Under Texas Penal Code Section 49.04(a), a person commits an offense if the person is intoxicated while operating a motor vehicle in a public place. In most cases, DWI is punishable as a Class B misdemeanor, with a minimum term of confinement of 72 hours.
The term “intoxicated” is defined for purposes of Texas DWI crimes to mean:
- a) not having the normal use of your mental faculties by reason of the introduction of any substance into your body OR
- b) not having the normal use of your physical faculties by reason of the introduction of any substance into your body OR
- c) having a blood alcohol concentration (BAC) greater than a 0.08
Most DWI cases involve a breath test, a blood test, a urine test, or a refusal to submit to chemical testing.
DWI Defense Lawyer in Fort Worth, Arlington, Grapevine, Keller, and Southlake, TX
If you were arrested for DWI in Tarrant County, TX, then contact an experienced DWI defense attorney in Fort Worth at the Law Offices of Richard C. McConathy to discuss your case. Whether your DWI case involves a breath test, blood test, urine test, or a refusal to submit to testing, we can help.
By aggressively fighting the DWI at every stage of the case, your attorney can help you fight for the best possible result for your case. Call (817) 422-5350 to discuss your case today.
DWI Arrest in Tarrant County, TX
After an arrest for DWI in Tarrant County, TX, you have two cases pending against you. One case is a civil proceeding with the Department of Public Safety to protect your license from the “on the spot” administrative suspension that was triggered by the arrest and a BAC over .08 or an alleged refusal. The second case is a criminal proceeding that happens in a courtroom with a prosecutor and a judge. Ideally, you want to win both cases.
First, you should contact an attorney who can help you request an Administrative License Revocation (ALR) hearing to protect your driver’s license suspension. Act quickly, because the hearing must be requested within 15 days of your arrest. If you fail to act, the administrative finding will remain on your driver’s license.
The criminal case takes longer. In Tarrant County, you will wait approximately 5 weeks to be notified of your court date. The first court date is generally scheduled within 20 days of the date on the letter.
Unless your criminal defense attorney makes other arrangements with the court, you must personally attend all of your court dates including your preliminary hearing and your final disposition hearing. If you fail to appear, the court can issue a warrant for your arrest. An attorney can help you make sure that there is no missed court date.
If the case is set for trial, the court will schedule a “contest docket” before putting the case on a trial calendar. Most of the judges conduct the jury selection on a Friday and begin the trial on Monday morning. In some cases, the case is set on a different day during the week for trial or the next week for trial.
Your DWI defense attorney will not only prepare your case for trial but also engage in pre-trial negotiations to see if the charge can be dropped completely or at least reduced to a less serious charge such as the Obstruction of Roadway. Avoiding a DWI conviction can save you thousands of dollars and years of increased insurance premiums. In some cases, you can seal or expunge the DWI record entirely to get rid of your mug shot and police reports.
Penalties for a DWI Conviction in Texas
After a conviction for DWI, the court can impose penalties that include:
If you are granted probation after a DWI conviction, you will be required to complete a 12-hour class in an authorized Alcohol Education Program unless the requirement is waived by the presiding judge. If required, you must submit proof of completion of the appropriate Alcohol Education Program to the Texas Department of Public Safety (DPS) within 180 days after the date of conviction or your driver’s license will be revoked. A reinstatement fee will be required if the driver’s license is revoked.
A special driver’s license can be issued to individuals who have been ordered by the court to have an interlock ignition device installed on their vehicle as a condition of driving after a DWI conviction.
The amount of jail time required for a DWI conviction depends on a host of factors including the number of prior convictions:
The classifications for DWI offenses with priors are also more serious. A second DWI is a Class A misdemeanor. A third DWI offense is a third-degree felony. For purposes of determining the number of prior convictions, the prior intoxication convictions are considered “final” whether the sentence is imposed or probated for crimes committed after January 1, 1984. A prior conviction for DWI would also include flying while intoxicated under Section 49.05 or boating while intoxicated under 49.06. The Texas legislature repealed the ten (10) year rule formerly contained in Section 49.09(e) which limited the use of some prior convictions as of September 1, 2005.
For the first conviction of DWI, intoxication assault, or intoxication manslaughter for a person under the age of 21 years old, the penalties also include a 90-day driver’s license suspension at the beginning of the community supervision period as required in CCP Art. 42.12 Section 13(n)(1).
