Driving while intoxicated (“DWI”) or driving under the influence (“DUI”) refers to a classification of cases in which the criminal defendant is charged with operating a motorized vehicle while under the influence of alcohol, drugs, or some other substance. This post will go over (1) what the prosecutor needs to prove to secure a conviction or guilty plea for a DWI offense; (2) possible defenses you can raise; (3) what you can expect to face in the event you are convicted of a DWI for a first offense; and (4) diversion programs and other alternative forms of punishment.

Criminal elements: what are they?

Elements refer to the individual facts the prosecutor needs to prove in order to convict you of a crime. The prosecutor must establish each fact beyond a reasonable doubt. If the prosecutor fails to prove each “element” the jury cannot convict you of the crime. However, since juries are people and they are fallible if your attorney doesn’t believe the prosecutor proves the elements; you can also move for the judge to disregard the jury (either before or after the verdict). But, keep in mind, that this is an extremely unusual situation. In the vast majority of cases, if the prosecutor does not believe she can prove her case the prosecutor should drop the charges or the judge can halt the proceedings. The next section will go over each element the prosecutor needs to prove to secure a conviction for DWI.

What is driving while intoxicated?

You are driving while intoxicated is incorporated under Tx. Pen. Code § 49.04 which provides that you are guilty of a DWI if you are (1) operating a motor vehicle; (2) while intoxicated; (3) in a public place. A motor vehicle includes any device in which you can move or transport people or goods on a public highway. But the law specifically excludes vehicles that operate on rails. So, a motor vehicle includes things such as cars and vans but also large trucks, motorized scooters, motorcycles, buggies, and other recreational vehicles that can be operated on highways.

            When are you considered “intoxicated?”

Intoxication is defined as lacking a state of being in which you lack normal physical and mental faculties due to the introduction of alcohol, drugs, or other substance which results in a blood alcohol concentration (“BAC”) of 0.08 percent or more. Essentially, if you are drunk or impaired due to the ingestion of alcohol or drugs, you are “intoxicated” for purposes of criminal prosecution.

            What is a “public place?”

Finally, a public place includes any public area that is available to the public – such as public roads and parks. However, for purposes of other criminal charges (such as public intoxication), it can also include any premises that are open to the public. So, you can’t be charged for a DWI if you are driving on a small racetrack that is wholly enclosed on your private property (assuming your property isn’t open to the public on a regular basis). But, a public place does include race tracks which sell driving time to members of the public (even if that public is limited to “members” or some other club).

Possible Enhancements Based on the Circumstances of the Arrest

            You are subject to increased penalties if your BAC is 0.15 or higher

You could also be subject to “enhancements” based on special circumstances that could result in increased punishment or other penalties. If you are arrested with a BAC of 0.15 percent or higher when the test is administered when this crime is enhanced to a Class A misdemeanor which will be discussed more fully below. Note that the law limits the enhancement to when the test is “administered.” The administration of the test could be in the field with a breathalyzer, and it could be at a hospital if the driver refuses the breathalyzer. The implications of this distinction will be discussed more fully below.

            You are subject to increased penalties if you are caught with an open container

You are also subject to increased penalties if you are arrested with an open container in your immediate possession. Open container refers to an open container of alcohol, such as a beer can or a bottle of wine. The open container is considered in your immediate possession if it is somewhere you could reach or throw it in the event you are pulled over. For example, in the cupholder, in the backseat, or on the passenger seat next to you.

            Driving at excessive speed could result in increased penalties

If you are arrested while driving an excessive speed (typically 20 miles above the speed limit), you are also subject to enhancements which could include mandatory incarceration and other penalties.

            Driving on a suspended license is another possible enhancement

Your license can be suspended for a variety of reasons (no insurance, previous DWIs, etc.) and if you are arrested for a DWI while driving on a suspended license, you could be subject to additional criminal and civil penalties. One thing you know should happen is an increase in the amount of time of your license suspension and possibly a revocation of special driving privileges (i.e., to school, work, grocery store, etc.).

            Driving while intoxicated with a child passenger is a severe felony enhancement

Finally, you are also subject to increased penalties and a felony conviction if you are caught with a child passenger (under the age of 15) in the car. That means you are subject to the enhancement if the passenger is the age 14 and below (i.e., a child who is 15 does not qualify for the enhancement). If you are convicted with this enhancement, it will result in a state jail felony conviction – regardless if it is your first offense or not. The implications of that conviction will be discussed more fully below.

Possible penalties you may face for a DWI First-Time Offender

            Criminal Penalties

A DWI is ordinarily a Class B misdemeanor (not a felony) which means that you likely face the following penalties:

  • Suspended license for at least three months and up to a year;
  • A $2,000 fine (or possibly less); and
  • A few days incarceration in county jail (not prison).

