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| PERSONAL INJURY - DWI - CRIMINAL DEFENSE - DIVORCE AND FAMILY LAW |
| In Dallas: (214) 742-6400 - In Fort Worth: (817) 877-9944 |
   
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Frequently Asked
Questions About DWI Texas
HOW SERIOUS OF A CRIME IS MY FIRST DWI? Driving While Intoxicated is a Class B misdemeanor. The range of punishment on a Class B misdemeanor is up to 180 days in jail and up to a $2000 fine. WHAT WILL MOST LIKELY HAPPEN TO ME IF I PLEAD QUILTY TO DWI? In most Counties in Texas, if you plead guilty to a first time DWI, you will most likely have to be on probation for 2 years. During the 2 years, you will have to report in person to a probation officer once per month. You will also have to pay a fine of between $550 and $850. As a condition of probation, you will be required to complete 24 hours of community service, attend a DWI awareness class and a victim impact panel (these classes last approximately 12 hours and 3 hours respectively), and submit to a substance abuse evaluation. The substance abuse evaluation is a questionnaire about your relationship with drugs and alcohol. Depending on your answers to the questions in the substance abuse evaluation, you may or may not be required to attend Alcoholics Anonymous or Narcotics Anonymous or some other program as a condition of probation. If you plead guilty you will also receive a final conviction for DWI. This conviction is a permanent criminal record which cannot be expunged (erased). The DWI conviction is also reported on your driving record. Insurance companies look at your driving record when they determine your liability insurance rates. Also, if you receive a first time DWI conviction, the Texas Department of Public safety will asses a $1000 per year surcharge against your driver's license, for three years following the date of your conviction, for a total of $3000 over three years. The DPS will allow you to make arrangements for paying this surcharge out in monthly payments over the three years. If you fall behind on your payments, the DPS can suspend your driver's license until you are paid current. If you receive a 2nd DWI, the annual surcharge assessed by the DPS is $1500, for a total of $4500 over three years. If, however, during your arrest, you gave a breath specimen that was tested at 0.16 percent alcohol or greater, then the annual surcharge will be $2000 per year, for a total of $6000 over three years. HOW MUCH WORSE CAN IT GET FOR ME ON MY FIRST DWI? If you were involved in a motor vehicle accident, or if you gave a breath specimen measured at over 0.16 percent alcohol, then the State will want additional penalties from you, such as an increased fine, or an increased number of community service hours as a condition of probation. If you gave a breath specimen measured at over 0.16, the State will want you to have an ignition interlock device attached to your vehicle as a condition of probation. An interlock is a device that attaches to your ignition switch. Before you start your vehicle, you must blow into a tube attached to the device. The device will only allow you to start your car if you have no alcohol on your breath. If you were involved in a motor vehicle accident, the State may want you to have an interlock device attached to your vehicle as a condition of probation, and they will also want you to serve a number of days in jail as a condition of probation.
Yup.
That's right.
If you do not want to be on probation, in Tarrant County you can do "labor detail". Labor detail is an alternative to jail time. You may plead guilty and be sentenced to a number of days in jail. On a first time DWI you might be sentenced to between 20 and 40 days in jail. But, instead of serving your jail time in the county jail, you have the option of working for the county to work off your jail time. When you participate in the county's labor detail program, every day you work counts two days against your jail sentence. So, you can work off a 30 day sentence in 15 days of labor detail. Labor Detail is an 8 hour day, and you must report by 7:30 A.M. You will be required to work at least 1 day per week until your sentence is served, although you may work 7 days per week at labor detail to serve your sentence quicker if you choose. Many participants in the county's labor detail program choose to work labor detail Saturdays and Sundays. Typically, you may be required to wash police cars, sweep floors, or pick up trash in city parks as part of your labor detail. In Dallas County, if you do not want to be on probation, you can work out a plea agreement for jail time instead. You may expect between 30 and 60 days jail on a first time DWI. You would serve that that in Dallas County Jail. Inmates in Dallas County Jail are currently serving their time at “3-for-1”. This means you would get three days credit for every day you served. You could serve a 30 day sentence in 10 days. If you are employed, the judge can allow you to serve your time on “work release”. This means that you would report to jail every evening to sleep and would be released every morning to go to work, until your sentence is served.
Yes, actually. If you choose labor detail instead of probation, then your driver's license will be suspended for one year, beginning on the date of your plea.
