Help 4 DWI is intended to be your online resource for information about DWI and DUI in the state of Texas. For answers to specific questions about your case, please contact our office to set up a consultation.
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- Make sure the lawyer has experience in the field of DWI, and not only in the field in general, but in cases similar to yours. If you were stopped for DWI and have not been involved in an auto accident, then choosing a DWI lawyer may be simpler and your case less complex. If, however, you were involved in an accident under the influence, then you will need to choose a lawyer who has experience in handling such cases.
- Go slow and get it right. Choose a lawyer you feel comfortable with. You may need one in a hurry, but do not rush and hire the first lawyer you find. Make sure you are comfortable with him or her. The lawyer should be willing to listen to your concerns and answer your questions, as opposed to doing all the talking. If a lawyer tries to pressure you into hiring them right away, then choose another lawyer.
- Check the prospective lawyer out. The State Bar of Texas website is a good place to find out about a lawyer you are seriously considering hiring.
- Spend some time, either in the lawyer’s office or beforehand, writing out exactly what happened. It does not need to be long or elaborate, but write down everything that happened. This gives the lawyer something to start on.
- Remember to be completely honest with your lawyer. Whatever you say to him or her is protected by the attorney-client privileges. That means that the lawyer cannot turn around and tell the police or the prosecuting attorney what you just told them. The lawyer will need to know exactly what happened in order to give you good advice so be honest. That is why it is important to choose lawyer you are comfortable with in the first place, as you may need to tell him things that you would embarrassed to tell others.
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Charged with DWI in Texas: Here is a quick review of the Texas DWI Laws
Classification of DWI under Texas Law: Texas Penal Code §49.04.
Under Texas Law, an offense for Driving While Intoxicated (DWI) can be classified many ways depending on the facts surrounding the arrest for drunk driving and the prior criminal history of the accused. The Classifications of
DWI under Texas Law are as follows:
- DWI, First Offense: Class B Misdemeanor
- DWI, Second Offense: Class A Misdemeanor
- DWI, Third Offense (or more): Third Degree Felony
- Intoxicated Assault: Third Degree Felony
First Offense DWI: Class B Misdemeanor: Texas Penal Code §49.04
A first offense or Driving While Intoxicated is a class B misdemeanor and defined by Texas Penal Code § 49.04. Under Texas Law, the State must prove the following elements beyond a reasonable doubt to convict a person of driving while intoxicated:
- On or about a certain date;
- Operated a motor vehicle;
- In a public place;
- In a particular county in the State of Texas;
Definition of “Intoxication” under Texas Law
The most commonly disputed element in a DWI trial is the “while intoxicated” element. The State of Texas has defined “Intoxication” as [Texas Penal Code §49.01(2)]:
- “not having the normal use of mental or physical faculties by reason of the introduction of alcohol, a controlled substance, a drug, a dangerous drug, a combination of two or more of those substances, or any other substance into the body; or
- “having an alcohol concentration of 0.08 or more.”
Therefore, the State may prove a person is “intoxicated” for the purposes of a DWI conviction in three (3) different ways:
- not having the normal use of physical faculties OR
- not having the normal use of mental faculties OR
- having an alcohol concentration of 0.08 or more.
It is important to note that a jury does not have to reach a unanimous decision on the manner or means of intoxication. Therefore, the jury does not have to agree how a person is intoxicated, only that they all agree the defendant is intoxicated by one of the three ways above. BUT, it is important to remember that the State must prove a person is intoxicated at the time of driving. This can sometimes be a problem for the State when a long period of time elapses between when a person was arrested and when sobriety tests were preformed.
1st Offense DWI: Class B Misdemeanor: Range of Punishment and Consequences.
The punishment for a first offense DWI is:
- A fine not to exceed $2,000.
- Confinement in the County Jail for a term not less than 72 hours and not more than 180 days.
NOTE: Most people convicted of a first DWI offense are granted community supervision (“probation”) instead of serving time in the County Jail. Generally, probation can last anywhere from 12 to 24 months. If you are granted community supervision in your case, the following conditions could apply:
- Not less than 24 hours of community service nor more than 100 hours.
- Drug and/or Alcohol evaluation and any conditions associated with that evaluation.
- Complete a DWI Education course within 180 days for the date of conviction.
- Maintain suitable employment, commit no other crimes, and remain at the same residence and employment unless notification is given to the community supervision officer.
- Report monthly to the supervision office and pay a monthly supervisory fee (usually between $40-$60).
- Pay all fines and costs in a timely manner.
- If your case involves certain “bad facts” then additionally conditions may be imposed as well. “Bad Fact” cases are those which involve either a high level of intoxication, dangerous driving facts, or prior criminal history. In these types of cases, a judge in his or her discretion may impose the following conditions:
- Deep lung air device: This condition requires you to install and maintain a device on your vehicle. The device requires a breath sample before it will allow your car to start. In addition, these devices may require you to give periodic breath samples while your car is running.
- Restitution: If you are involved in an accident, the court may require you to pay restitution for damages not covered by insurance.
- Confinement: Even if you are given community supervision, the court may require you to be confined in the County Jail as a condition of your probation. In some cases, judges will require a defendant to go to jail for 3 to 5 days as a condition prior to being placed on probation.
- Alcohol Treatment: The court may order a person to attend AA or other counseling programs during probation. This condition is usually ordered if you have an unfavorable drug or alcohol evaluation.
