Being arrested and charged with DWI in Texas can be devastating personally and professionally. You risk going to jail, losing your driving privileges and paying thousands of dollars in fines and fees. Your job might be put in jeopardy and your insurance premiums may go up substantially. Texas takes a serious approach to DWI and the legislature is out to catch drunk drivers. In the immediate aftermath of a DWI charge, you want an experienced and aggressive attorney to protect your constitutional rights- you need Andrew Deegan Fort Worth DWI Attorney at Law. My goal is to help you secure your future and move past this difficult event in your life.
To schedule a free initial consultation, call my office at 817-470-2128 or contact me online.
DWI under Texas Law
While drunk driving is illegal across the United States, the laws defining the offense and its legal penalties differ from one state to the other. In Texas, the laws governing Driving While Intoxicated (DWI) are the equivalents of laws governing Driving under the Influence (DUI) in other states. DWI is defined by Texas Penal Code §49.04 which makes operating a vehicle while intoxicated in a public place an offense. Intoxication under this statute is defined in two ways:
- Having a Blood Alcohol Concentration (BAC) of .08 percent or more and/or
- Not having the normal use of mental or physical faculties due to the ingestion of alcohol, drug or any other substance.
For many people, getting a DWI can be easier because the .08 BAC is easily reached after having one or two drinks. In Texas, a motorist can be arrested for DWI without actually driving. The term “operate” is very broad and Texas courts have included it to mean any action that affects the functioning of a motor vehicle in a way that allows its use. Therefore, while driving is sufficient to be convicted of a DWI, it isn’t required.
Texas DWI Penalties
The state of Texas has a strong stance on DWI and does not take the offenses lightly. Those convicted can face harsh penalties and additional consequences, such as DPS surcharges and increased insurance rates. The penalties vary based on the circumstance of the case and how many prior convictions the offender has. The penalties are more severe if you have a prior DWI conviction on your record.
Here’s a breakdown of DWI penalties in Texas:
First DWI Offense: Possible jail sentence from 3 days to 180 days and/or a fine of up to $2,000, and suspension of driver’s license for 90 days to 365 days. (Class B Misdemeanor) If your blood comes back with a BAC .15 or more, the range of punishment doubles and you’ll be facing the possibility of serving jail time for one (1) years and a fine of up to $4,000. (Class A Misdemeanor)
In addition to the aforementioned penalty, the minimum jail term increased to six days if arrested with an open alcohol container
Second DWI Offense: Possible jail time from 30 days to one (1) year, fine not exceeding $4,000, or both, and possible driver’s license suspension for a period of 180 days to two (2) years. (Class A Misdemeanor)
Third DWI Offense: 2 to 10 years of imprisonment and/or a maximum fine of $10,000, and loss of driver’s license for a period ranging from 180 days to 2 years. The offender is imprisoned in state prison and is also disqualified from voting or possessing a firearm. (Third-Degree Felony)
DWI offenses involving injury or the risk of injury to others are referred to as “enhanced offenses” and are prosecuted under different code sections. They expose the offender to much more serious consequences. These offenses include:
DWI with a child under 15 in the vehicle: Punishment is by confinement in state jail for a period of 180 days to two (2) years and/or a fine of up to $10,000. (State Jail Felony)
Intoxication Assault: Involves a DWI accident where serious bodily injury occurred as a result of intoxication. Upon conviction, you may be fined up to $10,000 and may serve jail time ranging between 2 years to 10 years. But, if you’re put on probation, you’ll be sentenced for a period of not less than 30 days. (Third-Degree Felony)
Intoxication Manslaughter: Involves DWI being a proximate cause of death. If convicted, you may be imprisoned for 2 years to 20 years and/or be required to pay a fine of up to $10,000. The charges can be stacked against you for each death. For instance, if two people died in a DWI accident, you may have to serve 4 to 40 years in prison. Early release from prison may be prohibited until half of the sentence has been satisfied if the vehicle was driven in a manner that made it a deadly weapon. (Third-Degree Felony)
Probation from a DWI Conviction
Most misdemeanor convictions result in probation/community supervision, which is typically the court’s way of suspending a sentence of jail, a fine, or the driver’s license suspension. Probation is a contract between you and the court, where the judge promises not to make you pay the entire fine, not to put you in jail, and not to suspend your driver’s license provided you “behave” for the stipulated period of time. If you agree to the probation, you’ll be required to:
- Report to a probation officer once a month
- Pay a monthly supervisory fee ranging between $60 and $100.
