A DWI (Driving While Intoxicated) conviction, regardless of the way it is prosecuted, will change your life since you can face driver's license suspension, extended probationary sentences, and the lengthy repercussions of getting a criminal record.
Whenever a DWI is prosecuted as a felony-level crime, however, the repercussions are even more severe. Felony-level DWI convictions carry significantly harsher penalties. Furthermore, as a convict, your freedom will be affected.
Therefore, when is a DWI charge considered a felony, and what are the consequences? We answer this question in this blog.
Definition of DWI According to the Texas Laws
Rather than "driving under the influence," The State of Texas uses the phrase "driving while intoxicated" (DWI). DWI laws in Texas make it illegal for any driver to operate a vehicle:
- Having a blood alcohol content (BAC) of 0.8% or higher
- When under the influence of drugs or alcohol
In general, if you "lack the normal use of physical or mental abilities" because of drinking alcohol, drugs, or another substance, you are deemed "intoxicated."
Operating a boat while intoxicated (BWI) is similarly prohibited in Texas. Texas has a zero-tolerance policy that makes it unlawful for minor persons (anyone below 21 years) to operate a vehicle with any level of alcohol in their body.
Felony Level DWI Offenses in Texas
Texas law is strict when it comes to driving while intoxicated (DWI). Though first-time felons may receive a lighter punishment, many persons convicted for driving under the influence face felony charges. Furthermore, as is often the case with matters of law, the response of if a DWI constitutes a felony in Texas is: it varies.
Prior offenses can have a significant impact on if you're convicted of a misdemeanor or a felony. Two different persons caught in similar circumstances might face dramatically different results. A DWI is typically prosecuted as a felony only if it is a third-level or higher offense. Even if it is your first or second DWI arrest, you may also be convicted of a felony in certain situations:
Even though it is your first DWI arrest, you will be prosecuted with a third-degree felony if you harm any driver or pedestrian while driving inebriated. The following penalties apply to intoxication assault:
- State incarceration for 2 to 10 years
- Penalties of up to $10,000
When fighting an Intoxication assault allegation, one of the most important questions to consider is if the claimed intoxication was the main cause of the victim's injuries. To put it another way, the prosecution must establish doubtlessly that the injuries were caused by your drunk driving.
If another driver or pedestrian is killed as a result of your drunk driving, you will be facing intoxication manslaughter, a second-degree felony that carries the following penalties:
- State incarceration for 2 to 20 years
- Penalties of up to $10,000
Intoxicated Manslaughter, like Intoxication Assault, needs proof that the factor of intoxication was the real cause of someone else's death. If this is not proven, you'll get a not guilty verdict.
DWI with a Child Passenger
When you are caught for DWI while driving with a child passenger under 15 years, you'll be charged with DWI with a child passenger. In Texas, it is a felony with the following consequences:
- a sentence of 180 days to two years in prison
- A penalty of up to $10,000
A Third or Subsequent DWI
In comparison to prior DWI charges, your lawyer should clarify that the state statute applies tougher sanctions for a third DWI violation. It is a third-degree crime with the following consequences:
- 2 to 10 years in prison
- A fine of up to $10,000
A Prior Conviction for a Third DWI or More
If you have been convicted of a third or higher DWI crime and have previously served time in a Texas prison for any reason, you will be charged with a second-degree felony DWI. The following are examples of penalties:
- Imprisonment for a period of 2 to 20 years, if you had one prior prison sentence
- Imprisonment for 25 years to life in prison if you had a minimum of two prison sentences
- Fines of up to $10,000
Receiving a DWI without Driving
In the State of Texas, a driver can receive a DWI even if they didn't drive: DWI is defined as "operating" a motor vehicle while drunk or with an illegal blood alcohol content (BAC). So, although driving can result in a conviction, it isn't needed.
According to Texas courts, the phrase "operate" encompasses any activity that "affects the functioning" of a motor vehicle in a way that "allows its use."
The Alcohol Limit for Driving in Texas
Prosecutors in Texas can show that you were driving while drunk by demonstrating that you operated a motor vehicle with a BAC of.08 or higher. If you submit a blood, urine, or breath sample, the quantity of alcohol assessed will vary. Alcohol level, as per the Texas Penal Code, is described as the number of grams of alcohol per:
- 210 l of breath
- 100 ml of blood
- 67 ml of urine
If your BAC test results in a 0.08 or above following your DWI arrest, you will be prosecuted with DWI.
