The DWI Offense

A first offense of driving while intoxicated is a Class B Misdemeanor. According to Texas law, “a person commits an offense if the person is intoxicated while operating a motor vehicle in a public place”. This definition sets forth the elements that must be proven to sustain a conviction. Those elements are:

1. The defendant, 
2. On or about a particular date,
3. Was operating a motor vehicle,
4. In a public place (street, highway, beach, parking lot, etc.), 
5. While in a specific Texas County,
6. While intoxicated.

The Texas legislature has specifically defined the term “intoxication”, which is the standard used for the prosecution of DWI cases. You can be convicted of DWI even if you did not give a breath or blood sample. The prosecutor just has to prove that you lacked the normal use of mental or physical faculties due to alcohol or a controlled substance in your body, or that your blood alcohol concentration was higher than 0.08 percent. As such, a blood alcohol concentration of 0.08 percent is not always necessary for a DWI conviction. Further, the jury does not have to be unanimous on the manner and means of intoxication. Instead, they just must find that the defendant was intoxicated.

It is important to note that the law provides for intoxication by the introduction of any intoxicating substance into the body. Typically, proof at trial is restricted to alcohol unless some statements or other indications suggest that the driver has been impaired by some other substance. Equally as important, being on prescription drugs is not a defense to a DWI prosecution. If the label suggests that ingestion will impair one’s ability to operate a motor vehicle or machinery, taking such medicine and driving may subject you to DWI arrest and conviction.

The DUI Offense

A person under 21 is not allowed to drink any alcohol and then drive a car. If an officer testifies that he smelled an alcoholic beverage on a minor’s breath during a traffic stop then the minor will be cited for DUI. This is true even if the officer feels the minor is both below the .08 legal limit and has not lost the normal use of her mental facilities, but instead she has consumed “some or any” alcohol. If a minor’s case is mishandled it can have terrible long-term effects on the minor’s record and it may result in lengthy driver’s license suspensions. It is therefore very important that these cases are taken seriously.

A first offense of driving under the influence or DUI case is classified as a class “C” misdemeanor. This means that you cannot receive jail time and there is a maximum fine of $500.00. However, along with the fine there can be probation, along with community service and alcohol awareness classes. Likewise, the Texas Department of Public Safety will issue a Notice of Suspension and try to suspend the minor’s license. This license suspension is the same administrative license revocation (ALR) process that is used in adult cases.

Breath Test Refusals

When an officer pulls over a defendant, it is likely that the officer will make a request for the defendant to provide a breath, blood or urine test in an attempt to obtain evidence that the defendant is intoxicated. (At Anderson Legal Group, P.C., we always encourage citizens not to take these test or to perform any Field Sobriety Tests). Either way, if you refuse the breath test, or if you take it and fail, your driver’s license will likely be suspended. Only the duration and start date of the driver’s license suspension will change based on the facts. The state of your license will be an important issue that we shall discuss fully during our free consultation.

Administrative License Revocation (ALR) Hearing

If your license is going to be suspended, there is an administrative process that has some oversight into whether the suspension is valid. At the time you are charged with driving while intoxicated, the officer is required to take your license and give you a Notice of Suspension. That document is your driver’s permit which is good for 40 days. When this happens you have only 15 days from the date of the Notice of Suspension to request an ALR hearing! If you do not request this hearing, the license suspension automatically goes into effect on the 40th day. If you request a hearing, the temporary driving permit remains in effect until the ALR Judge’s ruling. The ALR hearing is important because it gives you the ability to fight to get your license back and to review the evidence for the DWI matter.

Texas Occupational Driver’s License

If your license is suspended, we can try to arrange for you to continue to drive. An occupational license is a restricted license issued to those who have had their regular license suspended or revoked for certain offenses. With an occupational license you are able to operate non-commercial motor vehicles in connection with your job, school, or to perform essential household duties. There are certain requirements you must meet in order to obtain an occupational license in Texas. These include:

1. The certified copy of the Petition and a certified copy of the Court Order granting the occupational license;
2. An original pink SR-22 certificate of insurance. (This is the only proof of insurance that is acceptable);
3. An occupational license fee for a one-year license or less;
4. A statutory reinstatement fee for the Safety Responsibility suspension, if required;
5. A statutory reinstatement fee for the Driver Improvement suspension, if required;
6. A statutory reinstatement fee for the Administrative License Revocation (ALR), if required; and
7. All required reinstatement fee(s) must be paid prior to the issuance of the occupational license.

We know that driving is vital to you to maintain employment. We will work not only to keep your license from being suspended, but to get you an occupational license if one becomes necessary.

Deferred Adjudication for DWI Cases

When Texas lawmakers passed House Bill (HB) 3582, it made first-time DWI offenders eligible for deferred adjudication. Further, some first-time DWI offenders are disqualified depending on the circumstances. For example, if any of the following occurred during your first DWI arrest, you will not qualify for deferred adjudication:

1. Your blood alcohol content (BAC) was .15 or higher;
2. You allegedly caused an accident;
3. You allegedly caused an injury; and/or
4. You allegedly caused the death of another person.

Deferred adjudication sounds really great to someone who has never dealt with the criminal process before and who just wants to get it over to return to his or her life. Deferred adjudication, after all, means the defendant completes deferred probation period (of no more than two years) and in return, a conviction or a finding of guilty is not entered into his or her criminal record. However, during this deferred probation period you must follow the terms and conditions of probation which includes the installation of an ignition interlock device (IID) in each vehicle you drive.

Everyone assumes that without a criminal record available to the public, there's no worry if charged with a second DWI. Unfortunately, though the deferred adjudication program, if you are charged with a second DWI offense, the first DWI that was deferred can be used as a prior conviction. As such, this means you will be charged as though the second DWI arrest is a second DWI even though the first one was deferred.

DWI and DUI cases are complex. They affect you three ways: money, freedom, and being able to drive. As such, you should always consult an attorney to consider your options. We would be honored if you called our office so that we could meet with you about your options.