- Pay your non-probated court costs and fines
- Not to commit any further crimes during the probation term
- To abstain from consuming alcohol or any other drugs
- Install an alcohol ignition interlock device in your vehicle
- Attend DWI education classes
- Perform a number of community service hours
- Submit a breath test upon request
- Remain in the county of residence unless you have the court’s permission to leave
DWI Education Program
First-time offenders put on community supervision (probation) are required to attend a DWI education program that lasts for 12 hours. The program educates individuals on how alcohol and drugs relate to patterns of drinking, drug use, a person’s ability to drive, and ways to avoid engaging in similar conduct in the future. An individual must complete the course within 180 days of being placed on community supervision or they’ll be in violation of probation and their license will be revoked.
DWI Intervention Program
Repeat offenders are required to attend a 32-hour DWI Intervention Program, which is meant to encourage offenders to enter treatment and also intervenes into the lifestyles of drug and alcohol abusers. Topics covered in the program include lifestyle issues, the psychological and physical effects of drugs and alcohol, self-esteem, positive thinking, values, problem-solving, treatment options, codependency, and prevention of relapse. Just as with the DWI Education Program, the driver’s license will be revoked until the course is successfully completed.
About Texas DPS Surcharges
Under the Texas Driver Responsibility Program, the Texas Department of Public Safety has the authority to assess surcharges on your license for a DWI conviction. These additional financial penalties are based on the number of convictions and points given for traffic violations. After a conviction, the points assigned will remain on your record for three years. Two (2) points are assessed for a conviction in Texas or out of state and three (3) points are assessed for a conviction that resulted in a crash. If you have 6 or more points on your driving record, you’ll be assessed a surcharge every year that the points are maintained. If convicted of a first DWI, you’ll be charged $1,000 a year for three years. The penalties increase to $2,000 per year if your BAC level was .16 or greater. A second or subsequent conviction for a Texas or out-of-state DWI will result in surcharge fees of $1,500 per year. What’s more, DPS outsources the collection of surcharge fees to a private company that adds more fees, including service fees and installment plan fees. Now it’s clear why the road sign in Texas says, “A Texas DWI – You Can’t Afford It.”
Driver’s License Suspension and the ALR Hearing
When an individual is arrested for DWI, there’s a separate case involving the driver’s license. Whether you submitted to or refused to give a breath or blood test after the arrest, your driver’s license will be automatically subject to suspension by the Department of Public Safety (DPS). This means that your license will be suspended for a certain period even if your charges are later dropped. You can, however, fight to get your driver’s license reinstated by requesting an Administration License Revocation hearing. This hearing is handled by an administrative law judge and is handled separately than your DWI case. The ALR hearing plays a crucial role in the defense of your DWI case and can mean the difference in you winning or losing the case.
From the date of your DWI arrest, you only have 15 days to request an ALR hearing. If you fail to request the hearing within the stipulated time, you can waive your right to challenge the suspension. As such, your driver’s license will be automatically suspended on the 40th day after the arrest.
How long your driver’s license can be suspended will be determined by the number of prior DWI convictions on your record. The license can be suspended for up to 90 days for a first-time offender who provided a blood sample and up to 180 days for a first-time offender who refused to provide a blood sample. Conversely, a maximum suspension of 1 year will be served on a prior DWI offender who submitted to the test and a maximum suspension of 2 years for a prior offender who refused the test.
If your license is suspended after the hearing, you may be able to apply for an occupational license and obtain limited driving privileges. The license allows you to drive to and from work, school, or your child’s school.