Field Sobriety Tests in Texas
Drivers accused of drunken driving are closely monitored and prosecuted by police across Texas. As a result, if somebody is driving recklessly, a law enforcement officer will probably pull them over on suspicions of drunk driving.
When an officer pulls a vehicle over, he or she will search for indications of intoxication. Slurred speech, red eyes, delayed reflexes, or the stench of alcohol could be indicators of drunkenness. If an officer suspects the driver is inebriated, he or she would most likely request that the driver do a field sobriety test. The Standardized Field Test is made up of three examinations, according to the National Highway Traffic Safety Administration:
- One stand leg
- Walk and turn
- Horizontal gaze nystagmus
Horizontal Gaze Nystagmus
As per the NHTSA, the horizontal gaze nystagmus test involves an officer observing an individual's eyes as the person follows a slow-moving item horizontally with his or her eyes, like a tiny flashlight or a pen. The officer examines the eyes to determine whether they are twitching or unable to follow the item.
Walk and Turn
Because the walk and turn is a regulated test, the officer who conducts it must adhere to specific standards to obtain accurate results. There are two parts to the exam: instruction and execution. In the instruction phase, the officer will have you standing heel to toe with your arms at your sides while explaining and demonstrating how to execute the exam. He or she will inquire if you understand the instructions once they have been given.
You will have to take nine heel-to-toe steps forward on an actual or imagined line, turn, then take nine steps back to complete the test. You must bring your hands to the side, monitor your feet, and count your steps loudly at all moments.
The officer will check for several indications while you are walking that suggest a blood alcohol concentration (BAC) of 0.08 percent or above. These indicators include having trouble balancing while listening to instructions, starting the test before the teaching stage is finished, halting while walking, being unable to walk heel to toe, going off the line, using arms for balance, turning improperly, and taking the wrong amount of steps.
Lastly, the one-leg stand test requires the participant to stand with one foot approximately six inches above the ground. And the individual is instructed to count loudly until the officer instructs him to place his foot on the ground. The officer will look for symptoms of impairment such as:
- Using arms to balance
- Swaying while balancing
- Placing the foot down
- Hopping to maintain balance throughout this 30 second period.
Can You Decline to Take a Field Sobriety Test in Texas?
A single field sobriety test or a series of tests may be administered by an officer. While many tests are used, the correctness of identifying intoxication grows. It's also worth noting that a person might decline to undergo a field sobriety test.
There are no fines for refusing to take a field sobriety test, but there are some ramifications. For example, while evaluating reasonable cause to arrest, an officer may consider a driver's reluctance to take a field sobriety test. Furthermore, a jury may infer that a driver's reluctance to take a breath test constitutes proof of drunkenness during a trial.
How Long Does a DWI Last on Your Record?
Prior DWI offenses are extremely important. They can make the difference between escaping imprisonment and receiving a prison term. In most states, not all DWI convictions are treated equally. Some states use a "lookback period," which is a period after which any DWI offenses are not taken into account when deciding what to penalize you with.
Texas, on the other hand, is among nine states without a lookback period. Once you are caught for DWI in Texas, prosecutors will look at all of your previous DWI convictions, regardless of whether they are decades old.
Common Defenses for DWI Charges
In a Texas DWI conviction, not every defense will be viable. Defenses must be adapted to the circumstances of the case. the most straightforward defense of "I didn't operate a vehicle while inebriated" may not be sufficient. The most effective legal defenses emerge from the circumstances of the situation.
Each DWI case is different, and it necessitates a different defense. The following defense techniques might be effective:
- Disputing Breath tests
- Disputing Field sobriety tests
- Disputing Blood tests
- Disputing Expert testimony on drug identification
- Trying to suppress evidence, to involve expert witness testimony
- Questioning Police officers' testimony
- demonstrating that a DWI-related accident wasn't your fault
- Employing accident police records to refute the police officer's testimony
- Asserting that police enforcement breached your constitutional rights, such as failing to have probable cause to stop you.
