If you have been arrested for DWI in Fort Worth, Arlington, Mansfield or in the surrounding cities of Tarrant County, and you have been previously convicted of two previous DWI’s, you are facing a serious criminal charge that carries with it a 3rd degree felony punishment range of a minimum of 2 years up to 10 years in the Institutional Division of the Texas Department of Corrections (prison).
Facing the prospect of a Felony DWI is a serious matter that requires you to take immediate action on the following:
- Hire an experienced and aggressive DWI attorney with a proven track record of fighting DWI cases to explain the process of what to expect in court and possible legal defenses to your felony DWI charge.
- Research Texas DWI law as it relates to what the State of Texas must prove beyond a reasonable doubt to convict you. It is critical that you take ownership of your DWI defense so that you can partner with your DWI lawyer to achieve a favorable result.
In addition to outlining what Texas DWI law states about the crime of felony DWI, we will also take a few minutes to answer some common questions people ask regarding felony DWI charges.
DWI 3rd (or more) Offense
If you have been arrested and charged with a DWI and have been previously convicted of two or more DWI’s, you could be facing a third degree felony DWI charge that imposes a prison sentence of up to 10 years and up to $10,000 in fines. The probation requirements for a felony DWI are demanding. In addition to a driver’s license suspension, felony DWI probation may require community service, drug and/or alcohol treatment and classes, court-ordered alcohol detection devices (ignition interlock device) installed at your expense on your vehicle, and the prospect of incarceration in the Tarrant County jail as a condition of your probation. Read our post on how multiple DWI penalties in Texas stack up.
DWI With a Child Passenger
If you have been arrested and charged with a DWI and, at the time of the offense, a minor under the age of 15 was in the vehicle, you could be facing a State Jail Felony DWI charge that imposes a prison sentence of up to 2 years in the Texas State jail facility and up to $10,000 in fines.
If you have been arrested and charged with this DWI-related offense and an accident occurred that resulted in someone receiving serious bodily injury (serious permanent disfigurement or protracted loss or impairment of the function of any bodily member or organ), you could be facing a third degree felony that imposes a prison sentence of up to 10 years and up to $10,000 in fines. If it is determined that probation is a legal option, in addition to the demanding probation requirements for all DWI-related offenses, you will be required to complete drug and/or alcohol treatment and classes, complete an alcohol education program and serve no less than 30 days in the Tarrant County jail as a condition of your probation.
If you have been arrested and charged with this DWI-related offense and an accident occurred that resulted in the death of another, you could be facing a second degree felony that imposes a prison sentence of up to 20 years and up to $10,000 in fines. One critical element of intoxication manslaughter that must be proven beyond a reasonable doubt is the element of Causation.
The State of Texas must prove that the Intoxication was the cause of the death of another. What does this mean? If someone dies as a result of a car accident that would have occurred regardless of the accused intoxication, the prosecutor will not be able to prove intoxication manslaughter. In this situation, intoxication manslaughter would have to be dropped to the lesser misdemeanor charge of Driving While Intoxicated. In fact, this emphasizes the importance of hiring the best Fort Worth DWI attorney to analyze your felony DWI and make a presentation to the grand jury to potentially show that intoxication was not the cause of the accident causing serious bodily injury or death of another.
What Has To Be Proven In Court For Felony DWI?
If you have been charged with any form of felony DWI in Texas (DWI 3rd or more, Intoxication Assault, Intoxication Manslaughter, DWI With A Child Passenger), the State of Texas is required to prove certain elements of the crime of DWI in order to sustain a conviction.
Regardless of the type of DWI charge, the State of Texas, through the District Attorney’s office, must prove the following elements of DWI:
- You Operated A Motor Vehicle
- In A Public Place
- While Intoxicated
If you were not “operating” a motor vehicle, you cannot be charged with a felony DWI. There may be other crimes that may fit your set of circumstances, but in order for the prosecutor to indict you at the grand jury for a felony DWI, it must be proven that you were “operating” a motor vehicle. What does it mean to “operate?” “Operating” does not require you to be driving the vehicle. If you are in control of the vehicle and the vehicle is running, there is a good chance the police officer will arrest you for felony DWI.
For example: we have represented many clients for the crime of felony DWI that were sitting in their car with it in drive, running, but not moving. In this situation, although the vehicle was not in motion, the police officer arrested and charged our client because the element of “operating” was met under Texas DWI law. What if the car is in Park? This makes it much harder for the prosecutor to prove the case beyond a reasonable doubt at a DWI jury trial. What if the police arrive and you are not in the vehicle and there are no witnesses that place you behind the wheel operating the vehicle? This will pose a serious problem for the police officer establishing probable cause to arrest you UNLESS you decide to talk to the police officer and answer his questions. By talking and admitting to driving or inferring you were the only one that could have been operating the vehicle, it makes it easier for the police officer and the prosecutor to piece together a felony DWI charge against you.
