What’s a Chemical Test for DWI?

What’s a chemical test for DWI? Driving while intoxicated (DWI) – without enhancement – is a misdemeanor in Texas. When law enforcement suspects you of drunk driving, the officer is likely to perform a chemical test for DWI. This test detects alcohol in your system at a specific point in time. 

Curious about how these tests work? The Martinez Law Firm is here to help. When you face a DWI arrest, it’s important to have an advocate on your side. 

Attorney Herman Martinez is your advocate in Houston, TX. Schedule a consultation to learn more about your legal options. 

Tests Used By Law Enforcement in Texas

When an officer pulls you over under the suspicion of drunk driving, how do they prove it? 

In Texas, there are three common chemical tests used to determine a driver’s blood alcohol concentration (BAC): 

  • Breath test
  • Blood test
  • Urine test

Each test allows the officer to see whether or not to arrest and charge the driver for a DWI. Let’s take a look at how these tests work. 

Breath Test for DWI

Law enforcement uses a machine called a Breathalyzer to perform a breath test. Generally speaking, these are the most common type of chemical test for DWI. To administer the test, the officer has you blow into the machine. 

Then, it calculates the level of alcohol in your breath. It determines this with a percentage of the alcohol it detects. Typically, these tests are not as accurate as a blood test. 

However, they are far easier for the police to administer in a traffic stop. 

But, what happens when you refuse to take a Breathalyzer test? When a cop pulls you over, they ask you to take a breath test if they suspect drunk driving. 

At this point, you do not have to consent to the test. However, you then face consequences when you refuse the test. While you do not have to perform the test, the next step is for the officer to request a warrant for a blood test. 

Then, refusal results in even worse consequences. 

DWI Blood Test

In Texas, the legal limit of intoxication is 0.08% BAC. While it’s more common for officers to use a breath test, blood tests are also quite common. In part, this is because breath tests are far less accurate. 

To measure the levels of alcohol in your blood, they take 100 milliliters from you. Then, the blood goes through a test called “gas chromatography” that determines your BAC. 

Can I Refuse a Blood Test?

Technically, you have the option to refuse to consent to the test. However, this comes with consequences. Refusal allows the state to suspend your driver’s license. 

Additionally, the prosecution then has the option to use the refusal as evidence against you. More than likely, they have a warrant for the blood as well. This means you have to submit to the chemical test for DWI or face arrest.

Generally, submitting to this test is the last thing you want. It is invasive and unpleasant. Moreover, it’s more difficult for an attorney to argue against in court. 

Now, both breath and blood tests have their flaws. However, juries tend to find blood tests more believable, which requires a great deal more legwork in court.  

Urine Tests for DWI

A urine test, or urinalysis, is generally reserved for suspected driving under the influence (DUI) of controlled substances and drugs. In DWI cases, they tend to be the least reliable of these three chemical tests. 

Here’s why that is. 

  • The officer pulls a driver over under the suspicion of a DWI or DUI. 
  • A urinalysis detects an illegal drug. However, drugs stay in the system much longer than alcohol. 
  • This means that the test does not prove the presence of current use in either case. 
  • Moreover, at the time of the test, the driver might be completely sober. 

As with the other tests, you have the option to refuse this chemical test for DWI (or DUI). However, there are consequences in this instance as well. 

The Problem With BAC Tests

Among DWI lawyers, it’s no secret that these tests are not reliable. There are many factors that can cause a BAC to appear higher than it actually is upon testing. Health conditions and medication are common issues that alter the results. 

In some cases, inaccurate results lead to a wrongful conviction for someone who never committed a crime. If the State has a chemical test, your case becomes more difficult to argue. Unfortunately, that has the potential to result in an unfair conviction – especially if you don’t have experienced representation. 

When a DWI is on your record, it changes your life. Even minor DWI cases have significant penalties. If you face DWI charges in Houston, TX, you need an experienced DWI defense lawyer on your side. 

At The Martinez Law Firm, we always pursue the best possible outcome of your case. 

Experienced Representation for DWI Cases

Now that you know more about the chemical test for DWI, one of the most important factors to remember is that blood is more difficult to defend against than breath. In truth, not every DWI attorney understands how these tests work. Moreover, the prosecution rarely completely understands the results. 