- No Alcohol: Some courts require a person not to consume any alcohol during the period of community supervision. Courts monitor this condition by requiring a person to submit to random urinalysis.
2nd Offense DWI: Class A Misdemeanor.
Under Texas Law, if it is shown that a person has been previously convicted of DWI, the punishment and penalties after the conviction are increased or enhanced. NOTE: Texas can use prior convictions that occurred in a different state to enhance a Texas DWI.
The punishment for a second offense DWI is:
- A fine not to exceed $4,000.
- Confinement in the County Jail for a term not less that 30 days or more than one (1) year.
- 80 to 200 hours of community service.
- A Deep Lung Device is typically required for all DWI second offenders.
- A possible driver’s license suspension of 180 days to two (2) years.
- T & C Jail Time: Texas law requires that a person serve some time in jail for a second offense DWI even is he or she is granted community supervision. This is known as “T&C” time or “Terms and Conditions” or probation time. T&C time can be up to 30 days. However, most courts impose five (5) days of T&C time if your prior DWI is less than five (5) years old and three (3) days T&C time if your prior DWI is grater that five (5) years old.
NOTE: Condition of Bond: Most courts will require a person who has been charged with a second DWI offense to install a deep lung device on his or her vehicle as a condition of bond. This means that in order to get a bond and be release from jail, a person must install a deep lung device on his or her car and it must remain there while the case is pending or until the judge orders that it can be removed.
3rd Offense (or greater) DWI: Third Degree Felony.
The Punishment for a third offense (or greater) DWI is:
- A Deep Lung Device is generally order as a condition of bond and as a condition of any occupational or provisional license that may be awarded after a conviction for Felony DWI.
- A possible driver’s license suspension of 180 days to two (2) years.
- SAFP: Substance Abuse Felony Probation. The court may order mandatory rehabilitative treatment for people convicted of felony DWI. This treatment may be imposed as an alternative to serving time in the penitentiary. SAFP is an in-patient; incarceration program ran by the state of Texas. This program requires confinement in a state facility for alcohol rehabilitation. After completing the SAFP program, the person is then released and placed on probation for a term not to exceed ten (10) years.
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- Failing to Request a Hearing on your Driver’s License. The first thing you MUST do after you are arrested for DWI is to request a driver’s license hearing (ALR Hearing) within 15 days of your arrest. It is common for people to neglect to request this hearing or not request it properly. Failure to request this hearing in a proper, timely manner will result in the automatic suspension of your driving privileges and possible additional criminal charges. We will request an ALR hearing free of charge for any person who interviews with our office.
- Not hiring an attorney who knows in DWI defense. DWI laws are complicated. Not all attorneys are as up to date on Texas DWI laws as our attorneys. Nothing beats hard-earned experience when dealing with prosecutors, judges and trained police officers. You want the best representing you when your freedom and good name is on the line. Selecting experienced DWI lawyers is the best way to protect your future.
- Hiring an attorney based on the amount of the fee alone. You get what you pay for! Any attorney can take your money, walk you in front of the judge and tell you to plead guilty. These are usually the attorneys who charge the least amount. A good attorney will cost you more because they will actually do work on your case and adequately defend your rights. Instead of asking “how much do you cost,” you should ask “what is your experience with DWI cases” and “how are you going to defend me?”
- Not taking your arrest seriously. If you are convicted for DWI, you could lose your driving privileges, be forced to go to jail, pay large fines, have increased insurance rates, lose your current job or future job opportunities, denied access to continuing education opportunities, pay huge surcharges every year to drive in Texas, and have a criminal conviction on your record for the rest of your life.
- Driving after your license has been taken away. If you fail to request an ALR hearing or fail to obtain an occupational driver’s license, you will be charged with another criminal offense if you are caught operating a vehicle.
- Hiring a Lawyer who doesn’t charge an adequate fee to review all of the evidence against you, including the videotape of your stop and arrest.
- Failing to appear in Court at your designated court dates. If you do not go to court when you are required to, the judge will most likely revoke your bond, issue a warrant for your arrest, and possibly require you to remain in jail until your case is over.
- Thinking you can negotiate with the State prosecutors yourself? Negotiating a plea deal is not like buying a car or a house. Our criminal justice is an adversarial system. Prosecutors are supposed to represent the State of Texas in prosecuting the case against you and are not there to point out legal or factual problems that they have with your case.
- Taking the prosecutor’s first offer. The first is usually always the highest offer. More often than not, the prosecutor who wrote the offer did not even review the facts of your case. Usually, once a well respected attorney points out some weaknesses in the State’s case, the offer comes down dramatically.
- Think that talking to numerous attorneys will help you handle it on your own? You need to have an attorney go to Court with you.
Help 4 DWI
- A common question is, “Why did the officer charge me with DWI and not DUI?” An answer to this question must first begin with an explanation of the difference between a DWI and a DUI in Texas.
- A DUI (Driving Under the Influence) is a class C misdemeanor. The offense is found in Section 106.041 of the Texas Alcoholic Beverage Code. Essentially, DUI is reserved for minors who have any detectible amount of alcohol in their body.
- A DWI (Driving While Intoxicated) is a class B misdemeanor. The offense is found in section 49.04 of the Texas Penal Code. A person can be charged with DWI, regardless of age, if they a) have lost the normal use of their mental or physical faculties or b) have an alcohol concentration over the legal limit of 0.08.
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