When faced with a Texas DWI arrest and/or conviction, there are a number of issues to consider: Will you have to serve jail time? If so, for how long? Or is probation a possibility? What will you owe in fines? Will your license be suspended, and for how long? Will you have to go to a DWI school or do community service? Here are the basic laws regarding Texas DWI fines and sentencing.
First Texas DWI Offense:
Texas Criminal Status: Class B Misdemeanor
Jail: Minimum 72 hours, or 6 days if open container is present.
Texas DWI Fines/Costs: Fine not to exceed $2,000. Other administrative and evaluation fees may be assessed. TX imposes a surcharge for a DWI on top of regular fines. The surcharge is $1,000 per year for three years for a first DWI offense and $2,000 if the persons BAC level was double or more the legal limit (.16). Texas License Suspension: Yes, 1 year. Attending DWI Education class may avoid this. Occupational license may be granted based on need.
Violation of Zero Tolerance Law: N/A
Texas Conditional License: A conditional, or occupational license, may be issued based on “essential need” and usually only when the court orders an offender into alcohol assessment/rehabilitation. Offenders who have been granted occupational licenses within 10 years are ineligible. For definitions of essential need, see Transportation Code Section 521.241.
Vehicle Impound: None
Texas DWI School: First time offenders must complete a 12 hour DWI Education Program within 180 days of when probation was granted or risk having their license revoked.
Texas Probation: Terms of probation decided by judge or jury.
Texas Community Service: 24 hours required, but no more than 100 hours.
Second Texas DWI Offense Plus:
Texas Criminal Status: Class A Misdemeanor. A 3rd DUI is a 3rd degree felony.
Jail: 72 hours, not more than 1 year. A 3rd DUI can mean 2-10 years in the penitentiary.
Texas DWI Fines/Costs: Fines not to exceed $4,000. Other administrative and evaluation fees may be assessed. TX imposes a surcharge for a DWI on top of regular fines. The surcharge is $1,500 per year for three years for a second DWI offense and $2,000 if the persons BAC level was double or more the legal limit (.16).
Texas License Suspension: Yes, 180 days to 2 years. Occupational license may be granted based upon need.
Vehicle Impound: None.
Texas DWI School: Repeat offenders must complete a 32 hour DWI Repeat Offender Program.
Texas Probation: Terms of probation decided by judge or jury.
Texas Community Service: Minimum 80 hours, but no more than 200 hours.
DWI w/ Child Passenger – is DWI and Driving with Minor: It is a felony to drive while intoxicated with a person younger than 15 years of age in the vehicle.
Commercial Vehicle: Over .04 BAC level may suspend a commercial drivers license for one year and up to 3 years if the driver was carrying hazardous materials.
Under Age: 21
Texas DWI Insurance Consequences: How a DUI/DWI Affects Your Car Insurance.
Texas Open Container Laws: Yes, driver and passenger. This is a Class C Misdemeanor.
How long does a DWI stay on your record? A DWI conviction in Texas stays on your driving record forever.
Driver Responsibility Tax: TX imposes a surcharge for a DWI on top of regular fines. The surcharge is $1,000 per year for three years for a first DWI offense, $1,500 per year for three years for a second DWI offense and $2,000 for a first or subsequent conviction if the persons BAC level was double or more the legal limit (.16).
Ignition interlock device program: Required in order to be released from jail on bond. Required for all second-offenders during probation.
DUI-DWI Terms & Definitions
Absorption Rate: The rate at which consumed alcohol finds its way into the blood stream. While alcohol sits in the stomach, its absorption is delayed. Absorption rate will be affected by how much was eaten, individual biologic differences, and what type of beverage was consumed. When drinking continues over a course of hours, both absorption and burn off (metabolizing of alcohol) will be happening simultaneously.
Administrative License Suspension: A law that allows the prompt suspension of the license of drivers charged with Driving While Intoxicated (DWI) when a driver has a BAC above the prescribed limit, or sometimes if a driver refuses to take a roadside blood or breath test. Thus the license may be suspended before adjudication of the DWI charge.
