Frequently Asked Questions

It is impossible for the San Antonio DWI attorneys, and Austin DWI attorneys at The DWI DUDE to anticipate every question that may be asked. Below is a list of questions and answers we are most frequently asked questions about DWI. If you have a question you want the DWI DUDE to answer please ask it on the DWI Dude Facebook page.

Question: “What should I do if the police demand blood from me and come at me with a needle? This would scare me, and even if I was not intoxicated, I might feel threatened and explode or resist. Can they legally stop and demand blood on the spot? I have heard stories on the radio like….they will take blood even without my consent. Is that legal? I cannot be the only person who does not like needles…….or would not want them to take my blood in any way. What should I do specifically about blood taking if I am ever pulled over?”
Answer: Police Chief Art Acevedo put into effect the issuing of blood search warrants on certain weekends when a person refuses to submit to a breath test. If you submit to the breath test, they will generally not get a warrant to take your blood, but if you refuse, then they will, on these weekends, get a search warrant to take your blood. However, they are now trying to pass a bill that implements the blood search warrants any time a person refuses the breath test, not just on select weekends. Obviously the correct answer to this question is to not drink and drive-call a cab, but there is still a state law that sets the intoxication level at > .08. Those under .08 should not be subjected to fallible scientific tests that may render them guilty even though they are not intoxicated. See should I take the breath test? for more info.

Question: What are the cops looking for to indicate driving while intoxicated?
Answer: The Standardized Field Sobriety Test (SFST) Program divides the DWI investigation into three parts: 1) Vehicle in Motion (VIM -driving facts); 2) Personal Contact (PC – your appearance); and 3) Arrest Decision (SFSTs – HGN, WAT, and OLS).
During the VIM portion of the investigation the officer is watching the vehicle for the following clues. The list of clues or cues, as originally published by the National Highway Traffic Safety Administration (NHTSA) is as follows:

  1. Turning with a wide Radius
  2. Straddling the center or lane marker line
  3. Appearing to be drunk
  4. Almost striking an object or vehicle
  5. Weaving
  6. Driving on other than designated roadway
  7. Swerving
  8. Slow speed (driving 10 mph or more under the speed limit)
  9. Stopping, without cause, in the traffic lane
  10. Following too closely
  11. Drifting
  12. Tires on center or lane marker
  13. Braking erratically
  14. Driving into opposing or crossing traffic
  15. Signaling inconsistent with driving actions
  16. Slow response to traffic signals
  17. Stopping inappropriately (other than in traffic lane)
  18. Turning abruptly or illegally
  19. Accelerating or decelerating rapidly
  20. Headlights off

You will notice that “speeding” is not one of the listed clues, nor is defective tail lights or license plate lights. In other words, many DWI investigations begin with non-DWI traffic stops. The DWI investigation then begins due to issues that begin during the Personal Contact portion of the stop.

The San Antonio DWI attorneys, and Austin DWI attorneys at our offices has enjoyed great success in DWI trials during cross examination by showing that there were no “drunk driving” facts in the case. Many officers have spread the word that it is better to follow the potential “DWI victim” for some distance in order to observe traffic violations that are on the list. This allows the testifying officer to beef up the probable cause to make and support the actual DWI arrest.

Think of thousands of traffic violations that occur each and every day in your city. Add in the odor of an alcoholic beverage and you have the average “Drunk Driving” arrest.

Personal Contact – Phase 2

As the officer approaches the vehicle they are instructed to gather evidence by observing and interviewing the driver. The officer is using face to face observation and will be
Looking for:

  • Blood shot eyes
  • Soiled clothing
  • Fumbling fingers
  • Alcohol containers
  • Drugs or drug paraphernalia
  • Bruises bumps or scratches
  • Unusual actions

Listening for:

  • Slurred speech
  • Admission of drinking
  • Inconsistent responses
  • Abusive language
  • Unusual statements

Smelling for:

  • Alcoholic beverages
  • Marijuana
  • Cover up, like breath sprays
  • Unusual odors

The officer will ask questions in attempt to interview you. He may ask you to produce two things simultaneously, such as your license and registration, and is alert for a driver who:

  • Forgets to produce both documents upon request
  • Produces documents other that the ones requested
  • Fails to see the license, registration, or both while searching through wallet, or purse, etc
  • Fumbles or drops wallet, purse, license or registration
  • Is unable to retrieve documents with finger tips

The officer may ask interrupting questions or distracting questions such as ‘What time is it’ as you are searching for your documents. The officer is now observing to see if the driver:

  • Ignores the question and concentrates on the license or registration search
  • Forgets to resume search after answering the question
  • Supplies grossly incorrect answer to the question

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

  • Shows angry or unusual reactions
  • Cannot follow instructions
  • Cannot open the door
  • Leaves the vehicle in gear
  • “Climbs” out of vehicle
  • Leans against vehicle
  • Keeps hands on vehicle for balance

Arrest Decision-Phase 3

Phase 3 consists of the Field Sobriety Tests and the Preliminary Breath Tests both designed to gather probable cause to arrest the suspect for DWI.

HGN always begins with the left eye. Each eye is examined for 3 specific clues. The maximum number of clues in one eye is 3 and the maximum number per suspect is 6. According to the NHTSA manual of 2006, if 4 or more clues are evident it is likely that the suspect is impaired above the legal limit of .08.

The clues the officer is watching for:

  • When the eye moves side to side does it move smoothly or does it jerk noticeably?
  • When the eye moves as far to the side as possible and is kept at that position, does it jerk distinctly?
  • As the eye moves toward the side does it start to jerk prior to a 45 degree angle?

VGN is involuntary jerking of the eyes when moving up and down.

Walk and Turn
Administered and interpreted in a standardized manner, ie, the same way every time. Officers administering the Walk and Turn test observe the suspect’s performance for 8 clues:

  • Can’t balance during instructions
  • Starts too soon
  • Stops while walking
  • Doesn’t touch heel to toe
  • Steps off the line
  • Uses arms to balance
  • Loses balance on turn or turns incorrectly and
  • Takes the wrong number of steps

One Leg Stand requires the suspect to stand on one leg and count to 30 out loud as “one thousand and one, one thousand and two, one thousand and three, etc…”
The officer carefully observes the suspect’s performance and looks for 4 specific clues:

  • Sways while balancing
  • Uses arms to balance
  • Hops
  • Puts foot down

PBT-Preliminary Breath Testing is to demonstrate the association of alcohol with the observable evidence of the suspect’s impairment. In Texas PBT results are not admissible as evidence in court, but can be used to gather probable cause to make an arrest.

*This is different than the breath test they do after you’re arrested at jail or in the BAT mobile on the Intoxilyzer 5000. The PBT is used to gather evidence to arrest you.

If you need a San Antonio DWI attorney, or Austin DWI attorney contact the DWI Dude right now. The Dude is a SFST instructor, and teaches attorneys around the nation in the DWI SFST protocols. He is also a well respected, and recognized DWI lawyer in courthouses across Texas.

Leave a Reply

Your email address will not be published.