FAQs

Q:How Long Does It Take for a Case to Go to Trial?

A: As with most things in the law, the answer is... it depends. Some courts are more backed up than others, and some types of cases are given priority. Additionally, people who are in jail awaiting trial are given priority over people who are out on bond. It typically takes anywhere from several months up to over a year to go to trial.

Q:What Happens at Trial?

A: Texas jury trials are split into three main sections: jury selection, guilt-innocence, and (if needed) punishment. A simplified explanation of each phase is provided below.

Jury Selection

In jury selection, a panel of people from the community is brought into the courtroom. For misdemeanors, the panel is usually 24-30 people and for felonies, the panel will generally be at least 60 people, with jury panels for some types of cases being much larger. The goal of the jury selection phase is to find 6 (for misdemeanor) or 12 (for felony) people who can be fair and judge the case on its merits and not on their preconceived ideas.

The judge will give the jury panel some instructions and then the prosecuting attorney will be able to ask them questions. After the prosecuting attorney questions the panel, the defense attorney gets a chance to ask questions. Jurors who indicated during the questioning that they have a bias or who cannot be fair for some other reason are removed from the jury panel "for cause." An unlimited number of people may be removed for cause. After those people who cannot be fair are removed, each side gets to strike a number of jurors for almost any reason (other than race, gender, or other protected trait). In a misdemeanor trial, each side can remove 3 people from the panel. In a felony, each side can remove 10 people from the panel. (These numbers can change in certain circumstances, such as multiple defendants being tried at the same trial.)

The first 6 (or 12 in a felony) people remaining after all the strikes comprise the jury. Those people are sworn in and we move to the guilt-innocence phase of the trial.

Guilt-Innocence

The guilt-innocence phase of the trial starts with opening statements by the prosecution and defense. (The defense also has the option to wait until later to make their opening statements.) Opening statements are summaries of what each side believes the evidence in the case will show, and they provide a sort of road map for the jury.

After opening statements, the prosecution puts on its "case in chief" by calling witnesses to testify. Witness testimony may lead to exhibits being admitted, such as photographs and videos, which are then shown to the jury. After the prosecution questions each of its witnesses, the defense gets an opportunity to cross examine them.

Once the prosecution has called all its witnesses, the defense may make opening statements if they did not make them at the beginning. The defense then presents witnesses and evidence if it chooses to do so. After each witness is questioned by the defense, the prosecutor will have an opportunity to cross examine the witness.

After the defense calls its last witness, the court will read the "jury charge" to the jury. The jury charge explains the law to the jury and gives them their instructions. Once the jury has been instructed, it is time for closing arguments.

In closing arguments, each side makes statements to try to persuade the jury to vote for their side. The prosecution goes first, followed by the defense. The prosecution then has a second opportunity to speak as a rebuttal to the defense. The jury then retires to the jury room to begin deliberations. Once they have reached a unanimous verdict, they are brought back into the courtroom where the verdict is announced.

if the verdict is not guilty, then the trial is complete and the defendant gets to put the nightmare behind them. If the verdict is guilty, then we move on to the punishment phase of the trial.

Punishment

Defendants can elect to have either the judge or the jury assess punishment if they are found guilty. No matter which they choose, the process is the same and is very similar to the guilt-innocence phase. Both sides can make opening statements, call witnesses, and cross-examine the other side's witnesses. Both sides make closing arguments.

The biggest difference is that while the guilt-innocence phase was narrowly limited to the event for which the defendant was charged, the punishment phase is a much broader look at the defendant. It is here that the jury hears about a defendant's criminal history (or lack of criminal history). The jurors learn about community involvement, family obligations, and events in the past that they may want to consider when determining punishment.

Q:What Happens After the Trial?

A: If you are found not guilty, then you are eligible for an immediate expunction to clear the arrest from your record. Not only will the arrest records be cleared, but you will be legally allowed to deny ever being arrested for the crime for which you were on trial.

If you are found guilty, then you will either be taken into custody or placed on community supervision (probation), depending on the sentence that was rendered. You can also file an appeal if you feel that the judge made some sort of legal error in your case. Examples of legal errors would include allowing evidence to be admitted at trial that should have been suppressed or allowing evidence in over a valid objection.

Q:How Does a Criminal Case Start?

