Driving while intoxicated (DWI) is against the law in Texas. This criminal offense, which is known in other states as DUI or OVI, carries potentially life-altering consequences. Many Texas drivers know about DWIs but they either don’t know or underappreciate the severity of the consequences. Namely, you might face a hefty jail sentence, costly fine and a long-term suspension of your driver’s license. A DWI can also disrupt your career and your ability to commute to work, school, your doctor’s office and other important places. For this reason, it is absolutely essential that you know DWI laws and that you take the right steps to protect yourself. You’ve come to the right place. The Hampton Law Firm provides you with the following useful guide on DWIs in Texas, including what you could do to avoid a conviction.
In Texas, you are prohibited from operating a motor vehicle in a public place while you are intoxicated. For clarification, a motor vehicle means a car, truck, motorcycle or anything that is used to transport people on a highway. A public place means a street, highway or any place where the public has access to. Most importantly, Intoxicated means either of the following:
- You do not have the normal use of your mental or physical abilities due to alcohol, a controlled substance, a drug, or any combination of them.
- You have an alcohol concentration of .08 or more as measured by your:
- Breath (grams of alcohol per 210 liters of breath),
- Blood (grams of alcohol per 100 milliliters of blood), or
- Urine (grams of alcohol per 67 milliliters of urine).
Put more simply, if you have a Blood Alcohol Concentration (BAC) of .08 or more, then you are intoxicated according to Texas law, and driving while intoxicated could result in a DWI charge. Keep in mind that your BAC is impacted by a number of factors besides the amount of alcohol that you consume. Specifically, your gender, height, weight, and consumption of food can all affect your BAC.
Remember that since intoxicated is defined in two different ways under Texas law, you do not have to have a BAC of .08 to be intoxicated. In fact, you could still be arrested and charged with DWI if you are below the legal limit but show signs of intoxication (e.g. you are swaying or slurring your words). And if you are under the age of 21, then any detectable amount of alcohol in your system (e.g. BAC of .02) could result in a DUI (a less severe offense than DWI in Texas).
You could be arrested and charged with DWI for simply being in physical control of a vehicle while intoxicated – even when the vehicle is not moving. Specifically, Texas law states that you commit the DWI offense when you operate the vehicle while intoxicated. So, even if you are asleep in the front seat of your car, it is possible for you to be arrested and charged with DWI.
You could face a DWI charge for having a controlled substance in your system while you are driving. This is the case even if you take the controlled substance according to the instructions provided by your doctor or pharmacist. You might even have the mistaken belief that you are not intoxicated based on the prescription that you take. Unfortunately, your mistake won’t preclude you from prosecution.
Controlled (scheduled) substances include things like prescription medications, street drugs, and drugs which are sold over the counter at your local grocery store. There are many natural substances or chemicals that could be construed as controlled substances. Here’s a quick snapshot of the different schedules:
Schedule I: Substances, chemicals or drugs where there is a high potential for abuse. Drugs in this category don’t have any currently accepted (government approved) medical use. Schedule I drugs include heroin, ecstasy, LSD, marijuana and PCP.
Schedule II: Substances, chemicals or drugs that have a high potential for abuse but which have certain acceptable medical uses. Drugs in this category will possibly lead to severe physical or psychological dependence. Examples include cocaine, morphine, methamphetamine, oxycodone, fentanyl and methadone. Some commonly prescribed brands in this category include Ritalin, Adderall, Dexedrine, Percodan and OxyContin.
Schedule III, IV or V: Substances, chemicals or drugs that have a low-to-moderate potential for psychological and physical dependence. They might include drugs that have some limited quantity of narcotics or which might be used for analgesic, antitussive or antidiarrhea purposes. Examples include Ambien, Xanax, Darvon, Darvocet, Soma, Talwin, Ativan, Tramadol, Parepectolin, Lyrica, Motofen, Lomotil and Robitussin.
Critically, if you have any controlled substance in your system while you are driving, then regardless of whether it is prescribed to you by your doctor, you still might face a DWI charge.
The punishment that you face for a DWI depends largely on your level of intoxication, the circumstances of the incident (e.g. you have a child in your car or you injure someone), and your prior offenses. Here’s a quick rundown of what might happen to you if you are convicted of DWI:
- Jail: 3 – 180 Days
- Fine: Up To $2,000
- Court Costs: Up To $1,500 (Approximate)
- Texas Driver Responsibility Program (Surcharge For License Reinstatement): $1,000 – $2,000
- License Suspension: Up To 1 Year
- Jail: 30 Days – 1 Year
- Fine: Up To $4,000
- Court Costs: Up To $1,500 (Approximate)
- Texas Driver Responsibility Program (Surcharge For License Reinstatement): $1,500 – $2,000
- License Suspension: Up To 2 Years
- Jail: 2 – 10 Years
- Fine: Up To $10,000
- Court Costs: Up To $1,500 (Approximate)
- Texas Driver Responsibility Program (Surcharge For License Reinstatement): $2,000+
- License Suspension: Up To 2 Years
- Jail: 2 – 20 Years
- Fine: Up To $10,000
- Court Costs: Up To $1,500 (Approximate)
- Texas Driver Responsibility Program (Surcharge For License Reinstatement): $2,000+
- License Suspension: Up To 2 Years
Judges and Prosecutors in Texas have a lot of discretion when it comes to your jail sentence, fine and other punishment. Specifically, depending on your circumstances, you might be granted a more lenient sentence. So, instead of being ordered to serve a lot of time behind bars, you might alternatively be ordered to undergo probation (generally between six months and two years), community service, and completion of a DWI awareness program. Probation generally costs between $50 and $100 per month, and an alcohol education course runs between $100 and $200. To the extent that alcohol-related treatment and rehabilitation is required, then this could cost you thousands of dollars.
