Driving while intoxicated (DWI) is a serious charge in the state of Texas. Furthermore, a DWI 2nd offense is more serious than a DWI 1st offense and will result in greater penalties if a conviction is secured. Defending against a DWI 2nd offense in a trial setting is more challenging as the jury will know that the defendant has a history of driving drunk. This puts you, the defendant, at an immediate disadvantage, thereby making it that much more important that you retain the services of a skilled and experienced DWI attorney. Andrew Deegan DWI Attorney at Law has the necessary knowledge and experience in dealing with these types of cases and has built a successful track record defending clients in the Fort Worth, Texas area. 

What Is A Driving While Intoxicated (DWI) 2nd Offense?

According to Texas Penal Code Section 49.04, you can be arrested for driving while intoxicated (DWI) 2nd offense charge if you have been previously convicted of a DWI. Please note that it does not matter how distant in the past this first DWI conviction is; it only matters that you have been convicted of the charge. This effectively means that an acquittal for a prior DWI charge would not trigger a 2nd DWI charge; a DWI 2nd offense can only be triggered if you have a DWI conviction on your record.

Furthermore, Section 49.04 officially defines a DWI in the state of Texas as a driver operating a motor vehicle:

  1. In an “intoxicated” state;
  2. On a “public motorway”.

Under Texas Penal Code, Section 49.01(2), the precise legal definition of “intoxicated” is when an operator of a motor vehicle does not have “normal use” of their physical and/or mental capabilities due to the consumption of alcohol, narcotics, prescription drugs, or a combination thereof. Furthermore, if alcohol is the chemical agent that is causing said intoxication, then the operator is considered to be legally intoxicated if their blood alcohol concentration (BAC) is more than 0.08%.

The Penalties for DWI 2nd Offense

A DWI 2nd offense is prosecuted as a Class A misdemeanor in the state of Texas. If you are convicted of this crime, then your punishment may include a fine of up to four-thousand dollars ($4,000) and a jail sentence ranging from thirty (30) days up to one (1) year. Furthermore, your license may be suspended for anywhere from one-hundred eighty (180) days to two (2) years.

When determining your precise fine, jail sentence, and term of license suspension, the judge will consider various factors when calculating your penalties. These include your criminal history, the details of your case, your blood alcohol concentration (BAC) at the time, and if you are being charged with any related charges that are more serious in nature (such as intoxication assault or intoxication manslaughter). Please note that you will at least have a prior DWI 1st offense on your record, so there is no scenario in which you do not have any prior criminal history.

Furthermore, if your defense team was able to arrange for a suspended sentence (also known as a “probated sentence”) with the district attorney (DA), then the penalties will include:

  1. A mandatory three (3) days in the county jail if you have a prior conviction that occurred more than five (5) years ago.
  2. A mandatory five (5) days in the county jail if you have a prior conviction that occurred less than five (5) years ago.
  3. Following the conviction, there is also a court-mandated annual surcharge fee of one thousand five hundred dollars ($1,500) to two-thousand dollars ($2,000) for three (3) years in order for you to keep your driver’s license.

The state of Texas considers a driver’s license to be a privilege and not an inherent right, so that means that if you want to keep that privilege you will be required to adhere to the strict penalties that are imposed by the court. These are meant both as a means of punishment for your DWI as well as a corrective to avoid future DWIs.

Extensive research has concluded that intoxicated drivers have a high rate of recidivism, meaning that if someone is convicted of a DWI, then they have a high likelihood of repeating that same crime. Consequently, the state of Texas has formulated an overall philosophy that a first-time DWI offense is a lapse in good judgment, a second-time DWI offense is a failure of the defendant to learn their lesson, and a third-time DWI offense is a highly problematic criminal tendency. Accordingly, the first two are misdemeanors (if there are no enhancements) whereas the DWI 3rd offense is automatically charged as a felony.

Violation of the Open Container Law as an Enhancement to a DWI 2nd Offense

The most common enhancement to a DWI charge is having an open container of alcohol in the vehicle (a Class C misdemeanor). According to Section 49.02 of Texas Penal Code, an “open container” is an aluminum can, glass or plastic bottle, flask, or any kind of receptacle for liquid that has been opened, had its seal broken, or its contents removed. This means that even empty bottles of alcohol may count as a violation of the open container, particularly if you are facing a DWI 2nd offense charge.

Furthermore, Penal Code 49.02 is violated if the driver knowingly has this open receptacle of alcohol in the “passenger area” of a vehicle on a “public motorway”. In other words, this open receptacle must be reasonably within reach of the driver in order for an open container crime to have been committed. However, the following parts of the vehicle are not considered to be within the “passenger area”:

  1. The trunk of the car
  2. The space behind the upright seat (if the vehicle in question does not have a trunk)
  3. The bed of a pickup truck
  4. The glove compartment
  5. Any locked storage unit in or outside the vehicle
  6. Soft- or hard-shell carriers (usually attached to the roof of the vehicle)
  7. A trailer attached to the back of the vehicle

If you are charged with a violation of Penal Code 49.02 in addition to a DWI 2nd offense, then your minimum period of incarceration will increase by six (6) days in the county jail and you will be fined an additional five hundred dollars ($500). If you are still on probation from your DWI 1st offense, then the presiding judge may levy additional charges and/or fines, especially if your probation officer recommends that you face further penalties.  

