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Attorney at Law

1002 Rio Grande
Austin, Texas 78701

Phone answered
24 Hours a Day



Driving While Intoxicated is the crime most likely to affect the average citizen.  The ramifications of a conviction of a DWI are very serious.  In addition to the sentence imposed upon conviction, a Defendant's automobile insurance rates can skyrocket and any arrest for another DWI will have very, very serious consequences.

The Texas Penal Code states that "A person commits an offense if the person is intoxicated while operating a motor vehicle in a public place."  Intoxication is defined as "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 having an alcohol concentration of .10 or more" in a person's breath, blood or urine.  A first time DWI is a Class B misdemeanor, punishable by up to 6 months in jail and up to a $2,000 fine.  A second DWI conviction is a Class A misdemeanor punishable by up to 1 year in jail and a $4,000 fine.  Third DWIs are 3rd degree felonies, punishable by up to 10 years in a Texas prison.  A person can be charged with a second DWI if they have been convicted of a DWI within the past 10 years.  A person can be charged with a felony DWI, if the second DWI occurred any time within the past 10 years, regardless of how many years have passed from the first DWI conviction.  A person who is arrested for a DWI also faces the imminent loss of driving privileges in a proceeding know as Administrative License Revocation (ALR), although it is possible to get an occupational driver's license to drive back and forth from work.  This revocation is a parallel civil procedure and is based upon a Defendant's having a breath or blood test result of .10% or higher, or based on the failure to take the test.

There are several important concepts of which to take note.  First you must be operating a vehicle in a public place.  Several years ago, the law required that you had to be operating a motor vehicle on a public street or highway.  On occasion, when a person was arrested for DWI in a parking lot of a school or commercial establishment or on the beach, the charges ultimately were dismissed.  That is no longer the case.

Next you must determine whether a person was operating a motor vehicle.  The answer is obvious if a person is driving down the street, but what happens if a driver is sitting (or passed out) in a car with the motor either running or off.  If the motor is off, there is a good chance that the courts will find that the vehicle was not being operated, but it is less clear if the engine was running.  Other questions arise if a person is involved in a single car accident (say, running off the road into a tree).  Two questions must be addressed in a case such as this.  The first is how does the State prove who was driving at the time of the crash, and second, how do they determine whether the driver was intoxicated at the time of the actual driving?

The vast majority of DWI arrests result from an officer following a motorist down the highway.  In those cases, how is it determined whether a person was intoxicated.  It is important to note that the definition of intoxicated is not the same as what most people would consider drunk.  A driver must only lose the "normal use of mental or physical faculties . . ."  Prosecutors are very careful to point out this difference to jurors, and try to minimize the needed affect of the alcohol on a person to obtain a conviction.  Thus a driver's defense that "I am usually a lot worse" generally will not win any sympathy from prosecutors, jurors or judges.  You should also be aware that the taking medication that makes you more susceptible to the effects of alcohol is not a defense either.  Thus if you are on medication and have only one beer, the jury is entitled to find you guilty because you were intoxicated from both drugs and alcohol.  Williamson County prosecutors have convinced judges there to instruct juries that if lack of sleep or the lateness of the hour makes a driver more susceptible to the effects of alcohol, then they can find you guilty of DWI.  Time will only tell whether this will be upheld on appeal.  Factors that help determine whether you have your normal mental and physical faculties include how you were driving immediately prior to being stopped, how you performed on the agility tests the officer gives out at the scene, and how those tests are performed at the station house, if the officer allows you to do them again for recording on video tape.

The second way that you can be declared to be intoxicated is by having a breath test result of higher than .10%.  On occasion, the police request a blood test to determine alcohol concentration.  The law also allows for urine testing, but I have never seen a law enforcement officer use this test.  The law says that if your breath or blood shows an alcohol level higher than .10%, then you are guilty of a DWI, regardless of whether you lost your normal mental or physical faculties.  The issue of the trial then becomes what the results of the test would have been at the time of the actual driving, since these tests are usually performed some time later.  Also, the accuracy of the machine can be challenged for several reasons.  If there is some evidence that you had not lost your normal use of your mental or physical faculties, then an argument can be made that the test machine was not operating properly.  This argument is easiest to use if there is a very high test result which should make physical and mental impairment obvious, and such a level of impairment was not apparent to those around a Defendant.  (For more information on whether to take the breath test, please see You and the Breath Test.)

As most DWI arrests are made without a warrant, a Defendant is entitled to a pre-trial hearing, at which time, the prosecution, generally through testimony by the arresting officer, must show the court that probable cause existed not only to stop the Defendant but to give the Defendant the DWI Field Sobriety Tests and later, any breath or blood test.  This gives a Defendant and the defense attorney the first real opportunity to see what the evidence is going to look like at trial.  After evaluating this evidence, a decision needs to be made whether to plea bargain with the State, or to set the case for a judge or jury trial.

It would be very unusual for a person who is charged with a first time DWI to actually be sentenced to jail.  Usually, a Defendant receives a suspended jail sentence and is placed on probation for two years.  Among the usual conditions of probation, a Defendant is ordered not to consume any alcohol or use any illegal drugs, to do drug and alcohol counseling as indicated by a drug and alcohol evaluation, to work at a job or go to school, and to do a specified number of hours of volunteer work.  If you are convicted for a first DWI and are placed on probation, you keep your driver's license as long as you complete certain counseling classes.  If you convicted on a second DWI, your chances of going to jail are very good, and in addition, your driver's license will be suspended, usually for 1 year (although you would be entitled to get an occupational license).  Things are exceptionally bleak if you get a second DWI while still on probation for the first.  And those convicted of their third DWI face a possible prison sentence.

As can be seen, the consequences of being arrested for a DWI are very dire.  Most DWI arrests result in convictions.  There are a number of things than can be done, however, to attempt to avoid a conviction.  As pointed out above, the pre-trial hearing is a crucial part of a defense strategy to see whether or not the State can prove their case beyond a reasonable doubt.  If it turns out that the pre-trial shows problems with the State's case, the State sometimes will agree to a disposition other than a DWI conviction.  These dispositions range from a plea to several traffic tickets, to an informal probation, to a plea to a lesser misdemeanor such as reckless driving.  Whether a prosecutor offers such a lesser plea will depend upon how the prosecutor evaluates the evidence and whether the prosecutor believes the defense attorney is serious about trying the case.  In those instances where a plea is offered to a non-DWI offense (or in the event of an acquittal after trial), the criminal records related to the DWI charge can be erased from a person's record.  (For more information, please see Expunction of Criminal Records.)

From the brief outline above, I hope that you understand how important it is to get competent, experienced legal counsel to guide you through the maze of DWI law, if you or a loved one is ever arrested for DWI.

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