A Texas criminal defense attorney walks through a DWI stop, step by step
You’ve had a couple of drinks at happy hour. Maybe you didn’t eat much, and you’ve got a little bit of a buzz going, but you think you’re fine. That’s why you got in the car. Then you see the lights behind you.
What do you do? What should you not do? Do you answer the officer’s questions? Do you do the field sobriety test? What about the breathalyzer? And what happens when it’s your college kid calling you from jail at two o’clock in the morning?
This week, I talked it all through with Bo Kalabus, a Texas criminal defense attorney with Texas Defense Firm in Dallas. Bo represents people accused of DWIs and does a whole slew of other criminal work that hopefully you’ll never need. I wanted to give folks clear guidelines, because I just don’t want people making it worse for themselves.
Pulling Over Safely
I started at the very beginning: where should you pull over? Bo said that when he reviews a DWI arrest video, he checks the stopping sequence first. Was the person safe? You want to pull over as quickly as you can, but as safely as you can. On a freeway or toll way, he recommends the first available exit, so you and the officer aren’t both on the roadway next to cars going 75 or 80 miles an hour.
Use your blinker, get off the main road, and park in a legally parked space, a parking lot if you can. I always worry the officer thinks I’m trying to escape, but if you signal, they know you’re looking for somewhere safe. What you don’t want is any impression that you’re evading: speeding up, slowing down, drifting back into the center lane.
Once you’re stopped, don’t rummage around the car, even if you’re hunting for your license. The officer may worry you’re reaching for a weapon. Keep your hands at ten and two where they can see them. If your license is in your bag, say so and ask if it’s okay to reach for it. Bo says that shows you’re in control of your mental faculties and thinking about the officer’s safety. They don’t know us from Adam. Of course we don’t have a gun in the car, but they don’t know that.
What the Officer Is Looking For
At night, little things that would never get you pulled over at rush hour, like a license plate light being out, are what they’ll stop you for, especially near bars and pubs. Swerving in your lane, even because you were looking at your navigation, can start a DWI investigation.
At the window, they’re looking for what they call clues of intoxication. They’ll ask for your license and, while you dig for it, ask where you’re coming from and where you’re going. Hand over a debit card by accident and that tells them you don’t have your mental faculties. They’re also checking for bloodshot eyes, slurred speech, and the odor of alcohol. Nerves can play into all of this, and they’ll watch your hands for shaking.
Brooke’s Tip: Take your time. Hand over the license, say where you’re coming from and where you’re going, and take a breath. If you practice box breathing, this is a good moment to use it.
If you have allergies or a condition that makes your eyes run, Bo says to say so right then. Everything is being recorded, so it’s on the record for a defense later.
Getting Out of the Car
If the officer sees the clues, you’ll be asked to step out. A lot of people don’t realize you’re not allowed to consult a lawyer at this point. In your mind you’re at a fork in the road: stop saying anything more, or keep going and be asked to do the roadside field sobriety tests. And once they get you out of the car, it’s extremely rare that you get back in. You might get into their car, but not yours.
“The more you talk, the more you do the test, the more evidence you’re generating against yourself.”
If you decline the tests and invoke your right to remain silent, you’ll most likely be arrested, but they’ll have less evidence to use against you. For the non-lawyers: you can invoke that right at any point. You don’t have to be in the police car. You can just say you’re going to stop talking.
There are a few things you do have to give them. Bo gives his name, date of birth, and address so he’s not picking up a failure-to-identify charge on top of everything else. Where you’re coming from, where you’re going, and how much you’ve had to drink are different. If you refuse a breath or blood sample, the officer can apply for a warrant, and everything you’ve said becomes probable cause in it. The less material you hand them, the better.
Don’t expect the officer to let you go home, either. Everything is on body cam now, and DAs and judges are elected. Nobody wins by promising to be softer on drunk drivers, so DWIs mostly aren’t allowed into pretrial diversion programs, even for people who’ve never been in trouble before.
“It’s good people on bad days.”
“How Much Have You Had to Drink?”
On TV, the cop asks how much you’ve had, and people give the canned answer of one beer or two drinks. Should you admit to drinking?
Bo said it’s a fine line. If the officer smells alcohol and you say you had nothing, that hurts your credibility, especially when they circle back with “man, I can smell it” on video. What Bo has heard most in his practice is two drinks, and he’s okay with two, because it gives the defense something to work with.