A: After a person is arrested, the police agency that made the arrest will submit the charges to the prosecutor's office (either the County Attorney's office or the District Attorney's office, depending on which county you are in and the level of the offense). The intake department for the prosecutor will review the case and decide whether to file the criminal case. If they decide to file the case, the person will be formally charged by either an "information" in a misdemeanor case, or an "indictment" in a felony case.

Q:What Is an Information or an Indictment?

A: An information is the document that officially accuses a person of a misdemeanor crime in Texas. It is a document that the prosecutor files with the court, informing the defendant of the charges against him. An information must be signed by a prosecutor and be supported by a sworn complaint.

An indictment is the document that officially accuses a person of a felony crime in Texas. An indictment must be presented to a grand jury. The grand jury consists of twelve people. The prosecutor must convince at least nine of the grand jurors that probable cause exists that the defendant is guilty. If the grand jury decides there is probable cause, then they return a "true-bill" and the case can proceed. If the prosecutor fails to persuade at least nine grand jurors that there is probable cause, then they return a "no-bill" and the case cannot proceed. However, if the grand jury returns a no-bill, the prosecutor can resubmit the case to another grand jury.

Q:What Happens After I Am Charged?

A: Once a case has been charged, the defense needs to decide how to proceed. There are several different options, but they all start out the same way. The prosecutors will provide "discovery" to the defense attorney. Discovery is essentially all the evidence they have in the case. It is important to review the discovery with an experienced attorney, discuss strengths and weaknesses in the prosecution's case, the risks and benefits of going to trial, and the availability of other options such as plea bargains, conditional dismissals, and pretrial diversion programs. It is important for you to completely understand all your options and the risks associated with each one so that you can make an informed decision about how to proceed.

The specifics vary from court to court, but you will typically have 3-4 court settings where the prosecutors and your attorney share information and negotiate back and forth. If the case is not resolved after these settings, the court will require the case to be set for either a plea bargain or a trial. Depending on the nature of the case, there may also be additional hearings to resolve disputes over bond conditions, evidence suppression, or other legal matters.

Q:Have You or a Loved One Been Arrested?

A: If you or a loved one have been arrested, there are two urgent concerns that need to be addressed immediately. First is protecting the rights of the arrested and beginning work on their defense. Second, and equally important, is getting them released from jail so they can spend time with their loved ones, continue working at their place of employment, and go on with their life while the case is pending.

An experienced attorney can help you by advising you of your rights and counseling you about how to handle interrogations or other requests for information by the police, the press, or any other interested parties. An attorney can also work to get the arrested person released from jail. And it is critical that an attorney begin investigating the case as soon as possible.

Q:How Do I Get Out of Jail?

A: When a person is arrested, a judge will set a bail amount in the case. Bail is defined under Texas law as, "the security given by the accused that he will appear and answer before the proper court the accusation brought against him, and includes a bail bond or a personal bond."
(Texas Code of Criminal Procedure, Art. 17.01)

Texas law requires that the bail amount be set with 48 hours of the person's arrest. Bail is not intended to be punishment, but rather to make sure the person accused of a crime shows up in court to answer that accusation. Once bail is set, a person can pay the bail amount and then be released from jail. If the bail is not paid, then the person will remain in jail until their case is resolved.

Q:What Is a Bail Bond?

A: A bail bond is defined by Texas law as, "a written undertaking entered into by the defendant and the defendant's sureties for the appearance of the principal therein before a court or magistrate to answer a criminal accusation..." (Texas Code of Criminal Procedure, Art. 17.02) There are three types of bail bonds: cash bonds, surety bonds, and personal bonds.

A cash bond is a type of bond that requires a person to pay the entire bail amount to the court in order to be released from jail. Unless the bond is forfeited for some reason (such as the defendant not appearing in court when required) the person posting the bond will have their money returned after the case is resolved. (Some counties charge a processing fee which they deduct from the amount refunded.)

A surety bond is a type of bond where the bail amount is guaranteed by a licensed surety (a bail bond company). The bail bond company will charge a fee for posting a surety bond on your behalf. This fee varies, but is typically 10-20% of the bail amount, depending on the bondsman and the circumstances of the case. It is important to note that the bondsman's fee is not returned to you when the case is resolved. Bail bond companies will generally have you sign a contract that may impose several conditions, such as checking in with the company. If you violate the conditions of the contract with the bail bond company, they can ask the court to withdraw their bond. If the court allows them to go off your bond, the court will issue an arrest warrant because you are no longer on bond.

