If a person is intoxicated and operates a motor vehicle in a public place, under Texas law they have committed the offense of Driving While Intoxicated (DWI). Chapter 49 of the Texas Penal Code is the applicable law. Since this is state law, it applies to Austin and every other city in Texas. However, this does not mean that all prosecutors will offer the same plea bargain.
What Is The Difference Between DWI And DUI In Texas?
Under Texas law, if a person under the age of 21 is pulled over and has any alcohol in their system, they can be charged with Driving Under the Influence – Minor (DUI). A police officer just needs to detect alcohol because the offense is only a Class C offense, and does not require proof of intoxication. However, age is not a factor if the person is operating a motor vehicle while intoxicated. They will be looking at a DWI charge if this is the case.
What Are The Penalties For DWI?
First Offense – Class B Misdemeanor
- Up to a $2,000 fine
- Up to 180 days in jail upon conviction with three mandatory days
- Loss of driver license up to a year
Second Offense – Class A Misdemeanor
- Up to a $4,000 fine
- One month to a year in jail upon conviction
- Loss of driver license up to two years
Third Offense – Third Degree Felony Punishment
- A $10,000 fine
- Two to 10 years in prison
- Loss of driver license up to two years
Note: if the DWI is your first offense but you have an alcohol concentration of 0.15 or above, this is a Class A Misdemeanor.
Drunk Driving With A Child Passenger – State Jail Felony Punishment
- Charged with child endangerment if driving drunk with children under 15
- Will be additionally fined up to $10,000
- Could be put in jail for up to two years
- Will lose driver license for another 180 days
Intoxication Manslaughter – Second Degree Felony Punishment
- Fine not to exceed $10,000
- Term of confinement of 2-20 years
Intoxication Assault (DWI That Causes Serious Bodily Injury To Another) – Third Degree Felony Punishment
- A $10,000 fine
- Two to 10 years in prison
- Loss of driver license up to two years
What Is Intoxication?
According to Chapter 10 of the Texas Penal Code, the definition of “intoxicated” is “(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.” Since Texas is a “while driving” state, it only matters how much alcohol was in your system at the time you were driving, not at the time that you took a breath or blood test.
Standardized Field Sobriety Tests (SFSTs) are just one means of proof submitted to a jury in a DWI case which are taken into account. There are many reasons a person could be initially stopped and ultimately arrested on the suspicion of DWI. For example, if a police officer sees someone driving in a careless and reckless manner, driving with the lights off at night, driving the wrong way on a street, or speeding, the officer could see this as evidence of some impairment and initiate a stop. If the police officer then notices the person smells of alcohol, is confused or has blood-shot eyes, this could be the first evidence of intoxication and offers clues.
If the police officer now suspects the person has been driving while intoxicated, they will initiate SFSTs to help make this determination. The National Highway Traffic Safety Administration ( NHTSA) creates the exact guidelines for how the SFSTs should be conducted by investigating officers. Performing poorly on any portion of the SFST's usually will result in your arrest for DWI. The standardized portion of field sobriety testing usually consists of the following tests, which offer clues of intoxication and are done in the following order. All three tests distinguish the BAC at or above 0.10:
- Horizontal Gaze Nystagmus (HGN):
- Most commonly referred to as the “pen” or the “eye” test where the investigating officer usually asks that you follow an object such as a small flashlight or their finger with your eyes. The amount your eyes jerk while following the object hypothetically could indicate a level of intoxication.
- 77% accurate
- Walk and Turn (WAT):
- A WAT entails taking nine steps forward and nine steps back, taking steps from heel to toe on an actual or a fictitious straight line while counting each step.
- 68% accurate
- One Leg Stand (OLS):
- While you balance on one leg and count out loud, your arms must remain firmly affixed to your sides. You may risk failing the test if you attempt to use your arms to balance or put your lifted foot down even for a moment.
- 65% accurate
Even if the SFSTs are administered perfectly, evaluating performance and correlating the results to intoxication can still lead to an inaccurate conclusion. This is important as it will be the prosecutor's responsibility to prove there was a DWI offense beyond a reasonable doubt.
What If I Refuse A Blood/Breath Test?
Since Texas is an implied consent state as set out by Chapter 724 of the Texas Transportation Code, if you are arrested for intoxicated driving, you must provide a blood or breath sample for chemical testing. Refusal will cause your driver license to be suspended for 180 days. However, if a specimen is provided and you have a BAC of 0.8 or higher, you can expect a 90-day suspension of your driver license. Refusal has consequences as the investigating officer will likely seek a search warrant for the blood analysis as evidence. However, a search warrant is not necessary to obtain the blood sample if serious bodily injury occured in the case of an accident.
How Will I Get To Work If My License Is Suspended?
If you must drive to work, perform essential household duties, or have school-related activities, obtaining an occupational driving license might be an option. A petition for an occupational license would need to be filed by us, and if the Court decides you are eligible, you will be provided with a signed court order to apply for the license. You would then need to submit the court order to the Texas Department of Public Safety (DPS), along with other necessary documentation for issuance of an occupational driver license. With the occupational license, you will be required to carry a log book, recording all trips, and cannot drive for longer than 12 hours in a day. Note that your occupational license does not allow for you to drive a commercial vehicle.
What Will Be My Sentence For DWI?