That’s why you need an experienced, aggressive advocate on your side. At The Martinez Law Firm, we have over 25 years of experience fighting DWI charges for our clients. 

When you find yourself on the wrong end of BAC tests, contact our firm immediately to schedule a free consultation. Let our legal team fight for you. 

How to Avoid a BWI in Texas This Summer

Whether you’re off to Galveston for the weekend or hitting Lake Travis, it’s good to know how to avoid a BWI in Texas before you have a drink out on the water. As an experienced DWI lawyer, Herman Martinez knows that a charge for boating while intoxicated (BWI) is no laughing matter, much like drunk driving. 

Moreover, these cases quickly become complicated. So, here’s what you need to know about BWIs in Texas. Should you find yourself facing charges, be sure to schedule a free consultation with our team as soon as possible. 

Is It Okay to Drink While Boating? 

Unlike driving a car, it is legal in Texas to consume alcohol while on the water. Per the Texas open container law, it is legal for passengers and operators of watercraft to have an open container. However, it is crucial that you keep it within the legal limit. 

In the State of Texas, a BWI and DWI are quite similar. The state defines both as legally intoxicated while operating a watercraft or vehicle. Additionally, the phrase “legally intoxicated” means not having the normal use of your physical or mental faculties or a BAC of 0.08 or higher. 

However, it’s important to note that this does not leave boat passengers immune to laws back on land. It’s still possible for passengers to face public intoxication charges even when the operator of the boat is sober. 

Float Tests: Marine Field Sobriety Tests

The goal of safety patrols is to ensure everyone is safe on the water. Still, they can saddle responsible boaters with charges if they don’t know how to avoid a BWI in Texas. Often, their aggressive tactics, called “float tests,” leave even sober captains in danger of harsh penalties. 

The National Association of State Boating Law Administrators (NASBLA) created float tests because the standard field sobriety tests used on dry land aren’t reliable on the water. The purpose behind their creation was to increase the effectiveness of officers trying to combat BWIs. 

Unfortunately, they mainly made it more efficient to make quick arrests with rudimentary, unreliable tests. While they MAY make the waters safer, they leave too much room for unlawful arrests. 

Are BWIs and DWIs the Same?

Part of knowing how to avoid a BWI in Texas is understanding the key differences between a DWI and a BWI. These differences lie in the penalties and how officers enforce the laws. 

First, it’s quite easy to get a BWI. Oftentimes, game wardens and law enforcement officers wait at docks and watch boats load in. This is because they are legally able to stop people and perform a water safety check. 

These checks provide a broad cover to evaluate the emergency equipment, such as life jackets and fire extinguishers, but extend into alcohol consumption. When they suspect someone of drinking in dangerous quantities, they can submit the entire boating party to field sobriety tests. 

However, after a day out on the water, it is quite common for people to appear inebriated even without having too much to drink. This is due to sun exposure, heat, and general fatigue. Additionally, these tests are designed specifically to facilitate the arrest of boaters. 

The Penalties of BWIs

In Texas, the penalties of a BWI are quite similar to a DWI. These charges carry harsh penalties that only grow worse in light of harm to others or previous convictions. Often, jail time is possible. 

  • First Offense: $2,000 fine and 180 days in jail
  • With a serious injury: third-degree felony with a $10,000 fine and up to 10 years in jail
  • With a death: second-degree felony with a $10,000 fine and up to 20 years in jail
  • Second Offense: $4,000 fine with up to a year in jail 
  • Third Offense: $10,000 fine with up to 20 years in jail

While it is legal to have alcohol on a boat, it’s important to understand that alcohol is involved in the majority of fatal boat accidents. The U.S. Coast Guard notes that a BAC over 0.10 makes someone 10 times more likely to die in a boat accident. No one wants their day ruined by someone who drinks too much on the water and loses control of themselves. 

Out on the water, drinking brings dangers that are not present on the land. Alcohol impacts balance, which is already affected by the water, and reduces body temperature, which can lead to hypothermia if you fall into the water. 

When you plan to go out on the water, bring plenty of water and food. Remember, it is more exhausting to say on the water than on land. Moreover, the distance you can swim sober might drastically decrease while intoxicated. 

