It is amazing how many times I hear that line from clients. They are pulled over. They admit to drinking 1-2 drinks. They perform field sobriety tests and then refuse the breath test. They are arrested and charged with DWI.
I mentioned earlier that DWI is an opinion crime. We give officers huge amounts of discretion to arrest based on their subjective opinion that you are intoxicated.
Intoxicated is the standard, not drunk. We call it Drunk Driving but that is just some good MADD marketing. DWI requires only intoxication.
Here is the Texas Penal Code definition of intoxicated
A) not having the normal use of mental or physical faculties by reason of the introduction of alcohol, a controlled substance, a drug, a dangerous drug, a combination of two or more of those substances, or any other substance into the body; or (B) having an alcohol concentration of 0.08 or more.
A few things to consider. You can be “intoxicated” on any substance. ANY substance. Benadryl, lipitor, aspirin, vitamin B. Alcohol is not required. Illegal drugs are not required. Talk about discretion. The police can arrest you without proof you ingested any intoxicating substance.
Not having the normal use of physical or mental faculties. Officers always state that “In my opinion the driver had lost the normal use of his/her physical or mental faculties.” They readily admit on the stand that this is their subjective opinion only.
Why? Because they have never seen the defendant before. They have no frame of reference for what is normal.