Driving While Intoxicated

The first portion, being the criminal prosecution, requires the State to prove beyond a reasonable doubt the elements of the offense of Driving While Intoxicated as laid out in the Texas Penal Code. Texas Penal Code Section 49.04 states “A person commits an offense if the person is intoxicated while operating a motor vehicle in a public place.” Intoxication can be proven in one of two ways (1) a person 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 in the body; or (2) having an alcohol concentration of 0.08 or more.

Police will most commonly draw your blood to measure your blood alcohol concentration. Alcohol concentration in a person can depend on a number of factors including your weight, amount of alcohol consumed, length of time over which you consumed the alcohol, the type of drink consumed, what you have had to eat, how much sleep you have had and what medications you may be taking.

With one of the ways to prove intoxication being having an alcohol concentration of 0.08 or more, your blood test results being in excess of 0.08 can quickly put you and your DWI Attorney in a difficult position. This is why if you have ever spoken to an experienced DWI Lawyer you will have likely been told to never consent to the breathalyzer or have your blood drawn. While a breath or blood test in excess of 0.08 can make defending your case more difficult, it does not mean you are guilty of the offense of Driving While Intoxicated. An experienced DWI Defense Attorney knows and understands how to successfully attack breath or blood results.

If you have been arrested and have given a breath or blood sample in excess of 0.08, you must hire an experienced and qualified attorney to represent you.

If you refused to give a breath or blood sample, the State will attempt to prove intoxication by showing you have lost the normal use of your mental or physical faculties. This is done based on your performance of standardized field sobriety tests (SFST), including the horizontal gaze nystagmus (HGN), walk and turn and the one leg stand.

You do have the right to refuse these standard field sobriety tests. According to the National Highway Traffic Safety Administration (NHTSA), when all 3 standard field sobriety tests are administered perfectly they are still not accurate in predicting intoxication 100% of the time. This means that people arrested based solely on field sobriety testing may not actually be intoxicated. When you also consider that police officers very rarely administer the tests perfectly, you can see the danger in performing field sobriety tests.

Consequences of a DWI Conviction

A first offense DWI is normally a class B misdemeanor punishable by no less than 3 days in jail and no more than 180 days and a fine not to exceed $2,000. If at the time of your arrest you have an open container in the vehicle or your blood or breath test result are in excess or 0.15, the punishment for a first offense can be enhanced.

If you receive probation, there are a number of things that can be required as conditions of your probation:

• Payment of a Fine
• Community Service Hours
• DWI Education Course
• Alcohol/Drug Evaluation as deemed necessary by the Court
• Driver’s License Suspension
• Monthly Reporting to a Probation Officer and payment of Monthly Probation Fees
• Installation of a Deep-Lung Breath Analysis Mechanism (Ignition Interlock) installed on your vehicle

Additionally, all DWI convictions are reported to the Department of Public Safety in Austin which can result in additional fines being assessed against you. 

When you consider all the fines, fees and effect on your insurance rates, a first offense DWI can easily cost you $10,000 or more.

Administrative Driver’s License Suspension – ALR

Most everyone is familiar with the criminal prosecution you face following an arrest for DWI but very few are aware of the Administrative License Suspension (ALR) portion. An ALR is a civil proceeding where DPS seeks to suspend your driver’s license.

When you are arrested for DWI the arresting officer will normally confiscate your license and provide you with a temporary license and serve you with a “Notice of Suspension.” Once the officer has served you with the Notice of Suspension, you have 15 DAYS to request an ALR hearing. If you do not request a hearing within 15 days, your right to a hearing is waived and your driver’s license will be suspended on the 40th day after your arrest. The length your license is suspended can range up to 2 years, if you have any prior alcohol related suspensions.

The time to request a hearing is short and you should contact us immediately following your arrest to avoid waiving your right to a hearing. While requesting a hearing does not guarantee your license will not be suspended, it does give you a chance to keep your license.

Once you or your DWI attorney have requested a hearing, you can drive normally with your temporary permit until your hearing has taken place or until your suspension is in effect.

If you win your hearing, your license will not be suspended and you should receive your license back through the mail within a matter of weeks. However, if you lose your hearing the suspension on your license will take effect immediately from the time that the order is served. Once your license has been suspended, you will be required to pay a reinstatement fee after your suspension period has expired before your license can be reinstated.

Request for Occupational License

If your license is suspended, we can assist you in getting an occupational license which will allow you to drive in connection with your employment and to perform other essential functions. A request for an occupational license is a separate proceeding from your DWI case requiring the payment of a separate fee. Many times the ability to operate a vehicle is a necessity to keep your job. If this is the case, then you must consider applying for an occupational license.

If you have been charged with Driving While Intoxicated, contact us immediately to schedule an appointment.