is supposed to “investigate” before pulling you over to gather information that would indicate to the officer that you are intoxicated or in violation of a traffic law.

This investigation typically involves the officer observing your driving behavior. During this observation, the officer is supposed to look for particular “clues” that indicate that you might be intoxicated. However, your circumstance might be very different. Occasionally an officer arrests someone who is not driving. For instance, an officer might arrest someone who is asleep at the wheel while the car is parked or stopped. Depending on the circumstances, such an arrest may or may not have been appropriate. Whether such an arrest was appropriate depends on whether the driver was “operating” the car as it is defined under state law.

Eventually the officer will have to decide whether or not to pull over the suspect. If the officer decides to pull the suspect over, the police officer’s pre-arrest investigation continues by pulling you over and observing your behavior during the pullover sequence.

Roadside Questioning

Once the officer has pulled a suspect over, the officer usually questions the suspect to gather more information. The officer is looking for both verbal and non-verbal signs of intoxication such as the “scent of alcohol” on the person’s breath, disrupted vocal patters and confusion. In addition, the officers will look for physical evidence of drinking and intoxication such as empty containers of alcoholic beverages.

At this point, the officer is not obligated to read the suspect the Miranda rights. But you are not obligated to answer the officer’s questions, either. The questions and answers are usually recorded on video. If after questioning you the officer decides to continue with an investigation, he or she will usually ask you to step outside of the vehicle and perform certain standardized field sobriety tests.

Standardized Field Sobriety Tests (SFSTs)

The officers may ask the suspect to take one or more of the standardized field sobriety tests. Typically, three tests are administered: the One Leg Stand (“OLS”), Walk-and-Turn Test (“WAT”) and the Horizonatal Gaze Nystagmus Test (“HGN”). The officers are supposed to recite a particular set of instructions for each test, observe your performance and note certain clues stemming from their observations. They do not tell you what clues they are looking for. Many people think that they have “passed” the test, when in reality the officer has noted several things that are supposed to be “clues of intoxication.” The WAT and OLS work by dividing your mental attention among different tasks and testing your physical abilities. Learn more about the standardized field sobriety tests (SFSTs)

The HGN works differently. When the DWI investigator conducts the HGN test, he or she is looking for Horizontal Gaze Nystagmus. This is essentially a vibration in your eyes. While everyone has some nystagmus all of the time, visible nystagmus under certain circumstances is supposed to indicate alcohol intoxication. The test only works correctly if the DWI investigator properly administers it, however, and not everyone is a candidate for the test.

All SFSTs are supposed to be administered in a prescribed, standardized manner. The officer is supposed to note the clues that he or she observes while administering the tests. If the officer observes that you obtain a certain number of clues, then it will indicate to him that you have “failed” the particular test. The DWI investigator considers your performance on these tests “evidence” that will be used against you for all purposes, including obtaining a warrant to obtain your blood against your will.

During this entire pre-arrest process, the DWI investigator is collecting information that he or she will use to make the determination of whether or not to arrest the suspect. “Probable cause” is required for the officer to make the arrest. If the DWI investigator believes that he or she has probable cause to make the arrest, then the suspect will be arrested and transported to jail.

Immediately After the Arrest

The DWI investigator will place you in handcuffs and put you in the police car. Usually the officer will allow you to make a phone call to get someone to pick up your car. If you don’t do this, your car will be towed to an impound lot where you will have to go later to pick it up and pay the impound fee.

After you are transported to the jail or police station, you will typically be given the opportunity to provide a breath or blood specimen. The police are supposed to inform you of your right to refuse by reading you the DIC-23 “Statutory Warning.” They will usually read it and give you a paper copy to take with you. This is one of two papers that you should have with you after you get out of jail.

If you refuse to provide a sample of your breath or blood, or if you provide a breath or blood specimen and the test results show that you are over a 0.08% BAC, the officer will probably take your license and give you a “Notice of Suspension / Temporary Driving Permit.” This is called a DIC-25. It is important to note that, although the title is misleading, the DIC-25 does not actually suspend your license. The DIC-25 actually tells you that you have 15 days to request an ALR Hearing, and that if you do not request the hearing, your license will be automatically suspended by operation of law. In order to maintain your driving privileges, you will need to properly and timely request this ALR hearing before the expiration of the 15-day deadline. It is important to defend your rights through this process as well as the criminal process. Learn more about the ALR Hearing process

You will typically be asked to perform the SFSTs at the police station. These SFSTs are usually administered in a room with a camera that records the entire process. The DWI investigators will again read you instructions and observe your behavior, noting whether you score certain clues that supposedly indicate your level of intoxication.

Eventually the police officers or jailers will book you into jail. You will be brought before a judge who will set bail. Your bond may be a cash bond or a surety bond (or a personal recognizance bond, a “PR Bond”). When you post bond, the judge will set certain conditions that you must follow while out on bond. Typical conditions include a “no alcohol” condition. In addition, if you are charged with a DWI >.15, then the judge will usually order an interlock device to be installed on your car(s). If you violate any of these conditions, judges have the authority to revoke your bond and place you back in jail.

You will either be given a court date on the day you bail out or a court date will be mailed to you afterwards. You should contact a DWI Defense Lawyer to represent you as soon as you are released on bond.

Read about the next stage of the DWI process: The Court Case >>