Have you or a loved one been arrested for driving while intoxicated (DWI)?
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 at 888-403-0383 for a free consultation with me, or you can fill out THIS FORM and I will review the information and call you to discuss your case.
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.
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.
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.
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.
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.
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.
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 range 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.
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.
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 at 888-403-0383 for a free consultation, or you can fill out THIS FORM and I will review the information and call you to discuss your case.