Short for blood alcohol concentration. BAC refers to the amount of alcohol in your bloodstream and is measured in percentages. BAC can be measured either by breath, blood or urine testing and is often used by law enforcement to determine whether or not a motorist is legally drunk. All 50 states have adopted BAC laws that make it illegal to drive with a BAC at or above a set amount. As of May of 2007, all 50 states have adopted 0.08% as the BAC limit.
Blood Test: A laboratory test that directly measures the percentage of alcohol content of the blood drawn from a DWI suspect.
Breath Test: A test of blood alcohol level that is derived from measuring the alcohol level of the suspects breath. It depends for its accuracy on the machines receiving air from deep in the lungs, and a mathematical formula is used to extrapolate the blood alcohol level from the lung-air alcohol level.
Breathalyzer: A portable machine used by law enforcement to measure the BAC of suspected drunk drivers.
Burnoff Rate: The rate at which alcohol in the body is metabolized. During burn off, the blood alcohol level drops, giving rise to the falling curve term to describe the graph of the decrease in BA.
Chemical Test: As it relates to DUI, a test of the alcohol or drug concentration in a person’s blood. A Breathalyzer, blood analysis, or urinalysis can be used as chemical tests for alcohol. If other drugs are suspected, a blood test or urine test is used.
Commercial Vehicle: A vehicle driven for business purposes. In the DUI context, these are the consequences for driving a commercial vehicle while drunk.
Community Service: Depending on the offense, your state may offer community service as a way to work off fines or jail time, which means you are living at home and reporting during the day to pick up trash, sweep public buildings, assist community charitable or public oriented organizations, or perform other services to the community. Community service may also be a mandatory part of your sentencing.
Conditional License: A conditional license is a license granted on condition of something, such as completing a DUI course or alcohol treatment program. Once that condition has been met, a standard license is generally issued or reinstated.
Diversion: A court program that can suspend the prosecution of a criminal DWI charge in exchange for performing certain tasks, such as attending a drinking driver program. At the end of the period of successful diversion the charges are dismissed. This is far less frequently used in DWI cases these days, but still exists in some states.
Driver Responsibility Tax: Some states charge those convicted of a DUI with an extra tax on top of fines and court costs. This usually consists of a tax that is payable to the state for three years after the incident occurred (e.g.: $250 per year for three years). In most cases, failure to pay the yearly assessment on time results in license suspension.
DWI School: DUI schools are typically drug and alcohol education programs designed to help you realize how dangerous drinking and driving is and to hopefully ensure you are not a repeat offender. Your state will likely have a list of approved schools for you to choose from.
DUI: In Texas, DUI laws pertain to a Minor Driving Under the Influence. In MOST other states, DUI (Driving While Under the Influence), is just a different way of stating DWI.
DWI: Driving While Intoxicated. Just a different way of stating DUI.
Felony: A serious crime, such as murder, rape or burglary, for which there is a stricter sentence given than for a misdemeanor. Felonies are usually categorized by degrees. 1st degree felonies are the most serious class (with the highest fines and penalties), 2nd degree felonies are less serious, and so on. Many states treat DUIs that cause serious bodily injury as a 3rd degree felony. If there has been a death as a result of the DUI, it might be classified as a 1st or 2nd degree felony, depending upon the prosecutor and the situation. Some states elevate DWI to felony status even without an injury or death, if the suspect has a given number of prior DWI convictions. A felony can result in a sentence to state prison instead of county jail.
SFST: Standard Field Sobriety Test. A series of physical and mental coordination tests designed to help an officer decide if a driver is DWI. These may include walking the straight line, reciting the alphabet, standing still with feet together and arms extended, standing on one foot, etc. These are highly subjective, but if the officer concludes the driver was DWI, he will require a BA test. States seldom have statutes that penalize refusing to perform SFST’s, but most will penalize refusal to take a Blood Alcohol Test with license suspension or other penalties.