What does it mean to operate a vehicle in a “public place?” A public place, under Texas DWI law, is defined as a place that the public, or a substantial portion of the public, has access to. This includes apartment complex parking lots, parks, hospitals, etc. The real question is this: Were you driving on private property that a substantial portion of the public would have access? If not, you have a strong defense against the crime of felony DWI. However, if you were operating a motor vehicle in a place that may be private property but the public can gain access (apartment complex parking lot, local park or beach, etc), you will likely be deemed in a “public place.”
Finally, if all the other elements of DWI are met, the police must still show that you were legal intoxicated. What does it mean to be “intoxicated?” For DWI purposes, law enforcement must prove the following:
A person is legally intoxicated if they do not have the normal use of their mental or physical faculties by reason of the introduction of alcohol or drugs into their body OR you have an alcohol concentration of 0.08 or higher at the time you were operating the vehicle.
How do the police determine you no longer have the normal use of your mental or physical faculties? The primary tool law enforcement uses are Field Sobriety Tests. There are 3 Standardized Field Sobriety Tests approved by the National Highway and Safety Administration in determining intoxication:
- Horizontal Gaze Nystagmus (HGN) – this test analyzes whether you have visible nystagmus. Everyone has nystagmus but most people do not have nystagmus visible to the naked eye unless you have introduced a substance into your body that can cause intoxication. However, the test is only as reliable as it is administered. It is routine for DWI officers to administer the test improperly or interpret the results improperly.
- Walk and Turn Test – this is a physical test designed to determine your ability to walk a straight line heel to toe and count out loud. If you have poor coordination or the test is not explained properly, it is not reliable in court.
- One Leg Stand Test – this test is a physical test designed to determine your balance by holding your leg up for 30 seconds while counting out loud. What if you naturally have terrible balance? What if your coordination is poor?
The problem with these tests is that there can be many other reasons people fail these tests. For example, two out of the three tests are physical tests that someone can easily fail when the are stone cold sober. Why? Because of nervousness! How would you feel if your freedom hung in the balance based upon your performance on holding your leg up in the air for 30 seconds while a police officer barks orders at you? Putting your foot down or stepping off line can easily be explained by nervousness or lack of coordination.
How do the police determine your blood alcohol level? They will ask for a sample of your breath or blood. However, having a blood alcohol level over 0.08 does not necessarily mean you were intoxicated at the time of driving. If your blood test was taken a number of hours after you operated the motor vehicle, your DWI attorney will have the opportunity to challenge your blood results to determine if the State of Texas can extrapolate back in time to place you at or above 0.08 at the time of driving.
Will my DWI 3rd be a Misdemeanor if my previous DWI’s were probations?
No. Recent case law has established that even if your prior DWI convictions were served and completed on probation, the law will treat your DWI probations as convictions sufficient to enhance your DWI to a 3rd degree felony. See Gonzales v. State, 309 S.W.3d 48 (Tex. Crim. App. 2010).
Is it possible to receive probation for a Felony DWI?
Yes. Although each Felony DWI case presents a unique set of facts and circumstances for the prosecutor and judge to consider, the law provides that if you have not been previously convicted of a felony, you could be a candidate for probation.
If you receive probation for a Felony DWI (DWI 3rd or more) in Tarrant County, you will be required to meet stringent conditions of probation that could last for a period of up to 10 years. As part of your Felony DWI probation, you will be required to spend at least 10 days in the Tarrant County Jail (often as much as 120 days is mandated in Tarrant County) as a condition of your probation. Additionally, you will be required to attend a drug and alcohol evaluation or rehabilitation program and complete a program designed for repeat drug & alcohol offenders as a condition of your felony DWI probation. In addition to reporting and paying the court costs, fines and fees associated with your rehabilitation program, you will also be mandated to install (at your expense) an ignition interlock device on your vehicle.
If you have been arrested for a Felony DWI in Fort Worth, Arlington, Mansfield or in the surrounding cities of Tarrant County, it is important to retain the counsel of an experienced DWI lawyer that has experience in the courts of Tarrant County and is willing to fight for your best interests. At The Hampton Criminal Defense Attorneys, PLLC, we will guide you through the process and work with prosecutors to ensure you receive the best possible result for your Felony DWI Charge.
Call The Hampton Criminal Defense Attorneys, PLLC now for a free consultation and case analysis. At The Hampton Criminal Defense Attorneys, PLLC, you have the opportunity to partner with a team of Former Prosecutors with over 85 years of criminal law and DWI experience and over 550 criminal and DWI jury trials in Tarrant County and the courts of North Texas. Call now so we can provide you a free case analysis and discuss your DWI defenses.