A person commits the offense of Driving While Intoxicated if they operate a motor vehicle in a public place while intoxicated. Public places include private property that is open to the public. The law applicable for DWI offenses is in Chapter 49 of the Texas Penal Code. So if you get a DWI in Austin, the same state law applies to cases in San Marcos, San Antonio, Waco and every other city in Texas. While the DWI law is the same throughout the State of Texas, each prosecutor office will vary in the plea bargains offered.
Jason S. English Law PLLC has a library of free material and Frequently Asked Questions for DWI and Drunk Driving Cases available for you to download or read.
What is the difference between DWI and DUI in Texas.
DUI everywhere else is simply called DWI in Texas. However, minors under 21 years old that have any detectable evidence of alcohol while driving can be charged with Driving Under the Influence – Minor. The offense is only a Class C Offense and does not require proof of intoxication, just any detectable amount of alcohol. However, a person that is operating a motor vehicle while intoxicated will be charged with DWI regardless of their age.
What are the penalties for DWI?
A first offense DWI is typically a Class B Misdemeanor which includes jail term for up to 180 days and a fine not to exceed $2000. A second DWI is typically a more serious Class A Misdemeanor that has the maximum penalty of one year in the county jail and a fine not to exceed $4000. A third DWI is a felony offense of the 3rd Degree, with a range of punishment in the Texas Department of Corrections for a term of 2-10 years prison and a fine not to exceed $10,000. However, a first DWI with an alcohol concentration of 0.15 or above is a Class A Misdemeanor. Also, a DWI with a child passenger younger than 15 years old is a State Jail Felony Offense with the maximum term of confinement being 180 days to two years, day for day and a fine not to exceed $10,000. Intoxication Manslaughter is a DWI that causes the death of another; is a Second Degree Felony with a term of confinement of 2-20 years and fine not to exceed $10,000. A DWI that causes serious bodily injury to another is charged as Intoxication Assault and is a 3rd Degree Felony.
What is intoxication?
Intoxication is defined as either not having the normal use of mental or physical faculties by the introduction of alcohol, drugs, dangerous drug, controlled substances or any combination thereof or an alcohol concentration of 0.08 or more. It is important to keep in mind that Texas is a “while driving” state. So any later in-time measurement of an alcohol concentration will need to relate back to the time of driving.
The typical proof of intoxication submitted to the jury is more than just the Standardized Field Sobriety Tests. The reason for the stop could be presented as evidence of a lack of physical or mental faculties if it is dangerous and correlates more with a person being drunk; consider a person driving the wrong way or operating a car without lights at night. The first evidence may not be the reason for the stop, but clues afterwards. Consider the reason for the stop being speeding - Nothing inherently correlates speeding with intoxication. In that situation, the first evidence of any intoxication may come in the testimony of the officer about the accused red, blood shot eyes, smell of alcohol, or confusion.
After an officer makes contact with an individual suspected of driving while intoxicated, they will start a battery of standardized field sobriety tests to determine if someone is intoxicated. While these tests must be performed in the exact way to be reliable, even if performed perfectly by the officer the clues correlation to a person having an alcohol concentration of 0.10 is not correct all of the time. The Horizontal Gaze Nystagmus (HGN) or eye test produces clues of intoxication when the officer notices the eyes jerk or not move smoothly. However such clues only correlate correctly to an alcohol concentration of 0.10 77% of the time done perfectly. So even if they are done perfectly, the HGN test is not reliable 23% of the time. The 9 Step Walk and Turn Standardized Test is also only reliable when administered perfectly at a rate of 68%. Further, the One Leg Stand Standardized Field Sobriety Test is only reliable 65% of the time when administered perfectly. Such reliability is important to keep in mind since the prosecution has the burden of proof in the case at a level of proving the offense beyond a reasonable doubt.
What if I refuse a blood/breath test?
Upon arrest for a DWI Offense, the officer will request that you provide a specimen of your breath, blood or urine for an analysis to be done. Chapter 724 of the Texas Transportation Code sets out the law relating to such. If a person refuses to provide a specimen their license or privilege to drive will be suspended for 180 days. If a person provides a specimen that is above 0.08 such specimen failure will result in their license or privilege to drive being suspended for 90 days. Keep in mind, if a person refuses law enforcement frequently seek a search warrant for evidence of the crime – the blood for analysis. If an accident with serious bodily injury is involved, a blood sample will be taken without need of a warrant.