High BAC: Threshold blood alcohol content for which maximum penalties and fines may apply, even on a first offense.
Ignition Interlock Device: An ignition interlock device is an in-car alcohol breath screening device that prevents a vehicle from starting if it detects a blood alcohol concentration (BAC) over a pre-set limit of .02 (i.e., 20 mg of alcohol per 100 ml of blood). The device is located inside the vehicle, near the drivers seat, and is connected to the engine’s ignition system. Texas now requires this to be installed by those convicted of DWI/DUI.
Implied Consent Laws: Some states have implied consent laws. If you have a drivers license in one of these states, you have, by implication, consented to have your blood alcohol concentration measured. In many states, you may refuse to take the test, but fines and license suspensions may be the result. In some states, an officer may not pull over drivers randomly to test them, but must have probable cause to believe the driver is DWI before pulling them over (such as observing weaving).
Intoxilyzer: A brand name for a blood alcohol breath testing machine.
License Revocation: A license revocation means your driving privileges have been cancelled. You will likely need to reapply for a driver’s license after a designated length of time.
License Suspension: A license suspension means you may not drive for the period of your suspension. Driving privileges are typically administered by a state agency other than the court system. It could be the Secretary of State, the Department of Motor Vehicles or another agency. If your license is suspended, the suspension will likely take effect immediately upon arrest, and not upon conviction. Check your states laws. You, or your lawyer on your behalf, may be able to negotiate a limited suspension, meaning you may drive to and from work, but nowhere else.
Miranda Rights: The formal advisement that you have the right to remain silent and to have a lawyer present before answering questions, which police must recite prior to questioning someone who is in custody. Seldom relevant to DWI cases, because the police never arrest anyone until after questioning (Have you been drinking?), after the FSTs, and maybe even after the Blood Alcohol Testing. Of course, one does have the right not to answer questions like that one, or How much have you had to drink? When?, but no officer will advise you of that.
Misdemeanor: A crime less serious than a felony. Misdemeanors are sometimes categorized by degrees. 1st degree misdemeanors are the most serious class (with the highest fines and penalties), 2nd degree misdemeanors are less serious, and so on. Many states treat a first DWI/DUI conviction as a misdemeanor.
Open Container Laws: In some states, it is illegal to have an open container of alcohol in your vehicle. Many states have laws that make it illegal for drivers and passengers to have open containers in the vehicle.
Probation: When all or part of the required jail time is suspended in exchange for good behavior, as determined by checking in with a probation officer. Jail time may be reinstated if it is found the terms of probation are being violated. Some grants of probation are unsupervised, but a violation may be found after a new arrest.
Provisional (or Restricted) License: AA provisional license typically withholds certain license privileges. In a DWI/DUI context, a provisional license might be granted to someone to drive to and from work only, or to and from the court ordered drinking driver program.
Regurgitation: Ejecting some stomach contents up into the throat or mouth. With alcohol in the stomach, this can fool a Breathalyzer into thinking that the blood alcohol level is much higher than it is. Officers administering a breath test are supposed to watch the suspect to see he does not burp or regurgitate prior to the test. A cloud of alcohol burped up into the mouth will invalidate the breath test results.
Rising Curve Defense: A defense to DWI based upon the claim that the driver was not under the influence and did not have .08% blood alcohol when he or she was driving, but that it rose to that level after arrest due to the fact that alcohol was still being absorbed. Consequently, a long delay between being pulled over and having a BA test helps the suspect in many cases.
Sobriety Checkpoints: A system where law enforcement agencies select a particular location for a particular time period and systematically stop vehicles (for example, every third car) to investigate drivers for possible DWI. If any evidence of intoxication is noted, a detailed investigation ensues.
Urine Test: A laboratory chemical test of the suspects urine to determine the suspects blood alcohol level. Can be inaccurate because of the mixing of higher alcohol level urine from earlier with lower alcohol level urine closer to the drivers being pulled over. Can give an artificially high reading for that reason.