You might also be required to attend diversion courses, such as alcohol classes, group therapy, and other treatments which are alternatives to criminal punishment. Your freedom is dependent upon completing these various programs.

You would qualify for this treatment if you were arrested with a BAC of 0.15 or less (which is about twice the legal limit). However, as discussed above, your DWI penalties could be enhanced if you were driving on a suspended license, there was a child in the car, there was an open container in the car, you were driving at excessive speeds, or your BAC was higher than 0.15 percent.

  • If you were arrested with an open container in the car, you are required to serve at least six days in jail.
  • If you were driving with a child in the case, you must serve at least six months in jail but no more than two years and pay a fine that will not exceed $10,000.

For the other crimes, it is possible your charge will be increased to a Class A misdemeanor which roughly doubles all of the penalties you could face:

  • Suspended license for six months to two years;
  • Up to a $4,000 fine; and
  • Double the time in jail.

            Administrative Penalties

License suspension is an administrative – not criminal – penalty. Remember, having a driver’s license is a privilege, not a right. You have to pass driving tests and take annual tests to confirm that you are still allowed to drive. The government can revoke your right to drive if you are no longer able to operate a vehicle safely (the government cannot revoke your right to travel within or between the states, but the government can control how you travel). If you are convicted of a DWI, your license will be suspended for at least three months. You can usually apply for a special permit to drive to and from work, school, the grocery store, and your place of worship but you cannot drive for recreational purposes.

Alternatives to Criminal Punishment

As briefly discussed above and reiterated here, you may also be required to get treatment from an alternative sentencing program. Keep in mind that these are alternatives to incarceration or other traditional penalties; the court is not required to grant these alternatives for you, and it is highly dependent on the nature of the arrest, prior criminal history, and other factors.

  • Community service: sometimes the courts order community service in lieu of Community service often involves serving your community in a way that educates you about the cost of the crime. For example, for DWIs it could involve volunteering with an approved organization that provides support to victims of DWIs.
  • Roadside clean-up: you likely have seen people in jumpsuits cleaning up the highways/freeways; they are defendants who are cleaning up the roads as an alternative sentence (similar to community service but administered by the city, sheriff, or police department).
  • Electronic monitoring: usually refers to wearing an electronic ankle monitor. The upside of these units is that you can stay at home, rather than in jail, but the downside is that you need to pay for the service and it can cost several thousand dollars, so it isn’t for everyone.
  • Rehabilitation: as briefly covered above, you can also request to be sent into a diversion program instead of traditional criminal sentencing. Rehabilitation involves going to alcohol education classes, attending therapy sessions, going to AA meetings, and other programs to help you control your drinking.
  • Sober Living: like rehabilitation which can be in- or outpatient treatment; sober living is long-term care in a facility in which alcohol is prohibited and keeps you around other individuals who are overcoming their addiction.

Some Typical Defense You Might Raise  

            Bad driving is not the same as intoxicated driving

How does a police officer know you are intoxicated? What justifies them pulling you over (assuming you didn’t get stopped at a checkpoint)? The officer likely noted that you were driving “erratically” but what does that mean? Does it mean changing lanes, speeding, running a yellow light? Your defense attorney can contest these characterizations by cross-examining the arresting officer and focusing on:

  • The vast majority of traffic violations are committed by sober individuals;
  • Your characteristics upon being stopped; and
  • Driving patterns do not reliably predict intoxication.

In fact, according to the National Highway Traffic Safety Administration, driving cues predict only 35 percent of DWI cases. So, even among government experts, driving is not a good indicator of intoxication. Moreover, even the National District Attorneys Association admits that driving cues are “quite nuanced,” i.e., not reliable indicators for evidence of DWIs.

Your attorney can also focus on the officer’s recollection about your conduct during the detention and arrest. If you were sober, you likely conducted yourself respectably and cautiously – as most people do when they are questioned by the police. These snippets of testimony illustrate that you weren’t under the influence when you were pulled over.

            Indications of intoxication are not the same as DWI

Similar to driving, police officers also rely on physical indicators of intoxication. The police officer will assess you based on:

  • Your manner of dress – are your clothes “put together” or disheveled;
  • Your eyes; (i.e., red or water);
  • Unsteadiness;
  • Red or flushed face;
  • Slurred speech; or
  • Alcoholic odors on your breath or body (i.e., your swear).

You probably noticed that a lot of these indicators could also be triggered by other situations. For example, you could have a red or flushed face and red/watery eyes if you are suffering from allergies. If you are driving home after a long shift, you are probably tired and might have slightly slurred speech, red eyes, a disheveled appearance, or even unsteadiness.