We can get you an occupational license that will allow you to do all necessary driving during the period of suspension. The occupational license will allow you to drive to work and back, drive to labor detail, run household errands, etc. On the date of the plea, we can request that the court order the suspension to take effect 30 days after the date of the plea, to give you time to obtain an occupational drivers license. WHAT IF I GET ANOTHER DWI? If you get a second DWI within ten years of completing your sentence on the first DWI, then your new DWI is a class A misdemeanor and caries a range of punishment of up to 1 year in jail and up to a $4000 fine. You may expect to be sentenced to between 40 days and 90 days on a 2nd DWI, which in Tarrant County you may serve on labor detail, and be fined between $800 and $1200. Also, if you are convicted on a 2nd DWI, your driver's license will be suspended for 2 years. You may be eligible for an occupational driver's license, but you will be required to have an ignition interlock device attached to your vehicle as a condition of your occupational license. If your previous DWI was less than 5 years before your new DWI, you will have a waiting period of 6 months after the date of your plea before you will be eligible to petition the court for an occupational driver's license. You will not be able to drive at all during this period of time. If you get a third DWI within ten years of completing your sentence on the 2nd DWI, then your new DWI will be a third degree felony. A third degree felony carries a range of punishment of between 2 years and 10 years in the state penitentiary, and up to a $10,000 fine. In Tarrant County, for a plea agreement on a third DWI you can expect to be on probation for 10 years and pay a fine of between $1200 and $1500. Your driver's license will be suspended for 2 years. If your previous DWI was less than 5 years before your new DWI, you will have a waiting period of 1 year after the date of your plea before you will be eligible to petition the court for an occupational driver's license. You will be required to have an ignition interlock device attached to your vehicle as a condition of your occupational license. Also, on your third DWI, you will be required to serve 120 days county jail time as a condition of probation. Depending on which judge's court you are in, you may be able to serve those days on labor detail, or you may be required to sit the time out in jail on weekends, or on "work release" (where your are released from jail in the mornings to go to work and return to jail in the evening to sleep.) Also, as a result of your felony conviction, you will not be able to own a firearm or vote, you will not be eligible to receive probation following a guilty verdict on any subsequent criminal charge, and your felony conviction can be used to "enhance" any subsequent criminal charge against you. If you are arrested for DWI a fourth time, your new third degree felony DWI can be enhanced to a second degree felony, due to your prior felony conviction. This means your new DWI will carry a range of punishment of between 2 and 20 years in prison. You will also not be eligible for probation, due to your prior felony conviction. You might safely expect to do between 2 and 5 years in prison on a fourth DWI.
If you do not wish to plead guilty to DWI, you can choose to take your case to a trial by jury.
No. The State has the burden of proving to the jury beyond a reasonable doubt that you are guilty. If the state does not prove your guilt beyond a reasonable doubt, the jury is instructed to find you not guilty. The defense is not required to offer any evidence at all, and the jury must still acquit the defendant if the State does not satisfy its burden of proof. The judge even instructs the jury not to consider a defendant's decision not to testify as evidence against him. Although the Defendant may chose to testify if he so desires, in most DWI cases, the defendant is advised by his attorney NOT to testify. At trial, we want the issue to be whether or not the state has satisfied its burden of proof. If the Defendant takes the stand to testify, the jury's focus shifts to whether or not the Defendant is being truthful. A jury may convict a defendant whose testimony they do not like, even if they don't necessarily feel that the state has proved its case beyond a reasonable doubt. In fact, statistically, a jury is almost twice as likely to convict a DWI defendant who testifies on his own behalf as they are to convict one who remains silent! Only in the most unusual of circumstances will the experienced DWI trial lawyer advise his client to testify. So if you are shy or don't like speaking in front of people, relax! All you will probably be required to do is sit at the defense table and look innocent.
To convict you for DWI, the State will be required to prove beyond a reasonable doubt that on or about a certain date in a certain county, you operated a motor vehicle in a public place while intoxicated. The law defines "intoxicated" as either not having the "normal use" of one's mental or physical faculties by reason of the introduction of alcohol, a drug, dangerous drug or any combination thereof into one's body; or having an alcohol concentration of 0.08 or greater. In a case in which the Defendant gave a blood or breath sample, the State may convict a defendant by proving either loss of normal use of mental or physical faculties, or alcohol concentration of 0.08 or greater. However, in a case in which the defendant refused to give a breath or blood sample, the State would not have any evidence to prove alcohol concentration, and would only be able to prove its case by showing loss of normal use of mental or physical faculties.
You got that right. WHAT EVIDENCE WILL THE STATE USE TO TRY TO PROVE THAT I OPERATED A MOTOR VEHICLE WHILE NOT HAVING THE NORMAL USE OF MY MENTAL OR PHYSICAL FACULTIES BY REASON OF THE INTRODUCTION OF ALCOHOL INTO MY BODY? The State's case will consist of two main pieces of evidence; the testimony of the police officer who arrested you and the video tape made during your arrest. The prosecutor will call the officer to the stand and have him testify about why he thinks you were intoxicated. After the officer is done testifying, the prosecutor will show the jury the videotape of you performing sobriety tests at the police station. If an in-car video was made, the prosecutor will show that tape also. Usually, this is all the evidence the State will have to try to convince a jury beyond a reasonable doubt that you were intoxicated. Sometimes the state may have additional, non-police officer witnesses, like for instance if there was a 911 caller who observed you driving.
