DWI convictions come with substantial penalties: a DWI charge is a class B misdemeanor with a range of punishment from 72 hours to six months in jail. On top of that, the court may also sentence a fine of up to $2,000.00. If you are unfortunate enough to have a breath or blood test showing a Breath/Blood Alcohol Concentration (BAC) greater than 0.15, the State can enhance your class B misdemeanor to a class A. This means the punishment increases to as much as one year in jail and a $4,000.00 fine.
All of that is for a first time DWI, if charged with your second, the punishments can be even more severe. Probation is often available to many clients, so serving a lengthy jail sentence may not be the only possible result of a DWI. However, even if placed on probation, your driver's license may be taken away, DPS surcharges can be imposed, and employers may not be forgiving of DWI convictions while hiring.
Because of the potentially severe consequences that come with a DWI conviction, accepting a plea deal should only be done after careful consideration. Depending on the facts of your case, it may be possible to successfully fight a DWI charge.
Prosecutors typically attempt to introduce evidence of intoxication by having the arresting officer testify about your performance on the Standard Field Sobriety Tests (SFSTs), including the Horizontal Gaze Nystagmus Test (HGN test).
There are often many potential ways to attack this evidence: environmental conditions like the road surface and plane, passing vehicles, and the weather all can affect a person's performance on these tests.
Also health conditions, injuries, your age, height, body mass index, and general athletic ability also affect performance. As to the HGN Test, there are a number of different types of Nystagmus, many of which have nothing to do with intoxication.
An attorney knowledgeable of these inherent problems with the State's evidence can expose these problems to a judge or jury.
The same can be said about breath and blood tests. Just because the State has a test that says you were above the legal limit of 0.08 doesn't mean you were above that limit at the time you were driving.
Alcohol is only intoxicating if it is in your blood stream. However, alcohol does not immediately enter your blood stream once ingested. It has to first make its way through your stomach and then be absorbed into the blood through the natural digestive process.
That process takes time, and once in the blood, alcohol doesn't remain at one constant level. From the moment it reaches the blood stream, it is being metabolized and eliminated by the liver. So, unless your BAC is zero, it is always changing and never constant.
Since DWI stands for Driving While Intoxicated, an attorney armed with knowledge of how alcohol moves through the human body may be able to show your BAC was below 0.08 at the time of driving.
Facing a Driving While Intoxicated charge is a serious matter. The consequences are simply too severe; DO NOT take such a charge for granted! If you've been accused of DWI, call us for a free consultation, and we'll discuss your options.
Once hired, we will immediately begin investigating your case, obtaining evidence in your favor that police and prosecutors may have ignored, and start reviewing the evidence against you in possession of the State. We'll keep you informed along the way, discuss with you the evidence we obtain, and explain what it means.
We'll begin formulating a plan of attack to discredit the State's evidence and expose where the case against you is lacking, and develop a strategy to best present your case at trial. All the while, we will be negotiating with prosecutors, using the deficiencies of their case as leverage. And at trial, we will provide our best efforts to secure a verdict in your favor.
Elements of a Class B DWI
To be convicted of a Class B Driving While Intoxicated offense, the State must prove beyond a reasonable doubt that:
Operated a motor vehicle;
In a public place;
"Intoxicated" means (A) 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 (B) having an alcohol concentration of 0.08 or more.
"Motor vehicle" means a device in, on, or by which a person or property is or may be transported or drawn on a highway, except a device used exclusively on stationary rails or tracks.
"Operating a Motor Vehicle" has been defined by courts as "taking action to affect the functioning of the vehicle in a manner that would enable the vehicle's use." This definition does not require that the vehicle actually move. Denton v. State, 911 S.W.2d 388, 390 (Tex. Crim. App. 1995).
The Open Container Enhancement
If it is shown at trial that at the time of the offense the person operating the motor vehicle had an open container of alcohol in the person's immediate possession, the offense is a Class B misdemeanor, with a minimum term of confinement of six days.
"Open Container" means a bottle, can, or other receptacle that contains any amount of alcoholic beverage and that is open, that has been opened, that has a broken seal, or the contents of which are partially removed.
The Alcohol Concentration of 0.15 or More Enhancement
If it is shown at trial that an analysis of a specimen of the person's blood, breath, or urine showed an alcohol concentration level of 0.15 or more at the time the analysis was performed, the offense is a Class A misdemeanor.
"Alcohol Concentration" means the number of grams of alcohol per: (A) 210 liters of breath: (B) 100 milliliters of blood; or (C) 67 milliliters of urine.
There are two types of license suspensions that may occur after a DWI arrest. One happens only after a conviction for DWI and can only be avoided by successfully fighting the DWI charges. The second type of suspension is assessed by the Department of Public Safety under Texas Implied Consent Law. These suspensions occur automatically after an arrested person fails a breath or blood alcohol test or refuses to take one and will happen regardless of whether you are convicted of a DWI or not. To avoid this second type of suspension, you must request an Administrative License Revocation Hearing (ALR Hearing) within 15 days of your arrest. If you don't make the request within 15 days, you lose the right to contest the suspension of your license.
ALR Hearings themselves are civil proceedings between the DPS and a person who has either failed or refused to take a breath or blood alcohol test. At the hearing, DPS must prove that there was probable cause for your arrest prior to your failing or refusing the test. If they are unable to prove this, your license will not be suspended while you fight any criminal charges filed by the District or County Attorney.
However, even if DPS ultimately proves that probable cause existed, an ALR Hearing can an be extremely valuable discovery tool for the criminal case. Depositions are typically not allowed in criminal cases; often, the trial is the first opportunity you or your attorney will have to question the arresting officers. An ALR Hearing allows you to question the arresting officers under oath, and obtain a recording or transcript of their answers to your questions, that can then be used in the criminal trial.
There is a strict 15 day deadline to request an ALR Hearing after an arrest for DWI. You should receive a form called the DIC-24 from the arresting officer that serves as your notice of an automatic suspension and includes instructions on how to request the hearing. Click HERE to see a blank example of the form. The instructions for requesting a hearing on at the bottom. For more facts concerning an ALR Hearing, please click the link to the Texas Department of Public Saftey:
Important Tips to Avoid a DWI Conviction
1. When identifying yourself, speak clearly and politely to the officer.
2. You are only required to identify yourself; politely refuse to answer any other questions. Statements about what and how much you were drinking, where you were coming from, where you were going, and what and when you ate last will be used against you.
3. If you are outside your vehicle, don't lean against the car with your body or arm. The officer's vehicle is likely recording every move you make and it will be used against you in your case.
4. You are not required to perform any of the Standardized Field Sobriety Tests; you have the right to refuse if you wish.
5. Once able, write down as much as you can remember about what you did in the 24 hours leading up to your arrest. This includes:
what and how much you drank,
what and how much you ate,
what activities you did during the day,
the amount of sleep you recently had,
whether you were dealing with any allergies,
whether you were taking any medications,
who were you with during the day, and
anything else that you can remember
Please keep this information entirely between yourself and your attorney. Do not make copies and give the only copy to your attorney.
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1104 South Mays Street
Round Rock, TX 78664