A personal bond (usually referred to as a personal recognizance, or "PR" bond) is another type of bond that does not require you to pay the bail amount to the court in order to be released from jail. With this type of bond, you are released on your promise to appear in court when required, and you will only have to pay the bail amount if you violate the terms of the bond (such as failing to appear in court when required).

Q:What Are Bond Conditions?

A: Bond conditions are requirements placed on a defendant by the judge. These conditions can take two forms. They can either require the defendant to do something, or they can prohibit the defendant from doing something. Some examples of requiring the defendant to do something while on bond are to report monthly to a pretrial supervision officer, take random drug and alcohol tests, or wear a GPS monitor. Some requirements of prohibiting a defendant from doing something while on bond would be stating that the defendant not commit any new offenses while on bond, prohibiting alcohol consumption, or prohibiting contact with a specified person.

Q:What Is a Pre-Arrest Investigation?

A: Criminal investigations are typically carried out in two phases: pre-arrest and post-arrest. Pre-arrest investigations can be simple investigations conducted on-scene by an officer, or they can be long and detailed investigations conducted by detectives. Post-arrest investigations are generally conducted by investigators working for the prosecuting attorneys.

Here is an example of a simple pre-arrest investigation. When an officer conducts a traffic stop, he is trained to also conduct an investigation and look for signs and evidence of criminal activity. When the officer is asking you questions related to the traffic stop, he is also looking for signs of intoxication, the smell of alcohol or marijuana, or any other clues of criminal activity. If the officer doesn't see any signs of criminal activity, he will conclude his investigation and wrap up the traffic violation for which you were stopped. If the officer does see something that he believes indicates a possible criminal violation, he will investigate further. For example, if he suspects the driver is intoxicated, he may have the driver exit the vehicle and conduct standardized field sobriety tests.

Other pre-arrest investigations are much longer and more involved. They may involve multiple government agencies, surveillance of suspects, and interviews with several witnesses and sources of information. With this type of investigation, it is possible that you may not even realize that you are the target of the investigation. Most people think that if they haven't done anything wrong, there is no way they can be under investigation for a crime. Unfortunately, that is not true. Innocent people are arrested every day in Texas. If a law enforcement agent wants to speak with you, it is important to consult with a criminal defense attorney before answering any questions. If you are the suspect in a crime, law enforcement officers are trained to gather evidence to support your arrest and conviction. They are not trained to be objective and to protect your interests.

Q:Do I Have to Talk to the Police?

A: Texas law requires you to give your name, date of birth, and residence address to an officer if you have been lawfully arrested and the officer requests this information. (Texas Penal Code §38.02.) Other than that requirement, you do not have to answer questions. However, it is important to consider that not cooperating carries its own set of risks. Not answering questions will keep officers from hearing your side of the story. It will most likely make them angry and can cause them to respond more harshly than they otherwise would have. And if the case goes all the way to a jury trial, it can make you look bad in front of a jury.

So you find yourself in this position... If you answer their questions, everything you say can be used against you. But if you refuse to answer the questions it makes you look bad. And that's where having an attorney representing you comes into play. Your attorney can give the investigators your side of the story without the risk of having a prosecutor twist your words in the future at trial. This also prevents you from being seen as being completely uncooperative by both the investigators and the jury.

Q:What About Miranda Warnings?

A: We've all seen the, "You have the right to remain silent. Anything you say can and will be used against you..." warnings on television. These warnings are required before police can interrogate a suspect in certain situations. They are called Miranda warnings because the requirement for these warnings comes from a case called Miranda v. Arizona which was decided by the Supreme Court in 1966.

It is a common misconception to think that your statements cannot be used against you if the police didn't advise you of your Miranda rights before questioning you. However, officers are only required to advise you of your Miranda rights if they are asking you questions while you are in custody. If they call you on your cell phone and ask questions they can use your answers against you and do not need to advise you of your rights. The same goes for them asking you to come to the police station and talk. If you can leave, then they don't need to Mirandize you before asking questions.

There are some situations where the "in custody" portion of the Miranda requirement is subject to dispute. One example is during a DWI investigation. The traffic stop begins as an "investigatory detention" (where Miranda warnings are not required) and at some point during that investigation, it turns into a custodial arrest (at which point, Miranda warnings are required). An experienced defense lawyer can review the evidence and determine whether statements made during an investigation required a Miranda warning.

Q:What Is “Straight” Probation?