You might also have to install an ignition interlock device (IID) on your car. This is used to determine your BAC before you drive your car. Notably, an IID is required as a condition of you being released on bail if you are a repeat DWI offender or you are charged with a felony DWI. An IID costs between $75 and $100 per month excluding the costs of repairs.
Moreover, when you are arrested, the police might have your car towed and impounded. A tow charge runs between $250 and $500 while an impoundment fee runs about $25 per day.
If you are under the age of 21, then having any detectible amount of alcohol in your system could result in you being arrested for driving under the influence of alcohol (DUI).
DUI is a Class C misdemeanor that is punishable by a maximum $500 fine in addition to 40 hours of community service and an alcohol awareness program. However, if you have two DUI convictions on your record, then you face a maximum $2,000 fine, 180-day jail sentence and 60 hours of community service. Also, repeat DUI offenders are not eligible for deferred adjudication or deferred disposition.
If your BAC is between .01 and .079, then you will lose your license for 60 to 180 days. If your BAC is between .08 and 0.149, then you are looking at a one-year license suspension. A second offense carries an 18-month suspension, and three or more offenses carry a two-year license suspension.
If your BAC is .15 or more, then this constitutes a Class A misdemeanor that is punishable by a maximum $4,000 fine and one-year jail sentence. You will also have to get an ignition interlock system installed on any vehicle that you drive.
If you have an open container (e.g. bottle, can) in your car when you are pulled over, then even if your BAC is not over the legal limit, this constitutes a Class C misdemeanor that is punishable by a maximum $500 fine. However, if you are driving while intoxicated and have an open container in your car, then this constitutes a Class B misdemeanor that carries a six-day minimum jail sentence. Drivers face consequences for an open container even if a passenger holds it.
Also, if you have an open container in your car, then this could lead the police to develop probable cause (proper justification) to suspect that you are driving while intoxicated. In other words, an open container alone might be enough for the police to conduct a warrantless search and subject you to both a field sobriety test and a chemical sobriety test.
Moreover, you only need to break the seal on the alcohol container for it to be an open container under Texas law. This means that all of the alcohol could remain in the container but it is still considered an open container. However, you are allowed to have an open container in a motorhome, camper, limousine, Uber, Lyft or taxi as long as you are not operating the vehicle at the time.
If you are driving while intoxicated and transporting a passenger who is under the age of 15, then this constitutes a state jail felony that is punishable by a maximum $10,000 fine and two-year jail sentence. Moreover, driving with a minor in the car while you are intoxicated could lead to charges of child endangerment which carries comparable criminal consequences and which may affect your custody rights. Keep in mind that the minor does not have to be injured for you to face criminal charges. However, if the child is injured in your DWI-related accident, then the consequences might be more severe.
If you are driving while intoxicated and you cause an accident in which you seriously injure someone, then this constitutes a third degree felony that is punishable by a maximum $10,000 fine and 10-year jail sentence. Texas law considers a serious bodily injury to be one that causes a high risk of death or which causes someone to be disfigured or to lose functioning of a bodily member or organ.
Depending on the situation, you could face more severe consequences for intoxication assault. Specifically, it is a second degree felony if you seriously injure an EMT or firefighter, and a first degree felony if you seriously injure a judge or police officer while they are carrying out their duties. You also face a second degree felony if you cause anyone else to suffer a traumatic brain injury resulting in their persistent vegetative state.
If you are driving while intoxicated and you cause an accident in which you kill someone, then this constitutes intoxication manslaughter – a second degree felony that is punishable by a maximum $10,000 fine and 20-year jail sentence. However, if you cause the death of a firefighter, EMT, police officer or judge, then this constitutes a first degree felony.
If you are facing a third DWI offense and you have been previously incarcerated with Texas Department of Criminal Justice (TDCJ), then this constitutes a second-degree felony that is punishable by a maximum $10,000 fine and 20-year jail sentence. Critically, if this is your fourth offense and you have two prior TDCJ incarcerations on your record, then this constitutes an enhanced felony in which you could potentially be locked up for life.
If your sentence includes jail time, then you will typically lose your income for the time that you are incarcerated since you are out of work. It is also possible that your job won’t be waiting for you when you are released. In fact, many employers consider a DWI conviction grounds for termination even if you are not handed a jail sentence. Specifically, If you work in the transportation industry or have a job that exposes you to the public eye, then you are more likely to suffer employment consequences.
Remember that Texas is an at-will state which means that unless you have an employment agreement, your employer can terminate you for any reason aside from your gender, age, race, religion or disability. In other words, your employer is completely within their rights to fire you for a DWI arrest or conviction, and they do not need to provide you with justification to do so.
Should you lose your job as a result of a DWI, you may also struggle to find a new job. Specifically, a DWI will show up on your criminal background check. Under the Fair Credit Reporting Act (FCRA), DWI arrests remain on your criminal background for up to seven years. Even worse, DWI convictions could remain on your record forever.
