Driving While Intoxicated

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:

  • 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 grams of alcohol per:
    • 210 liters of breath;
    • 100 milliliters of blood; or
    • 67 milliliters of urine.

Most DWI cases involve a breath test, a blood test, a urine test, or a refusal to submit to chemical testing.

DWI Attorneys in Fort Worth, TX

If you were arrested for DWI in Tarrant County, TX, then contact an experienced DWI defense attorney in Fort Worth at Law Offices of Richard C. McConathy to discuss your case. Whether you 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 in your case. Call (817) 422-5350 to discuss your case today.


After the 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 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 are no missed court date.

If the case is set for trial, the court will schedule a "contest dockets" 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 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 polic reports. 


Penalties for a DWI Conviction in Texas

After a conviction for DWI, the court can impose penalties that include:

  • time in the county jail;
  • a requirement to attend an Alcohol Education Program;
  • a driver license suspended for a period not to exceed two years (for first-time offenses); and
  • other community supervision conditions that must be completed while serving probation.

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 license will be revoked. A reinstatement fee will be required if the driver license is revoked.

A special driver 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 including: 

  • first DWI - at least 72 hours in jail; 
  • first DWI with an open container - at least 6 days in jail; 
  • second DWI - at least 30 days in jail (with at least 72 continuous hours or 5 days in jail); and
  • third DWI - at least 10 days in jail.

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 a first conviction of DWI, intoxication assault, or intoxication manslaughter for a person under the age of 21 year old, the penalties also include a 90 day drivers 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 of 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 person is intoxicated while operating a motor vehicle in a public place; and
  • the vehicle being operated by the person is occupied by a passenger who is younger than 15 years of age.

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:

  • Felony Murder [DWI] under Penal Code Section 19.02(b)(3) punishable as a first degree felony;
  • Felony DWI under Penal Code Section 49.09(b) punishable as a third degree felony;
  • Criminally Negligent Homicide under Penal Code Section 19.05 punishable as a state jail felony;
  • Aggravated Assault under Penal Code Section 22.02 punishable as a second or first degree felony;
  • Manslaughter under Penal Code Section 19.04 punishable as a second degree felony;
  • Intoxication Assault under Penal Code Section 49.09(b-1) and 49.07 punishable as a third or second degree felony; or
  • Intoxication Manslaughter under Penal Code Section 49.09(1-b2) and 49.08 punishable as a second or first degree felony.

Each of these charges are prosecuted under a different penal code section, have different punishments, and have different requirements for a culpable mental state.


Intoxication Assault

Under Texas Penal Code Section 49.07, a person commits an offense if the person, by accident or mistake:

  • while operating an aircraft, watercraft, or amusement ride while intoxicated, or while operating a motor vehicle in a public place while intoxicated, by reason of that intoxication causes serious bodily injury to another; or
  • as a result of assembling a mobile amusement ride while intoxicated causes serious bodily injury to another.

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.


Intoxicated Manslaughter

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:

  • operates a motor vehicle in a public place, operates an aircraft, a watercraft, or an amusement ride, or assembles a mobile amusement ride; and
  • is intoxicated and by reason of that intoxication causes the death of another by accident or mistake.

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:

  • Tarrant County Sheriff's Office;
  • Hurst Police Department;
  • Fort Worth Police Department;
  • Halton City Police Department; 
  • Azel Police Department;
  • Grapevine Police Department; 
  • Southlake Police Department; and 
  • Bedford Police Department. 

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:

  • The determination of the department or administrative law judge:
  • is a civil matter;
  • is independent of and is not an estoppel as to any matter in issue in an adjudication of a criminal charge arising from the occurrence that is the basis for the suspension or denial; and
  • does not preclude litigation of the same or similar facts in a criminal prosecution.

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.


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.


Finding DWI Lawyers in Fort Worth, TX

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 free concentration 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 the case that might be favorable to your defense.

Call (817) 422-5350 today.


This article was last updated on Monday, April 24, 2017. 

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