Top Houston Texas DWI Lawyer Attorney Steve Baxley

GET THE FACTS ON TEXAS DWI LAW

FACT:Driving While Intoxicated is a serious crime. Your license can be suspended; you can be put in jail, and assessed a fine.

FACT: In 2003,  approximately 100,000 people were charged with DWI or related offense in Texas . The overwhelming majority of these people were convicted. Many may not have been guilty. An experienced criminal trial lawyer might have made the difference between conviction and acquittal.

FACT: In Texas , field sobriety testing is voluntary. You do not have to perform these tests.

FACT: You have the right to remain silent. Always exercise this right and do not answer questions about how you feel, how much you drank, etc.

FACT: If you plead guilty at your arraignment you will loose valuable rights and may suffer consequences that you don’t immediately appreciate.

FACT: If you fail to request a hearing with in 15 days after being arrested for DWI, your driver’s license can be suspended.

FACT: In Texas, when you are arrested for DWI, you actually have 2 cases to defend – the criminal charge and the civil "Administrative License Revocation" where the state will try to suspend your driving privileges.

IF YOU ARE STOPPED FOR DRUNK DRIVING:

Want to be convicted of DWI even though you may not be intoxicated? If so, take the police officer’s "tests." Want to know the real truth about these "tests?" Want to protect yourself? Read on.

"Field sobriety testing" (or FSTs) as practiced by police in Texas is not an effective way to tell if someone is intoxicated. It may surprise you to learn there are no conclusive studies linking the results of any field test to legal intoxication. And there are many reasons someone may not perform these "tests" well even when sober.

The National Highway Traffic Safety Administration (NHTSA), police, and prosecutors claim three "tests" available to officers are "scientifically" legitimate. These tests are:

* The Horizontal Gaze Nystagmus Test

* The Walk and Turn Test

* The One Leg Stand Test

The truth is these tests are questionable and are often inaccurate indicators of intoxication. Make sure you get an experienced criminal trial attorney that can show the true weaknesses of these "tests."

Often, however, Texas police officers will use other "tests." Without exception, all other tests are not validated in any official way. Some of the more common "tests" officers may use include the "Finger-to-Nose Test," the "Rhomberg Balance Test," counting or saying the ABCs backwards, counting fingers, or playing "patty cake" often will have no correlation to whether someone is legally intoxicated.

You have the absolute right to refuse to perform any field sobriety "test." If you take the tests, the officer opinion of your performance will be used when the prosecutor tries to convict you. Some times people feel that if you go along with the officer he may not arrest you. But remember the officer already suspects you are intoxicated and, in all likelihood, will arrest you even if you take the tests.

Contrary to common misunderstanding, refusing perform the field "tests" will not cause your drivers license to be suspended (unless you are on probation and/or have another case pending in which a Judge has ordered you not to refuse to take the tests). One major drawback if you refuse the tests is that at trial the prosecutor will try to make the Jury believe that you didn't take the tests because you knew you were intoxicated and would fail them. Also, if you refuse the officer will probably arrest you right away. But usually, this just speeds up the inevitable.

In Texas , the law requires that the police videotape you if they suspect you are driving while intoxicated. Some police have a video camera in their car. Others wait until you get to the police station to videotape your performance on their "tests." Always ask the officer if you are being videotaped when he stops you. If you are not being taped, Mr. Baxley recommends that you politely refuse the tests because your performance is not recorded. Believe it or not, some police will exaggerate how poorly someone does on the tests.

When you are being videotaped, whether at the time you are stopped or at the police station, generally you should politely refuse. But you may want to perform the tests on video if you are sober, have exceptionally good balance, and have no eye, ear, back, leg, or foot problems.

But what about the breath test? Contrary to what some people may think, there is no constitutional right to refuse a breath test or even to consult with an attorney before deciding whether to take the test. Deciding whether to take the test is complicated. In Texas , on the one hand, refusing to take the test has its consequences: your license can be revoked merely for the refusal even if you're perfectly sober; at trial the prosecutor will argue you did not blow because you knew you were drunk; and in many counties, you will be automatically charged with the crime.

On the other hand, the test can be flawed. There can be problems with the machine that give an inaccurately high reading. Environmental factors, like cleaners or aerosol spray, may have contaminated the machine and make it give an inaccurately high reading. Moreover, even if you are not intoxicated but the machine says you are intoxicated, the case becomes much harder to defend at trial. Generally, Mr. Baxley suggests you not blow into the breath test machine.

It is also advisable to request the opportunity to contact a lawyer directly from the station house, or to call a friend or family member and ask him or her to immediately seek an experienced criminal defense lawyer. A criminal defense lawyer can often speak to the police who arrested you while you are in custody, thereby gathering information about the case even before it gets to court. He can then appear at your court arraignment to argue on your behalf.

CALL 1-800-DIAL-DWI  NOW TO DISCUSS YOUR TEXAS DWI DRUNK DRIVING CASE OR

TEXAS DWI LAWS & PENALTIES

In Texas , there are several laws that might apply to a DWI or DWI type situation. These are briefly discussed below.

