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Frequently Asked Questions about DUI in Texas

What are lawful/unlawful vehicle stops in Texas?

The legal standard for a lawful stop under Texas law requires the officer to have only reasonable suspicion. Reasonable suspicion as defined by the courts through subsequent case law can be achieved through multiple means, including: the officer witnessing the act, reports by citizens, police dispatches, anonymous calls to the police station, a credible and reliable informants. Furthermore, the act witnessed by or described to the officer need not be criminal, if it evokes reasonable suspicion in the officer.  Acts which would be defined under Texas law as minor traffic violations can be used to warrant the stop of a vehicle, however the reasonableness standard is applied to these offenses as well, and  as such there is a chance that the evidence will be dismissed by the court should it be deemed unreasonable.

What evidence can/cannot be admitted in the DUI case in Texas?

Under Texas law, any evidence which was collected by an officer who had reasonable suspicion, and therefore probable cause, to stop the motorist is admissible in court. Inversely, any evidence acquired through means devoid of reasonable suspicion and automatically excluded.

Furthermore, all evidence submitted in the trial is subject to the federal rules of evidence which requires that the evidence be relevant and that its probative value outweigh it prejudicial influence on the jury. There is also an expectation that the evidence will be timely. Each of these standards applies to all evidence, regardless of whether it was legally obtained or not.

How do underage DUI’s differ from regular DUI’s in Texas?

The primary differences involved in charging persons under the age of 21 with a DUI or DUI related crime is that the level of alcohol that must be present in the system is much lower than that of an adult. Texas operates under laws which are referred to as “zero tolerance” law. These laws stat that the presence of a blood alcohol content in the sample provided to the authorities is enough to justify the arrest of the individuals at the officer’s discretion.

However, the reasonable suspicion standard is still in place even with persons under the age of 21. The officer must show that he or she had probable cause to pull the motorist over for the evidence collected from the motorist to be admissible. Additionally, while the .08 BAC acts as a threshold for adults, in persons younger than 21 the limit acts as a sentencing enhancer, increasing the minimum and maximum punishments that may be inflicted upon the individual. A person under the legal drinking age caught with a BAC above the .02 limit is often merely given a citation by the officer rather than being arrested.

What are the laws regarding DUI for Commercial Drivers?

A DUI committed by a motorist in a commercial vehicle contains all the same elements as a regular except the blood alcohol content required for a conviction is .04. However, this limit does not supersede the minimum BAC for persons under 21. A commercial driver under the legal drinking age is still subject to the .02 limit.

Furthermore, the punishment for violation for the commercial limit is often less severe than that of a traditional DUI.  In many cases violators are stripped of their license rather than being sentenced to jail time. However, much like underage violators the punishment is in the discretion of the courts and jail time can be imposed if deemed necessary. Additionally, sentence enhancements are set in place, if the commercial vehicle was carry hazardous materials. This allows for a extension of the license removal to up to three years, and is likely a salient factor in determining the application of traditional DUI punishments if applicable.

What is Chemical Testing?

Under Texas law, a person who drives a motor vehicle is deemed to have given his or her consent to chemical testing of her blood, breath, and urine. The validity of the chemical testing relates directly to the nature of the stop and whether the officer had reasonable suspicion to procure the evidence from the motorist.

The officer will usually inform the motorist of all the available tests, however requesting the completion of one chemical test without mention of the others is not necessarily a factor of inadmissibility. More than one test may be administered if the officer deems a need for additional evidence. If the motorist fails to complete the test or refuses, the officer shall contact the department of motors vehicle, who will revoke the motorist’s license for 180 days. The motorist has 15 days regardless of age to appeal the revocation in an administrative hearing, if no hearing is requested the revocation goes into effect on the 40th day following the stop.

What is the implied consent law in Texas?

Implied consent laws are in effect in the state of Texas. This means that when a motorist applies for and receives a driver’s license, he or she has consented in using said license to being subject to chemical tests at the request of a law enforcement official. Furthermore, this consent includes the right of law enforcement to use the results of the sample against the driver if necessary.

This consent can be challenged in court based on the comprehension and ability of the driver. If the motorist is, based on circumstances that were not self-inflicted, unable to perform the test or to comprehend the instructions the court may have a basis to invalidate the consent. However, limitations on mobility and comprehension that are self inflicted such a sever intoxication are not usable facts in a legal challenge of the informed consent.

Prescription Drugs and DUI in Texas:

Under Texas law, there is no legal distinction made between illegal or proscribed drugs and prescriptions drugs for the purposes of driving while intoxicated and driving under the influence offenses. A motorist may be defined as intoxicated by the use of any drug which has the potential to affect their nervous or muscular system in such a way that it impairs their ability to operate a motor vehicle like a reasonably cautious individual in full control of their mental and bodily faculties.

Because there is no minimum level of intoxication for driving while under the influence of drugs, the prosecution must offer evidence of the motorists actual impairment not merely the presence of drugs in the motorist’s system. This requirement is universal among commercial and underage drivers. Evidence of actual impairment must be submitted to establish the threshold issue of whether the officer had reasonable suspicion to stop the motorist’s vehicle in the first place.

Can I be stopped and arrested for DWI even if the vehicle was not moving?

The legal standard for a lawful stop under Texas law requires the officer to have only reasonable suspicion. Reasonable suspicion as defined by the courts through subsequent case law can be achieved through multiple means, including: the officer witnessing the act, reports by citizens, police dispatches, anonymous calls to the police station, a credible and reliable informants.

This means that if the vehicle is not currently moving, but was previous and this previous movement is reported to the police from a reliable source a motorist can still be stopped and potentially arrested. Furthermore, circumstantial evidence may be used to meet the requirement of “operating a vehicle” as established by the Texas Penal Code. A parked car exhibiting traffic violations may be enough in some courts to establish that a reasonable officer might suspect that the motorist was intoxicated while driving; however this is a much more tenuous argument on the part of the prosecution. 

Do I have the right to talk to an attorney before I give a sample?

Because Texas utilizes implied consent laws, a motorist does not have the right to speak to an attorney before submitting to a chemical test requested by a law enforcement official. However, he or she does have the right to retain counsel for the administrative license revocation proceeding and DUI trial should he or she refuse to submit the sample or fail the test.

Do I have to give a blood or urine sample?

Once lawfully requested by a law enforcement official, a motorist must make the choice to either comply with the request for a sample or to decline to provide one and begin the ALR process. It should be noted that an officer cannot compel a motorist to give a sample once he or she has declined by threatening imprisonment or further legal hardship (beyond the ALR process) for their refusal.

The type of sample requested is usually left to the officer’s discretion and can be challenged in trial if an argument might be made for abuse of discretion. However, once a chemical sample of either kind is requested the obligation to comply as a motorist (or face ALR proceedings) remains legitimate.

Do I have to submit to a field sobriety test?

No. An officer’s request that a motorist submit to a field sobriety test is merely that, a request. A motorist can refuse to take the test and perhaps more importantly cannot be given a separate ticket for failure to perform said tests. However, it should also be noted that officers are under no obligation to inform motorists that tests are not mandatory and that a mere request by a law enforcement official without any false legal statement (such as “you will go to prison of you don’t take the test”) does not constitute coercion.


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