Vehicle Impound/Immobilization: Vehicle impound is an option used by some states when there has been more than one DWI/DUI conviction. The vehicle may be seized, or an ignition interlock device may be installed on the steering wheel of the car, requiring the driver to pass a breath test using the device before he or she can start the vehicle and drive away.
Zero Tolerance BAC: Allowable blood alcohol content for minors (as defined by the state). This percentage can be as low as 0% (meaning no alcohol content may be detected-hence the term zero tolerance.) or as high as 0.02%.
How a DWI/DUI affects your car insurance
Driving While Intoxicated (DWI) is a serious offense. If you have ever had a DWI conviction, you most certainly know that the consequences can be both humiliating and expensive. Aside from the fines, attorney fees, and license suspension, there are the more long-term consequences, such as the impact on your car insurance rates and coverage.
If you are convicted of a DWI, more often than not, your insurance company will find out about the DWI and will deal with you in one of two ways. Typically, your rates will go up, sometimes substantially, or, the company will simply cancel your policy. If your insurance company raises your premiums but keeps you as an insured, you will likely be labeled a high-risk driver Most states require the insurance company to provide the state motor vehicle agency (DMV, MVD) with an SR-22 Proof of Insurance Certificate, which removes your license suspension by providing the state with proof that you are insured.
While this is all starting to sound fine and dandy, the catch is that not all insurance companies offer SR-22 policies. So your policy may be non-renewed or cancelled simply because the company can no longer provide insurance for you. In some states, insurers cant cut you off in the middle of the policy term, so be sure to check on the laws where you live.
Another less-likely scenario is that your insurance company doesn’t find out about your DWI because, for whatever reason, it slips through the cracks of red tape. Occasionally, your insurer will not raise your rates or cancel you if you’ve been a long time insured with no other blemishes on your record. But this is also pretty unlikely.
If your policy is cancelled or non-renewed, you will still be able to find insurance. It will not likely be one of the preferred carriers, like AAA, Allstate or Geico, but some other well-known companies (such as State Farm and Progressive Insurance) as well as other smaller companies will cover you and file the SR-22 for you so your license may be reinstated. Your rates will most certainly be higher, particularly because a DWI violation remains on your driving record for anywhere from five years to the rest of your life, depending on the state you’re in. To find new insurance coverage after a DWI, its probably best to go through an independent agent who works with many different insurance companies.
What Happens When You Get Stopped for Drunk Driving?
Getting stopped for DWI (driving while intoxicated) or DUI (minor driving under the influence) is a serious offense and can have different consequences depending upon where you live. All 50 states have per laws defining it as a crime to drive with a blood alcohol content (BAC) level at or above the prescribed threshold level. At the time of this writing (May, 2007), every state has set this level at 0.08 percent. However, some states have enacted zero tolerance laws that lower that level for underage drivers and high BAC laws that impose harsher penalties for those caught with levels of .16 to .20.
Getting stopped. When you’re stopped for drunk driving (or for something else and a police officer has reason to believe you’ve been drinking), you will generally be required to take a sobriety test (blood, breath or urine) to determine your BAC level. Most states have implied consent laws which means that you must comply with a test or face fines and/or license suspension sometimes right on the spot – for refusing to take the test. Some states have abandoned the urine test due to reliability issues. The driver usually gets his choice of the available tests. Which test should you choose? That depends. A breath testing machine may be easier to fault for accuracy than a blood test, but a breath testing machine cannot test for the presence of drugs. You must remember that a DWI can also be under the influence of drugs.
What happens next? If you refuse the test or are found to have a BAC over the state limit, chances are you’ll be taken into custody and brought to a police station where you’ll be held until someone can pick you up, or until next morning when you have sobered up. In addition, your license may be temporarily suspended and your vehicle may be impounded for a period of time after the incident. However, these penalties seldom apply to refusing to perform SFST’s (standard field sobriety tests), which are the physical coordination tests an officer has you perform.
