Driving While Intoxicated

Driving While Intoxicated (DWI) is one of the most common criminal offenses in Texas. It is also one of the most complicated criminal offenses, as it generally involves video and audio evidence, subjective field sobriety tests, and highly scientific laboratory evidence. 


Most people charged with DWI have no prior criminal history. However, a conviction for even a first-time DWI can cause many long-term serious problems for you, including loss of employment, inability to obtain employment, loss of your professional licenses or certifications, a suspension or revocation of driving privileges, mandatory alcohol abuse treatment, jail time, years of probation, community service, thousands of dollars in fines and driver’s license surcharges, and a hefty increase in your insurance rates.


Given the complicated nature of a DWI case and the possible severe consequences of a conviction, it is very important that you retain an experienced and skilled attorney who is knowledgable in all areas of DWI defense.


Driving While Intoxicated Laws


Section 49.04 of the Texas Penal Code states: “A person commits an offense if the person is intoxicated while operating a motor vehicle in a public place.”


Texas law defines intoxication 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 0.08 or more.” 


In other words, there are three different ways to prove intoxication, and you can still be found guilty of a DWI even if there is no breath or blood test to show your alcohol concentration at the time of driving. 


In fact, contrary to popular opinion, you can even be found guilty of a DWI if your breath or blood test is UNDER the legal limit!




Also, operating a vehicle does not necessarily mean you must be driving a vehicle. Sitting in a parked vehicle with the engine running is considered “operating” a vehicle under Texas law, and I have represented clients in DWI cases who were arrested and accused of DWI simply because they were sitting in a running vehicle that was parked and not even moving.


Range of Punishment


A first-time DWI charge is a Class B misdemeanor if the breath or blood test shows an alcohol concentration under 0.15. If the breath or blood test shows an alcohol concentration of 0.15 or greater, a first-time DWI charge is enhanced to a Class A misdemeanor.


A Class B misdemeanor carries a punishment of up to 180 days in jail and/or a fine of up to $2,000.00, while a Class A misdemeanor carries a punishment of up to 365 days in jail and a fine of up to $4,000.00. A conviction for a first DWI also requires a minimum jail sentence of 72 hours (or 6 days in jail, if an open container of alcohol was present in your vehicle).


A second DWI charge is a Class A misdemeanor, and requires a minimum jail sentence of 30 days. Furthermore, if placed on probation for a second DWI, you are required to serve a minimum of 3 or 5 continuous days in jail as a condition of your probation, and this jail requirement cannot be waived by the Court.


A third DWI charge is a 3rd degree felony, and carries a punishment of between 2-10 years in prison and a fine of up to $10,000.00. If placed on probation for a third DWI, you are required to serve a minimum of 10 continuous days in jail as a condition of your probation, and this jail requirement cannot be waived by the Court.


Driver’s License Suspension


When you are arrested for a DWI offense, there are actually two cases brought against you. The State will file a criminal case against you, and the Texas Department of Public Safety (DPS) will also file an administrative case against you, seeking to suspend your license if you failed or refused the breath or blood test. This is called an Administrative License Revocation (ALR) case. 


For a first-time DWI offense, you will be facing a driver’s license suspension of 90 days if you failed the breath or blood test, or a suspension of 180 days if you refused a breath or blood test. If you are facing a repeat DWI charge, the period of suspension can increase significantly.


A skilled and experienced DWI lawyer will request a hearing in your ALR case, receive and review the evidence produced by DPS, and do everything possible to win your ALR hearing so that you do not face a suspension of your driving privileges. 


However, even if your driving privileges do get suspended as a result of the ALR case, in most cases we can obtain for you an Occupational Driver’s License so that you can continue to drive your vehicle for essential needs during the period of suspension.


You only have 15 days from the date of your arrest to request an ALR hearing. If we don’t request the ALR hearing by that deadline, you will face an automatic suspension of your driver’s license with no opportunity for a hearing to contest the suspension. 


Therefore, it is crucial you contact me immediately to avoid missing that deadline.




Types of Evidence in a DWI Case


There are many types of evidence used against you in a DWI case. These include the following:




  • Testimony of police officers regarding your driving behavior prior to being pulled over

  • Testimony of police officers that you had an odor of alcohol on your breath, bloodshot or droopy eyes, slurred speech, and/or unsteady balance

  • Any statements or admission you made prior to or after your arrest regarding how much you drank, how intoxicated you felt, etc.

  • Results of field sobriety tests performed at the scene and/or at the jail after you were arrested

  • Results of a breath or blood test administered after you were arrested



A skilled and experienced DWI lawyer can review and analyze this evidence and find any inconsistencies or other problems that lessen the credibility of the evidence against you. 


Remember, field sobriety tests are often administered incorrectly, and poor performance on those tests often can be explained by things other than intoxication. 


Furthermore, breath or blood test results are not 100% accurate, and they are administered sometimes hours after you were operating your vehicle. 


Therefore, if a breath or blood test result is over the legal limit, it does not necessarily mean your alcohol concentration was above the legal limit when you were driving your vehicle, hours before the breath or blood sample was taken.


Search Warrants to Obtain a Blood Sample


Unless you are absolutely, 100% sure you are below the legal limit of 0.08, you should always refuse a breath or blood test if arrested and accused of a DWI charge. 


However, even if you refuse those tests, in most cases the police officer who arrested you will obtain a search warrant to obtain a sample of your blood without your consent.


Many times, police officers make mistakes when applying for these search warrants. In fact, I have caught officers flat-out lying on search warrant affidavits, or fabricating evidence to obtain a search warrant for blood evidence. 


A skilled DWI attorney will scrutinize the search warrant affidavit to determine if there are any mistakes or outright lies contained in it, which may require the blood sample results to be thrown out of court. 


If the prosecutor cannot use your blood test due to problems with the search warrant used to obtain it, the DWI case may have to be reduced or even dismissed. Therefore, it is crucial you retain an experienced DWI defense attorney who has the skills and knowledge to spot these legal issues.


How to Beat a DWI Charge


There are several ways a skilled, experienced, and knowledgable criminal defense attorney can win your DWI case and prevent you from getting a DWI conviction on your criminal record.


First, if my review of the evidence shows that the police officer had no legal reason to pull your vehicle over - and if the Judge agrees with my argument - then all the evidence in your case must be thrown out of Court, and the DWI case will be dismissed.


Second, if the evidence of intoxication in your case is weak, or if the State cannot prove you were operating your car (for example, if you were involved in a one-car accident and no one witnessed you driving your vehicle), then the DWI case may be dismissed or reduced to a lesser charge that does not go on your criminal record.


And, finally, you always have the right to a jury trial. The State must prove your guilt beyond a reasonable doubt, which is the highest burden of proof required under the law. If any reasonable doubts exist regarding whether you were operating a vehicle while intoxicated, a jury must find you “not guilty” and acquit you of the charge, meaning you are not convicted and the DWI charge does not go on your criminal record.


So, if you are facing a DWI charge in Texas, contact me today so I can discuss the facts of your case with you, answer any questions you have, and explain to you the strategies to defend your case and the options available to resolve your DWI charge.

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