The Texas DWI Legal Process
A DWI legal process starts with an individual's arrest for operating a motor vehicle while intoxicated. What follows after that is booking at the police station, where your personal information and other important records will be documented and formal charges will be made against you. You’ll be charged with DWI and will also face action taken by the Texas Department of Public Safety to temporarily suspend your driver’s license. Keep in mind that these are two different charges that will have to be addressed separately by a highly experienced DWI attorney. The driver’s license suspension will need to be handled within fifteen (15) days after receiving notice of suspension. A DMV hearing will be scheduled to contest the suspension, failure to which the license will be automatically suspended.
Depending on the severity of the arrest circumstances, the court may allow you to be released on bail, with a court date set for the arraignment. An arraignment hearing in the DWI process is the first court appearance and the suspect will now be referred to as a defendant. The charges are read and the defendant will take a plea of either guilty, not guilty, or no contest plea and the next court dates will be scheduled.
A preliminary hearing may be scheduled if charged with felony DWI that involved serious bodily injury or death or driving a commercial vehicle. Your attorney and the prosecutor may also enter a plea bargain at this stage to have the charges reduced in return for a guilty or no contest plea. The next stage involves pre-trial motions where your Fort Worth DWI attorney will present your case before a judge and have the opportunity to submit or request that evidence be suppressed, argue for an against testimony, request certain matters get dismissed, and rules of conduct are stated. If you’ve not pleaded guilty or a plea bargain has not been entered, a trial date will be set and your attorney will prepare for the case.
At the trial, you’ll either be found not guilty, which will result in a dismissal of the charges against you or guilty, which would have you sentenced. Penalties resulting from a guilty verdict may include fines, incarceration, and a criminal record. For this reason, you’ll want to ensure that you thoughtfully choose a Fort Worth DWI attorney to stand by you throughout the DWI process. I am prepared to provide you with a high level of representation and the extensive experience needed for such cases. I stand ready to apply every possible measure to aggressively defend the case and help you protect your driving privileges, future freedom, and legal record.
DWI Appeals Process
When an individual is arrested for and charged with DWI in Texas, there are many consequences that can arise. Law enforcement and prosecutors are vigilant in the monitoring and prosecuting drivers who operate a vehicle while intoxicated. What’s more, it’s almost impossible to find success in a trial without the help of a strong and dependable Fort Worth DWI lawyer. While attorneys do their best to eliminate or reduce charges, some cases wrongfully find their way to conviction. If you’ve believe that you’ve been wrongfully convicted of DWI, you have the option of filing an appeal. Once you’ve submitted your appeal, it will be reviewed by an appellate court to determine if there are were any errors that might have occurred during the proceedings of your case. If there were sufficient errors, the conviction may be remanded and a new trial arranged. In some cases, the appellate court may use the errors to acquit.
Field Sobriety Tests in Texas
If an individual is driving erratically and is pulled over for suspicion of driving while intoxicated, the officer will look for possible signs of intoxication, including, the smell of alcohol, delayed reactions, red eyes, and slurred speech. The officer will likely ask the driver to submit to one or more Standardized Field Sobriety Tests (SFSTs) to establish probable cause that the driver is intoxicated. Types of field sobriety tests in Texas include:
- Walk-and-turn: The driver takes 9 steps along a straight line and then walks back in the other direction. The officer observes to see if the individual takes an incorrect number of steps, takes an improper turn, or loses balance.
- Horizontal Gaze Nystagmus: This involves the officer observing the eyes of a suspect following an object moving at a slow pace horizontally. The officer looks to see if the eyes are jerking or if they cannot follow the object.
- One-leg stand: The individual is asked to stand with one foot off the ground and count aloud for about 30 seconds. The officer looks for signs of intoxication such as using arms to balance, putting the foot down, swaying while balancing, and hoping to maintain balance.
These field sobriety tests have weaknesses. Failing one or more tests does not mean that you were actually intoxicated or your case is hopeless. I know the science and laws of these cases and can use them to fight the charges.
Blood or Breath Tests for Texas DWI
Under Texas’s “implied consent” law, a driver lawfully arrested for DWI is deemed to have consented to submit to a blood or breath test to determine the presence of drugs or determine blood alcohol concentration in the driver’s system. An officer can only take a specimen of the person’s breath or blood if the officer has probable cause to believe that the driver was intoxicated at the time of the arrest.