A: Straight probation happens when a person is convicted, either after a trial or as a result of a guilty plea, and sentenced to spend a specific amount of time in either jail or prison. A judge can order the jail or prison sentence to be “suspended” and place the person on probation instead of serving the time in a correctional facility. The judge will impose conditions of probation that the person will have to follow while on probation. These conditions will vary depending on the county the person is in and the offense for which they have been convicted, but they typically include reporting to a probation officer, staying out of trouble with the law, performing community service, and participating in educational programs. With straight probation, the person has a conviction on their record, but avoids serving their sentence in jail or prison.

Q:What Is “Deferred Adjudication” Probation?

A: Deferred adjudication probation avoids not only serving jail or prison time, but also avoids having the conviction on your record. With deferred adjudication, a person pleads guilty to the offense they have been charged with, but instead of finding the person guilty and sentencing them, the judge defers a finding of guilt and places them on deferred adjudication probation for a set amount of time. Essentially, what the judge is saying is that I could find you guilty right now, but I'm going to set that on the shelf over here for this amount of time. If you do everything you're supposed to do and stay out of trouble, at the end of that time I will dismiss your case.

Q:What Happens if I Violate the Terms of My Probation?

A: For both types of probation, getting arrested for a new charge or violating any of the conditions of your probation can cause serious problems. If this happens, the State can ask the judge to terminate your probation. What happens next depends on whether you are on straight or deferred adjudication probation. For straight probation, the State will file a motion to revoke probation. If you are on deferred adjudication, the State will file a motion to proceed to adjudication. In either case, you will be entitled to a hearing where the State will have to prove to the judge that you violated a condition of your probation. If the judge finds that you violated the probation, the judge will impose a sentence. For straight probation, the judge can sentence you up to the amount of your original sentence which was suspended. For deferred adjudication, there was no sentence imposed, so the judge can find you guilty and sentence you to any amount of time within the range of punishment for the offense, as well as impose a fine up to the maximum for the offense.

Q:Can I Get Off Probation Early?

A: In most cases, Texas law allows for the early termination of probation. However, the decision is completely at the judge's discretion and a judge can deny early release from probation even if the probationer meets all of the requirements.

The rules for early release depend on whether a person is on straight or deferred adjudication probation.

Early Release from Straight Probation

For straight probation, the judge may (but is not required to) terminate the probation early if the probationer meets the following requirements:

Completed at least one-third of the probation period or two years, whichever is less (many judges will not consider motions for early termination of probation until the probationer has served half of the probation period);
Not delinquent in the payment of restitution, fines, fees, or court costs (most judges require these fees to be completely paid off before they will grant early termination);
All court-ordered treatment, counseling, classes, and community service must be complete; and
Must not have been convicted of a disqualifying crime. Disqualifying crimes are:

offenses under Sections 49.04-49.08, Penal Code (this includes DWI and related intoxication offenses);
offenses that require registration as a sex offender; or
a felony described by Article 42A.054.

Early Release from Deferred Adjudication Probation

For deferred adjudication probation, the judge may (but is not required to) terminate the probation and dismiss the case at any time if the judge determines that doing so is in the best interest of society and the defendant. There is no minimum time or waiting period. The only limitation on this is that the judge may not terminate the probation early if the person has been charged with a crime that would require them to register as a sex offender.

It is important to note that as a matter of personal policy many judges will impose the same requirements for an early release from deferred adjudication as from straight probation.

Q:What Is Deadly Force?

A: Deadly force is defined under Texas law as, “force that is intended or known by the actor to cause, or in the manner of its use or intended use is capable of causing, death or serious bodily injury.”

Serious bodily injury is defined as, “bodily injury that creates a substantial risk of death or that causes death, serious permanent disfigurement, or protracted loss or impairment of the function of any bodily member or organ.”

You can read the full text of the laws related to self-defense in Texas HERE.

If you or a loved one have been charged in connection with a defensive use of force, call us to talk to an attorney about how the law applies in your specific situation.

Q:Do I Have to Retreat Before Using Deadly Force?

A: In most circumstances, Texas law does not require you to retreat before you can legally defend yourself.

Texas law states that “a person who has a right to be present at the location where the deadly force is used, who has not provoked the person against whom the deadly force is used, and who is not engaged in criminal activity at the time the deadly force is used is not required to retreat before using deadly force…”

If you meet these requirements, the jury isn't even allowed to consider whether you could have retreated when they are deciding if your conduct was reasonable.

