Getting arrested for DWI is a major shock. A good DWI defense attorney can minimize your chances of a conviction and can get your charge or sentence reduced to a minimum when a conviction can’t be totally avoided. This may mean probation instead of jail or prison time or the least incarceration time in favor of probation than what otherwise would have been sentenced.
A good attorney may also be able to reduce your DWI probation term and secure you more lenient probationary conditions. Additionally, having the legal advice of an experienced DWI attorney during probation can help you avoid inadvertently violating probation and risk being sent back to jail or prison. Thus, it is crucial for anyone accused of or already convicted of a DWI in Texas to fully understand how DWI probation works.
To learn more or for a free DWI consultation with an experienced DWI defense attorney, contact Andrew Deegan DWI Attorney At Law anytime 24/7, 365 days a year, by calling 817-470-2128.
What Is DWI Probation In Texas?
In Fort Worth and Tarrant County, DWIs are all too common, and it is also common for people to be put on DWI probation. Fines, court fees, a driver’s license suspension, and mandatory attendance at DWI Class are all usually included in most DWI sentences, but actual time in county jail (or worse, in state prison) is easily one of the worst consequences of a conviction. Probation can lessen or eliminate that jail or prison time, and to that extent, it is a welcome alternative.
For most first offense DWIs, you stand a very good chance of getting your jail sentence exchanged for probation. Probation is not nearly as harsh as incarceration, and if you can get most or all of your jail/prison time suspended in favor of a probationary period, it is clearly a victory.
The main point of probation is twofold. First, it means fewer people are crowding our state’s already crowded jails and prisons. Second, it is focused on ensuring the person on probation does not commit another DWI or other crime but successfully readjusts to become a productive member of society. In Texas, probation is termed “community supervision” since it entails being released into the community but under the supervision of a probation officer.
The basic point of probation is that you must report to your probation officer regularly and are not allowed to leave the county or move or change contact information without informing your probation officer. It is a kind of “semi-jail outside of jail” and not a state of complete freedom. It will involve a number of strict requirements that must be adhered to if one is to avoid being immediately sent to serve the jail or prison term they would otherwise have had to serve in the first place. More minor violations of probation may result in community service or paying extra fines.
In essence, probation for a DWI or DWID is a contract between the person let out on probation and the presiding judge. The court will suspend the jail term on the condition you meet all probation terms consistently. You must agree to probation. It can’t be forced on you if you prefer incarceration - but no one really does. The length of your probationary period will vary with the severity of your DWI offense, and there are more stringent probation terms for felony DWIs than for misdemeanors.
Common DWI Probationary Terms
The exact terms and length of probation will vary from case to case. A good lawyer can help you secure the best possible terms and the shortest possible length of probation. Nonetheless, there are some common elements that are a part of most DWI probation agreements. These include both things you are required to do and things must avoid doing.
There will be a DWI fine to pay if convicted, but probation will add a few extra fees as well. There will be court fees of up to $400, fines of hundreds of dollars more, restitution to any victims, and a probation supervision fee that is paid monthly while on probation. The latter fee may be around $60 per month in Fort Worth and Tarrant County.
DWI Education Class will be required, as may also be a MADD session. Additionally, you will have to undergo an alcohol and/or drug evaluation. You can expect to pay for all of these things even though they are required in the probation agreement. If you are required to install an ignition interlock device (IID), which is quite likely, that also will be at your own expense. You will not be allowed to drink any alcoholic beverages while on probation, whether in or out of a vehicle. And anywhere from 24 to 100 hours of community service is often assigned.
Normally, your driver’s license will be suspended during probation, although there are a few exceptions for some first-time offenders. A good lawyer might be able to get you a shorter suspension, no suspension, or a restricted license to drive to/from work and DUI School in some cases.
Other DWI Probation requirements include submitting to periodic/random drug tests, which if failed could add community service hours, rehabilitative classes, or jail time; immediately notifying the court should your address, contact information, or place of work change; remaining employed and supporting all your dependents; not leaving the county or state without court permission; and refraining from committing any other offenses while on probation.
But the single most important requirement for probation is probably meeting with your probation officer, usually once a month or more often. The officer has the right to do surprise inspections at your home or workplace too. His or her job is to act as the eyes of the judge to ensure you are complying with all probation requirements.
How Long Will My Probation Be For DWI?