Importantly, a person can lawfully refuse to submit to a chemical test. Before the arresting officer requests a specimen, the officer is required by law to inform the person orally and in writing about the consequence of refusing a test- that your license will be automatically suspended for 180 days, you’ll be fined, and you’ll face jail time if convicted of a DWI. And the officer must inform you that you don’t have the right to speak to an attorney before you take the test.
In certain circumstances, however, the officer can force you to submit to a blood or breath test. Reasons an officer can forcibly take a sample for DWI purposes include:
- the accused person was driving with a child under 15 in the car
- someone has suffered serious bodily injuries in an accident with an intoxicated driver
- someone died or the officer reasonably believed that someone died in a collision allegedly caused by an intoxicated driver
- the suspect has two
- you have two prior DWI convictions or prior conviction for intoxication manslaughter or intoxication assault
Your driver’s license could be suspended for two (2) years if you refuse to take a chemical test and you’ve had at least one drug or alcohol-related contact with the enforcement within the last ten (10) years. Failed BAC tests, BAC test refusals, and DWI convictions are prior enforcement contacts. You can still be found guilty of a DWI even if you refused to take a post-arrest chemical test. In fact, the prosecution can argue that you refused to take the test because you knew you were driving while impaired.
Orders of Non-Disclosure for DWI Offenses
A DWI conviction can haunt you for years, if not for a lifetime. With a conviction on your record, you may find it difficult to get credit, find suitable housing, or secure a job. However, under House Bill 3016, which went into effect on September 1, 2017, you can ask the court for an order of non-disclosure and get a new second chance. An order of disclosure typically seals the criminal record, removing it from the public view. In most cases, you may legally say that you were never convicted. But, the records will remain accessible to state and federal officials, law enforcement, and government employers.
Under this statute, an individual may petition for an order of non-disclosure for a first DWI offense, so long as the BAC was less than .15. Other criteria for a petitioner to be eligible for non-disclosure include:
- has never been convicted of or placed on deferred adjudication for another non-traffic offense whose punishment includes more than just a fine
- has completed incarceration or any community supervision requirements
- Has paid all costs, fines, and restitution ordered
The waiting period is 3 years if you successfully completed the jail term and has paid all fines and costs. 2 years after successful completion of probation if there was an ignition interlock device installed in the vehicle for a period of at least 6 months. 5 years following the DWI arrest and no interlock device was required as part of the sentence.
Ignition Interlock Requirements in Texas
When someone is convicted of DWI, he/she may be required to install an Ignition Interlock Device (IID), depending on the circumstances of their case. An IID is a small device that’s attached to a vehicle’s ignition and serves to reduce DWI by separating acts of drinking and driving. The driver is required to blow into the IID before starting the car. As such, the vehicle will not start if the driver has alcohol in his/her system and the BAC is higher than what is allowed. In addition, the driver’s breath samples will be required at random intervals and if the driver fails to do provide a sample or there’s too much alcohol in the breath sample, an alarm will go off with the horn honking and lights flashing until the vehicle stops.
Under Texas Penal Code Section 49.09(h), an individual convicted of a subsequent DWI offense will be required to install an IID if the subsequent offense is committed within 5 years and the person has had his/her license suspended. The device must also be installed for an individual convicted of a DWI involving a BAC of .15 or greater. The device must be installed before the ending date of the driver’s license suspension and must be installed on all of the motor vehicles that the defendant owns and drives for a period of 1 year. An individual can be charged with contempt if he/she fails to comply with the orders.
Common Defense Strategies against DWI Charges
A motorist charged with a DWI has a few different options when it comes to developing a strong defense. In rare circumstances, affirmative defenses can be employed even when their evidence supports the charge. However, common defense strategies often attack the arresting officer’s observation of the situation prior to the arrest or challenge the integrity of the evidence used by the prosecutor, such as the accuracy of the blood test.
Common DWI defense strategies include:
No Probable Cause for Arrest
In order to make a lawful arrest, police need probable cause to stop the vehicle. The officer must have reasonable suspicion, which must be based on articulable facts that the driver or someone else in the vehicle is engaging in criminal activity. Things like speeding, swerving, erratic driving, or violating a traffic law can be used as a probable cause for a traffic stop or arrest. However, the probable cause rule does not apply to DUI checkpoints and roadblocks.