Generally, federal law prohibits employers from refusing to hire an applicant strictly due to a DWI conviction. However, there are exceptions to this for workers in the nursing, healthcare, childcare and transportation industries. Further, even though it is illegal for a prospective employer to toss your application aside for a DWI conviction, it is all too easy for them to find other reasons not to hire you.
How You Get Arrested For DWI
In Texas, the police are able to stop you as long as they reasonably suspect that you have committed an offense. Basically, reasonable suspicion is more than simply the police officer’s hunch or wild guess that you are breaking the law. Rather, it must appear to the police that you may have committed an offense of some sort. Often, the police have reasonable suspicion of you committing an offense if they think that you might have been speeding, swerving or rolling through a stop sign.
During the stop, the police might suspect that you are driving while intoxicated. Perhaps they see that your eyes are glossy or that you smell like alcohol. Maybe you have an open container in the car which is visible to them. Whatever the case may be, if the police become more suspicious that you are driving while intoxicated, then their next step will likely be to administer a field sobriety test on you to gauge whether you are intoxicated.
If the police believe that you are driving while under the influence of alcohol or drugs, then they will typically ask you to take a field sobriety test. Specifically, the field sobriety test consists of three separate tests that are used to determine your impairment.
Police typically hold an object such as a flashlight or pen in front of you, and they ask you to follow that object with your eyes as they move it horizontally (back and forth). If there is an involuntary jerking of your eyeball when your eyes gaze to the side, then you will likely fail this test.
Police have you take nine steps along a straight line by touching heel-to-toe. You then turn on one foot, and walk back to the starting point in a straight line by touching heel-to-toe. In this test, the police look for indicators of impairment which could include your lack of balance or inability to follow instructions.
Police have you stand with one foot about six inches off of the ground and have you count until you are told to put your foot down. In this test, the officer examines your balance, so if you are swaying or hopping, you will likely fail the test.
Field sobriety tests are notoriously faulty. For example, with an HGN test, there may not be any evidence of your failure of the test besides the officer’s testimony. With a walk-and-turn test, you might fail because you freaked out for being pulled over, not because of intoxication. And with a one-leg-stand test, you might fail because you have bad balance – not because you are drunk. Moreover, if you are administered any of these three tests, you might fail because of your underlying physical or medical health conditions or your use of prescription medications. For this reason, a field sobriety test alone is not necessarily conclusive of your impairment.
Further, field sobriety tests are arguably set up so that you will fail. Chances are, if an officer asks you to take a field sobriety test, then they already want to arrest you and are just trying to get more evidence to justify doing so.
Most importantly, you are not legally required to take a field sobriety test, and taking it could do you more harm than good. But if you refuse to take it when you are asked to do so by the police, then the officer could use your refusal as probable cause to arrest you, and a judge or jury might determine that your refusal to submit to the field sobriety test was due to intoxication. Fortunately, even if you take it and fail, then you could still fight a DWI charge in part based on the lack of reliability of these tests.
After you take a field sobriety test, or after you refuse to take it, the police will probably arrest you for DWI. The next thing that the officer will likely do is ask you to take a breathalyzer or other chemical sobriety test. Specifically, under Texas implied consent law, if you are lawfully arrested, then you must submit to a chemical test so that the police can determine whether you are intoxicated. A lawful arrest means that the police officer has reasonable suspicion to stop you and probable cause to believe that you are driving while under the influence of drugs or alcohol.
Despite having their own potential problems, chemical tests can objectively tell whether you have alcohol or controlled substances in your system. Chemical testing is currently the only scientific way of determining whether your alcohol concentration exceeds state limits. So, if you take a breathalyzer test which shows that your BAC exceeds the legal limit, then you will in all likelihood be charged with DWI. Keep in mind that to be convicted of DWI, the district attorney (prosecutor) who charges you with the offense must prove that you actually operated a vehicle while impaired. The district attorney relies heavily on the results of your chemical test for this purpose.
Before asking you to take the chemical test, the police officer must warn you that your refusal to take it carries legal consequences. The warning – which is more formally known as a DIC-24 Statutory Warning – could consist of the following statement:
“If you refuse or fail to take this chemical test, then your driving privileges will be immediately suspended, and you will have to pay a fee to have those privileges reinstated.”
If you agree to take the test, then you will typically be asked to confirm your decision through signing a document. You might think that you should refuse the test if you don’t feel drunk. Remember, the chemical test – not your perception of intoxication – is a more objective indicator as to whether you are intoxicated. It is generally not a good idea to refuse the test especially if you are confident that you are not intoxicated.
If you refuse to submit a sample of your blood, breath or urine to the police in connection with a chemical test that is used to determine your level of intoxication, then your license will be suspended for at least 180 days. A subsequent refusal carries a two-year suspension. It is important to remember that you do not even need to be charged with DWI for your license to be suspended based on a refusal. Moreover, your refusal does not prevent you from being charged with DWI.
Additionally, you might not be able to refuse chemical testing. Specifically, the police can physically draw your blood without your consent and without a warrant in limited circumstances including when you are involved in an accident which results in someone’s death. Also, you may have heard about “no refusal” weekends. Many drivers think that if they are pulled over on a no refusal weekend, then they have to consent to testing. This is untrue. No refusal weekends simply give the police more resources to obtain a search warrant on the spot. If the police get a warrant soon after you have been pulled over, then you have to comply with their orders.