Not necessarily. The police officer is only able to offer his opinion, and the officer's opinion is not conclusive. The officer's opinion is based on observations he makes during the stop and arrest, and on your performance on field sobriety tests. After the officer testifies, your attorney will have the opportunity to "cross-examine" the officer by asking him leading questions to bring out the more positive aspects of your case. Typically, under direct examination by the prosecutor, the officer will testify about signs of intoxication like smell of alcohol on breath, slurred speech and swayed balance. However, the prosecutor will generally not ask the officer to testify about signs that the defendant was NOT intoxicated. The experienced DWI trial lawyer can use cross examination to get the police officer to tell the jury about all the signs of sobriety he observed in the defendant. For example: did the defendant pull over his car promptly when signaled to do so; did he park his car safely and legally on the side of the road; did he find his driver's license and insurance without fumbling through his wallet; was he polite; did he understand the officer's questions and answer them coherently; did he exit his vehicle without falling or leaning on his car for support; did he understand the officer's instructions on field sobriety tests. The experienced DWI trial lawyer can present the jury with many signs of sobriety just by cross examining the police officer.
You are not automatically guilty of anything. The State of Texas must prove beyond a reasonable doubt that your blood alcohol content was over 0.08 at the time of driving.
Exactly. During that 1 hour, your blood alcohol content was either rising or falling. If you had just finished drinking before you drove, then alcohol was sitting in your stomach waiting to be absorbed into your bloodstream at the time you were stopped. During the period of time when you were arrested, transported to the jail, booked in, and videotaped, your blood alcohol content was slowly rising, as that alcohol was absorbed into your blood. By the time you gave a breath test, the test result may have actually been much higher than your blood alcohol content at the time you were driving.
Over time, your blood alcohol content goes through what's called an absorption/elimination curve. During the first 30 minutes to one hour after you stop drinking, your blood alcohol rises as your body absorbs the alcohol. Your B.A.C. peaks anywhere from 30 minutes to one hour after you stop drinking. After that, your B.A.C. drops, at a rate of slightly less than 0.02% per hour, as your liver and kidneys process your blood and remove the alcohol from your system.
Before taking a breath specimen, the police will ask you a series of questions including: How much did you drink? When was your last drink? When did you last eat? The State needs the answers to these questions to perform an in-exact science called "retrograde extrapolation", whereby they try to calculate backwards in time to determine what your breath test score would have been at the time you were driving. Without such information as the time of your last drink, the State cannot perform retrograde extrapolation, and cannot speculate about your B.A.C. at the time of driving.
Good job! You should always invoke your right to remain silent. The less evidence you give them, the better.
It is generally accepted that the machine is accurate within 0.02. The machine takes two breath specimens before printing a test result. The machine will only print the result if the specimens agree within 0.02 of one another. If the specimens differ by more than 0.02, the machine rejects the test and does not print a result. If the police asked you to give more than 2 breath specimens, this may be an indication that the machine rejected the first two tests for "no 0.02 subject test agreement" (the machine will print a slip that states the reason why the test sample was rejected.) This may imply that the machine was reading erratically at the time you gave a breath test.
The thickness of your blood can affect the test result. Your body temperature can affect the test result somewhat. Some health conditions such as untreated diabetes can affect the test result.
What have you got to lose? Look at it this way: if you plead guilty, your chances of having a DWI conviction on your record are 100%. Therefore, your chances of not being convicted are always much better if you take your case to trial, even if you did give a breath test.
Actually, no. On a misdemeanor DWI, following a guilty verdict at trial, the Court will generally asses a punishment that is very similar to the State's offer. In some cases, the Court will actually beat the State's offer by giving you a smaller fine or less probation time, if the facts of your case are good. The court will not penalize you on punishment simply for having asserted your constitutional right to a trial by jury. So, like I said, what have you got to lose?
In misdemeanor court, generally the third court appearance is what's called the "announcement docket". This means that, by your third court date, if you have not done so already, the Court will require you to "announce" whether you intend to accept a plea agreement from the State and plead guilty, or plead "not guilty" and seek a jury trial. If you announce "trial" (actually, your attorney announces trial or plea; you are not yet required to say anything at this point), then the court coordinator will reset your case for an appearance on a trial docket, or "contest" docket. At your next court appearance, you will be set on a docket with 10 to 20 other cases that are all set for trial. The court will start with the oldest case and work its way back. Some defendants may enter guilty pleas at their trial docket appearance, or some cases may be passed up for trial for other reasons, for instance if the attorney or some material witness is unavailable for trial. The Court may try one or two cases in a week, and the rest of the cases will be reset for another trial docket appearance. Any time you appear on a trial docket, your case may be selected for trial, although you might realistically expect to make two or even three trial docket appearances before your case is reached for trial. On average, DWI cases are tried from 6 months to 1 year after the date of the arrest.
