Intoxication Offenses + DWI
In Texas, the law governing Driving While Intoxicated (DWI) can be quite complex. You need a lawyer to help navigate these complexities and to achieve success in defending your case. Mark White Law has successfully defended intoxication charges. You should call for a free consultation.
The basic rule for determining whether a driver was “intoxicated” for purposes of DWI, Intoxication Assault, and Intoxication Manslaughter is either “scientific” proof that he or she had 0.08% or higher blood alcohol content (BAC) or other proof (usually police testimony) that the driver had lost the normal use of his or her mental or physical faculties by reason of alcohol or drugs.
The State often seeks to prove its case with results from unreliable breath tests, blood tests, or even urine tests. If you are asked to take one of these tests but you refuse, your driver’s license will be suspended UNLESS you request an administrative hearing within 15 days of the refusal. It is important that you request a hearing!
If you request a hearing, a hearing officer will decide whether to suspend your license after hearing the testimony of witnesses. If those witnesses decide not to show up, you keep your license. If they show up but cannot establish probable cause for the arrest or show that a refusal to blow was knowing and voluntary, you keep your license. A hearing is a very good thing, and you would do better to have a lawyer represent you at the hearing than to go it alone.
For a first-time breath test refusal, the suspension is 180 days. For a second refusal within 10 years, the suspension is for 2 years. If you provided a breath, blood, or urine specimen that exceeded 0.08% BAC, your license will be suspended for 90 days for the first offense or for 1 year if it is a repeat offense. This is considered an administrative suspension. It is imposed even before your DWI or other intoxication offense case ever goes to trial. Conviction for those offenses can carry terms of license suspension in addition to the administrative suspension.
The State can also try to show proof of “intoxication,” even in the absence of so-called scientific testing, by having the arresting officer testify about the circumstances of the arrest, including whether the driver performed (or performed properly) the so-called standardized field sobriety tests. The tests include the “walk and turn,” which is where the driver must walk heel to toe in a straight line, pivot, and return to the starting position. There is also the horizontal gaze nystagmus (HGN) test, which is the test that requires the driver to follow a pen with his or her eyes. There is the one-leg stand. Some officers devise their own silly tests as well.
None of them are reliable. They depend on the subjective observations of a police officer whose training is doubtful and who sees what he or she wants to see because he or she is building a case against you, not for you. If you refuse to perform these tests, you will be arrested and charged with an intoxication offense. If you perform these tests and actually do well, it is most likely that you will still be charged with a crime. The police officer already suspects you are guilty. Otherwise, he or she would not have had you perform the tests in the first place. Also, the officer must arrest you and take you to a place where the breath, blood, or urine testing can be performed. And so, you will be arrested anyway even if you perform well on these field sobriety tests.
The range of punishment you may face will depend on several factors, including whether the offense is DWI, Intoxication Assault, or Intoxication Manslaughter. Intoxication assault is a third-degree felony (2 to 10 years in the penitentiary). It is a charge that will be filed if an accident occurred that caused someone serious bodily injury. Intoxication Manslaughter is a second-degree felony (2 to 20 years in the penitentiary). It is an offense that will be charged if someone died in the accident. Each offense carries a fine up to $10,000 as well.
The range of punishment for simple DWI depends on whether it is a first offense, the presence of a child in the vehicle, and the driver’s BAC as shown by breath/blood/urine testing. A first-time DWI is a class “B” misdemeanor, meaning it carries a jail term from 3 days to 180 days in jail and/or a fine not to exceed $2,000. If the driver had an open container of alcohol in the vehicle, the minimum sentence if 6 days in jail. If the driver’s BAC was 0.15% BAC or greater, then the offense is a class “A” misdemeanor. If there was a child younger than 15 years old in the vehicle, then the offense is a state jail felony (6 to 18 months in a state jail facility and/or a $10,000 fine).
A second-time DWI is a class “A” misdemeanor, carrying a jail term of a minimum of 30 days and a maximum of 1 year in jail and/or a fine not to exceed $4,000. A third-time DWI is a third-degree felony (2 to 10 years in the penitentiary and/or a $10,000 fine).
Arrest or conviction of any of these offenses also involve the suspicion of driver’s license and may involve having to get a court’s permission to drive a vehicle, which will often require the person to have a device installed on his or her vehicle to test for alcohol before starting the vehicle.
Mark White Law can help you navigate this very complicated area of the law. Call for a free consultation.