If you have been arrested for a DWI and have already been convicted twice for this offense, you are likely facing a third-degree felony DWI or felony repetition DWI. If convicted of this charge, you are looking at a sentence of two to ten years in prison with a possible fine of $10,000.
Contact DWI attorney, Andrew Deegan as soon as possible to protect your rights and defend yourself against these charges. Having a felony repetition DWI on your records not only puts you at risk for severe and immediate punishment, but it will also cause serious consequences for your future.
Definition of Intoxication under Texas Law
Under penal code 49.01(2), you are considered intoxicated if you do not have your normal use of mental or physical faculties. The reason behind this loss of faculties is due to the consumption of alcohol, a dangerous drug, a controlled substance, or any combination of these substances. If your body has an alcohol concentration of .08 or more, you will be charged with a DWI.
Driving While Intoxicated in Texas
Under the Texas penal code 49.04, it states a person has committed an offense if they are operating a motor vehicle in a public place while intoxicated. Driving a motorized vehicle in public with an open container of alcohol is also covered under this penal code. Many people in Texas realize a third conviction of a DWI is a felony allegation; however, they do not realize the State can use your prior DWIs for enhancement of your sentencing without regard to how long ago you received them.
Imagine a person is twenty years old and receives a conviction for operating a boat while intoxicated in the state of Florida, and then later gets a second conviction for DWI, only to be arrested in Texas at the age of 55 for the suspicion of driving while intoxicated. Even though this person was not living in the state of Texas for the two prior convictions, Texas law allows for them to be charged with a felony repetition DWI.
Under Texas law, this person is now facing up to ten years in prison. If they have already been to prison for a DWI or any other charge, enhancement of the sentencing allows for the punishment to increase from two to twenty years in prison. If they have been to prison twice in the past for a DWI or other offense, their enhancement of sentencing increases from five to ninety-nine years in prison.
There was a time in Texas law where enhancements were barred from using prior conviction records that were more than ten years old. This law was changed; however, in 2005 when the Texas Legislature changed the law and stated there was no longer a remoteness bar. The courts could now use convictions more than a decade old and were able to be used to enhance a 49.04 felony DWI.
Definition of an Enhancement to a 49.04 Felony
An offense under Section 49.04 is a Class A misdemeanor which carries minimum jail time of 30 days if you have been previously convicted of a one-time crime related to the operating of a motor vehicle while intoxicated. This enhancement also pertains to a conviction of being intoxicated while operating a boat, or operating an amusement park ride.
Under this Section, it is a felony of the third degree if it is proven you have previously been convicted of the same DWI charge you are being tried for such as:
An offense under Section 49.08 as a one-time offense under the laws of another
state if the conviction contains the same elements or is similar to the details of
offenses defined under 49.08.
You have been convicted of an offense two times under Section 49.08 relating to the operation of a motor vehicle while intoxicated, operating an aircraft, operated a watercraft or assembled and operated an amusement park ride.
If you are charged with enhancement penalties on top of your DWI, the penalties you face can be life-altering. A first-time DWI conviction has you facing some fines and probation, but multiple convictions turn into a felony and possible prison time of years.
Four conditions can create enhanced penalties in a DWI related case. These conditions include having prior convictions; the DWI caused severe injury; the DWI resulted in the death of another person; the DWI caused an injury to a specific class of person.
The prosecution may have a strong case in trying to convict you of a DWI but may lack grounds to enhance the penalties if you are convicted. Having a strong defense attorney, Andrew Deegan, on your side could be the difference between years of freedom or years behind prison walls.
Probated Felony Repetition DWI
If you have been given a probated sentence for a felony repetition DWI in Texas, you are still looking at spending time in jail. The least amount of time you will spend in jail for a felony DWI in Texas is ten days in a county jail facility, although it is not uncommon for judges to impose more than the minimum. The most amount of time you can be expected to spend in a county jail for felony probation is 180 days. While on probation for a felony DWI, you will be expected to follow the law according to the Criminal Procedure Article 42.12 Section 12.
Criminal Procedure Article 42.12
Community supervision would be your placement by a court under a continuing program and sanction. The courts would impose how much time:
Your criminal proceedings would be held off without a determination of your guilt, and you would not be given a sentence of imprisonment or confinement. The sentencing and fines are probated, and your sentencing is suspended in part or in whole.
You may be expected to accept electronic monitoring with the use of voice tracking systems, position tracking systems, position location systems, biometric tracking systems and any other electronic system used in assisting with your supervision.