If you want to know how to avoid a BWI in Texas, the best option is to stay hydrated and limit your drinking to a responsible amount. 

Are You Facing a BWI in Texas? Call Herman Martinez Today!

Now that you know how to avoid a BWI in Texas, it’s important to know what to do in the event you face BWI charges. As soon as possible, reach out to a skilled DWI lawyer in Houston, TX. With an experienced criminal defense attorney on your side, you have someone to pursue the best possible outcome of your case. 

Stay calm and schedule a consultation with The Martinez Law Firm today.

Minor DWI in Texas: Can Minors Get a DWI?

With summer in full swing, it’s common for parents to wonder, “Can minors get a DWI in Texas?” Unfortunately, the short is yes. However, there are some unique variables that come into play, differentiating a minor DWI from an adult version of the crime. 

Still, these offenses are no less serious when charged as a minor. As always, Texas takes DWI cases seriously, ensuring that consequences are lasting and severe. 

When your child needs representation, you can rely on Houston DWI lawyer Herman Martinez to share his expertise and experience. If you have questions about your case, contact our firm immediately to schedule a consultation. 

Driving While Intoxicated (DWI) as a Minor

A DWI can apply to both adults and minors. When someone under 21 in Texas has a blood alcohol content (BAC) of over 0.08%, they can face DWI charges just like any adult. Additionally, they can be charged with a DWI for being under the influence of drugs, even with a prescription, if it impacts their driving ability. 

In fact, almost any loss of normal physical or mental faculties puts a driver in line for a DWI, regardless of their age. So, a minor arrested with a BAC of over 0.08% is likely to receive a DWI charge. 

Texas Implied Consent Laws

When an officer pulls a minor over for a traffic stop with reasonable suspicion they’ve been drinking, that officer can require the driver to take a blood or breath test. While it’s possible to refuse a breathalyzer, it’s not always the best idea. 

When you drive a car in Texas, you owe a duty of care to everyone on the road. As such, you provide “implied consent” for BAC testing by being on the road. Of course, there’s the option to refuse the test. 

However, that often is just a short delay before the police produce a warrant for a blood test. In a minor DWI case, blood tests are a bit more difficult to exclude or combat as evidence. Additionally, refusal results in an automatic suspension of your driver’s license for 180 days. 

It also doesn’t look great if the case goes to court, even though it’s not possible for them to link refusal to self-incrimination. 

Penalties for a Minor DWI

Typically, a minor faces the potential of fines, license suspension, and some jail time as a consequence of a DWI. The severity of each depends on the type of DWI and any prior arrests. 

Jail time is not mandatory for a first-time DWI as a minor in Texas. However, the circumstances of your case can aggravate and enhance it, leading to more severe consequences. 

Aggravating factors include the following. 

  • High BAC
  • Intoxication assault 
  • Intoxication manslaughter

Each of these increases the severity of your situation quite significantly. Moreover, the wrong charge can put you in prison for up to 20 years. 

Work with a DWI Specialist: Herman Martinez

Can a minor get a DWI in Texas? Absolutely. However, that is not the end of the road. 

When you have an experienced attorney on your side, you have an advocate to fight for the best possible outcome of your child’s case. 

If a minor in your family faces a minor DWI charge, schedule a consultation with The Martinez Law Firm. We work to pursue the best possible outcome of every case we handle. Let your team help you understand your case and fight for your future.

The Burden of Proof in Sex Crimes: What to Know

The burden of proof in sex crimes cases is an essential factor in how a lawyer builds their defense. When you face a charge, claim, or allegation for a sexual offense in Texas, it’s common to wonder how the evidence works. If you need concise advice, consult a Houston criminal lawyer for guidance on your specific case. 

For now, our firm is here to offer a general overview that shows that standards courts follow in most Texas cases. 

Burden of Proof in Sex Crimes: “Beyond a Reasonable Doubt”

In a Texas sex crime case, the standard of proof is “beyond a reasonable doubt.” For defendants, this means that the prosecution bears the legal burden of proof. It is on them to establish the defendant’s guilt beyond a reasonable doubt. 

When they do so, they have to show that there is no room within the facts for another explanation. The sole resolution must be that the defendant committed the offense. This level of proof must apply to each element of the offense. 