- Accusing police enforcement of conducting illegal unreasonable searches and seizures of your possessions
Affirmative Defenses to DWI Allegations
While acknowledging part or all of the criminal accusations, an affirmative defense provides facts that justify the offense. Statutory law has several affirmative defenses. The following, based on the details of the case, may be effective:
- Factual error
Insanity is seldom utilized, particularly in DWI prosecutions. Duress is uncommon in DWI cases, but it may apply if you were threatened with violence to get into the vehicle and drive.
An error of fact occurs when the accused creates a valid argument that invalidates the guilty mental state necessary for a felony charge. The majority of DWI defenses aren't affirmative.
Disputing the Validity of DWI Blood and Breath Tests
The strongest defenses frequently target the validity of breath testing, blood tests, and field sobriety tests. The prosecutor needs to establish doubtlessly that the DWI occurred in Texas to secure a DWI conviction.
This is the most complex legal requirement to satisfy. The state of Texas has to show in terms of breath and blood testing to prove the offense. The evidence will be ruled out if law enforcement is unable to perform breath or blood tests, or if the laboratory fails to appropriately complete the blood tests.
Law Enforcement did not Prove Probable Cause
Every DWI component must be proven doubtlessly by the state. Furthermore, law enforcement officials are unable to make an arrest without reasonable cause. All evidence obtained against the accused during the arrest will be thrown out if law enforcement authorities didn't have reasonable grounds.
When law enforcement initiates a traffic stop, they should be able to demonstrate that they did so with reasonable cause. Police are required to demonstrate that the accused was committing or had broken the law. To establish that they had reasonable grounds for the arrest, most police use the accused's slurred speech, the stench of alcohol, and bloodshot eyes.
Such assertions, however, are easily debunked. An individual's eyes could be red due to allergies or exhaustion. We could also readily question slurred speech. And besides, the officer has no idea how the accused normally communicates. Whenever it comes to the smell of liquor, keep in mind that it is not unlawful to drink, it is to operate a vehicle while inebriated.
What You Should Avoid Following a DWI Conviction
Being detained for a DWI in Texas is a terrifying ordeal. Many people accused of driving while intoxicated are unfamiliar with the Texas drunk driving rules, leaving them vulnerable to scenarios that might jeopardize their case.
Recognizing the most frequent mistakes people make after a DWI arrest might help you avoid making the same errors.
The following are some of the most usual errors people make:
Taking Allegations Lightly
Many people obtain a DWI and assume that if they ignore it, it will go away. The first DWI in Texas is generally a misdemeanor, which means that many individuals feel it is not as serious as a felony. Although misdemeanors are not as severe as felonies, they have repercussions that could be significant if not handled appropriately.
Talking to the Police
While it may appear that talking to the officer to justify your situation is the best course of action after being arrested, this is never the case. Officers could appear to be your friends at the moment of your arrest, but any information you disclose to them is used against you in court. Make sure you use your right to stay silent under the Fifth Amendment until you talk with an expert defense counsel.
Just because you've been arrested doesn't imply you're guilty of driving while intoxicated. Admitting guilt is the easiest way to eliminate your prospects of successfully defending your accusations. Furthermore, admitting guilt may require you to receive the maximum sentence applicable to your circumstances.
Not Recognizing that in Some Circumstances, You can Maintain Your Driver's License
Your driver's license is immediately suspended once you are arrested. It's essential to note, though, that this suspension is not the same as the one you'll get if you're proven guilty. Many individuals are unaware that they may request another hearing to argue for a provisional license if they move fast.
Choosing not to Hire an Attorney
After your arrest, you must speak with a skilled DWI defense attorney about your rights. Your lawyer will make certain that neither of the aforementioned mistakes occurs, and that you receive the legal assistance you need to safeguard your rights and livelihood.
There's so much that goes into fighting a DWI charge in Texas. Many details of your conviction may appear unimportant to the untrained eye, yet an expert may notice something that leads to your release. The judge will not regard you differently if you appear in court as your own counsel. You'll be held to the same standards as a qualified lawyer, and you'll be required to know how a trial should go.
Hiring a Professional DWI Defense Attorney Near Me
Top DWI lawyers in Texas are always refining their methods for contesting DWI offenses and have devised techniques that may help clients achieve a favorable conclusion. Any sloppy or improper actions or methods used by the arresting police and breathalyzer specialists may aid in the inadmissibility of the results in court.