Probation for DWIs in Tarrant County will, of course, vary in duration. But it is usually between one and two years for a first DWI offense. You can expect longer stints for repeat offenses, felony DWIs, intoxication manslaughter, DWI causing injury, a hit and run DWI, or DWI with child endangerment. The exact length of time required is negotiable, and that’s why you need a DWI attorney who is a skilled negotiator on your side.
In Texas, judges sometimes have the discretion to let people off of probation early, but they have no such authority pertaining to drunk driving convictions. Thus, unlike in some other states, it is not even possible to get an early termination of DWI probation. This isn’t always as bad as it sounds, however, since there are instances where you can get “non-reporting status” or get an IID use requirement canceled early for “good behavior” during the course of your probation. This is on a case by case basis, and not all judges are willing to allow it - but it may sometimes be a possibility.
What Is The Least Jail Time For A DWI?
The basic idea of probation is to allow those convicted of DWI to avoid incarceration time. There are instances where this means 100% of jail time can be avoided, but there are other cases where at least a mandatory minimum of actual time spent behind bars must be met even with probation allowed.
For example, those with other DWI offenses or similar offenses more than five years ago will have to spend at least 72 hours (3 days) in a county jail. And this jail time must be continuous from start to finish. Those who have been convinced of a DWI within the last five years must serve 120 hours (5 days) continuously at minimum. And if it’s your third or subsequent DWI or a felony DWI conviction, then the minimum is 30 days in jail. For intoxication manslaughter, the minimum is 120 days.
The most jail time for a first time DWI, which is a Class B Misdemeanor in Texas, is 180 days. When a first DWI is a Class A misdemeanor, however, the maximum is a full year in jail. Second offense DWIs are Class A misdemeanors and are also punishable by up to 12 months in county jail. A third offense DWI is a third-degree felony and can get you from 2 to 10 years in state prison.
It’s easy to see that the maximum incarceration times are much longer than the minimums. And probation is not at all guaranteed - the judge must grant it at its own discretion. A skilled DWI defense attorney will know how to present all the mitigating factors in your favor to the court in a convincing way so as to win you the most lenient possible sentence. Getting the minimum jail time or something close to the minimum than the maximum, with probation taking the place of the rest of the potential jail time, is a much better result than facing a full jail or prison term.
What To Do About Probation Violations
When you are accused of violating your DWI probation, it is critical to get assistance from an experienced local DWI attorney. The stakes may be too high to risk going without the very best possible representation. If the violation is minor, very out of the ordinary, or if intervention is early enough, we may be able to prevent a warrant to revoke your probation from ever being filed. But even after it is filed, it is possible to avoid actual revocation by winning your hearing.
You will have the opportunity to deny any allegations brought against you. And there will also be the possibility of minimizing the consequence should the alleged violation be upheld. Once a motion to revoke your probation is filed by your probation officer, a warrant for your re-arrest will be issued. You are then entitled to a hearing, so it’s not a matter of just automatically being sent back to jail or prison. There is a chance to defeat or diminish the force of the allegations brought against you.
You have the right to have your DWI lawyer with you at this hearing. As this is your only opportunity to challenge the alleged violations, it is crucial to do it well. Your hearing will be within 48 hours of your re-arrest. Bail may be set high since it is set by the very judge who issued your arrest warrant. But if the judge allows you to (practically) get out on bail, you may be able to delay your hearing for up to 20 days so you have more time to prepare for it.
The most common alleged DWI probation violations include the following:
- A “dirty blow” into your IID.
- A new criminal allegation is filed against you.
- Failing a drug or alcohol test.
- Failing to report to your probation officer on time.
- Failing to attend/complete DWI Class or a MADD session.
- Not serving your full community service hours.
And the burden of proof for the prosecution in a probation violation hearing is very low. They need not prove it beyond a reasonable doubt but must simply demonstrate a “preponderance” of evidence against you. In practical terms, what this means is that if the judge thinks it is even slightly more likely that you are guilty than not guilty, he or she will convict you without any need for a jury trial. This lower bar makes it even more important to have a good defense lawyer fighting in your court.
If you have been accused of violating your DWI probation or fear you may soon face such an allegation, do not hesitate to contact us today. The earlier you act, the better. If your probation officer has already filed a motion to revoke your probation, don’t give up. We know how to win these cases and have done so many times before.
Straight VS Deferred Adjudication Probation
“Straight” probation involves the entering of a “guilty” plea or the finding of guilt, followed by the allowance of probation in place of some or all of the otherwise required jail/prison time. That is the kind of DWI probation we have looked at so far, but there is another type of probation in Texas called “deferred adjudication probation.”