However, “beyond a reasonable doubt” does not equate to absolute proof. Instead, it is as close to absolute certainty as possible. Generally speaking, this is the highest legal standard. 

As such, this is not solely the burden of proof in sex crimes. In fact, it is the standard of proof across criminal cases throughout the country. It’s part of the “due process” clause in the Fifth Amendment of the Constitution. 

Additionally, when the trial begins, it is essential that the jury starts with a presumption of innocence. Then, prosecutors must establish the evidence to show that there is no reasonable doubt of the defendant’s guilt. 

As such, it falls to the prosecutors, not a sex crime defense attorney, to shoulder the burden of proof. 

Elements of Burden of Proof

When it comes to the burden of proof in sex crimes, the courts have established two aspects of the reasonable doubt standard. 

  • Burden of production means that the prosecution produced enough evidence to establish every element of an offense as fact. 
  • Burden of persuasion requires the prosecution to persuade jurors that they applied the standard to every aspect of the offense. 

Do Other Standards of Proof Apply?

In Texas sex crimes trials, the prosecution cannot prove guilt by any other standard of proof. Typically, these standards apply solely to civil cases. For example, the standard of “a preponderance of evidence” still allows room for doubt. Additionally, “clear and convincing evidence” only shows that something is probably or likely. 

Instead, the burden of proof in sex crimes is for the prosecution to prove guilt beyond a reasonable doubt. 

While other standards leave room for interpretation, this remains the highest legal standard for proof. Generally, it applies to criminal trials specifically because the stakes are so high. In some cases, a defendant might face up to 99 years when found guilty of a sex crime. 

What Is the Statute of Limitations on Texas Sex Crimes?

In addition to the burden of proof in sex crimes cases, prosecutors who hope to charge someone with a crime have to abide by the Texas statute of limitations for the crimes. These statutes set limits as to how much time may pass before it’s no longer possible to charge someone. 

Generally, this varies depending on the severity of the crime. 

In Texas, some crimes have no limit on how much time passes. For example, there is no statute of limitations on the following charges. 

  • Sexual assault of a child 
  • Indecency with a child 
  • Aggravated sexual assault of a child
  • Continuous sexual abuse of a child
  • Sexual assault of an adult (when there is DNA evidence available)

Then, the statute drops to 20 years for the following crimes. 

  • Burglary with the intent to commit a sex crime
  • Aggravated kidnapping with the intent to commit a sex crime 
  • Sexual performance by a child 

From there, the statute lowers to 10 years for the following crimes. 

  • Sexual assault of an adult (with no DNA evidence) 
  • Aggravated sexual assault of an adult

So, what does this all mean? The prosecution has to prove the defendant committed the crime within the period of the statute of limitations. However, as mentioned, some crimes have no limitations at all. 

Note: It’s important to recognize that “rape” is not a legal term in Texas. Instead, it falls under various forms of “sexual assault.”

A Difficult Standard to Prove

When it comes to rape and sexual assault cases, it is often difficult to prove a case beyond a reasonable doubt. Often, the prosecution cites the definition under the Texas Penal Code as part of the problem. It places an emphasis on the use of coercion, violence, or physical force. 

As such, it’s not enough for a potential victim to say “no.” Instead, the burden of proof requires that they show the refusal was overcome by force. 

Defenses Against Sex Crime Allegations

With the high burden of proof in sex crimes cases, there are several defenses that offer potential against sexual assault charges. 

One option is an “affirmative defense.” In this method, the criminal lawyer proves facts through a preponderance of evidence that shows innocence. Still, the prosecution has to prove each element beyond a reasonable doubt. However, if the defense lawyer convinces the jury that the facts of the affirmative defense are true, they may find the client not guilty. 

Do You or a Loved One Need Legal Representation?

If you face allegations of sex crimes in the Greater Houston Area, you need an experienced Houston criminal lawyer to protect your rights and your future. 

Contact our criminal defense law firm for a free, confidential consultation. Our legal team is ready to offer guidance and fight for the best possible outcome in your case.

Probation Violation Hearing: What to Do


A probation violation hearing might sound simple and straightforward. In many cases, a person makes a simple mistake and faces an accusation that they are in violation of their probation. That should be easy to sort out, right?