How will I get to work if my license is suspended?
If your license is suspended it is possible to get an occupational driving license that will allow you to drive for work, school and to take care of necessary household duties/chores. We file a separate civil lawsuit in the form of a petition for an occupational license. If the judge grants the license, you will be able to drive a maximum of 12 hours a day with a log book documenting times and locations, unless the judge puts stricter limits on days, times, and allowable places for your driving. However, a person cannot drive a commercial vehicle with an occupational license.
What will my sentence be for DWI?
In many cases the DWI charge will result in a period of probation, with some days jail as a possible condition. Unlike most offenses in Texas, a person charged with a DWI cannot be placed on a period of Deferred Adjudication. The period of probation will depend on whether the offense is a misdemeanor or a felony. For a misdemeanor, the probation will typically be between 18 months to 2 years long. For the felony offenses of having at least two prior DWI convictions, probations would not exceed 10 years. However, probation for a DWI with child passengers will not exceed 5 years of state jail felony probation.
The facts of the underlying case, as well as, as the previous criminal history of the accused will typically influence the prosecution's plea-bargain offer in the case. A person with a worse criminal record will not have as many options compared to first time offender. Additionally, a person who cooperated with the police will often be availed of more options in terms of a plea bargain. For example, Travis County Attorney's Office does offer a Pre-Trial Intervention or Diversion program that ends up with a dismissal after a year of compliance with wearing an ankle scram alcohol monitor and complying with other conditions. However, if someone refused tests, did not cooperate or had an alcohol concentration above a 0.15 such facts will keep an applicant from being accepted into such diversion program.
If the case involved an accident, it will be important that any damages were paid either via insurance or out of pocket. In cases where there was an accident but no insurance coverage, an accused might be looking at a long period of probation to afford them enough time and supervision to make whole and repay others affected by a DWI accident in monthly payments. However, in that same situation, if a person does not have insurance or any ability to pay for the damages, that person would most likely be offered a plea bargain involving lengthy jail or prison time.
Will I have an ignition interlock installed in my car or truck?
After arrest and while on bond during the pendency of the case, Interlock devices are mandatory on subsequent DWI's, but discretionary on part of judge's determination for first offense DWI's. As a condition of probation, an interlock will be mandatory if a subsequent DWI or a first DWI with an alcohol concentration of 0.15 or greater for a period of at least half the term of probation. If the probation is for a DWI first without an allegation of 0.15 alcohol concentration or higher, the installation of an interlock device is at the judge's discretion. At times we have voluntarily modified bond conditions while the case is pending to include an interlock as part of a plea bargain to get a better plea agreement. Often the judge will give credit for the interlock being installed during bond in calculating the time requirements for any interlock probation conditions.
Will my license be suspended upon being convicted of DWI?
Your license or privilege to drive might be suspended by the Texas Department of Public Safety upon a DWI conviction for a period not to exceed two years. However, we ask and judges routinely will give credit for any period of ALR suspension that happened 40 days after your arrest for any test refusal or test failure. Again, you can seek out an occupational driver's license during that period of time. Other administrative penalties include reinstatement fees to DPS to get your driver's license back, and well as surcharges for certain offenses according to the Texas Driver Responsibility Program. Depending on the facts of the case, the surcharge will be $1,000 - $2,000 per year for three years.
What do I do after arrested for DWI?
When released after an arrest for DWI, we will guide you on what to do next. There is no reason to wait to complete the legislatively-mandated 12 hour DWI class for first offense DWI's. Often it will be condition of either the case or a condition to get your driving privilege reinstated. Further, our clients get better plea bargain offers when they have done the class up front. Next be thinking about providing our office letters of recommendation on your behalf that better provide a picture of who you are, compared to the DWI arrest. Often the same goes for volunteering and performing community service hours – they are likely a condition and will serve to get a better offer from the prosecutor when done up front. However, see the community service log on our resources page to document and provide proof of any hours performed.
How long will this take?
What to expect timewise – the whole process is slow. Quick cases are often resolved in 6 months and many take longer. Often we will appear in court and have the case reset. While it may not be the most convenient, it is working in your favor. It never hurts to put some age on a criminal case. The entire period of being out on bond with such conditions provides time to demonstrate that you are not likely to get in trouble and helps to reassure the prosecution and court that you are in fact low risk. Proving that you are not likely to ever reoffend helps get the best resolution of your case.