How The Typical Criminal Case Goes
If you are arrested for a DWI in Texas, then you have to deal with two cases in one. The first concerns your driving privileges (the civil part of your case), and the second concerns the criminal case. Here’s how the criminal case works.
You are taken to the police station where the police document your personal information. They take your fingerprints and mugshot, and review your record for prior arrests. After this is done, then you are placed in a jail cell. You remain in that cell until you are either taken to court or you post bail.
Generally, bail is where you provide assurances to the court that you will respond to the criminal accusations against you. Bail consists of bail bonds or personal bonds – both of which require a financial outlay on your end. The bond amount is based on a number of factors including the severity of your circumstances and your criminal record. If you follow the court’s orders, then you will eventually receive the bond amount back less the administrative fee. You will typically be released on low bail after you are booked as long as no one has been hurt or killed.
In nearly all cases, you have a right to have your bond amount set by a magistrate judge within 48 hours of the time that you are arrested; however, it is possible for you to post bail quicker by filing a writ bond or a writ of habeus corpus. Doing this allows you to avoid having to come before a magistrate judge before your bond amount is determined.
A common condition of being released on bail is your agreement to have an ignition interlock device (IID) installed on your vehicle. This type of device, which determines your BAC when you attempt to drive, is required under Texas law for any vehicles that you drive if you have been previously convicted of DWI, are charged with a felony DWI, are involved in a DWI-based accident, or have a BAC that is .15 or higher.
The District Attorney Brings Criminal Charges
The district attorney reviews the report of the police who arrested you for DWI, and determines whether a case should be brought against you. District attorneys bring charges the vast majority of the time in Texas DWI cases.
If you are charged with a misdemeanor, then the charge is called an information; however, if you are charged with a felony, then the charge is called an indictment. Notably, a grand jury determines whether you ought to be indicted.
Although each county is different, it generally takes between 30 and 60 days before the district attorney’s office brings misdemeanor charges. However, it may take months if the district attorney presents your case to a grand jury for a potential indictment.
Normally, your first court appearance (also known as a first setting) will take place between 30 and 60 days after your arrest. By this point, the district attorney and the court are notified if you will be represented by an attorney. If you are represented, then the court might already have a letter of representation on file from your attorney. Once your attorney is designated, they will typically receive all correspondence on your behalf regarding your case.
Another key function is information gathering. Particularly, you and your attorney go over the charges that the district attorney brings against you. Your attorney can request evidence such as witness statements, videos, police reports, and other documents from the district attorney. If anything is relevant to your case and can be discovered, it typically happens at this point.
Notably, in your first court appearance, you are not going before a judge and making a plea of guilty or not guilty. Rather, the court holds this hearing to make sure that you intend to comply with the requirements of your case.
Generally, at least two more hearings are held in the initial phase of your case. In those appearances, the court determines whether you intend on entering a plea or requesting a trial. Your attorney might be able to attend these hearings on your behalf. Either way, there may be approximately 30 days in between these hearings. This provides your attorney time to evaluate your case and prepare a plea.
District attorneys are in no hurry to offer you a good deal when you have just been charged with DWI. Rather, they want to see that you are punished so that justice is served – according to them. However, some DWI cases are harder to prove than others. The district attorney might not have enough evidence or confidence that you will be found guilty of DWI beyond a reasonable doubt. So, when the case against you is not all that strong, then you might get offered a way out of facing the worst possible punishment.
A plea bargain (also known as a plea agreement or plea deal) is an arrangement in which you agree to plead guilty to DWI in return for getting a less severe punishment. More criminal charges than not get resolved this way in The Lone Star State. Generally, a plea bargain involves you pleading guilty or no-contest (nolo contendere) to a less severe offense such as a lower level misdemeanor or a misdemeanor instead of a felony. It could also mean getting probation instead of a jail sentence, or at least getting a more lenient jail sentence.
District attorneys might charge you with the most serious offense(s) available in order to intimidate you into accepting a plea bargain. For example, if the district attorney could charge you with either a felony or a misdemeanor given the same evidence, then the district attorney might be inclined to charge you with a felony to scare you into making a deal.
Rather than negotiate with the district attorney, you could aim for an open plea with the judge. This is where, without a district attorney intervening, you plead no contest or guilty to the charges that are brought against you. A significant advantage of an open plea is that the judge decides your sentence and might be more considerate than a district attorney. The judge might analyze your case in a more favorable light, taking certain things into account that a district attorney might overlook.
First of all, with a plea bargain, you typically avoid the worst case scenario of receiving a maximum jail sentence. Unfortunately, even with the best defense, some jury decisions can be hard to predict. The risk of an adverse decision might be more than you are willing or able to endure given your circumstances. Secondly, by entering into a plea agreement, you avoid your case dragging out for months while your fate hangs in the balance. Trials are often a long, arduous process which can become costly and mentally draining. Finally, a felony is obviously worse than a misdemeanor on your record, so if given the chance to avoid a felony, it could make sense to make a deal.
However, if you take the plea bargain, then you might give up your rights to a jury trial, to confront and cross-examine witnesses, to present a defense, and to appeal your case. Also, it is typically more difficult to appeal a case in which you have voluntarily admitted your guilt instead of having been found guilty by a jury. Moreover, if you plead no contest, then you will be convicted, and this plea could be used against you in a future civil case. Finally, you might face more serious penalties for a future offense by having already pleaded guilty or no contest.