Unfortunately, that’s not always the case. Being on probation is not a simple matter. Moreover, the consequences of a violation are often hefty. 

Below, we take a closer look at probation violation hearings. 

What Is a Probation Violation Hearing?

When the court finds a defendant guilty after a trial or the defendant resolves their case through negotiations, one possible outcome is probation. In many cases, people prefer this over incarceration – for obvious reasons. 

However, probation is rarely easy to follow. First, there are many different types of probation, all of which require you to follow certain terms and conditions. Second, you sign a contract for probation, which means you enter into a legally binding agreement. 

Oftentimes, these conditions are time-consuming and difficult. Examples include the following. 

  • Treatment for addiction or substance abuse
  • Completion of a program (such as anger management
  • Obtaining a GED or high school degree
  • Abstaining from alcohol or drug use
  • Maintaining or attaining employment 

Additionally, you have to report to your probation officer as well as pay an array of court fees. Often, people have a hard time meeting the terms laid out in their agreement. When a person fails to meet these requirements, they risk violating their probation. 

If this happens, their probation officer might seek a probation violation hearing. Through this, they allege that you violated the terms of your probation and seek some form of punishment. 

Potential Accusations

There are many bases for an accusation of probation violation. Some common examples include the following. 

  • Facing charges for another criminal offense while on probation 
  • Failing to meet the conditions of your probation 
  • Failure to complete a court-ordered program
  • Failing to report to the probation officer, pay fees, or appear in court

When a probation officer accuses you of violating the terms of your agreement, they might request a warrant for your arrest. If you are arrested, you are brought before the court. 

Alternatively, you might receive a notice in the mail telling you to present yourself in court. 

Consequences of Violating Probation

When you violate your probation in Texas, the severity of your violation dictates the outcome. In some cases, you simply have to appear in court. If this is the case, your probation officer is likely to request some type of penalty. 

This might add another condition or limitation on your probation contract. For instance, you might perform community service or attend a rehabilitation program. In more severe cases, it might result in a large fine or jail time. 

Even with a first-time violation, your probation officer can file a report to have the court issue a warrant for your arrest. If this happens, you might spend some time in the county jail. Then, they schedule a hearing to review your case. 

What to Expect at Your Hearing

During your probation violation hearing, the prosecution has to prove that a violation occurred by the standard of a “preponderance of evidence.” This means that the evidence shows there’s over 50% likelihood that you violated your parole. 

During the hearing, the judge weighs the type, nature, and severity of the violation. Additionally, they look over any mitigating circumstances and history of prior violations. 

Then, your lawyer has the opportunity to argue against the evidence. Often, a criminal lawyer stresses how minor the violation was or counters with evidence that there was a mistake. Additionally, they fight against the revocation of your probation. 

If the court finds you guilty of violating probation, they then sentence you. This might result in an extension of the probation period, time spent in jail, or an addition of new terms and conditions. 

The worst-case scenario is the revocation of your probation altogether. This results in you serving out the remainder of your original sentence. 

Partner with an Experienced Attorney

When you face a probation violation hearing, you need the help of an experienced criminal defense attorney. Your attorney helps you understand your rights and your options. Additionally, they guide you through the process and advocate for you. 

In Texas, there are no juries in these hearings. However, an experienced criminal lawyer knows how to navigate the process, address your needs, and provide expert legal representation in court. 

At The Martinez Law Firm, our legal team has in-depth experience with DWI matters and a range of other criminal cases. When you need an advocate on your side, our team is ready to fight for the best possible outcome in your case. 

Texas DWI Process: How to Handle DWI Charges


The Texas DWI process is not always a simple as people assume. After an arrest for a DWI (driving while intoxicated), you appear before a judge at an arraignment. Typically, this is your first court date. 

Generally speaking, when this occurs depends on the circumstances of your case. For some, it happens within a day or so of the arrest. In other cases, it happens weeks or months later. 

For most criminal cases, there’s not much for you to do before an arraignment. This is where the Texas DWI process differs. After a DWI arrest, you have to take quick action to contest an administrative suspension of your license. 

This suspension is imposed by the Texas Department of Motor Vehicles. If you fail to contest it, it goes into effect automatically. When you partner with a local DWI lawyer, you have someone to walk you through this process. 

Moreover, you have someone to fight to protect your rights and freedom. 