The officer in charge of your supervision is appointed or employed under Section 76.004 by the state to monitor the behaviors of those under community supervision as defined by Criminal Procedure Article 42.12.
Additional Expectations of Probation for Felony Repetition DWI
If you are facing a conviction of a felony repetition DWI in Texas, there are other expectations you will be subjected to under the law:
DWI Repeat Offender Program
The Texas DWI Repeat Offender Program is a criminal procedure approved program that gives you alternative sentencing when facing multiple DWI offenses. It is a program you must successfully complete when convicted of successive DWI offenses before your license will be reinstated.
The program has been designed for offenders with multiple DWIs for alcohol or drug-related problems. This program covers more material than the first offender plans curriculum covers. It is intended to intervene in alcohol and drug abusive lifestyles and encourage you into treatment where you will receive counseling to prevent further substance abuse related issues.
The program is a 32-hour intensive course that will focus on life issues. There are two family sessions, two individual sessions, followed by your exit review. During this program, you will go through fifteen educational group sessions to examine your chemical dependency and how it reflects on your lifestyle, self-esteem, responsibilities, peer pressure and irrational beliefs. It will also have you look at the psychological effects of drugs in your life and how it affects family members as well as go over treatment options.
Treatment Alternatives to Incarceration Program
The Treatment Alternatives to Incarceration Program will give you chemical dependency screening, an assessment along with a referral and funding for an appropriate outpatient treatment center. If you did not have this program, you would not be able to get the services you need.
You will be required to meet the statutory criteria and will be screened and assessed in order to determine your level of need for substance abuse intervention. It will be determined if you are able to pay the costs needed for treatment and if deemed medically needy, the program funds may be used to pay your fees. If you can afford the costs, you may receive a recommendation as to which level or type of treatment will be used. Once cost evaluation is finished, intervention or treatment can be completed with a properly accredited program that is approved by the court where your case is being handled.
Interlock as a Condition of Probation
The State of Texas may require you to get an Ignition Interlock if convicted of a DWI. Texas is an all-offender state of the Ignition Interlock whether you’ve been convicted the first time or are a repeat offender. The decision to impose this sentencing is up to the judge presiding over your case and is determined by several factors. The judge will look at the type of your condition and how many offenses you’ve had among other things.
The National Highway Traffic Safety Administration states ignition interlock devices are designed to detect alcohol on your breath. If it detects an amount that exceeds a pre-programmed level, it prevents the vehicle from starting.
To test your breath, you blow into the device, and if your sample is good, your vehicle starts normally. If it detects alcohol, you will have to wait before testing again, and in the meantime, your car will not start. If you have to continue testing, the wait time in between tests becomes longer.
Some states require random testing while you are driving. If this is needed, the device will beep to signal you a test is necessary. If it detects alcohol on your breath during this test, the device will signal you to stop by blowing the horn and flashing your lights. All data received by the interlock device is sent to the authorities.
You will not only face financial penalties for a DWI conviction in Texas, but you may also be ordered to perform a number of community service hours. These hours are unpaid work in the community. The court can order this service as a supplement or alternative to fines, alcohol education, imprisonment, or other penalties.
Some of the work you may be asked to perform includes picking up litter, planting flowers or trees, or engaging in other waste reduction or recycling activities. You can also be asked to volunteer at a local library or help to care for animals waiting for homes. The courts will decide where your services will best be put to use.
Victim Impact Panel
Most of the probation terms imposed on you when convicted of a DWI are intended as punishment, but there are some designed to educate you on the dangers involved when driving while intoxicated. Judges will require you to attend alcohol education programs that can last from twelve hours to thirty months, but other programs can make you aware of the dangers firsthand.
Hospital and Morgue programs take you on a tour of the local hospitals and morgues to see the effects others have suffered as a consequence of a driver under the influence of alcohol or other dangerous substances.
The Victim Impact Panel is a presentation done non-confrontationally by people speaking, including victims of DWI accidents. The speakers talk about the impact the accident has had on their lives and give you a perspective not often heard. Judges often include a mandatory attendance of a Victim Impact Panel as part of a first time DWI sentence to show firsthand the trauma, physical pain, emotional devastation and loss that is experienced by DWI victims and their families.
In Texas, early release from probation is prohibited. For example; if you have received a one-year term for completing community supervision probation and finish the requirements after nine months, you cannot have your probation terminated. This rule is specific to DWI offenses.