The officer will also ask for your timeline: first drink, last drink, whether you ate. If they get a sample, the lab’s analyst takes that number, plus your height, weight, and drink times, and works backward to your level at the time you were driving. That expert never sees the video or the roadside tests. If you’re vague about your timeline, they can’t do that math, and Bo says that helps the defense. Less is more on the evidence you’re giving them.
The Field Sobriety Tests
I asked whether the A-to-Z backwards thing is a myth. It’s real, along with a number countdown (start at fifty-seven, stop at twenty-three). But three tests have been around for forty-plus years.
The first is the HGN eye test, which looks for an involuntary twitching of the eyes as they track a light pen or fingertip. It’s called the most scientifically valid of the three, but it has to be done the same way every time, and Bo has seen officers do it differently. Rapidly moving lights in your field of vision can also cause eye movement that has nothing to do with alcohol.
Next is the walk and turn, the walk-the-line test everybody has heard of. They’re counting clues: starting too soon, stepping out of the stance, raising your arms for balance, missing heel to toe, stepping off the line, an improper turn. Two out of eight and you’ve failed. Bo calls it a clue generator, because nine steps out and nine steps back give you 18 chances to slip up. He said the tests were extremely hard even when he and his classmates practiced them sober.
Last is the one-leg stand: one foot six inches off the ground, counting for thirty seconds. What they don’t tell you is that if you don’t bend the knee of the leg you’re standing on, you’ll sway and hop. Lock that knee and you won’t pass.
If you’re going to cooperate, say out loud, on video, that you have plantar fasciitis, a bad knee, bunions, or a bad back. Bo warned that officers will often still have you try the test, and there’s no grading on a curve. It’s pass or fail.
The Roadside Breath Test
There’s a big difference between the breath test machine at the police station, which is admissible in court, and the portable breath test the officer may have with them, which isn’t. Officers use it to figure out whether alcohol or a narcotic is at play. They’ll get a number, but radio interference and batteries can throw the device off, so it can’t be used in court.
Bo cares about the sequence. If his client blows into it and is handcuffed immediately, the implication is that they were over the limit, and even if the number never comes in, a jury can see that. If it were him, Bo says he’d refuse the roadside breath test.
He told me about a woman who had a glass of wine with her sister, got pulled over, and had a blood test come back at a point six. The Texas limit is point eight, so people ask him, “I’m under the legal limit, I’m good to go, right?” Not necessarily. The state may argue that, based on what you told them, you were higher at the time of driving than at the time of the test.
Three Ways the State Can Prove Intoxication
Any one of these will work:
Loss of normal use of mental faculties due to alcohol or a dangerous drug
Loss of normal use of physical faculties due to alcohol or a dangerous drug
A blood alcohol of 0.08 or above
So even with a blood alcohol under the limit, an officer can say that based on the roadside tests, they believe you lost normal use of your faculties. Bo compared it to paying at the grocery store with a debit card, cash, or credit card.
“I think I’m probably not alone in just thinking it’s the point eight, period, end of paragraph.”
Breath or Blood at the Station
Every state has some version of implied consent: when you sign your driver’s license, you agree to give a breath or blood specimen if an officer suspects you’re impaired. Once you’re arrested, the officer has to read you the DIC-24, your statutory warning, then ask for a specimen, and the officer gets to pick which. When Bo started it was almost always breath, and now it’s almost always blood.
If you consent and the result is over 0.08: a 90-day license suspension.
If you refuse: a 180-day suspension that doesn’t start on the spot. You get a 40-day grace period, and 15 days from the arrest to appeal.
Breath vs. blood: Bo can’t retest a breath specimen. Blood is kept until the case is resolved, so he can have it tested.
Bo tends to like refusals, because a refusal makes the officer get a warrant to draw blood. If you consent, the blood is most likely coming in. With a warrant, the officer has to get the paperwork right and swear before a notary or magistrate judge that the affidavit is legal. Bo has seen body cam footage of a buddy signing off on a warrant before it was even finished, and they got the blood thrown out.
Your Car and the Ride Downtown
If your car is legally parked, Bo recommends saying, “Look, it’s legally parked, let’s leave it there. I’ll sign whatever you want me to sign.” On the side of the road or a toll way, they’ll tow it. That matters because a tow gets them an inventory search, a free chance to go through your car, and anything in it can become another charge. A legal concealed carry holder with a pistol in the glove box can end up with an unlawful carry charge, and a misdemeanor DWI can turn into a felony drug case because of a vape pen. It snowballs.
