Collin County DWI Lawyer & Attorney : Hunter Biederman : Texas DWI Defense : Serving Collin County, Denton County, Dallas County

Drunk Driving - Over the Limit. Under Arrest.  Cops are cracking down. 

This is one of just many new slogans that are being used.  (I blogged previously about the Drink, Drive, Go to Jail campaign).

Although I definitely prefer this campaign to the Drink, Drive, Go to Jail campaign, but I note one big problem with this campaign.  As far as I know (and definitely in Texas), you are always arrested BEFORE there is any test to see if you are over the limit.

Let me explain....

A normal scenario for a DWI arrest goes like this:  You are pulled over for speeding, or some other minor traffic infraction.  The officer smells alcohol on your breath, and asks you to get out.  He says something along the line of, "I just need to do some tests to make sure you are O.K. to drive."  At this point, he will perform some Standardized Field Sobriety Tests.  If the officer thinks you failed, Boom -- You are under arrest.

So where does this over the limit, under arrest come in?  You are already in handcuffs.  You are then transported to jail, booked in, and taken to the "intoxilyzer room."  It is only at this point when you are even given the chance to give a sample of your breath or blood.... So how does Over the Limit, Under Arrest even come in to play?? I'd say,  It doesn't.  

Even if you blow under the legal limit, you are still already arrested, and at least in the three counties in which I practice (Collin County, Dallas County, and Denton County), you will still be charged with DWI under the other two definitions of intoxication.

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Drink, Drive, Go To Jail... Right?  WRONG.

One of the most popular quotes/slogans/etc. is the "Drink,Drive, Go To Jail" slogan.  The unfortunate thing is, it's flat out incorrect.

It is not against the law to have a drink and drive a car, as long as you are not impaired.  Depending on the state, each state will have a different law as to the amount of impairment before it is illegal to drive.  However, no state has a zero tolerance police regarding drinking and driving (except for minors).  In Texas, one can only be convicted of driving while intoxicated if they have lost the normal use of their mental or physical faculties by reason of the introduction of alcohol into the body, or by having an alcohol concentration of above .08 in their body.

This slogan is one of the most talked about fallacies in the blogsphere...

Recently, Austin DWI attorney Ken Gibson blogged about this issue in his post Drink, Drive, Go To Jail . . . That is not the law!  In it, Ken talked about how the Gregg County Sheriff's office has been preaching the slogan:

Gregg County Sheriff’s Department says; “We’d just like to remind people to drive responsibly. Don’t drink and drive. Enforcement will be out there and it’s not worth that chance and certainly not taking a chance of hurting yourself or others.”

Ken has not been alone in his postings.  Apparently, the police in New York have bought into the slogan as well.  Austin DWI attorney Jamie Spencer recently wrote about police in New York arresting people who have been drinking, but not going further to check and see if they are impaired.  He has posed that the police said:

"Once the driver rolls down the window, (the officer) said, it's easy to tell if he or she has been drinking.

"The first thing that hits you is the odor of alcohol -it's so obvious," he said. "I've had a few drivers who know they've been drinking and try to play it down, but the odor on their breath gives them away."

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