Of course, if you didn’t commit the DWI offense, then accepting a plea bargain can be humiliating since you agree to be found guilty of something. Any criminal conviction might cause you problems when trying to land a job, obtain a lease or loan, or get a professional license.
At any point throughout your DWI case, you can enter a plea of guilty in exchange for a reduced sentence such as probation versus a lengthy jail sentence. However, it is important to ask your attorney to thoroughly review your case to determine if there are valid reasons to continue contesting your charges.
Accepting a plea bargain means that you will not go to trial. Rather, your case will proceed to the plea setting. At this appearance, you enter a formal plea and execute a plea agreement with your district attorney. This could entail your payment of court costs and fines, and your scheduling of probation or a jail sentence.
A Texas court is not required to impose a full or even partial jail sentence against you for DWI, and you are not always required to stand trial if you are charged with the offense. Specifically, the court could place you in a pre-trial diversion program (also known as a pre-trial intervention program) if you qualify. Pre-trial diversion programs, which are not plea bargains, are focused on rehabilitation and education instead of punishment. They are meant to empower you to make the right decisions in the future.
Critically, one of the conditions of getting into a pre-trial diversion program is admitting that you are guilty of the DWI. Specifically, you will be asked by the district attorney to sign an affidavit in which you admit that you committed the offense. Also, you’ll have to meet a number of requirements (e.g. drug and alcohol testing, treatment, community service, house arrest, electronic monitoring) or you will be kicked out of the program. As long as you fully comply with all of the requirements, then your affidavit will not be used against you.
Pre-trial diversion programs differ throughout Texas. In Tarrant County, there are a few programs that might apply to you.
This program serves repeat misdemeanor DWI offenders. The goal is to help you undergo treatment and avoid committing another offense. Notably, jail time and up to $4,000 in fines are suspended because you will be placed on probation which could include house arrest and electronic monitoring. This program also requires your completion of treatment including AA.
This program serves repeat felony DWI offenders. The program calls for you to receive extensive alcohol-related treatment. If you qualify for this program, then you might be able to receive probation or another alternative to a long prison sentence.
This judicially supervised pre-trial diversion program is meant for those who have mental illnesses. The program’s mission is to provide you with the resources and support to be emotionally stable. Like the other programs, this could allow you to avoid a longer jail sentence.
This rehabilitation program is for Justice Involved Veterans (JIV) who are facing criminal charges including DWIs. The program provides you with treatment that is judicially supervised. Once you are screened and approved for the program, you start a treatment regimen that addresses your needs.
If you enter a not guilty plea and stick to it, then your case will proceed to trial, so one of the next steps is pre-trial appearances. These are adversarial proceedings where your attorney aims to have certain evidence excluded at trial. Specifically, your attorney files a motion to suppress evidence prior to your pre-trial appearance, and the court determines at the proceeding whether the evidence that your attorney seeks to suppress has been obtained by the police in violation of your rights.
Another pre-trial appearance item is for your attorney to get a court ruling on preliminary issues to cut down the time and costs of litigation. Also, the court determines whether your trial will officially take place on the scheduled date. If it is not possible for the court to hold your trial on the scheduled date, then it will be reset (postponed) for a future date. You are more likely required to attend trial on your scheduled date if you are still locked up (e.g. you haven’t posted bond).
If your case goes to trial, then that means that you have either refused to accept a plea bargain from the district attorney or you have entered a plea of not guilty. The purpose of the trial is for a jury or judge to determine whether you are guilty of DWI based on the evidence. The district attorney is required to prove that you are guilty beyond a reasonable doubt. You are not required to prove your innocence.
A case that is heard by the judge alone is called a trial before the court (TBC). In this situation, there is no jury who will hear your case. Rather, the judge holds a trial and then decides whether you are guilty. You have the right to a jury trial – and you make the call in this respect.
If your case is decided by a jury, then one of the next steps will be voir dire (jury selection). The court allows your attorney to question possible jurors to determine whether they will be fair and impartial when evaluating your case. For example, your attorney is unlikely to choose someone as a jury member whose spouse was killed by a drunk driver since that prospective juror will likely have a serious bias against those who are charged with DWI and may not be able to fairly assess your case on the merits. Ultimately, six jurors will be selected for your misdemeanor case, or twelve jurors, if a felony.
After being sworn in, your attorney and the district attorney both make opening statements to the jury to give them an idea as to what evidence (or lack thereof) will be involved.
The district attorney presents evidence that they have against you. This typically involves the district attorney bringing your arresting officer to the stand to testify against you. Also, the district attorney may call other witnesses such as those who may have seen you drinking or who were present at the scene which resulted in your DWI charge. In addition, the district attorney generally calls experts to the stand to testify about the significance of the testing methods that were used on you. Other witnesses could include anyone who controlled and maintained the chemical test machine that was used to determine your BAC. Your attorney can question all of these witnesses.
After the district attorney finishes up with their case-in-chief, then your attorney can begin to present any useful evidence to the jury which casts doubt on the district attorney’s theory of your guilt. Like the district attorney, your attorney can also call witnesses to the stand including those who might have been present at the scene or who may have seen you around the time of your arrest. Moreover, your attorney might utilize expert witnesses who are well versed on the chemical tests that were used to determine your BAC or who are well versed about the unreliability of the field sobriety test that was administered to you. However, some defense attorneys might choose not to present evidence if they believe that it is best for your case.