DWI with a BAC of .15 or More
If it is shown at the trial for a DWI offense, that an analysis of a specimen of the person’s blood or breath showed an alcohol concentration level of 0.15 or more at the time the analysis was performed, then the offense is a Class A misdemeanor under Section 49.04(d).
DWI with a Child Passenger
Under Texas Penal Code Section 49.045, the penalties for DWI are enhanced if:
The criminal offense of DWI with a child passenger under Texas Penal Code Section 49.045 is charged as a state jail felony. The offense was added to the Texas Penal Code by Acts 2003, 78th Leg., ch. 787, Section 1, effective on September 1, 2003.
Boating While Intoxicated
Under Texas Penal Code Section 49.06, the crime of boating while intoxication requires proof beyond all reasonable doubt that the person is intoxicated while operating a watercraft. The criminal offense of boating under the influence is charged as a Class B misdemeanor.
A conviction for BUI requires a minimum term of confinement of 72 hours. The crime of BUI in Texas was added by Acts 1993, 73rd Leg., ch. 900, Sec. 1.01, effective on September 1, 1994.
DWI Death or Injury Cases
The most serious DWI cases prosecuted in Texas involve an allegation that another person was injured or killed in a crash. The prosecutor has many different options when charging a person accused of being intoxicated while driving in a case involving a crash with injury or death including:
Each of these charges is prosecuted under a different penal code section, has different punishments, and has different requirements for a culpable mental state.
Under Texas Penal Code Section 49.07, a person commits an offense if the person, by accident or mistake:
For purposes of the intoxication assault crime in Texas, the term “serious bodily injury” means injury that creates a substantial risk of death or that causes serious permanent disfigurement or protracted loss or impairment of the function of any bodily member or organ.
Intoxication Assault (often called DUI with serious bodily injury in other states) is charged as a felony of the third degree in Texas. The crime of intoxication assault was added to the Texas Penal Code by Acts 1993, 73rd Leg., ch. 900, Sec. 1.01, eff. Sept. 1, 1994. Amended by Acts 1999, 76th Leg., ch. 1364, Sec. 10, effective January 1, 2000. The crime was last amended on September 1, 2007.
The crime of intoxicated manslaughter is charged under Texas Penal Code Section 49.08. In Texas, a person commits the offense of intoxication manslaughter if the person:
Intoxication manslaughter is usually charged as a felony of the second degree.
The crime of intoxication manslaughter was by Acts 1993, 73rd Leg., ch. 900, Sec. 1.01, effective on September 1, 1994. The crime was last amended on September 1, 2007.
Tarrant County’s No Refusal Program
Throughout the year, Tarrant County law enforcement officers work together during a “no refusal” program. The “no refusal” program is used each year during the Christmas and New Years’ holidays. The following law enforcement agencies in Tarrant County make DWI arrests during the program including:
The DWI Administrative Proceeding vs. the DWI Criminal Proceeding
Section 724.048 explains the difference between the Administrative Proceeding when compared to the Criminal Proceeding. Section 724.048 provides:
Except as provided by Subsection (c), the disposition of a criminal charge does not affect a license suspension or denial under this chapter and is not an estoppel as to any matter in issue in a suspension or denial proceeding under this chapter.
If a criminal charge arising from the same arrest as the administrative suspension results in an acquittal, the administrative suspension may not be imposed. If the administrative suspension has already been imposed, the department shall rescind the suspension and remove references to the suspension from the computerized driving record of the individual.
DWI Additional Resources
DWI Crimes in the Texas Penal Code – Visit the website of the Texas legislature to learn more about Title 10 offenses against public health, safety, and morals. The intoxication and alcoholic beverage offenses are found in chapter 49.
Find A Tarrant County Defense Attorney for DWI | Law Offices of Richard C. McConathy
If you were arrested for a DWI case involving a breath test, a blood test, a urine test, or a refusal to submit to testing, then contact an experienced Fort Worth DWI defense attorney. Our attorneys are available for a consultation to discuss your pending charges, ways to avoid the typical penalties, and the best defenses that can be used to fight the charges.
During grand jury and pre-indictment investigations, the prosecutor will often attempt to gather evidence such as cell phone records, alcohol receipts, credit card information, HIPPA and medical records, business records, jail visitor lists, vehicle service records, and insurance records. You also need a criminal defense attorney who is fighting to preserve evidence in a case that might be favorable to your defense. Call (817) 422-5350 today.
Texas DWI FAQs
DWI is a criminal offense that says a person may not drive a motor vehicle in a public place while “intoxicated.” The DWI statute does not say driving while drunk or “drunk driving.”