Open Containers:

It is not a crime in Texas for someone to have an alcoholic drink, and then drive if you are not intoxicated (discussed below). However, in 2001 the Texas Legislature created a new crime for drinking while driving. Basically it is a crime if someone knowingly has an open container containing any amount of alcohol in the passenger compartment of a vehicle. That is, it is now a crime to drink an alcoholic beverage while driving and it is also a crime to drink one in a car, even if the car is parked. This is a class C misdemeanor and is punishable by a fine up to $500.

Driving While Intoxicated:

In Texas , someone commits the offense of driving while intoxicated if they are, "intoxicated while operating a motor vehicle in a public place."

Notice it does not say driving while drunk. The term, "intoxicated" is a specially defined word that means something less than what we would normally think of as drunk. Intoxicated means that someone does, "not have the normal use of mental or physical faculties . . . or having an alcohol concentration of .08 or more." Thus, intoxication can be proven by evidence that (1) someone lost the normal use of their physical faculties, or (2) that they lost the normal use of their mental faculties, or (3) that they had an alcohol concentration of .08 or more.

Let’s unpack that a bit. The term "not having the normal use of mental or physical faculties" raises some questions, but basically it means that alcohol or some drug or a combination of alcohol and some drug makes the person not operate physically or mentally in the "normal range" for that person. This is definitely less than drunk.

There are two points to emphasize here. First, notice that we said "normal range." This means that there is not some magic point after which you are intoxicated. Rather, the law recognizes that we all vary a bit during the day. For example, you might be a little fuzzy mentally when you first wake up, but after a couple of cups of coffee, you are very sharp. That is all we mean by "normal range."

Second, remember that we are talking about your normal. This is neither the prosecutors normal nor the police officers normal. The real question is whether you (as the accused) were outside your normal range. Obviously, however, this raises problems. How can the prosecutor prove you are not normal, when she doesn’t know your normal? Well court opinions have set the standard for "normal" as some objective "reasonable person’s" normal. But, and this can be important, if you have some physical or mental condition, your defense lawyer needs to know about it to help craft your defense strategy.

The other way someone is legally intoxicated if they have an alcohol concentration of .08 or more. This refers to, the "number of grams of alcohol per 210 liters of breath; 100 milliliters of blood; or 67 milliliters of urine." By far the most common way this is shown is by breath test, even though it is not the most accurate.

The accuracy and reliability of breath testing is continually debate among scientists. But a bigger problem with breath testing in Texas is that the law does not require the police to preserve breath samples later checks to ensure the machine was operating correctly. Thus, if a breath test machine reads artificially high, which can happen for any number of reasons, the results can show you to be intoxicated if you are innocent. But you need to understand that someone may have not lost either normal mental or physical faculties, but still be charged with DWI if the breath test machine says you have an alcohol concentration of over .08.

As you can see, even this brief overview of DWI law can be a bit complicated and there are scientific issues that must be considered. So make sure you choose a criminal trial lawyer with sufficient experience in the actual trial of DWI cases. Beware, there are lawyers that claim they have handled many of these but really have only stood beside someone pleading guilty to this charge.

Intoxication Assault:

Basically this is where someone is operating a car (or boat, airplane, or amusement ride) while intoxicated and someone suffers "serious bodily injury" as a result of the intoxication. All of the above discussion about intoxication applies here as well.

Intoxication Manslaughter:

This is where someone is operating a car (or boat, airplane, or amusement ride) while intoxicated and someone dies as a result of an accident or mistake caused by the intoxication.

Driving Under the Influence by a Minor:

This is Texas’ zero tolerance law. This makes it illegal for a minor, which means under 21, to operate a car while having any detectable amount of alcohol in your system. This is a special offense that does not fit the discussion below about punishment for DWI type crimes. Here, the first offense is punishable by fine up to $500 and 20 - 40 hours of alcohol related community service. There are enhanced penalties for repeat offenders.

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PENALTIES FOR TEXAS DWI & RELATED CRIMES

The penalty for a DWI or other intoxication crime will depend on the specific offense you are charged with and on your criminal history. As discussed below, in many circumstances the jail / prison sentence may be probated. But generally the penalties for DWI are as follows:

First DWI:

In Texas, the first DWI conviction is classified as a "Class B Misdemeanor." For someone with no prior criminal history, the penalty for a first-offense is from 3 days to 180 days in county jail and a fine up to $2,000.

If you get caught with an open container of alcohol then the minimum county jail time goes up to 6 days.

If you have previously been convicted of something other than DWI or Intoxication Assault, the minimum jail time may go up to 30 days.

If you have previously been convicted of Intoxication Manslaughter, then the case becomes a third degree felony and the punishment range is 2 – 10 years in prison and a fine of up to $10,000.