Also, you have the right to testify in your defense; however, this is generally not a good idea because of how you might incriminate yourself or be viewed unfavorably by the judge or jury. Fortunately, if you opt not to testify, then the court has to instruct the jury not to hold this against you.
Once the district attorney and your attorney make closing arguments (their last pitches to the jury), then it is time for the judge to read your charges to the jury. The jury is told which law is applicable in your case and which facts the jury is allowed to consider in determining whether you are guilty or not guilty of the offense. Most importantly, the court instructs the jury to come up with a verdict (decision) based on evidence and the law – not their gut feelings.
If all of the jury members agree that you are not guilty, then you should be acquitted. If you are acquitted, then you will be notified of your right to expunge the DWI charge from your record. In Texas, your attorney has 30 days from the day that the verdict is announced to file an expunction petition and proposed order. If your attorney files these documents by the deadline, then the judge should sign the order and provide it to any agencies so that the DWI charge can be removed from your record. Also, if the jury determines that you are not guilty, then you can expect not to be further prosecuted.
Alternatively, if some of the jury members believe that you are guilty but others believe that you are innocent, then the court might declare a mistrial resulting in your case being dismissed; however, you might have to face another trial down the road. And if the jury determines that you are guilty, then you will be convicted of the offense and ultimately sentenced.
When you are found guilty of DWI, you are not punished on the spot. Instead, your case moves to a punishment phase in which a judge or jury determines what punishment you should receive. It is possible for the judge or jury to review evidence that was unreviewable at your trial – but that could include your prior criminal history.
Notably, as a defendant, you have a choice as to whether the judge or jury determines your fate. Specifically, you could elect to have the judge set the punishment. Most DWI defendants opt for a judge to make the call because the judge’s decision is more predictable. However, this could result in a more severe punishment than a jury hands out.
When it comes to a DWI charge, remember that the district attorney must prove beyond a reasonable doubt that you were in control of your vehicle and that you were intoxicated. If the district attorney cannot prove this, then you cannot be convicted of DWI. In addition, there are certain valuable defense strategies that can really help weaken the district attorney’s entire case against you. Here’s a rundown of some of the most important defenses that might be applicable in your case.
If you were not driving the car, then you should be able to defend against a DWI conviction. A successful defense in this respect means showing that you were not driving your car and that you were not in control of it. For example, if the police see you playing beer pong next to your car while at your friend’s house, then the police might arrest you for DWI. However, your attorney could show that your keys were inside of your friend’s house and that you planned on staying at your friend’s house overnight to sober up. If you can cast doubt on the district attorney’s theory of you operating your car, then you might be able to stave off a DWI conviction.
You have the right under the Fourth Amendment to the United States Constitution to be free from illegal searches and seizures. If you have been charged with DWI, then for that charge to stick, the police must show that they had probable cause to believe that more likely than not, you committed an offense. The police might have probable cause to believe that you are drunk based on things like your lack of coordination, glassy eyes or slurred speech. They might observe a strong odor from your breath, or might administer a field sobriety test that you fail. In those situations, the police very well might execute a seizure by insisting that you take a chemical test to determine your BAC.
However, if the police randomly target you or pull you over for no reason, or you do not exhibit any signs of intoxication, then it becomes much more difficult for the police to later demonstrate that they were justified in both arresting you and subjecting you to a chemical test. Without probable cause, there is typically no valid basis for the police officer to make you take a chemical test.
So, if the police arrested you for no good reason and made you take a chemical test, then this could amount to a violation of your Fourth Amendment rights regardless of whether you were over the legal limit. If your attorney is successful in arguing that your constitutional rights have been violated, then your case should be tossed.
If you are arrested and asked to submit to a chemical test that determines the presence of alcohol or other controlled substances in your system, then before you take that test, the police have to warn you about what happens if you don’t comply. If the police did not warn you about these consequences, then this could serve as a defense in your DWI case.
Also, a Miranda warning is where the police tell you that you have the right to remain silent, that anything you say can be used against you in a court of law, and that you have the right to an attorney when the police question you. If you were not read a Miranda warning during the time that you were both in police custody and subjected to an interrogation, then any incriminating statement that you made (e.g. “I shouldn’t have had whiskey”) might be excluded (suppressed) at your DWI trial by way of a motion that your attorney files with the court.
For a breathalyzer to be admissible in court, the following requirements generally apply:
- The breathalyzer has to be deemed an acceptable device by the State of Texas.
- The device has to be properly checked and maintained for accuracy.
- The person who administers the test has to be certified in using that device.
- The person has to administer the test based on the training that they receive.
- Immediately prior to the reading, the person has to make sure that you are not vomiting, burping, smoking or eating.
- Multiple tests have to be administered – and the readings have to be within close proximity to each other (e.g. two BAC readings that are within .02 of each other).
Your attorney could challenge the breathalyzer test that was used on you by showing that the equipment was faulty or not handled properly. Your attorney could seek out the breathalyzer records which might uncover evidence of improper maintenance and calibration. If the test is deemed invalid by the court, then the district attorney might not be able to land a DWI conviction.
Moreover, some underlying health conditions could affect a BAC reading. For example, if you have diabetes, then the ketones in your breath might have thrown off the breathalyzer results. If you had mouthwash or any other chemicals in your system, then this could have rendered a breathalyzer test inaccurate.
