Over the last few decades, law enforcement has more aggressively targeted drivers who police officers believe are driving while intoxicated. While we have all seen the signs that say “Drink, Drive, Go To Jail,” this is not the law. While it can be debated as to whether it is a good idea to drive after having a drink, it is not illegal for an adult over the age of 21 to drive after consuming alcohol so long as that person is not intoxicated.
How can they prove that you were driving while intoxicated?
Driving While Intoxicated is a criminal charge that means you were operating a motor vehicle in a public place while intoxicated. The prosecutors can prove intoxication in any of the following three ways: (1) you lost the normal use of your physical faculties due to the introduction of alcohol or another drug into your body; (2) you lost the normal use of your mental faculties due to the introduction of alcohol or another drug into your body; or (3) you have a breath or blood alcohol concentration of 0.08 or higher.
What are the penalties if I am convicted of DWI in Texas?
The penalties for a DWI conviction vary depending upon whether there are prior convictions, and the results of any blood or breath test.
- DWI 1st – a first time DWI is a Class B misdemeanor, which carries a punishment range of up to 180 days in jail and a $2,000 fine. This can also result in a driver's license suspension for up to one year. If the blood or breath test result is a 0.15 or higher, then a first time DWI can become a class A misdemeanor, where the punishment range is up to one year in jail and a $4,000 fine. In many cases, you may qualify for probation, but even a probation is a permanent conviction that will never be removed from your record. In more limited circumstances, you may qualify for certain diversion programs which may give you the ability to get the DWI charge removed from your record. Call us and we can explain how this works.
- DWI 2nd – if you have a prior DWI conviction, then your second DWI charge will be a Class A misdemeanor, which carries a maximum penalty of one year in jail and a $4,000 fine. A conviction for a second DWI also can subject you to a two year driver's license suspension. Even if you qualify for a probation on a DWI 2nd, you still will have to do a certain amount of jail time.
- DWI 3rd – if you have two prior DWI convictions, then your third DWI charge will be a Third Degree Felony, which carries a punishment range of two to 10 years in prison and up to a $10,000 fine. In some situations you may qualify for a probation, but this will require at least 10 days in jail that you will have to do as part of your probation, and many local judges will not allow you to drive at all if you are on a DWI 3rd probation.
- DWI with Child Passenger – A person who is driving while intoxicated with a child younger than 15 years old in the car that person can be charged with Driving While Intoxicated with Child Passenger. This is a State Jail Felony, which carries a punishment range of six months to two years in a State Jail Facility. In some circumstances a person may qualify for a probation. It is important to note that a probation for this charge is still a permanent felony conviction that will label you a felon for the rest of your life.
They took my driver's license. Does that mean that my license is suspended?
Not if you act quickly. The Texas Department of Public Safety will try to suspend your driver's license if you are arrested for DWI. You have 15 days from the date of your arrest to demand an Administrative License Revocation (“ALR”) Hearing. If you do not file the proper paper work in time, your license will be suspended. If, however, you demand a hearing and file the proper paper work, your license will not be suspended until a hearing takes place. We can go to the hearing on your behalf and fight for your driver's license and prevent a driver's license suspension from taking place.
What is the difference between a DWI and a DUI?
While there is a common misconception that a DWI (“Driving While Intoxicated”) is for alcohol and a DUI (“Driving Under the Influence”) is for drugs, that is not the case in Texas. In Texas, a DUI is when a minor (under 21 years old) operates a motor vehicle with any detectable amount of alcohol. The minor does not necessarily have to be intoxicated to receive a DUI. A DWI, as described above, applies to anyone of any age who operates a motor vehicle while intoxicated. So anyone who operates a motor vehicle while intoxicated can be charged with DWI, but only a minor can be charged with DUI.
How does breath testing and blood testing affect my case?
Do not be fooled by law firms that aggressively market on billboard, radio and through cleverly worded slogans about whether you should or should not provide a breath sample. At the end of the day, a breath test or blood test is simply another piece of evidence. And in some situations, you may not have a choice. In Harris County, for example, if you do not volunteer to provide a breath test, the police officer will obtain a search warrant for your blood. Other counties also have “no refusal” programs in place on weekends and around holidays. These programs make it quicker and easier for officers to obtain search warrants that allow officers for forcibly take a blood sample from someone suspected of driving while intoxicated. The good news is that like any other piece of evidence, these tests can be successfully attacked at trial by an experienced defense lawyer.
While law enforcement in Texas used to use a device called an Intoxilyzer 5000 to do breath tests, these outdated machines have been phased out and replaced with the newer Intoxilyzer 9000. The basic theory behind how the machines work remains that same. When you blow into the device, air is captured in a small tube. An infrared light is then shined into the tube, and a device measures the amount of light at the end of the tube. The theory is that alcohol will absorb some of the light, so if there is alcohol in the breath, less light will get through. The problem is that other substances absorb light at a similar rate to alcohol. Further, mouth alcohol and other interferents can lead to artificially high results. Simply put, the machine is better at detecting whether alcohol is present than it is at determining the precise amount of alcohol that is in the breath. We have the experience to spot these and other problems that exist in the breath test machine.
Blood testing is done through a process called gas chromatography. For this process to work properly, the machine must separate alcohol from all other substances that can be found in the blood. Because human blood contains thousands of substances, this is no easy task. If the alcohol is not properly separated, then the results are useless. Further, the text book that is used to train blood analysts warns that in some situations certain microbes can actually create alcohol in the test tube before the blood is tested, which will result in an artificially high reading. While there are a lot of law firms who will gladly take your money to handle your DWI, you need to hire a lawyer who has the experience to challenge these tests in court. We have that experience and have successfully defended people charged with DWI who have given a breath or blood sample to law enforcement.
When he was a prosecutor, Ed McClees helped train misdemeanor prosecutors and police officers on how to investigate and prosecute DWI crimes. Ed also trained prosecutors and police officers how to write search warrants. As a defense lawyer, Ed has successfully obtained dismissals and not guilty verdicts for those charged with DWI crimes. While we cannot guarantee the results in any case, we can guarantee that we will put our years of experience and knowledge of the law and science associated with DWI cases to work for you. Call for a free consultation on your case.