The legal definition of intoxication in Texas is:
- Having an alcohol concentration of 0.08 or more
- Not having the normal use of 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 substances into the body.
- Not having the normal use of mental 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 substances into the body
The State only needs to prove one of the three ways beyond a reasonable doubt in order to obtain a conviction.
According to the law, the definition of the word normal is the average person. The problem is how do we determine the average person? The law is vague in this subject, which lends itself for good argument to a jury that everyone is different and each has his own normal.
“Alcohol concentration” is defined by statute as:
a. the number of grams of alcohol per 100 milliliters of blood;
b. the number of grams of alcohol per 210 liters of breath; or
c. the number of grams of alcohol per 67 milliliters of urine.
A 0.02 equals one drink. A drink is 1-¼ ounces of liquor, 1 12oz beer, or 1 glass of wine. It takes one hour for the body to burn off a 0.02 down to a 0.00. Thus, to reach a 0.08 a person must consume four drinks in one hour.
Under criminal law, you are not required to perform any type of test or answer any questions to the police officer. You have the right to refuse any tests and request an attorney. However, if you refuse to attempt these tests, the officer most likely is going to arrest you.
Further, the civil law, which your driver’s license falls under, does not protect you. In fact, when you applied for your driver’s license you unknowingly consented to any future tests, if to which you refused you would lose your driver’s license for a period of six months. The decision is yours and there is a civil risk (your license), but you do have rights, and should not waive them. Always request your lawyer and don’t cooperate with anything if you wish to exercise your rights.
No. However, although a person has no right to refuse being videotaped, he does have the right to refuse to perform any police field sobriety exercises and to refuse to answer any questions, the answers to which, might be incriminating. Unlike breath or blood test refusals, there are no penalties for refusing to perform field sobriety tests or refusing to answer questions while being videotaped.
If performed in a controlled environment in the exact proscribed standardized manner, the tests can be a likely indicator of intoxication. This is hardly done in the street.
The research conducted by the National Highway Traffic Safety Administration, the designers of the tests, concluded the Horizontal Gaze Nystagmus is 77% accurate, the Walk & Turn is 68% accurate, and the One Leg Stand is 65% accurate only when administered in the prescribed, standardized manner. Any change from the standardized manner will compromise the tests validity and make any result inaccurate. When not conducted properly it becomes an opinion test of the officer.
Therefore, these tests will inaccurately claim 23% – 35% of the people tested as intoxicated. Which when done incorrectly, which is the norm, can drop the accuracy to a frightening level.
Even SOBER persons can have difficulty with these tests, as stated by The National Highway Traffic Safety Administration. The reason is as the NHTSA has admitted, are several factors that affect every person, such as:
- Being ill
- The distraction of traffic
- The police car’s strobe lights
- Lack of coordination
- Gusts of wind
- Road or sidewalk conditions
- Head lights of traffic
- Weather conditions
- Being nervousness
- Back problems
- Leg or knee problems
- Inner ear disorders
The State of Texas must prove your guilt “beyond a reasonable doubt”, which is the highest burden of proof in the justice system. It is not defined, by Texas law, but can be easily explained to a jury.
The lowest burden of proof is probable cause. That is how an officer can start an arrest.
The next highest burden of proof is preponderance of the evidence. This is the amount of proof needed in civil courtrooms involving civil suites. A preponderance of the evidence is proof amounting to 51% or who can move the scales of justice.
The next highest burden of proof is clear and convincing evidence. This is amount of proof that will cause a juror or judge to have a “firm belief” in the matter to be proved. This is used in custody cases. Most juries when they hear that the burden of proof is higher than that to take their kids away from them understand the high level of proof.
Beyond a Reasonable Doubt is the highest burden of proof. A jury must have more than that necessary to take your kids away in evidence that you were intoxicated before they could find you guilty. This is very simple, if a juror has a single doubt, based on reason, as to a person being intoxicated, they must follow the law and find them not guilty.
Texas law does not give you the right to speak with an attorney prior to making the decision of whether or not to take the field sobriety tests, the breath test or blood test. However, the law does not require you to perform any field sobriety tests or to take a blood or breath test so continue to ask for an attorney and refuse to cooperate and the likely chances of being found NOT GUILTY can increase!
If you are convicted of the DWI, it will be on your record for life. Furthermore, a DWI conviction can be used for ten years to enhance your punishment of you are arrested for DWI again. If you are found Not Guilty, you can have the arrest and DWI charge “expunged” from your record.