You may still see some references to old laws that require a person to retreat before using deadly force. This is because the laws about a duty to retreat have changed several times. Before 1974, there was no duty to retreat in Texas. In 1974, the law introduced a duty to retreat and allowed the use of deadly force only if a reasonable person in the same situation would not have retreated. In 1995, Texas law changed again to remove the duty to retreat if a person was in their home. In 2007, the law once again changed and removed the duty to retreat in all locations where a person has a right to be present, subject to the limitations discussed above.

Q:Defense of Property

A: A person is justified in using force against another if the person reasonably believes the force is immediately necessary to prevent or terminate the other person's trespass on the person's land or unlawful interference with the person's property.

A person who is unlawfully dispossessed of land or tangible, movable property by another is justified in using force against the other if the person reasonably believes the force is immediately necessary to reenter the land or recover the property, but only if the person uses the force immediately or in fresh pursuit after the dispossession. The use of force in this situation also requires that the person reasonably believe the other had no claim of right to the land or property or that the other person took the land or property by using force, threat, or fraud against the actor.

A person is justified in using deadly force against another if the person reasonably believes the deadly force is immediately necessary to prevent the other's imminent commission of arson, burglary, robbery, aggravated robbery, theft during the nighttime, or criminal mischief during the nighttime. The use of deadly force in this situation also requires that the person reasonably believe the land or property cannot be protected or recovered by any other means or that the use of force other than deadly force to protect or recover the land or property would expose the person or another to a substantial risk of death or serious bodily injury.

A person is justified in using deadly force against another to protect land or tangible, movable property if the person reasonably believes the deadly force is immediately necessary to prevent the other who is fleeing immediately after committing burglary, robbery, aggravated robbery, or theft during the nighttime from escaping with the property. The use of deadly force in this situation also requires that the person reasonably believe the land or property cannot be protected or recovered by any other means or that the use of force other than deadly force to protect or recover the land or property would expose the person or another to a substantial risk of death or serious bodily injury.

Q:Defense of Another Person

A: A person is justified in using force or deadly force against another to protect a third person if under the circumstances as the person reasonably believes them to be, they would be justified using force or deadly force to protect themself and they reasonably believe that their intervention is immediately necessary to protect the third person.

Q:Self Defense

A: A person is justified in using force against another if they reasonably believe the force is immediately necessary to protect them against the other's use or attempted use of unlawful force.

A person is justified in using deadly force against another if they reasonably believe the deadly force is immediately necessary to protect them against the other's use or attempted use of unlawful deadly force. Deadly force is also justified if a person reasonably believes that the use of deadly force is immediately necessary to prevent the imminent commission of aggravated kidnapping, murder, sexual assault, aggravated sexual assault, robbery, or aggravated robbery.

Typically, self-defense claims hinge on whether a jury believes the use of force or deadly force was reasonable and immediately necessary under the specific facts of the situation. However, there are some situations where the use of force or deadly force is specifically prohibited under Texas law. These include:

In response to verbal provocation alone
To resist an arrest or search
If you consented to the force used against you
If you provoked the other person's use of force against you
If you seek to talk to someone about your differences while you are illegally carrying, possessing, or transporting a weapon
If you recklessly injure or kill an innocent third party while using justifiable force or deadly force against an assailant

Q:Defensive Use of Force – Self Defense Laws

A: The use of force or deadly force to protect people and property is justified under Texas law in certain circumstances. A claim of self-defense is essentially an argument that your conduct was justified due to the specific situation in which you used force or deadly force.

This page provides a brief overview of Texas law regarding self-defense. However, the laws governing the use of force are complicated and have several limitations. You should consult with an experienced attorney to find out how the law applies in your specific situation.

Q:How Can You Fight a DWI Charge?

A: It can be easy to think that just because an officer said you failed the field sobriety tests and your breath score was over the limit that there is no way to fight the case against you. However, an experienced DWI attorney can almost always find problems with the State's evidence. Did the officer perform the field sobriety tests correctly? (They frequently do not!) Did the officer even have a reason to pull you over in the first place? Is there a medical or other reason to explain your performance? Was the breath test machine working properly? Is there a problem with the search warrant? These are just a few of the many things that I look at in every DWI case.

Every case is different. No attorney can promise you a particular outcome. But I begin every DWI case by critically evaluating the State's evidence and conducting my own investigation to look for ways to get the case dismissed. I cannot promise a certain outcome, but I can promise to work hard for you, to give you an honest evaluation of your situation, and explore every option to either have your case dismissed or to win at trial.