It is possible that your blood test was not taken properly by the police. Not only that, but the sample could have been compromised because of its mishandling by the police. It could have even been compromised by others while they were on the way to the lab for analysis, or compromised by those who worked at the lab.
Relatedly, the police or certain medical personnel might have lost track of your sample for some time which would mean that there is an issue with the chain of custody of the sample. So, improper treatment and handling, faulty equipment, and issues with the chain of custody could erode the quality of the district attorney’s blood test evidence and lead to the dismissal of your case.
Another problem with blood tests is that they might have reflected your BAC following the point that you were arrested. If your BAC was under the legal limit when you were arrested but it rose above the legal limit by the time that your BAC was determined, then you could argue that there was a change in your BAC that shouldn’t be held against you. Critically, alcohol is not always fully absorbed in the body at the time of arrest.
It is also possible that you were drugged or otherwise coerced into drinking something which you did not realize contained a high level of alcohol – or at least an amount which placed you above the legal limit. To the extent that you did not voluntarily become intoxicated, then this could serve as a basis for your acquittal.
Keep in mind that if you knew what you were drinking, and you got drunk, then it is typically no defense to claim that you did not know that you were driving drunk. More specifically, your involuntary intoxication could serve as a defense – not your voluntary toxication (e.g. blacking out).
Field sobriety tests are not always admissible at trial because of how unreliable those tests are. Sometimes the tests are not even used to evidence probable cause. If the district attorney wants to introduce the test in your case, then they must show that the test you took was viable. To do this, there must be clear evidence that the officer administered you the test according to approved standards. The police officer in your case might have caused you to take an unfair roadside test or failed to give you correct instructions. For those reasons, a field sobriety test could be challenged.
Keep in mind that the police do not have the right to search for evidence without your consent unless they have a warrant. Field sobriety tests are a form of searching for evidence. Unfortunately, you may get arrested if you refuse the field sobriety test, but this should not deter you from refusing to take one if you are pulled over. Critically, if an officer asked you to take a field sobriety test, then they probably decided to arrest you and they were just trying to get more evidence of your intoxication. The district attorney might aim to use your field sobriety test results to prove that you were guilty of DWI. But if this test is excluded at trial, the district attorney might have a harder time arguing that you were intoxicated.
Sometimes police just don’t handle the traffic stop right and things spiral out of control from there. With DWI offenses, the police might not follow the rules, placing you in a really bad spot. You might be threatened, coerced, or intimidated by law enforcement into acting on their demands. Maybe the police don’t like the color of your skin. Before you know it, you could be arrested for DWI for all the wrong reasons. In some cases, police mistreatment can evidence a violation of your rights. So, if the police violated your rights in connection with your DWI charge, then your case should be dismissed.
You could defend against a DWI based on there being an emergency that you needed to respond to. For example, your family member might have needed medical attention because they had a heart attack or stroke, and your aim was to get them to the hospital as soon as possible. Alternatively, you might have been responding to a situation in which someone who was elsewhere was in danger and they needed you to pick them up.
You could defend against a DWI charge based on being forced by someone to drive while you were intoxicated. So, if the only reason that you drove while intoxicated was that you believed that you would otherwise be seriously injured or killed by someone, then you could argue that you were under duress.
At your trial, the district attorney will rely upon the testimony of your arresting officer and the testimony of other witnesses in order to sell their case against you to the judge or jury. However, your defense attorney might be able to cast a lot of doubt on the credibility of those witnesses.
For example, the police officer might say that your slurred speech served the basis for them to have probable cause to arrest you. But what if you had a speech impediment or other disability which caused you to slur your words. The officer might say that they had probable cause to arrest you based on your visibly red eyes. But what if you had allergies which caused your eyes to get red? The district attorney might put an expert witness on the stand to testify about the validity of the devices which were used to test your BAC, but what if that expert witness is relying upon bad information in drawing a conclusion or opinion about its validity?
The district attorney might depend heavily on bad facts and bad witnesses in arguing that you were driving while intoxicated. Your attorney’s job is to discredit these witnesses to the maximum extent possible. Moreover, your attorney could place witnesses on the stand to testify as to your sobriety at the time of the incident, or could use witnesses who argue that the chemical testing devices did not work properly or that the police mishandled your blood, breath or urine samples.
If you provide the police officer with a blood test following your arrest, then you will generally keep your driver’s license until the results of your test are obtained by Texas Department of Public Safety (TxDPS). If TxDPS determines that your BAC was above the legal limit, then you will be issued a notice of suspension / temporary driving permit. You only have 20 days from being mailed this notice to request a hearing to challenge your suspension.
However, if you refuse chemical testing, or a breathalyzer shows that your BAC was above the legal limit, then the police officer might confiscate your license and then issue you a notice of suspension / temporary driving permit. In this case, you only have 15 days from being issued this notice to request a hearing to challenge your suspension. If you do not request a hearing in time, then your license will be suspended on the 40th day following notice. If you request a suspension, then you will be allowed to drive at least until your hearing.
If you appeal your suspension, then TxDPS will schedule your Administrative Law Revocation (ALR) hearing within approximately 30 to 120 days. The ALR program, which is conducted by the State Office of Administrative Hearings (SOAH), is a civil process that is unrelated to your criminal matter. ALR proceedings are overseen by an administrative law judge. ALR requires TxDPS to suspend or disqualify your license if you are arrested for driving while intoxicated.