Until recently, Deferred Adjudication was not an option if a person was charged with a DWI in Texas. However, Texas House Bill 3582, 86th Texas Legislature, which took effect September 1, 2019, now allows judges to place a person charged with DWI first on deferred adjudication probation, so long as they did not have a BAC greater than a 0.15% enhancement, or held a commercial driver license at the time of the offense. The penalties will depend upon whether the crime is charged as a misdemeanor or felony. A felony can generally be probated for up to 10 years. A misdemeanor punishable by jail can be probated for up to two years. If you were arrested for a DWI with a child passenger under 15, you can expect even greater consequences ranging from probation to prison time. Reach out to a criminal defense attorney as you will be facing serious consequences if the case is not properly resolved.
The prosecution also considers the accused's previous criminal history and the facts at issue in the underlying case. Understandably, a first-time offender will have more options than someone who has a criminal record. Cooperation with the arresting police officer is also an important factor that will help the case for plea bargain options. For example, a Pre-Trial Diversion Program is offered by the Travis County Attorney's Office. Participants who successfully complete the program have the charge against them dismissed; unsuccessful participants are returned for prosecution. Some conditions need to be complied with, such as wearing an ankle device that detects alcohol in the wearer's perspiration (Secure Continuous Remote Alcohol Monitor (SCRAM)). But again, if there was a lack of cooperation at the onset or a BAC above 0.15, this program will likely not be an option.
However, if your DWI caused serious bodily injury to another person as a result of your intoxication, you could be charged with intoxication assault (Texas Penal Code §49.07). Intoxication assault is a felony in the third degree. Punishments for a third-degree felony include fines up to $10,000, incarceration for two to 10 years, and from 160 to 600 hours of community service. You could also be facing lawsuits from the injured party. It's also very possible the judge may order you to pay restitution to the victim upon conviction. In addition to paying for vehicular repairs and attorney's fees, the court may order you to pay restitution for the injured party's loss of wages, medical costs, disability expenses, or any other cost that may have occurred due to the DWI. If you cannot make restitution, you could be looking at incarceration.
Will I Have An Ignition Interlock Installed In My Car Or Truck?
In the state of Texas, if you've ever had a prior DWI conviction, you are required by law to have an ignition interlock device (interlock) installed on your vehicle any time you are charged with a second DWI or more and while you are out on bond. If you have no prior DWI conviction and your BAC is below 0.15, the court may order an interlock. However, if this is your first DWI and your BAC is 0.15 or greater, the interlock will be mandatory. To obtain a better plea agreement as part of the plea bargain, we may voluntarily have bond conditions modified to include an interlock while the case is pending. This can work in your favor, as credit for having an interlock device can be given by the judge when it comes to conditions of any interlock probation.
Will My License Be Suspended Upon Being Arrested For DWI?
The Administrative License Revocation (ALR) Program is a civil administrative process requiring the DPS to suspend and/or disqualify your driver license if you are arrested for DWI if you refused to provide a sample of your blood or breath, provided a blood or breath test that registered a BAC of 0.08 or more while driving a non-commercial motor vehicle, or provided a blood or breath test that registered a BAC of 0.04 or more while operating a commercial motor vehicle. We will fight to make sure that the police officer had a good reason to stop you, arrest you for DWI and request a sample of your breath or blood. We will also use this time to better investigate and secure any testimony of the officer that may help on the criminal court part of the DWI. As a reminder, one of our criminal defense attorneys can petition for an occupational license for you if needed during the interim. To get your license reinstated, you will need to pay DPS reinstatement fees.
What Do I Do After Arrest For DWI?
We are here to assist you with the next steps upon your release for your DWI arrest. If this was your first DWI offense, there is a legislatively-mandated 12-hour DWI class you must take, and you can get started on it right away. Completing the class is often one of the conditions to reinstatement your driving privileges, and we find that doing the class upfront helps get a better plea bargain offer. We also encourage you to obtain letters of recommendation and provide them to us from people who know you as a contrast to your DWI arrest. A prosecutor may likely also give you a better plea bargain if you have participated in volunteering and community service upfront since it will be a condition regardless. We have a community service log on our resources page where you can document and provide information regarding your volunteer hours.
How Long Will This Take?
You need to know that this is not a fast process. Even cases that move quickly can take six months to resolve or may take even more time. Since putting some “age” on a criminal case doesn't hurt, we can appear in court and have your case reset so that the time you are successfully out on bond can be beneficial. The time you are out on bond with these conditions and on your best behavior is a contributing factor that has the effect of reassuring both the prosecution and the court of your low risk and likelihood of not becoming a repeat offender. All these factors contribute to obtaining the best resolution of your case.
Facing A DWI Charge? Retain An Aggressive Texas Criminal Defense Attorney Today
As someone who prosecuted cases like your DWI charge for over 15 years, Jason S. English understands the strategies prosecutors employ to convict people charged with DWI. Before you plead guilty to any crime, understand your rights and explore your options for fighting the criminal charges.
When you're dealing with a DWI charge, it's not an exaggeration to say that your life depends on retaining an experienced, innovative criminal defense attorney. Attorney Jason English recognizes that your freedom depends on his legal prowess in and outside the courtroom. Contact Jason English today at (512) 454-7548 or online for an initial consultation and help with your DWI arrest.