If you would like to discuss your case with an attorney, call my office for a free consultation and I will review the information and call you to discuss your case.

Q:Can My Driver’s License Be Suspended?

A: After a conviction for DWI, your license may be suspended as described in the sections above. However, the Department of Public Safety can use the Administrative License Revocation process to suspend your license independently of the criminal case if you either refuse to provide a breath or blood sample or if you provide a sample that shows an alcohol concentration of 0.08 or higher. This suspension will happen automatically if you do not request an administrative hearing within 15 days of receiving notice of the Department's intention to suspend your license! Notice is usually provided during the DWI arrest which starts the 15-day clock, so it is important to obtain legal help right away.

The suspension period for refusing the blood or breath test is 180 days for a first-time offense. If your license has previously been suspended for failing or refusing a test or previously suspended for a DWI, Intoxication Assault, or Intoxication Manslaughter conviction during the 10 years preceding the date of arrest then the suspension period is 2 years.

The suspension period for providing a blood or breath test sample with a result over 0.08 is 90 days for a first-time offense. If your license has previously been suspended for failing or refusing a test or previously suspended for a DWI, Intoxication Assault, or Intoxication Manslaughter conviction during the 10 years preceding the date of arrest then the suspension period is 1 year.

Q:What Are the Potential Penalties for DWI?

A: The offense of DWI can be charged in many different ways depending of the specific situation. The sections below discuss the penalties for various types of DWI offenses.

For all DWI offenses, the state legislature enacted new offense-specific fines in 2019. These fines are commonly called the "DWI Super Fine" and they are either $3,000 for the first offense within a 36 month period, $4,500 for a second offense within 36 months, or $6,000 if a blood or breath test shows an alcohol concentration of 0.15 or higher.

First DWI

A "regular" first-time DWI offense is a class B misdemeanor. All class B misdemeanors carry a maximum punishment of 180 days in the county jail and a fine of up to $2,000. However, a class B DWI conviction also includes a minimum sentence of 72 hours. If the person operating the motor vehicle had an open container of alcohol within their "immediate possession" then the minimum sentence is increased to 6 days.

Additionally, a first DWI conviction will result in a driver's license suspension of between 90 days and one year unless you are required to take the Texas DWI Education Program as a condition of probation and you complete the program within 180 days of your conviction. If placed on probation for DWI, a judge may require you to have an interlock device placed on your vehicle while you are on probation, along with other conditions of probation.

If a blood or breath test was taken and the results show an alcohol concentration of 0.15 or greater, then the DWI is enhanced to a class A misdemeanor. All class A misdemeanors carry a maximum punishment of 1 year in the county jail and a fine of up to $4,000. It is interesting to note that a DWI enhanced to a class A misdemeanor does not have a minimum sentence of 72 hours (although the 6 day minimum for an open container will still apply if applicable). If placed on probation for a DWI with an alcohol concentration of 0.15 or greater, then the judge must require you to have an interlock device installed on your vehicle. All other consequences remain the same.

If there is a child under 15 years of age in the car, then the DWI is enhanced to a State Jail Felony. A State Jail Felony has a punishment range of 180 days to two years in a state jail and a maximum fine of $10,000. Child Protective Services may also become involved as the Texas Department of Family and Protective Services considers a DWI with a child passenger offense to be a form of neglect under the Family Code.

Second DWI

If you have previously been convicted of a DWI, then a second DWI is a class A misdemeanor. As with all class A misdemeanors, the maximum punishment is up to a year in the county jail and a fine of up to $4,000. A second offense DWI has a minimum sentence of 30 days.

Although community supervision is generally available for second DWI convictions, the jail time for a second DWI cannot be completely probated. A person placed on probation after being convicted of a second DWI will have to spend a minimum of 3 days in jail as a condition of their probation if their first DWI conviction was more than 5 years prior to the new offense. If the first DWI conviction was within the past 5 years they will be required to serve a minimum of 5 days in jail as a condition of probation and will also be required to have an ignition interlock device installed on their vehicle.

The length of the driver's license suspension resulting from a second DWI conviction varies based on how long it has been since the previous conviction. If the previous DWI was more than 5 years before the new offense, then the suspension period is from 180 days to 2 years. If the previous DWI was within the past 5 years, then the suspension period is from 1 year to 2 years.

