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.

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. 

DWI with a Child Passenger: What to Know

If you have a charge for a DWI with a child passenger in the vehicle, you need to act fast. With a skilled DWI lawyer, you have an advocate to help you protect your future. Schedule a free consultation today. 

Oftentimes, when we think about driving while intoxicated (DWI) charges, we picture someone walking a line in front of an officer. However, the reality is that DWI arrests are often far more complex. 

During the arrest process, law enforcement officers examine a variety of factors. Ultimately, they want to determine what a prosecutor might charge the person with. In some cases, they charge someone for a DWI with a child passenger. This is far worse than your average DWI charge. 

How Does a Minor’s Presence Change the Charge?

When someone drives drunk in a vehicle with a passenger under the age of 15, it constitutes driving while intoxicated with a child passenger. The penalties for this are much more severe than the basic DWI charge. 

Let’s take a look at the potential penalties to see how this changes the penalties. 

First-Time DWI

For a first-time DWI, you receive a class B misdemeanor. Generally, it results in one or more the following penalties. 

  • Fines up to $2,000
  • A jail term of up to 180 days 
  • Both the fine and confinement 
  • DWI education and community service

As you can see, the charges are quite serious already. However, with a child in the vehicle, you face much worse. 

First-Time DWI with a Child Passenger

Even when it’s your first offense, a DWI with a minor passenger is a felony in the state of Texas. As such, it results in the following penalties. 

  • Time in a state jail for anywhere from 180 days to 2 years
  • Fines up to $10,000

It’s easy to see the difference. Moreover, the maximum sentence for a first-time DWI is the minimum sentence when you involve a child. Texas takes drunk driving charges seriously. The penalties are already severe before you involve anyone else. 

Now, some people look at this information and think that they’ve never been drunk behind the wheel with a child in the car. However, it’s important to understand that your definition of “intoxicated” probably doesn’t match the state’s definition. 

DWI Charges and “Intoxication”

Typically, DWI charges stem from two different causes. First, people face DWI charges when their BAC is above 0.08%. However, it’s also possible to face DWI charges when you do not “have the normal use of mental or physical faculties” due to the introduction of alcohol to your system. 

Simply put, that means law enforcement officers have the power to arrest someone for a DWI even when their BAC falls under 0.08%. 

With this broad definition of intoxication, Texas has the power to charge someone for a DWI with a child passenger even when they “feel fine.” If you ever have a couple of drinks and get into a car with a passenger under 15, understand your situation. 

When the state convicts you of this crime, you face at least half a year of jail time – if not more. However, no one is guilty until the court reaches a decision. You need an advocate on your side to protect your rights and your future. 

Experienced Representation from a Houston DWI Defense Attorney

When you face charges for drunk driving for a DWI with a child passenger, you have the right to legal representation. However, it is crucial that you work with an experienced attorney with expertise in DWI cases. 

As a Houston criminal defense law firm, we offer legal representation backed by experience and expertise. To learn more about your legal options, schedule a free case evaluation with our team. Call now!

DWI in a Rental Car in Houston, TX


When the police charge you with a DWI in a rental car in Houston, it doesn’t matter whether you live here or not. For pleasure and for business, millions of people visit the state of Texas each year. While Texas has much to offer its visitors, our state also has very strict laws around driving while intoxicated (DWI). 

Everyone needs to take drunk driving seriously because it endangers others on the road. Still, visitors to Houston often find themselves in a common scenario. Picture the following. 

You travel and work all day. As your business concludes, you have dinner and drinks with some colleagues. You head back to your hotel in a rental car on roads you don’t know. 

After a long day, you’re tired, and it’s difficult to navigate new roads in the dark. Moreover, perhaps you can’t figure out how to turn off the brights of this rental vehicle. Next thing you know, you see flashing lights behind you. 

You roll to a stop, and an officer asks whether you had anything to drink. Too often, a small mistake turns into a DWI in a rental car during a business trip or on a vacation. However, it’s important to remember that you remain innocent until proven guilty. 

You always have the right to defend yourself against drunk driving allegations. This is true even when your BAC shows above the legal limit. When you understand the consequences of a Texas DWI, you’ll see why it is essential to seek legal counsel as soon as possible. 

What Are the Penalties of a DWI in Texas?