At your ALR hearing, TxDPS will try to prove to a judge that your BAC exceeded the legal limit or that you refused the blood or breath test. In addition to determining whether your BAC in fact exceeded the legal limit, the judge also analyzes the evidence to determine if the police officer had a reasonable suspicion to pull you over and probable cause to arrest you for DWI. If TxDPS claims that you refused to be tested, then the judge must decide whether you indeed refused. They also determine if the officer had reasonable suspicion to pull you over and probable cause to arrest you.
Prior to making a decision, the judge will hear your attorney’s arguments and TxDPS lawyers’ arguments, while also taking into account testimony from your arresting officer and other relevant individuals. If you prevail at this hearing, then your license will not be suspended. But if you do not prevail, then you still have an opportunity to save your license by appealing that decision within 30 days of being notified about it. Filing an appeal will at least prevent your license from being suspended for 90 days to allow for your appeal to take place.
If the appeals court agrees with you, then it will order TxDPS to reissue your license. But if you lose, then your suspension goes into effect and you may have to wait until your suspension concludes to get your license reinstated. Remember that if you get your license reinstated, then for three years from the date of your conviction, you will have to pay a surcharge of between $1,000 and $2,000.
Texas allows you to get limited driving privileges as long as you need them for an occupational, educational, vocational or medical purpose. If you are eligible, then you can apply for an occupational license which enables you to drive to work, school, the doctor’s office and other important places which are approved by the court during the time that you serve your DWI suspension.
You are not guaranteed to get an occupational license. To obtain one, you’ll have to file a petition and go through TxDPS requirements. In some situations, you may have to wait a certain period before you are eligible. Specifically, you’ll have to wait 90 days for an occupational license if you have been previously suspended for an alcohol or drug-related offense. If you have an intoxication-related conviction, then you have to wait 180 days. And if you already have two administrative license revocations on your record, then you have to wait one year.
If you are successful in your petition for an occupational license, then the judge will grant you one. You then hand TxDPS the petition, court order, financial responsibility insurance certificate, payment of an occupational license fee, and payment of a reinstatement fee. However, you are allowed to use the court order as your driver’s license until everything gets approved through TxDPS.
Finally, be prepared for your insurance premiums to go up. Typically, you’ll have to carry greater liability coverage for auto insurance as a condition of having your license reinstated. The insurance company will likely increase your premiums the moment that they are notified that you have been charged with DWI.
The more severe your jail sentence, the less freedom you have. This can be mentally jarring. It can lead you to have strained relationships with your family members or others who have been reliant on you. If you do not have a skilled DWI attorney on your side who is aggressively fighting your DWI charge, then you run the risk of a longer jail sentence – especially if you have one or more prior convictions on your record.
Even if you don’t get a long jail sentence, you could lose your job. Plus, a DWI conviction could follow you for the rest of your life. This could be really harmful to you if you are applying for a job, loan or a lease because a DWI conviction will show up on your criminal background check. An experienced criminal defense attorney will keep your employment needs in mind and do what they can to help you protect your career.
When you are arrested for DWI, your license will be suspended unless you challenge this suspension at a hearing and fight the DWI charge. Critically, this requires that you prove that the officer lacked probable cause in arresting you for DWI. This could be incredibly challenging. A skilled DWI attorney can poke holes in the police’s testimony and raise serious questions about whether they had proper justification. Not only that, but even if a conviction appears likely, a skilled DWI attorney will fight to get your license suspension to be as short as possible while helping you obtain limited driving privileges.
In your criminal case, you’ll likely have to attend a number of hearings. These hearings involve your attorney’s requests for evidence on your case, and involve the resolution of certain contested matters before trial. If your attorney is not familiar with DWI laws or taking cases to trial, then they might not request useful evidence that meaningfully goes towards your defense (e.g. witness statements, police reports, videos). They might have trouble analyzing and presenting evidence for your defense.
When you are charged with DWI, you’ll likely be presented with a plea bargain by the district attorney which, if accepted, involves you pleading guilty in exchange for a less severe punishment. However, there might be important evidence that points to you not committing the offense. There could be perfectly valid reasons to contest the DWI charge, but your attorney might not know about this if they are not well versed on DWI laws. If you give up too early, then you could end up with harsher consequences than you may receive if you negotiate more vigorously with the district attorney or take your case to trial. A solid DWI lawyer will thoroughly review your case to determine whether a plea bargain is appropriate.
If your case goes to trial, then it is imperative for your attorney to put on the best defense possible so that a judge or jury finds you not guilty. However, this might be a tall order for some attorneys who aren’t used to the courtroom or who don’t know about less common defenses that may be applicable in your case. An unprepared lawyer could ruin your DWI case.
DWIs can be expensive, and many people cannot afford the financial blow associated with a conviction. You could avoid a financial calamity by having a knowledgeable and experienced DWI attorney fighting your charges whether that be through persuading the district attorney to offer you the best possible deal, or through efficiently and effectively presenting your case at trial in hopes of staving off a conviction. An incompetent attorney can cost you a lot of money in more ways than one.
With so much on the line in your DWI case, it is essential that you consult with an experienced criminal defense attorney who is well versed on Texas DWI laws. The criminal defense attorneys at The Hampton Law Firm have extensive experience protecting the rights of Texans who have been charged with DWIs. We are on your side and will do everything we can to get you out of this jam. For a free consultation, reach out to The Hampton Law Firm today by calling (817) 826-9905 or by contacting us online.