Third (or More) DWI

If you have previously been convicted of two or more DWI offenses, then a third (or subsequent) DWI is a third-degree felony. The punishment range for a third-degree felony is from 2 to 10 years in prison and a fine of up to $10,000. A conviction for a 3rd DWI will result in a two-year driver's license suspension. If placed on probation, you will be required to serve a minimum of 10 days in jail as a condition of probation and you will be required to install an interlock device on your vehicle. You will almost certainly have several additional conditions of probation related to alcohol monitoring and treatment.

Intoxication Assault

If the police believe that you were driving while intoxicated and caused serious bodily injury to someone, then you can be charged with intoxication assault.

Intoxication assault is a third-degree felony. The punishment range for a third-degree felony is from 2 to 10 years in prison and a fine of up to $10,000. If placed on probation for this offense you will be required to serve a minimum of 30 days in jail as a condition of probation and will be required to have an ignition interlock device installed on your vehicle. An intoxication assault conviction may result in a driver's license suspension of 90 days to 1 year.

Intoxication Manslaughter

If the police believe that you accidentally killed someone while you were driving while intoxicated, then you can be charged with intoxication manslaughter.

Intoxication manslaughter is a second-degree felony, which carries a punishment ranging from 2 to 20 years in prison and a fine of up to $10,000. If placed on probation for this offense you will be required to serve a minimum of 120 days in jail as a condition of probation and will be required to have an ignition interlock device installed on your vehicle. An intoxication manslaughter conviction may result in a driver's license suspension of 180 days to 2 years.

Q:What Is the Difference Between DWI and DUI?

A: Although many states use DUI to describe the same offense that we call a DWI in Texas and many people use the terms interchangeably, under Texas law there is a significant difference between the two.

DWI refers to operating a motor vehicle in a public place while intoxicated. Both minors and people who are 21 or older can be charged with DWI.

DUI is essentially another version of the DWI statute, but only for minors and only for alcohol. DUI makes it a crime for a minor to operate a motor vehicle while having any detectable amount of alcohol in the minor's system. DUI only applies to people who are under 21 at the time of the offense. Unlike DWI, DUI does not require the minor to be intoxicated. Operating a motor vehicle while having any detectable amount of alcohol is enough to commit the offense. DUI does not apply to impairment caused by any substance other than alcohol. DUI is defined in the Texas Alcoholic Beverage Code, Chapter 106, Section 106.041 and is a class C misdemeanor unless it is enhanced due to previous offenses.

Q:What Is “Intoxication” Under Texas Law?

A: In Texas, if you are at least 21 years old, it is not illegal to have a drink and then drive. It is illegal to drive while you are intoxicated. The obvious question then becomes, what does "intoxicated" mean?

Texas law defines intoxicated as any one or more of the following:

Having a blood, breath, or urine alcohol concentration of 0.08 or higher; or
Not having the normal use of your mental faculties due to the introduction of alcohol or any other substance into your body; or
Not having the normal use of your physical faculties due to the introduction of alcohol or any other substance into your body

The State only has to prove that you meet one of these three definitions. For alcohol concentration, they will point to lab reports or breathalyzer results showing a blood or breath concentration or the presence of drugs. For loss of physical and mental facilities, the evidence is usually officer testimony combined with dash or body camera footage showing poor driving, loss of coordination, and slurred speech.

An experienced DWI trial attorney can evaluate all of the State's evidence of intoxication and determine the best way to proceed with your case. Attorney Rob Keating has successfully attacked the State's evidence in numerous DWI cases, resulting in dismissals, reduction of the charge to a lesser offense, and not guilty verdicts at trial.

Q:Have You or a Loved One Been Arrested for Driving While Intoxicated (DWI)?

A: Honest, law-abiding citizens are arrested every day in Texas on suspicion of driving while under the influence of alcohol or drugs. Anyone who drinks alcohol or takes medication prescribed by their doctor and then drives a vehicle can find themselves accused of this crime. Depending on the specifics of the situation, a DWI can be charged as anything from a class B misdemeanor to a third-degree felony.

DWI charges can have serious consequences. In addition to potential jail time and fines if convicted, you might also be facing an administrative driver's license suspension that will happen automatically unless contested within 15 days of your arrest. If you have been charged with driving while intoxicated, you need legal representation right away. You can call my office for a free consultation with me and I will review the information and call you to discuss your case.