The District Attorney's office has no problem trying every single DWI case, and in fact the District Attorney's offices in Texas are DWI trial machines. Political pressure placed on district attorneys (who are, after all, elected officials) in recent years by MADD and other groups has forced district attorney's offices in Texas to place a very high priority on seeking convictions for every DWI that comes through. So, no, the DA will never outright dismiss a DWI. However, in some instance a prosecutor may offer the Defendant the opportunity to plead to "obstructing a highway". The prosecutor may offer an "obstruction" if he feels that the case is not strong for the State and he is not likely to get a conviction from a jury.
Prosecutors generally don't consider cases for obstruction until the cases are reached on the trial docket. The prosecutor assigned to a trial docket will review the 3 or 4 oldest cases to prepare them for trial. If he sees a case that he thinks is a weak case for the State, he may ask his chief to approve the case for an obstruction offer. Assistant district attorneys in Texas generally do not have the authority to offer obstructions without clearing it with their chiefs first. If the case is approved for an obstruction, the prosecutor will generally make the offer on the day of the trial docket setting, before a jury is selected. Prosecutors generally will not review cases for obstruction offers until they are reached for trial.
Obstructing a highway is a Class B misdemeanor, just like DWI. However, unlike DWI, obstructing a highway is not a moving traffic violating. Therefore, it does not appear on your driving record, and insurance companies don't look at an obstructing a highway conviction when calculating your rates. Also, if you are convicted for obstructing a highway you are not assessed the $1000 per year surcharge on your driver's license. For these reasons, most people are happy to accept an obstructing a highway charge instead of a DWI if one is being offered.
No. The obstructing a highway does not count as a DWI for enhancement purposes. Your second DWI would still be a class B misdemeanor, and your third would be a class A misdemeanor. You would not be looking at a felony until your fourth DWI, if you take an obstructing a highway on your first.
Trust me, you won't look at it that way. After being arrested, spending the night in jail, paying a bondsman for your freedom, paying attorneys fees to a lawyer, and making numerous court appearances over many months, you won't want to go through the experience of being charged with DWI again, even if a jury finds you not guilty and acquits you of all charges.
Most people with active social lives who drink do occasionally find themselves in a position where they drive home after having a few drinks. You can decrease your chances of being stopped by the police and arrested for DWI if you are smart. FIRST of all, if you have had anything to drink at all, don't speed. Strictly observe the speed limit. Most people who are arrested for DWI are initially stopped for speeding. SECOND, signal all your turns and lane changes. Don't give an officer a silly reason to pull you over like an unsignaled lane change. THIRD, always wear your seat belt. FOURTH, keep your vehicle legal. Keep your inspection and registration current, and make sure all your turn signals and brake lamps function properly. If you have had anything to drink, do not get behind the wheel of a car that an officer can pull over for a non-moving violation. FIFTH, do not ever bring an open container of alcohol with you in the car. This is just plain stupid. SIXTH, if you miss your turn, just keep driving. Do not take unnecessary risks like abrupt u-turns or erratic lane changes. Even if you would sober. You're not sober, remember. SEVENTH, don't get inebriated. Don't get drunk. Know when to say when. This is good advice for life in general, not just for avoiding DWI. People enjoy a little social lubrication in the form of alcohol, but nobody likes the drunk guy (or girl). If you are the guy who can't stop drinking once he has had his first taste of alcohol, and drinks to the point of inebriation with any regularity, consider quitting cold turkey, taking up a twelve-step program, or checking yourself into rehab. Believe me, if you can't or won't stop drinking, and get arrested after getting plastered and being stopped after someone calls 911 and says you were all over the road and nearly hit another car, there won't be much that me or any other DWI lawyer can do to get you out of it. If you do get arrested, remember to invoke your right to remain silent as soon the police read you your Miranda rights, and remember to REFUSE a breath test, unless you actually, truthfully only had two beers all evening. If you had five beers in three hours and think you feel fine, don't risk it. Really, this is serious stuff. Remember that it is not against the law to drive after drinking, just to drive while intoxicated. If you use your head and act responsibly, you should be fine. Good luck! ©2004, Christopher Kuhner. "Frequently Asked Questions About DWI in Tarrant County, Texas" is provided to clients as an informational service by the law firm of YANEZ | McGEE | KUHNER, P.C.. For more detailed information about your DWI case, please call us in Dallas at (214) 742-6400 or in Fort Worth at (817) 877-9944. |
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