Most DWI arrests are typically made without warrants and are based on observable facts of the suspect’s conduct and sometimes breath-test results. Observable facts may include slurred speech, bloodshot eyes, the smell of alcoholic beverage, lack of motor coordination, and an open container in the vehicle. The officer could administer a breath test or a field sobriety test if he or she observes physical signs of intoxication.
A valid traffic stop doesn’t automatically make a DWI arrest proper since the officer is required to have a reasonable belief that the driver was in violation of the state’s DWI laws at the time of the traffic stop. If there was no reasonable cause to make the initial stop or arrest, the court is likely to say that any evidence collected during the course of the arrest, including a field sobriety test or a blood or breath tests, is inadmissible in court. This means that an illegal arrest was made and the prosecution would, therefore, be left with no evidence against you, resulting in the dismissal of your case.
Challenging Blood Evidence
In Texas DWI cases, a defendant must voluntarily consent to a blood specimen or the officer must have a search warrant to obtain a blood specimen. The procedures for drawing blood are very technical and in determining whether the results were accurate, a thorough examination of the statutorily required protocol should be undertaken. Factors that may be looked into include the transportation of the specimen, its storage, transportation, chain of custody, maintenance of the equipment, and analysis of the sample. It’s possible to challenge blood tests that may be inaccurate due to bad science or human error.
Testing During the Absorption Phase
Typically, blood specimens are obtained later than when the defendant was first suspected of driving while intoxicated. It takes about 45 minutes to 3 hours for your body to fully absorb alcohol. As such, you may not be legally impaired if you took “one for the road” even if a chemical test conducted later shows a blood-alcohol concentration above the legal limit. If the facts of the case allow, your attorney may employ the retrograde extrapolation defense to determine the BAC at the time of driving rather than the time the test was administered since the BAC will rise between those two periods. It’s worth noting that retrograde extrapolation can be a reliable defense if certain factors are known. The courts must consider:
- The difference between the time of driving and the time the test(s) was administered
- The number of tests administered as well as the time difference between each test
- Whether any individual characteristics of the defendant were known.
Your attorney may challenge how the BAC rose between the tests.
Challenging Breath Tests
Fort Worth DWI cases are often prosecuted using a breathalyzer that will allegedly determine an estimate of the blood-alcohol content concentration. Operators of breath test machines must be trained and licensed and it doesn’t just involve pushing a button on a device. There are certain procedures that must be followed in the operation of the device so as to ensure the accuracy of the tests.
Similar to challenging blood test evidence used by the prosecution, challenging breath evidence also involves analyzing probable scientific failures and human error. Majority of the breath test devices will identify any chemical compounds in a person’s breath as alcohol. First of all, results on a breath test may be skewed by the temperature of your mouth, residual alcohol from dental work or mouthwash, or the machine not being properly calibrated or functioning at the time of the arrest. A false reading may result if the defendant ate took medications or certain food sometime before the test.
In addition, human error during the collection, handling, storage, testing, and analysis can compromise the accuracy of the blood test. The deviation between your breath score and the blood as well as the maintenance of the machine may be used to challenge results of breath evidence in court.
Valid Explanation for Your Appearance and Conduct
In some cases, you might be able to provide an explanation for what happened, other than intoxication. For instance, physical disabilities and fatigue can lead to poor performance in field sobriety tests. Also, bloodshot eyes can be caused by irritants and allergies.
Finding a Fort Worth DWI Attorney Near Me
If you’ve been arrested or charged with some type of DWI offense in Fort Worth or anywhere in Texas, feel free to contact me immediately. I will conduct a thorough investigation of the actions of the police during and after the arrest to identify any possibilities of your rights having been violated. I place a premium on personal service and will pay close attention to all aspects of your case. I will take time to learn the details of your arrest and detention in order to prepare the best arguments. I will keep you fully involved and keep you up-to-date on all developments in your case. I can handle both the administrative proceedings to retain your driving privileges as well as the criminal proceedings.
I provide a free initial consultation to every client. Call me at 817-470-2128 or fill out the online contact form to learn how I can help you fight DWI charges.