Finally, even the odor on your breath or sweat could be caused by another factor. For example, in one notable case, an individual was pulled over and arrested for a DWI. The officer noted red eyes, flushed face, and an alcoholic odor. The officer failed to question the individual about other possible causes for these indicators and arrested him. It was later established that the individual was playing volleyball in the sun all day (therefore, resulting in red eyes and a flushed face) and had consumed a few light beers and non-alcoholic beers several hours beforehand but not nearly enough to result in intoxication which resulted in the lingering smell.

Your defense lawyer will go over the context of your arrest to determine if there is another reasonable explanation for your appearance.

            The field sobriety test is not as accurate as you think

The field sobriety test is immortalized in television and film, but the reality is that most field sobriety tests are improperly administered resulting in false “positives” and the test itself is far from reliably accurate. People fail the field sobriety test for many different reasons including poor coordination, bad balance, nervousness (yes, why would anyone be nervous if they are stopped by a police officer); restrictive clothing; and fatigue.

Finally, even if the false positives aren’t due to an external factor, the test is only as reliable as the officer administering it. There are three “standard” tests:

  • The one-leg stand;
  • The walk-and-turn test; and
  • The horizontal nystagmus test.

These tests need to be administered correctly by any officer who is trained in how to administer the test. Your attorney can get into the minutiae as to how the test was administered during cross-examination.

            The breathalyzer registered a false positive

Officers are required to wait before they administer the breathalyzer to you because they need to confirm that you haven’t ingested any food for the past 15 or so minutes and to confirm that you haven’t burped. The reason is that drinking gurgling mouthwash or burping can result in residual alcohol in your mouth which can result in a false breathalyzer positive. Yes, this does happen, which is why many police departments require their officers to wait a minimum of 15 minutes and observe your behavior before administering the breathalyzer.

During the observation, the officer cannot take his eyes off you. The officer must confirm that you didn’t engage in any behavior which could result in a false positive. However, many times, officers spend their time filling out paperwork and setting up equipment – rather than observing you. If the officer cannot account for every moment of your behavior during that initial encounter, it undermines the entire investigation.

            You weren’t impaired

You probably noticed that the law prohibits driving while your physical and mental faculties are impaired – it doesn’t specifically prohibit driving while under the influence of alcohol. For practical purposes that is the common antecedent, but it isn’t required. Therefore, the inverse of that position is also a possible defense.

Namely, that you can have a drink or two but if you immediately head home and your home is close to where you were drinking – it is likely that you would get home before the alcohol was absorbed into your bloodstream. However, if you are stopped and the police administer a chemical test at the hospital; it's possible that enough time would have passed for your BAC to rise above the legal limit. But, your defense attorney could argue that it is highly unlikely that the alcohol would have been absorbed into your system at the time of your arrest.

            You weren’t mentally impaired

The law requires you to be both mentally and physically impaired due to the ingestion of a substance while operating a vehicle in a public area. Therefore, if you exhibited signs of physical impairment but the officer failed to determine if your mental facilities were also impaired – you could argue that the prosecutor failed to meet its burden in proving every element. Moreover, as discussed above, your physical indicators could be a sign of some other cause such as stress or fatigue.

            Your diabetes registered a false positive

Certain medical conditions, such as diabetes or hypoglycemia, can also register a false positive on the breathalyzer. If you suffer from a medical condition, tell your defense attorney as they may use that as a defense. Moreover, diets that are high in protein also registered false positive because more fat is “burned” which converts the fat into usable byproducts, including ketones, which can be interpreted by the breathalyzer as acetone (a type of alcohol).

            The officer didn’t follow the procedure

Every police officer in every city in every state is required to do two things before arresting you: (1) have probable cause to arrest you for a crime and; (2) read your Miranda rights. If the officer fails to read your Miranda rights or arrests you without probable cause, your attorney can move to suppress all evidence that was collected in connection with the original arrest. The suppressed evidence includes the officer’s testimony, breathalyzer or chemical test results, pictures, and other evidence relating to the arrest. Moreover, without that evidence, the prosecutor’s case fails.

“Probable cause” is a legal standard which means the officer has a reasonable basis, in fact, to conclude that you committed a crime and can articulate that basis with specific facts. Probable cause is why officers list out physical indicators, administer tests, and conduct other evidence-gathering techniques to establish that they had a reasonable basis to conclude a crime was committed.

Your Miranda Rights refers to your rights as a suspect, specifically, that you can refuse to answer questions, you can remain silent, and that you may request the presence of an attorney to assist you.  

Find a DWI Defense Attorney Near Me

Do you need assistance with a first offense DWI or any other criminal matter? If you do, you should contact Andrew Deegan DWI Attorney at Law at 817-470-2128 as soon as possible. Andrew Deegan represents his clients all throughout Fort Worth, Texas and beyond. Andrew Deegan is a premier criminal defense attorney who will fight for your rights and freedom every step of the way. If you are facing criminal charges, call Andrew Deegan DWI Attorney at Law now!