Going to court. Aside from a possible administrative hearing that reviews the circumstances surrounding your arrest to see if your license should be administratively suspended (as opposed to suspended by the Court), you must generally go to court where a jury or judge will decide your fate. In any criminal case, including DWI’s, you have the right to a jury trial, but once convicted, it is up to the judge what punishment you will receive. In many states there are mandatory punishments and consequences that deny the judge any discretion as to the punishment if your BA is of a certain level, or if you have refused to take a mandatory test. Generally, for each prior conviction of DWI within the previous 5-10 years, the punishment will become progressively severe, and these may also be mandatory minimum sentences.
If you’re found guilty, most courts will:
- impose fines (and some add on an additional driver responsibility tax)
- suspend or revoke your license (Motor Vehicle Dept. May do so even if Court does not)
- require participation in a drunk driver education program
- add points to your license (and your insurance will most likely increase)
- sentence you to jail or require community service work as an alternative
- put you on parole (called probation in some impose various statutory fees intended to offset the states budget expenses on DWI cases
In addition, some judges and some states may require you to participate in alcohol or drug treatment programs as part of a parole program or have an ignition interlock device installed on your vehicle. You may also receive as a condition of parole (probation) that you not drink any alcoholic beverage while on parole, or not even enter a tavern.
Getting your license back Some states allow for provisional, conditional, hardship or temporary licenses. This varies greatly by state, judge and circumstances and is often granted only with participation in an education program or by showing a family hardship. You may also have to show proof of liability insurance to get your license back.
How Does a DWI Conviction Affect My Record?
There are two aspects to a DWI –
1. An administrative license suspension and
2 – A criminal charge(s).
The administrative side is governed by administrative or civil law and relates to your drivers license and driving record. The criminal aspect is governed by criminal law and dictates fines, fees, penalties, sentencing and parole (probation).
Administrative. Under an administrative license suspension, a persons license is taken away before conviction when a driver fails or refuses to take a sobriety test i.e., right on the spot and before you ever go to court. Some states will suspend your license on the spot when you are arrested for DWI, even if you have cooperated and taken the required Blood Alcohol tests.
Most states have these laws and may require you to schedule an administrative hearing within a short period of time after the arrest generally within 5 to 10 days. This hearing is independent of your appearance in court. In other words, two governmental entities may be aiming to suspend or revoke your license independently and simultaneously. The administrative licensing hearing does not deal with whether you are guilty of a criminal act, but instead addresses the circumstances surrounding your arrest such as:
- Was your arrest based on reasonable grounds?
- Did the officer request that you take a test?
- Were you made aware of the consequences if you refused or failed the test?
- Did you refuse or fail the test?
- Should your license be suspended or revoked?
Criminal. After a DWI arrest, you must generally go to court for arraignment, trial or negotiated disposition, and sentencing. Most DWI convictions are classified as misdemeanors when no injury is involved, but could be classified as felonies in cases when serious injury or death occurs as a result of the DWI. A person can be charged with a Felony DWI if a Child Passenger is present in the vehicle at the time of the DWI arrest or if the person has 3 or more prior DWI convictions. A misdemeanor can land you in county jail for up to a year, which a felony can wind you up in state prison for more than a year.
During court proceedings, a lawyer may challenge the blood alcohol testing reliability, offer defense expert evidence that the driver was not under the influence, obtain discovery, which is documentary evidence relevant to your charges, such as: When was the last time the Blood Alcohol testing machine was calibrated?
- How your conviction will be classified
- What fines and taxes you must pay
- How long your license will be suspended or revoked (and the possibility for obtaining a temporary license)
- Whether parole is warranted
- Whether community service must be completed
- What, if any, drug programs or classes must be completed
- Whether an ignition interlock device must be installed
Penalties can be severe for first time offenders and are always greater for second and third time convictions.
If you are convicted of a DWI, it could stay on your record for life. We may be able to help you seal it through a petition of non-disclosure. Call us to see if you qualify. If you are found not guilty, you can have the arrest and DWI charge expunged from your record.
What is The Difference Between DUI and DWI in Texas?