Second DWI:

The second DWI occurring within 10 years of a prior DWI or Intoxication Assault is a "Class A Misdemeanor." For someone with no prior criminal history except a prior DWI or Intoxication Assault, the penalty is 30 days to 1 year in jail and a fine up to $4,000.

If the current DWI occurs within 5 years of the last DWI, Intoxication Assault, or Intoxication Manslaughter, then you must have a breath test machine, called a Smart Start or Ignition Interlock, installed on every automobile you operate. This must stay on for a minimum of 1 year.

If you have been previously convicted of any "Class A Misdemeanor" or any Felony (other than DWI, Intoxication Assault, or Intoxication Manslaughter) then the minimum jail time goes up to 90 days.

If you have previously been convicted of Intoxication Manslaughter, then the case becomes a "Third Degree Felony" and the punishment range is 2 – 10 years in prison and a fine of up to $10,000.

Third and subsequent DWI:

The third (and subsequent) DWI is a "Third Degree Felony" if the current DWI occurs within 10 years of the last DWI or Intoxication Assault. It is also a Third Degree Felony if you have ever previously been convicted of Intoxication Manslaughter. The penalty range is 2 – 10 years in prison and a fine up to $10,000.

If you have been previously convicted of a first, second or third degree felony, then your jail time is 2 - 20 years in prison. If you have 2 or more felony convictions, under some circumstances, you may face 25 years – life in prison.

If the current DWI occurs within 5 years of the last DWI, Intoxication Assault, or Intoxication Manslaughter, then you must have a breath test machine, called a Smart Start or Ignition Interlock, installed on every automobile you operate. This must stay on for a minimum of 1 year.

Intoxication Assault:

Intoxication assault is a third degree felony even if it is the first DWI type conviction. The punishment for someone with no criminal history is 2 - 10 years in prison and a fine up to $10,000.

If you have been previously convicted of a first, second or third degree felony, then the prison time is 2 - 20 years in prison. If you have 2 or more felony convictions, under some circumstances, you may face 25 years – life in prison.

If the current Intoxication Assault occurs within 5 years of the last DWI, Intoxication Assault, or Intoxication Manslaughter, then you must have a breath test machine, called a Smart Start or Ignition Interlock, installed on every automobile you operate. This must stay on for a minimum of 1 year.

Intoxication Manslaughter:

Intoxication manslaughter is a second-degree felony. If you have no criminal history, the punishment is 2 - 20 years in prison and a fine up to $10,000.

If you have been previously convicted of a first, second or third degree felony, then the prison time is 5 years - life in prison. If you have 2 or more felony convictions, under some circumstances, you may face 25 years – life in prison.

What about Probation?

In many cases you may be eligible to receive a probated sentence. A probated sentence is one where the judge sentences you to jail (or to pay a fine) then puts that penalty on hold so that you don’t have suffer the penalty if you comply with the terms and conditions of probation. For instance, for a first DWI, the judge could sentence you to 180 days in jail with a $2000 fine, but probate the jail time and $1000 of the fine. This means that if you live by certain terms and conditions for a period of time, then you do not have to go to jail and only have to pay $1000 of the fine. In Texas , probation is now technically called "community supervision."

For misdemeanors the period of community supervision is usually 1 - 2 years. Community supervision for felonies is often 5 - 10 years. During this period of time, for DWI and other intoxication offenses, the terms of community supervision often include:

* Reporting to a probation officer at least once per month,

* Not commit any criminal offense,

* Performing community service,

* Not drinking alcohol or taking illegal drugs,

* Submitting to and paying for random urinalysis,

* Undergoing drug and alcohol testing, and participating in treatment if necessary,

* Attending a "Victim Impact Panel" where people or families injured by an intoxicated driver discuss their loss,

* Paying restitution if you hurt someone or damaged someone’s property,

* Paying a supervisory fee to the probation department,

* Attend classes regarding the effects of alcohol on you,

* Have a breath-testing machine, called a Smart Start or Ignition Interlock, installed on every car you drive. If this is a repeat offender situation, the law now requires the machine to stay on for at least one year, and

* Complying with any other condition the Judge may set.

You may also have to serve some time in jail as a condition of the community supervision. The following are the minimum days in jail as a condition for the offenses listed:

Second offense w/in 10 yrs: 3 days in county jail

Second offense w/in 5 yrs: 5 days in county jail

Second offense if prior offense was intoxication manslaughter: 10 days in county jail

Third Offense, if 1 prior offense was w/in 10 yrs: 10 days in county jail

Intoxication Assault: 30 days in county jail

Intoxication Manslaughter: 120 days in county jail


If someone on community supervision violates one of the terms or conditions, then the prosecutor can file a "Motion to Revoke Probation," and the judge can sentence you to serve the jail time and/or pay the fine previously probated.

Disclaimer: The above information is not a legal opinion, and should not be relied upon as such. An attorney can provide reliable legal advice only after he is familiar with all the facts bearing upon a particular case, and only after he has undertaken appropriate legal research into all relevant laws bearing upon those facts.