There are; however, some cases where a judge can reduce your probation conditions. For example; your attorney can request the courts to minimize the requirement that you install the device on your car's ignition. If you have had it in place for the required time according to the statute, and have not violated the terms, you can petition for the release of the device. If you have completed most of your probation terms and want to find out about early release from probation, contact DWI attorney, Andrew Deegan.
Surcharge Applied for Felony Repetition DWI
Transportation Code Section 708.102 applies a surcharge of $1,000 a year to your driver’s license for the conviction of a first time DWI in a 36-month period. If you are arrested and convicted of a second DWI charge, the amount rises to $1,500 a year for a conviction within a 36-month period. A felony repetition DWI, or your third conviction, raises the amount to $2,000 for a three-year time length. The $2,000 amount also applies if your blood alcohol concentration is .15 or greater.
Conditions of Being Out on Bond for Felony Repetition DWI
Being arrested for a DWI means you could be facing immediate jail time. Jail time is the last thing you want at this point as there are matters you will need to take care of; one is speaking with a DWI attorney.
There is a bail bond system in the State of Texas that allows you to leave jail early, so you are able to resume your regular daily life. To be given early release from jail; before you’ve been in front of the judge, you must either pay a certain amount of money or post bail. The paying an amount of money to post bail is referred to as being out on bond.
DWI cases are all handled differently, depending on which judge hears your case, and the amount your bail is set at is their discretion. They can either increase or decrease your bail amount. Some of the factors they will take into consideration are if you have other convictions on your record for DWI related offenses, if you agree to undergo mandatory chemical testing, whether or not you are considered to be violent or dangerous, or if you are a risk of fleeing the country. The judge assigned your case will also consider whether or not you have committed intoxication manslaughter or intoxication assault. Once bail is determined, and you obtain a bond to cover the amount, you will be given conditions that must be followed while you are out of jail on bond. If you do not follow these rules set forth by the court, you will be arrested and placed in jail without the possibility of bail.
If you have been charged with a felony repetition DWI in Texas, it is very likely you will be forced to install the interlock device on any vehicle you drive while you are out on bond. You can also expect the judge to add a condition to your bond that states you will not consume alcohol while out of jail on bond.
The Prosecution and a Felony Repetition DWI
The punishments for a felony repetition DWI are very different from those of your first conviction; however, the burden of proof and elements are the same as in your first case. The prosecution will have to prove guilt just as done on the first conviction.
There are numerous ways you can get charged with felony DWI in Texas. You can be charged with a felony when arrested for drinking and driving from repetition, causing an injury or death from an accident that occurred due to your consumption, or if you are driving and drinking with a child 15 years or younger in your vehicle.
Law enforcement and the prosecution aggressively pursue felony repetition DWI cases. The prosecutors you will face from these charges are seasoned and skilled in their profession which is why you will want to seek a thorough and skilled criminal defense attorney who understands the laws on DWIs. Andrew Deegan is a DWI attorney who will complete an investigation into all the facts surrounding your charges and create a plan of action for you to defend yourself against these charges.
License Suspension for Felony Repetition DWI
Being convicted of a felony repetition DWI in the State of Texas demands a jail sentence, and the judge can suspend your driver's license for up to two years. Your license can also be suspended for one year if your driving record has more than one DWI related contact within the last ten years.
Defense of a Felony Repetition DWI
There are often weak spots in a State’s case against a defendant, or there may be legal issues that can prevail and lead to a dismissal of your charges. It takes an attorney with experience to spot these areas and vigorously defend you against the prosecution's evidence.
An experienced defense attorney can help to reduce the consequences you are facing, or even have the case dismissed. There may be a lack of evidence, improperly stored and maintained field sobriety tests such as your blood test, breath test or the stand and turn test. If this is found in your case, you stand to have very good chance of reduced or dismissed charges.
When given a sobriety test, the laboratory’s conclusions should be questioned. An experienced DWI attorney, does not accept this number as evidence against you unless it is proven how the test was validated. The results in these tests can be significantly altered if the machine used to take the sample is not calibrated correctly or maintained properly. It is also extremely important to know how your blood sample was stored and if the analyst conducting the test was qualified to perform blood tests.
It is imperative to your case to have these tests questioned as there are vast amounts of variables that can change the results of these tests. With the risk of a felony repetition DWI conviction, you need a solid defense attorney working with you to fight these charges.
Contact a DWI Attorney Near Me
If you have been arrested, or someone you love has been arrested and are facing felony repetition DWI charges call Andrew Deegan DWI Attorney at Law at 817-470-2128. The prosecution will be working hard to find the evidence needed to convict you, and you want an experienced attorney working with you who understands the court system and Texas DWI laws.