While the majority of states do not distinguish between Driving under the Influence (DUI) and Driving while intoxicated (DWI), Texas does, following the lead of the federal government.
A person arrested for a Texas DWI offense can be found to have alcohol and/or drugs in their system. You will be considered intoxicated if your blood or urine alcohol level is at or greater than .08 percent.
Another way for a person to be DWI is if they have lost the normal use of their mental or physical faculties. This definition of intoxication basically means that they can no longer operate a motor vehicle in a safe way.
In Texas, when you operate a vehicle, of any type, in a public place (i.e. a highway) and are found to be intoxicated under Texas’ DWI law, you have committed a Class B misdemeanor.
When convicted of a DWI, you may receive jail time, lose your driver’s license for a minimum of 90 days, and be required to attend a study program. Be aware that if an open container of alcohol was present at the time of arrest, the minimum jail time under state law is six days.
A driver will lose his/her license for additional time should they be convicted of a subsequent DWI. If a person has a prior DWI conviction within five years of a current conviction, their driver’s license will be suspended for two (2) years with one (1) year hard. This means that they will not be eligible for a restricted driver’s license to get them to work and home for a minimum of one year
A DUI is significantly different: a person under 21 years old may be arrested for a DUI if they have any detectable amount of alcohol in their system. Most police officers use the DUI distinction when stopping minors (those under the drinking age of 21) for suspicion of drinking and driving.
Once arrested you may face conviction for a Class C misdemeanor under state law. When convicted of a first offense misdemeanor, an individual does not face any prison sentence.
Further, the highest fine under Class C is in the amount of $500. It is also important to be aware that the court may order probation, which can take the form of a study program or community service. A minor will also face the issue of a driver’s license suspension, both administratively and through the court.
As we tell each of our clients, each case is different and some challenges that may apply in one case may not apply in another case. However, in general here are some of the various challenges that may help your case. We will know more about what challenges we will make in your case after talking with you, your witnesses, photographing the scene of any field sobriety tests, reviewing all police reports and videos, and obtaining any test results from any chemical tests that you performed.
In Texas, the government must prove that you were operating a motor vehicle in a public place. Although many times this issue will not be applicable (for example if you were driving and the officer pulls you over). However, there are cases that the government will not be able to show that you were the driver.
In Texas, an officer must have either probable cause or reasonable suspicion to stop you. If appropriate we can challenge the stop. If the court finds that the police did not have probable cause or reasonable suspicion to stop you, the results of any tests may also be inadmissible in court.
STANDARD FIELD SOBRIETY TESTS
The National Highway Traffic Safety Administration recognizes three standard field sobriety tests. They are the Horizontal Gaze Nystagmus (HGN); Walk and Turn (WAT); and, One Leg Stand (OLS). Both Stephen Hamilton and Nicky Boatwright have completed training by the National Highway Traffic Safety Administration to administer standardized field sobriety testing. What does this mean to you? Each time we review a police report and/or a video of a field sobriety test, we grade both how you did and how the officer did in administering the test. If the officer did not administer the test in the prescribed manner, we can challenge the use of the test in court.
The Texas Alcohol Breath Testing Program requires that in each breath or blood test certain guidelines must be followed. As your attorney, we will review your case to ensure that the person giving the test and the person testifying about the results of the test have complied with all rules, regulations and laws. If any of these requirements have not been met, we can file various motions to suppress the results of the chemical tests. In addition, there are other areas that may affect the validity of a breath or blood test. These areas include: residual mouth alcohol; the temperature of the person taking the test; various medical conditions of the person taking the test; various occupations of a test subject and the fact that a test subject burps prior to taking the test. These areas are not the only areas but are shown to let you know that just because the “machine” says a number that does not automatically mean that the number is a true and correct result.
If you refused a chemical test, the government will attempt to get this refusal into evidence. Again, before the government can talk about the fact that you did not take a certain test, the government must meet certain evidentiary requirements. We will challenge any attempt by the government to get into evidence any information of a refusal if the officer did not comply with the regulations.