Other Potential Enhancements to a DWI 2nd Offense Charge

There are four (4) other circumstances that may act as enhancements to a DWI 2nd offense, including:

  1. Your BAC was above 0.15% (remember that the legal limit is 0.08%). This automatically increases the severity of the alleged crime by bumping it up from a Class B misdemeanor to a Class A misdemeanor.
  2. If your impaired driving resulted in an accident that injured someone else (a charge referred to as “intoxication assault” in Texas), especially if the victim is experienced irreversible brain trauma or has been permanently disabled due to the accident.
  3. If your impaired driving resulted in an accident that injured a public servant. The state of Texas considers a public servant to be someone who works at any level of government, including municipal police, Department of Public Safety (DPS) state troopers, sheriff’s deputies, firefighters, county or state prosecutors, and any employee of a government agency.
  4. You have prior DWI/DUI convictions in any state within the last five (5) years. These include any iteration of the “while intoxicated” crime, including driving while intoxicated, flying while intoxicated, boating while intoxicated, or operating an amusement park ride while intoxicated.

Any of these circumstances will result in the imposition of harsher penalties for your DWI 2nd offense. This includes the strong possibility of the DA changing your DWI 2nd offense from a Class A misdemeanor to a third-degree felony. This will result in greater fines and a longer period of incarceration as well as stricter parameters to your parole once you have finished your term of incarceration.

Furthermore, if you caused an accident because of your allegedly impaired state and the injuries sustained by the other motorists or bystanders are severe enough, you may be facing additional criminal charges. If these injuries prove fatal, then the DA will charge you with intoxication manslaughter, a serious charge in the state of Texas.

Consequently, it is absolutely necessary that you retain a DWI lawyer who has the skill and experience to fight these enhancements. Under normal circumstances, a DWI 2nd offense is still a misdemeanor. However, if the DA applies any of these enhancements and seeks to change your DWI 2nd offense to a third-degree felony, then this may have permanent negative consequences for your life and livelihood. It is exponentially more difficult to find housing, employment, or secure loans if you have a felony on your record rather than just a misdemeanor.

What Will The District Attorney Have to Prove?

Under the statutes of the Texas Penal Code (also known as the Code of Criminal Procedure), there are a number of assertions that the DA will have to prove by presenting various pieces of evidence. The primary piece is usually the testimony of the arresting officer; it is essentially the foundation for the DA's overall legal strategy in securing a DWI conviction.

As with any criminal case in any state, the DA must prove their case to the jury “beyond a reasonable doubt”. This officially means that there is no other possible or logical explanation that can be derived from the evidence except that the defendant did, in fact, commit the crime. Legally speaking, this concept of “reasonable doubt” must dispel any notions of potential innocence in the mind of any “reasonable person”. 

Furthermore, the fundamental presumption in criminal cases is that the defendant is always “innocent until proven guilty”. That means that the “burden of proof” always lies with the prosecution because of this fundamental presumption. In other words, the DA must prove their case while the defense must disprove the DA’s claims.

In a DWI case in Texas, the DA will have to establish that:

  1. You were driving, operating, and/or in “physical control” of the vehicle.
  2. You were under the influence of an intoxicating agent, including alcohol and/or drugs. This is proven using either a breath test (breathalyzer) administered by the police officer at the actual scene of the alleged crime or via blood analysis and/or urinalysis at a nearby hospital or medical facility. These tests are used to determine what intoxicating agents you may have present in your system and what their levels of concentration are.
  3. You were operating the motor vehicle on a public motorway (as opposed to a motorway located on private property). This is an ambiguous part of Texas law and has been the subject of extensive jurisprudence and precedent-setting criminal cases.

These three (3) assertions are also known as the “elements of the crime”.

What Are Some Charges Related to DWI 2nd Offense?

As with any criminal case, the DA will apply as many charges as possible against you. There are a number of criminal charges that are related to DWI 2nd offense, including:

  1. DWI with a child passenger - Rather than a simple enhancement to a DWI 2nd offense, this is considered to be a separate criminal charge that is delineated under Texas Penal Code, Section 49.045. The criminal charge of DWI with a child passenger is triggered when the defendant commits a DWI (operating a motor vehicle on a public motorway while legally intoxicated) when they have at least one (1) passenger who is under fifteen (15) years old. This is a felony charge and may result in a custodial sentence of between one-hundred eighty (180) days to two (2) years, a fine of up to ten thousand dollars ($10,000), and the long-term suspension of your driver’s license.
  2. Intoxication assault - This is also known as DWI with serious bodily injury and is delineated under Texas Penal Code, Section 49.07. It occurs when the defendant is operating a motor vehicle on a public motorway and, due to their intoxication, causes an accident that results in serious bodily injury to another person. Under Texas Penal Code 49.07(1)(b), serious bodily injury is officially defined as any injury that creates a significant risk of death or is responsible for causing permanent disfigurement or the loss of function of some body part and/or organ. It is a 3rd-degree felony, though this is enhanced to a 2nd-degree felony if the victim of the injury is put into a vegetative state or if the injury occurred to a firefighter, peace officer, or emergency medical personnel while they were performing their duties.
  3. Intoxication manslaughter - This extremely serious charge is delineated under Texas Penal Code, Section 49.08(a). It is triggered if a DWI-related accident results in the death of another person. As a 2nd degree felony, it is the most serious charge related to a DWI, although under certain conditions it may even be elevated to a felony murder charge. It carries serious and substantial penalties, including a prison sentence of anywhere from two (2) to twenty (20) years, a ten-thousand dollar ($10,000) fine, and suspension of your driver’s license from one-hundred eighty (180) days to two (2) years.

These related charges are extremely serious and can potentially result in a lengthy prison term. Furthermore, there is a wide range in the potential lengths of these prison terms; judges in DWI cases have considerable leeway in deciding these terms and use a great deal of independent discretion when handing down their final determination.

Consequently, retaining a DWI attorney with the necessary know-how and experience can potentially make the difference between a lengthy prison sentence that has the potential to destroy your life or a term of probation that will allow you to maintain some semblance of normalcy. Furthermore, if you have been unfairly accused of a DWI 2nd offense, then there are a number of potential legal strategies to fight the charges at trial. Depending on the specifics of your case, these strategies may allow you to beat the charges without having to suffer any of the undue penalties for a crime you did not commit.

Potential Defenses to a DWI 2nd Offense Charge

There are a variety of potential defenses to the DWI 2nd offense charge, including:

  1. Inaccurate breathalyzer results - The breathalyzer is the primary means by which law enforcement establishes that the operator of a motor vehicle is legally “intoxicated”. However, this device is not nearly as accurate as is commonly claimed and is susceptible both to user error and rendering false positives due to a number of outside factors. There are a number of ways in which the breathalyzer test may be improperly administered, including a failure to consistently recalibrate the machine. Furthermore, there are a variety of medical conditions that the defendant may have, including gastroesophageal reflux disease (GERD), auto-brewery syndrome, diabetes, hypoglycemia, and/or asthma that may cause the machine to render false positives.
  2. Arguing that you were not operating the vehicle on a “public” roadway - Texas Penal Code is very specific that a DWI must occur on a “public” roadway. Consequently, it is sometimes possible to successfully argue that you were operating the vehicle on a “private” roadway, thereby making you exempt from the DWI statute.
  3. The initial traffic stop was unlawful and/or not legally justified - Law enforcement must have “reasonable suspicion” to execute a traffic stop in the first place. Furthermore, a certain amount of transparency is required of law enforcement and they are expected to document their reason for stopping you in the police report that will be generated due to your alleged DWI. If your DWI attorney can prove that this reasonable suspicion was lacking or even artificially generated, then any and all incriminating information gathered from the traffic stop could potentially be deemed inadmissible in a court of law. This would result in the judge dismissing your charges.
  4. Lack of “probable cause” - This is similar to the above argument that there was a lack of reasonable suspicion. Your DWI attorney may also argue that there was no “probable cause” to suspect you of DWI, thereby rendering any incriminating evidence of your alleged intoxication also inadmissible in court. This includes any evidence that may have been gathered from sobriety tests, either at the site of the traffic stop or at some other location.
  5. Invoking the “emergency doctrine” - Your DWI attorney may also argue that the “emergency doctrine” was applicable in your case. This essentially means that your actions were forced by a sudden, unexpected, and/or potentially life-threatening emergency that you absolutely had to act upon. The most frequent invocation of the emergency doctrine is in cases of medical emergencies. It is possible to make the argument that if you had not acted, then it may have resulted in a serious threat to the safety, health, or even life of you or another person.

It is vital to remember that the “burden of proof” always lies with the prosecutor’s office. Essentially, that means that they have to prove that you were legally intoxicated and operating a motor vehicle on a public roadway, whereas the defense only has to cast “reasonable doubt” on their various assertions.

Find A DWI Attorney Near Me

Being accused of a DWI for a second time can have serious and life-altering repercussions. It is also a particularly challenging situation in that your prior DWI conviction may cause potential jurors to formulate preemptive judgments and not believe your side of the story. Andrew Deegan DWI Attorney at Law believes you and we believe that you deserve fair and impartial treatment that is free from damaging presumptions about your automatic guilt. If you are located in or around Fort Worth, Texas and have been unfairly charged or were unlawfully stopped, then our DWI attorneys can build a custom legal strategy to help you beat your case. Call us at 817-470-2128 today and get started right away.