Below, we cover some basic information about the DWI process in Texas. If you need expert representation, schedule a free consultation as soon as possible. 

What to Do Before Your Arraignment

In Texas, implied consent laws allow the DMV to suspend the license of any driver lawfully arrested for a DWI. Additionally, this applies to drivers who refuse or fail a blood or breath test for their BAC.

Still, you have the power to fight this suspension. However, to do so, you have to request an ALR hearing within 15 days of your arrest. When you request the hearing, it puts the suspension on hold. 

This means the suspension is pending based on the outcome of your hiring. When you fail to request an ALR hearing, the DMV automatically imposes the suspension. Typically, this takes effect about 30 days after your arrest. 

What Happens at Your Arraignment

At your arraignment, the judge informs you of your charges and your rights. However, arraignments are more than a legal formality. If you were sent to jail after your arrest, the judge sets your bail amount or releases you without bail. 

Additionally, the judge will ask what you plan to do about representation. If you do not hire your own DWI lawyer, the judge appoints a public defender to your case. Oftentimes, these public defenders are inexperienced lawyers fresh out of law school. 

Then, the judge asks how you want to plea. Generally, you have three options. 

  1. Guilty
  2. Not guilty 
  3. No contest (nolo contendere)

While some people plead guilty to get the Texas DWI process over with (not the best idea), many enter a plea of not guilty. At this point, a plea of not guilty allows you to keep your options open. 

When you want to protect your future, this is your best option. 

How to Handle a DWI in Texas

After the arraignment, the next stage of the Texas DWI process is to decide how to handle your case. At this stage, the advice of an experienced DWI defense attorney is essential. Often, this boils down to two main options: bargain or fight. 

However, these options aren’t necessarily mutually exclusive. For many cases, criminal lawyers attempt to beat cases through pretrial motions. A common example in the Texas DWI process is a motion to suppress evidence. 

If a motion doesn’t result in your favor, your attorney might also bargain to reduce your charges. Additionally, if the negotiations are unfavorable, your attorney may advise taking the case to trial. 

Ultimately, your DWI attorney’s goal is to achieve the best outcome possible in your specific case. 

Plea Bargaining

Plea bargaining is a process in which your attorney and the prosecution attempt to reach a compromise. Essentially, this amounts to the defendant agreeing to a charge of guilt or no contest in exchange for less severe penalties. 

In some cases, it’s possible to negotiate a guilty plea for a non-DWI charge. For instance, it may result in a reckless driving charge instead. The goal here is to reduce the penalties. 

Typically, weaknesses in the prosecutor’s case provide the defense with a better foundation for bargaining. Conversely, your bargaining power diminishes when the evidence against you is strong. 

How Trials Work

Typically, the prosecution has the burden of proof beyond a reasonable doubt in criminal cases. The Texas DWI process is no different. When the prosecutor cannot adequately prove guilt, the judge or jury should acquit. 

Generally speaking, DWI trials last anywhere from a few days to a week. First, the court must select a jury. Often, this takes a full day. 

Then, both sides present their opening statements. This is when they tell the jury what they believe to be true as well as what evidence they will show. 

Next, the meat of the trial is the presentation of evidence. Typically, the prosecution presents its evidence first, since they hold the burden of proof. For example, they might present test results that show the amount of alcohol that was in the driver’s system. 

Additionally, this stage of the Texas DWI process often involves calling on the arresting officer to testify. Once the prosecution rests, your attorney presents their evidence. However, it’s common for the defense not to present any evidence. 

Instead, they might work with an expert witness to gain a favorable testimony that casts doubt on BAC tests. Following the presentation of evidence, both sides make their closing arguments. 

Then, the jury receives instructions on the applicable law and starts its deliberation. For many DWI cases, deliberations take less than a day. As the jurors reach a verdict, they inform the judge, who announces it to the court. 

Tackle The Texas DWI Process with Expert Representation

Whether you hope to bargain or go to trial, your best bet is to have an attorney on your side. With the right legal representation, you gain guidance throughout the legal process. From the ALR hearing to negotiations to trial, you have an advocate dedicated to your future. 

The Texas DWI process often results in harsh penalties for those without representation. As such it is crucial to find legal representation to handle your DWI case.