Generally speaking, a first-time DWI in Texas is a Class B misdemeanor. That means you face up to 72 hours in jail as well as fines and a license suspension. Moreover, you face a $3,000 administrative penalty for your first DWI in 36 months. 

This mounts on top of any of the fines a judge imposes. When other factors aggravate the case, these penalties increase. These include intoxication assault, a BAC above .15%, a minor in the vehicle, and more. 

Additionally, you potentially face other penalties, such as alcohol treatment or an order for an interlock device. This device fits your car’s starter, requiring you to blow into it to start your car. If it registers any alcohol, the car does not start. 

DWI in a Rental Car: Impounded Rentals

After an arrest for a DWI in a rental car, the police have to do something with the vehicle. In some cases, they allow you to call someone to pick it up. If you had a legal, sober passenger in the car, the police might also allow them to drive it away. 

However, that’s not always the case, and the police aren’t always that patient. In those cases, it’s a good idea to check FindMyTowedCar.com or call the tow line at 713-308-8580. 

If this happens, call the rental company or ask the police to do so. They can pick up the vehicle from the impound lot. However, prepare yourself for fees and penalties. Moreover, it’s likely that you’ll need to arrange a pickup for any items you left in the car. 

Lastly, you might want to see whether this company will allow you to continue renting vehicles from them in the future. 

Texas Driver’s License

If you are a resident of Texas charged with a DWI in a rental car, the police confiscate your license. When they release you, they provide a paper that serves as a temporary license. This lasts for 40 days. 

After that period, the state suspends your license for up to two years. This duration varies with any prior drunk driving convictions and whether you refused a BAC test. 

To challenge this suspension, you have 15 days from your arrest to request an Administrative License Revocation hearing. Your temporary license lasts until your hearing date. 

However, if you miss this deadline, your license remains suspended until your trial ends in a not guilty verdict. 

DWI in a Rental Car: Your Out-of-State Record

If you live in another state, your Texas DWI in a rental car is likely to follow you home. In collaboration with 44 other states, Texas shares moving violations with other states. Per the Driver License Compact Commission, this includes DWI information and convictions. 

Texas joined this compact in 1993. The purpose is to exchange information regarding traffic violations and license suspensions of non-residents. Moreover, it forwards them to their home state. 

Due to this, residents of many states see their Texas DWI follow them home. Moreover, their home state may apply its own laws to your DWI in a rental car in Houston. Additionally, Texas reports whether you enter a plea of guilty or not guilty. 

That means you face an array of penalties both in Texas and your home state. Unfortunately, this has the potential to result in staggering fines as well as jail time, points against your license, and more. 

In addition to DWIs, Texas reports an array of charges. These include the following, among others. 

  • Failure to stop and provide information 
  • Intoxication manslaughter
  • Failure to stop and render aid 
  • Felony in a motor vehicle 
  • Negligent homicide 
  • Intoxication assault 
  • Vehicular manslaughter

There are five states that are not part of the interstate compact. These are Wisconsin, Tennessee, Georgia, Michigan, and Massachusetts.

Texas does not have the power to suspend an out-of-state license. As such, it is up to your home state whether you face suspension. For instance, while Massassachusetts is not part of the compact, it often treats an out-of-state DWI as though it took place in the state. 

You Have to Face Your Charges in Texas

Regardless of whether you reside in another state, you have to handle your charges for DWI in a rental car in Texas. You have to return for any hearings as well as the trial. 

Failure to appear is always a bad idea. In this case, the Texas judge has the option to issue a default judgment against you. Often, that comes with a warrant for your arrest. 

DWI in a Rental Car: Expert Representation

If you face charges of DWI in a rental car, the stakes are high. This is true regardless of whether you live in Texas. Potentially, you face jail time, a license suspension, fines, and more. 

Moreover, you might face added penalties back home. To handle your charges in Texas, you need the representation of a skilled Houston DWI lawyer. With an experienced DWI defense attorney on your side, you have someone to mount an aggressive, strong defense. 

Backed by experience and expertise in Texas DWI cases, the Martinez Law Firm is here to help you. With extensive experience in the courtroom, Herman Martinez offers unique insight into an array of criminal defense cases. 

For a free consultation and review of your case, contact our firm today.