With deferred adjudication probation, you don’t get a guilty conviction entered into your record and you remain eligible for an order of nondisclosure record-sealing application down the road. In other respects, it is about the same as straight probation; but the ability to avoid a permanent criminal record makes deferred probation highly preferable when you can get it.
At the end of a straight probation period, successfully completed, you still have the criminal conviction on your record that can haunt you for years to come. At the end of deferred probation, the charge can be dismissed. This is why in the one case you could seek to expunge the conviction while in the other case you would seek to seal the record but not expunge it (since there is no conviction there to expunge.)
In some cases, completing straight probation may leave you eligible for judicial clemency and a setting aside of the conviction. But that is not guaranteed and not all that common. A good lawyer who gets, say, a first-time DWI offender with no previous criminal record on deferred probation may well save his client a lot of trouble getting a good job down the road and just living a “normal” life.
But note that should you be accused of probation violations under deferred probation, the hearing will likely be limited to determining whether or not to proceed upon pursuing the conviction you were let off of earlier. Thus, you have more to protect under deferred adjudication probation and should be even more careful (if possible) to avoid any and all probation violations.
Avoiding IID Violations
As the most common probation violation by far is a “dirty reading” into an ignition interlock device (IID) installed on your vehicle, we should spend some time giving some advice on how to avoid an IID violation.
To use a vehicle outfitted with an IID, you have to blow into it just before starting up the car each time. The IID is able to detect alcohol in your breath. Thus, it is a kind of breathalyzer wired into your car’s ignition switch. As soon as the IID detects alcohol, it will disallow you to start the car and send a message to the authorities who are monitoring all the IID readings from a control center. Even one such failed IID incident will result in having to have a probation violation hearing and could send the violator back to jail.
But the fact is, IIDs are not perfect devices. Sometimes they give a false positive, and residual alcohol in your mouth (even from morning mouthwash) can set them off. If you had only one teaspoon of alcohol, that would barely affect your BAC, but it would send your mouth alcohol reading skyrocketing. Plus, Nyquil and alcohol-containing mouth rinse or even being on a low-carb or high-protein diet can potentially create ketones that will result in a false reading by the IID.
Also note that after the IID detects alcohol, you should do a second reading 15 minutes later. If it was residual mouth alcohol the first time, then your mouth will have absorbed it by then and you should not get a second positive reading. That will be huge “positive” evidence for you if you have to have a hearing over it.
DWIs, Expungement, & Non-Disclosure
In Texas, there are instances where you can get parts of your criminal record cleared (expunged) so that it will no longer be a part of the public record and viewable by potential employers running background checks. It can also help to get a good apartment, enroll in college or grad school, get approved for a mortgage, or obtain a state-issued professional license. However, you have to have been found not guilty or had the charges dismissed to get an expungement.
The bad news is that a conviction cannot be expunged. DWIs that you were convicted for and served straight probation for can never be sealed or taken off your record because they are “final convictions.” But if you served deferred adjudication probation for a DWI that was ultimately dismissed, then since it was never on your record, you can petition for “non-disclosure” to get the arrest and court records sealed from the public. If you obtain this status, you can legally answer “no” if asked on a job application if you were ever arrested/prosecuted for a DWI in the state of Texas.
If you were arrested for DWI but won your case, you might also qualify to have the record sealed. But again, a straight-out conviction can’t be sealed under any circumstances under Texas state law.
However, even if you don’t qualify for expungement or non-disclosure of your DWI records, it is possible to pursue a Governor’s pardon or a writ of Habeas Corpus. These last two options are hard to obtain, but not impossible.
Find A Top DWI & DWI Probation Lawyer Near Me!
Have you been arrested recently for DWI in Fort Worth, Texas, or anywhere in or near Tarrant County? Your first need is to win your case. We have the expertise it takes to win the best possible outcome to your case, be it a dismissal or a reduced charge/sentence.
In the case of facing jail or prison time for a DWI, the next need is for a lawyer who knows how to win your probation and the most lenient possible probationary requirements. We know how to get you shorter and lighter DWI probation and how to help you win a DWI probation violation hearing as well.
For all DWI and DWI probation questions and concerns, feel free to contact Andrew Deegan DWI Attorney At Law anytime 24/7, 365 days a year, by calling 817-470-2128. For an in-office consultation in Fort Worth!