In the patrol car, zip it. You’re being recorded. The sneakiest are the troopers, who put you in the front seat, strike up a conversation, and get people to say, “I’m sorry I caused you all this trouble tonight, I shouldn’t have been driving.” That’s an admission. They’ll also let you call people with the phone on speaker. This is not the time for a taxicab confession.
Brooke’s Tip: Put the phone down.
Booking and Getting Someone Out
At the station, if you have any drugs on you, that’s the time to come clean. Bo says it’s a felony charge if they find it later. Then it’s the jumpsuit and fingerprinting. Depending on the county, processing can take up to twelve hours, and in bigger counties like Travis or Dallas at least eight. If they’re getting a warrant, one officer works on it while the other takes you to the hospital to have your blood drawn. A warrant takes roughly an hour now.
I get a lot of questions from parents whose kid called from jail, and they want to speed things up. I tell them to let the process run its course. Bo agreed: it’s like arguing with a Coke machine that took your money and is unplugged.
After booking, you’ll see a magistrate judge who sets bond. You aren’t pleading guilty or not guilty. On what Bo calls a vanilla DWI, with no accident and no prior trouble, a judge will often do a PR bond, meaning no money down as long as you go to your court settings. Otherwise:
Cash bond: Pay the whole amount, say fifteen hundred dollars, and it’s held until the case is over, maybe a year or longer.
Bail bondsman: Pay roughly 10%. That money’s gone, but you don’t have a big amount tied up.
If your loved one calls you, keep it to getting them out. Those calls are recorded, and there’s no attorney-client privilege unless you’re an attorney calling in. Call someone who can get you out. On a DWI, the whole case is already in a can, with the roadside videos, so the lawyer can wait.
Things That Change How Alcohol Hits You
I asked about anything that magnifies alcohol, from over-the-counter drugs to the weight loss medications so many people are on now. Bo said it’s absolutely a concern. What matters is how quickly your body absorbs alcohol. On an empty stomach it goes straight to your small intestine, where most absorption happens, and food slows that down. Anxiety, smoking, caffeine, and weight loss medication can all affect it. If you’re losing weight or feeling the effects of alcohol more than you used to, take that into account when you go out.
Bo’s best advice comes from watching how the state argues DWIs.
“If there’s any doubt, there is no doubt. Get a Lyft, get an Uber.”
What a DWI Can Cost
I asked for a ballpark, knowing it depends on your history, whether there was an accident, and how high your blood alcohol was. Bo said lawyer fees are probably eight to ten thousand dollars if you don’t go to trial, and a trial might run around twenty thousand.
A first-time DWI with a blood alcohol under 0.15 is a Class B misdemeanor: a minimum of three days in jail up to 180 days, and a fine up to $2,000. Bo typically sees 15 to 18 months of probation and fines of $500 to $800. At 0.15 or above, it becomes a Class A misdemeanor and the range doubles, up to a year in jail and a $4,000 fine. DWI with a child is a felony, and so is a third DWI or more.
The One Exception: Pilots
Before we wrapped, Bo added one exception to all his “refuse this, refuse that” advice. If you’re a pilot, the FAA takes refusals in a very dim light, so you need to take the roadside tests and consent to the blood test. Refuse, and the FAA will basically believe you have an alcohol problem. Part of holding a pilot’s license is a medical, where you’re asked whether you’ve been arrested for an alcohol- or drug-related offense. It doesn’t matter if you’re convicted. Check yes and the doctor has to suspend or defer your medical until you’re evaluated. You may take a hit on the DWI, but you’ve protected your license.
Brooke’s Bonus Tip: If your job has rules like that, a professional license or anything similar to being a pilot, check your own profession’s rules, because it could totally change how you handle the situation.
The Bottom Line
Three things to remember when you see blue and red lights:
Be careful what you say. Bo advises keeping your answers short, since anything you say at the roadside can be used against you later.
Decide which road you’re going to take. Once you get out of the car, be ready to be arrested if you refuse the tests. If you’re asked for a breath or blood specimen, Bo recommends a refusal, to put your defense attorney in the best possible position.
You’re recorded every step of the way, including the phone calls from jail.
Life is legal, so you’ve got to know the rules.
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This post is for educational purposes only and does not constitute legal advice. Laws vary by state and situation. For advice specific to your circumstances, consult a licensed attorney in your area.
