The DWI "Trick" Question

When being investigated for a charge of Driving While Intoxicated, officers love to pose to those under investigation what I deem the “trick question.” When doing this, investigating officers usually say something to the effect of, “we are just going to do some tests, and I’m going to ask you a few questions - just to make sure you are okay to drive home. No big deal.”

After the officer gains your compliance, usually after you finish performing the requested standardized field sobriety tests( the physical balancing tests and the HGN "eye" test), many officers will continue to take advantage of a person's natural desire to be respectful, polite, cooperative and will casually ask, something along the lines of, “On a scale of 0 to 10, what do you think your intoxication level is right now? If zero is you are totally sober, and 10 is very intoxicated, where would you say you fall on the scale right now?”

In my experience, even when people are NOT intoxicated, they will give some number OTHER than zero. It is a trick question because any number OTHER than zero is an admission that you feel impaired. Because it is scaled question, most people will give some answer within the range, because it is natural to give a response of a 3, maybe 4, or even a 5….somewhere in the middle.

The question is a "trick question" because any answer you give that is NOT a zero will be considered intoxicated for purposes of DWI. It is a complete trap when asked, as usually the investigating officer asks it in a very low key manner, as if the answer doesn't have perilous consequences. The investigating officer is aware that most people want to be respectful and compliant. They are fully aware that most lay people don’t know the legal definition of the word “intoxicated” under Texas law. Moreover, they certainly are going to define or explain it for the individual under investigation. Additionally, the words when asked can usually be open to a wide degree of interpretation. To this end, many individuals assume that the officer is asking in terms of a numerical level. (i.e. .08 or more alcohol concentration).

Under Texas law, intoxication is defined as “not having the normal use of mental or physical faculties by reason of the introduction to 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. Therefore, if one answers in any way other than zero - it is a self-admission to being impaired under Texas law, even if they respond with a low number, because any loss of their normal mental or physical faculties would technically dictate that one is admitting to some impairment, even if it is very slight.

When we drink alcohol, we usually feel some effect or sensation. However, it is important to remember it is not illegal to "drink and drive" - it is only illegal to "drive while intoxicated." Texas law allows for one to consume as much alcohol as they want, it as long as they do not lose the normal use of their mental and/or physical faculties. The question above does not allow the accused a way to tell the officer, “I’ve had some alcohol, but I’m not intoxicated”. This question is fundamentally unfair by the mere wording of how it is asked. So, if you are ever asked this question, and you think you are under suspicion for Driving While Intoxicated - ALWAYS ANSWER ZERO.