If you were arrested for a third DWI, it can be prosecuted as a third-degree felony, often called "felony DWI." In order for a DWI to be charged as a felony, the state must prove that the defendant had at least two prior DWI convictions. In some cases, the offense is prosecuted as a misdemeanor because the prior offenses are very old or occurred out of state making it difficult for the prosecutor to prove. It is also important to remember, that sometimes the prosecutor doesn't even know about a prior conviction, especially when it occurred out of state.
The use of prior convictions that were more than 10 years old was previously barred under Texas law. In 2005, however, the Texas Legislature removed that limitation. Now a prior conviction for DWI can theoretically be used against you no matter how old it is. Nevertheless, as a practical matter, prosecutors have a very difficult time proving the prior conviction when it is more than ten years old or occurred out-of-state because getting a certified copy of the judgment and sentence is more difficult.
Your criminal defense attorney should also determine whether you were represented by an attorney in each underlying case or whether you executed a valid waiver of counsel. If you were denied the right to counsel in the underlying case (which is particularly common in cases that are more than 10 years old) then it should not be used against you in the new case.
Even if the prosecutor charges the third DWI as a felony, the prosecutor might agree to reduce the case to a misdemeanor because of problems with the evidence, the lack of evidence, or inconsistencies in the evidence. Your attorney can contact the prosecutor and present all of the mitigation in the case. Having an attorney during the earliest stages of the case is particularly important in these types of case.
Regardless of the number of prior convictions, if you are not guilty of DWI this time, you still need to fight for an outright dismissal of the charge. Although the prosecutor might use the priors as leverage, an experienced criminal defense attorney can fight to level the playfield.
Attorney for Third DWI in Fort Worth, TX
If you were arrested for a third DWI, contact an experienced attorney in Fort Worth at Law Offices of Richard C. McConathy to find out reasons why the prosecutor might not be able to use the prior offenses against you.
During the free consultation, you can discuss the charges pending against you, ways to avoid the typical penalties imposed in similar cases, and the best defenses to fight for an outright dismissal of the charges.
Whether this DWI will be treated as a 1st offense, a 2nd offense or a 3rd offense, call (817) 422-5350. Let us put our experience to work for you. We can help you fight the case after a third DWI arrest in Tarrant County, TX.
Penalties for a Third DWI in Texas under Section 49.09(b)
A third DWI can be charged as a third-degree felony. The offense is punishable by two (2) to ten (10) years in Texas Department of Criminal Justice (TDCJ) and a fine of up to $10,000. The court must also impose a driver's license suspension for 180 days to 2 years.
If you are charged with a third DWI and you also have one prior conviction that resulted in a Texas Department of Criminal Justice penitentiary sentence then the crime can be charged as a second-degree felony with up to a $10,000 fine and a prison sentence of 2 to 20 years in prison.
If you are charged with a third DWI and you also have two prior convictions that resulted in a Texas Department of Criminal Justice penitentiary sentence then the crime comes with enhanced felony penalties of up to a $10,000 fine and 25 years to life in prison.
Community Supervision (Probation) Penalties for a Third DWI
After a conviction, the court might sentence you to community supervision (commonly called "probation") for two years to ten years. Any violation of community supervision can then result in a prison sentence. The courts look at different factors when determining whether to impose prison or community supervision after a 3rd DWI conviction including:
- whether you have voluntarily sought out treatment for any drug or alcohol addiction;
- the length of time since the last DWI;
- the length of time since the first DWI;
- whether you have any other criminal record;
- your driving record;
- whether you have previously been sentenced to incarceration or only community supervision;
- whether you successfully completed probation in the past;
- whether you refused or had a high BAC level in each of the cases;
- whether an open container was found in the vehicle;
- whether a child was present in the vehicle; or
- whether the case involved a crash.
When the court grants community supervision instead of incarceration, the following conditions will probably apply:
- community service hours;
- at least ten (10) days in jail and up to 180 days in jail under CCP Art. 42.12 Section 13(a)(1) as a condition of community supervision;
- a drug and alcohol evaluation and rehabilitation under CCP Art. 42.12 Section 13(a)() and 13(f);
- a requirement that the defendant must pay the costs of the rehabilitation program as required by CCP Art. 42.12 Section 13(d);
- an ignition interlock device must be placed in the vehicle as required by CCP Art. 42.12 Section 13(j); an
- the completion of an alcohol education program as required by CCP Art. 42.12 Section 13(h).
Finding a Lawyer for a Third DWI in Tarrant County, TX
If you were charged with a third DWI involving at least two prior DWI convictions (often called "felony DWI"), then contact an experienced criminal defense attorney in Fort Worth, TX, at Law Offices of Richard C. McConathy. We can help you determine whether a prior DWI conviction can or will be used against you.
Call us for a free consultation to learn more about the criminal charges pending against you, the statutory maximum and minimum penalties that result from a conviction, and ways to fight the case using the most aggressive defense possible.
Call (817) 422-5350 to speak to an experienced Fort Worth DWI defense attorney today. Let us put our experience to work for you. We can begin your defense today.
This article was last updated on Friday, April 28, 2017.