A DWI conviction can carry severe sentences and cost thousands of dollars in fines and fees. DWI cases, whether felony or misdemeanor, are aggressively prosecuted in East Texas. A conviction for DWI can directly impact your ability to drive, hold a job, and in some cases, from being employed in certain fields. There are also social stigmas attached to DWI convictions. Charges and punishments for DWI vary depending on several factors, including any prior DWI convictions, whether the BAC was over .15, if there was an open container of alcohol in the car, and was there a one car or two car accident.

In the defense of a DWI case, it is important to look, not just at how the driver looks, but what the officer did or didn’t do. Did the officer have a reasonable suspicion that a traffic violation or crime has occurred in order to stop your vehicle? Did the officer have probable cause to request that you perform the Standardized Field Sobriety Test? Did the officer demonstrate and administer the 9 step walk and turn, Horizontal Gaze Nystagmus test, and the one-legged stand correctly in accordance with NHTSA standards? Did the officer follow the requirements of reading and providing you with the DIC 23 & 24 before you voluntarily submitted to a blood or breath test? If the officer secured a warrant for your blood, is the warrant valid or challengeable? You want to look at the TCOLE records of the officer and what training and certifications he/she has or doesn’t have in the administration of the SFST. These are only a few of the areas that should be carefully looked at to determine if the person arrested is actually guilty of DWI.

Driving Under the Influence (DUI)

Many clients want to know, what is the difference between DWI and DUI? In Texas, only a person younger than 21 years old can be charged with DUI. While the legal limit for driving after consuming alcohol is a blood alcohol content of .08% or less, a person under 21 can be charged with a DUI for drinking any amount of alcohol at all, even if they are below the legal limit. DWI charges are issued to anyone over the age of 21 with a .08% concentration of alcohol in their bloodstream.

DWI Misdemeanor

A first DWI offense in Texas is a Class B Misdemeanor, which is punishable by up to 180 days in jail and a fine not to exceed $2,000.00

A second DWI or a first DWI with a BAC of .15 or greater, is a Class A Misdemeanor. Punishment is up to one year in jail and a fine not to exceed $4,000.00

The State fines for a Class A and B misdemeanor DWI have changed as of September 1st, 2019. The fine for a Class B, or first DWI, misdemeanor increased to $3,000 payable within 36 months. The fines increased to $4,500.00 for a second or subsequent DWI conviction payable in 36 months. The fines can be up to $6,000.00 for a first or subsequent conviction if there is a blood or breath test showing a BAC of .15 or greater.

In some DWI cases, with a breath or blood test under .15, it is possible, as of September 1st, 2019, to receive Deferred Adjudication Probation. This means that if the defendant receives and completes the Deferred Adjudication probation, they will not have a conviction on their record. There is a list of things that will disqualify someone from receiving Deferred Probation for their first DWI, but the most common is a BAC of .15 or greater on the first DWI.

Within 15 days of being arrested for DWI, you must request an ALR hearing to challenge the suspension of your license. If you do not request an ALR hearing within this time, your license will automatically be suspended. The hearing is conducted in front of an ALR Judge. The Lawyer for DPS must establish, by a preponderance of the evidence, the elements as set out in section 524.035 of the Texas Transportation Code in order for your license to be suspended.

Many times, those arrested do not contact a lawyer early enough to request an ALR hearing and as a result their license is suspended. If you are arrested for DWI, contact an experienced lawyer immediately to protect your rights and challenge the suspension of your license. The lawyer representing you can attend the ALR hearing and cross examine the arresting officer under oath, which can be beneficial at your trial and even result in the dismissal or declining of your case by the DA’s Office.

Intoxicated Assault

Intoxicated Assault occurs when there is an accident and someone suffers serious bodily injury due to the another person operating a motor vehicle while intoxicated. The punishment for this crime is not less than 2, nor more than 10, years in prison and a fine not to exceed $10,000.00. If the prosecutors have alleged that the vehicle driven by the intoxicated person was used as a “deadly weapon”, the defendant would have to serve one half of the prison sentence assessed before he/she was eligible for parole. If you get a probated sentence, you will serve a minimum of 30 days in jail as a condition of the probation.

DWI Felony

If a person has two previous DWI convictions, the third conviction is a third degree felony  punishable by not less than 2, nor more than 10, years in prison and a fine not to exceed $10,000.00. Adjudicated Probation is a sentencing option if you have not previously been convicted of a felony in this State or any other State. If convicted, your drivers license will be suspended from 180 days to 2 years. You will also be disqualified from voting or ever possessing a firearm.

As a condition of bond, the Court will be required to order the installation of an ignition interlock device on any car you drive.

Like with a second DWI, if your case is tried to a jury, the jury will be told that you have been convicted of DWI before in the guilt innocence stage. This is because previous DWI’s are jurisdictional elements of the case. The prosecutor will still have to prove Beyond a Reasonable doubt that you are the same person that, was previously convicted, but just hearing that information can be very prejudicial to a defendants presumption of innocence, because the jury could believe, “well if he/she did it once, they probably did it this time too”. The only exception to this is if you were convicted of DWI before January 1, 1984 and you received and completed a probated sentence.

If a defendant does receive a probated sentence, he/she will be required to serve a 10 day jail sentence as a condition of that probation.

If the prosecutor alleged in the indictment that you used or exhibited a “deadly weapon” in the commission of the offense, in these cases, your vehicle, and you receive a sentence of prison time, you will be required to serve one half of your sentence, day for day, before you are eligible for release on parole. You don’t actually have to have injured anyone in a wreck for a deadly weapon to be alleged in the indictment by the prosecutor.

If you are stopped by Police, remember to be polite and produce your driver’s license and insurance card upon request by the officer. If the officer asks you to step out of the car, do so, keeping in mind that he is looking at your balance, whether you are swaying and any other obvious signs of intoxication.

Once you have been placed under arrest, do not spontaneously say something to the officer. That is called a “res gestae” statement and is admissible against you even if you have requested a lawyer, or had your Miranda Warnings read to you because it was not in response to a question the officer asked you. You would have volunteered the statement. This often happens when the defendant is in the back of the police car being driven to the jail. They will spontaneously say something or begin talking to the officer. Do not volunteer any information.

DWI with Child Passenger

This offense is a State Jail Felony with a punishment range of not less than 180 days, nor more than 2 years, in a State Jail Facility (prison), and a fine if any, not to exceed $10,000.00. This offense occurs when a person operates a motor vehicle while intoxicated, and there is a passenger in the vehicle under the age of 15.

Upon conviction, your driver’s license will be suspended from 90 days to 2 years.

As a condition of bond, the Court may require the installation of an ignition interlock device on any car you operate. The Court can also require random drug and alcohol testing wile on bond.

If you are arrested for DWI in East Texas, do not delay in contacting an experienced DWI lawyer in Tyler, TX as soon as possible. Call the Law Offices of D. Matt Bingham at any time, day or night.

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