Driving While Intoxicated – 1st Offense

DWI First Offense information. You deserve a thorough defense.

You probably have a lot on your mind if you’ve recently been arrested for a Driving While Intoxicated offense in Conroe, The Woodlands, Houston or elsewhere in East Texas. The most important decision you make in the days ahead will be who represents you against the government. Do not make decisions based upon fear. This guide will help you answer some of the basic questions you may have. Call us to discuss your case. We offer free consultations.

What should I do if I’m charged with Driving While Intoxicated (DWI) in Texas?

You have very important deadlines approaching if you’ve recently been arrested for DWI in Texas. You’re facing two cases – not just the DWI criminal case. The Department of Public Safety will also bring an administrative action against you to suspend your license. 

The exact deadlines at issue will differ depending on the facts of your case. To save your license, you should request an Administrative License Revocation (ALR) hearing within 15 days of your notice of suspension.

Does being arrested or charged with DWI mean I’m guilty?

Absolutely not. There are thousands of DWI cases dismissed every year across Texas. Remember, an officer only needs probable cause to arrest you. Today, law enforcement officers are instructed to favor arrest at only the slightest suspicion. There is a public interest in getting potentially dangerous drivers off the road, meaning these arrest decisions are not closely scrutinized in the hours after you are taken to jail. 

On the other hand, the government has to prove their case beyond all reasonable doubt in order to convict you at a trial. DWI’s are highly complicated and technical prosecutions, in part because of the underlying science behind breath and blood results, and also the opinion-based nature of the allegation. You were likely arrested based solely on the opinion of one officer. That opinion may not stand up in court after a thorough review of the evidence. 

What is the definition of “Intoxicated” in Texas and how does it affect my case? 

The government has three ways to prove intoxication under Texas law. They have to prove one of these beyond a reasonable doubt to secure a conviction. 

First, the government can prove you lost the normal use of your mental faculties by reason of the introduction of alcohol, a drug, or a combination of substances. 

Similarly, the government can also prove you lost the normal use of your physical faculties by reason of the introduction of alcohol, a drug, or a combination of substances. 

The third way the government can prove intoxication is by showing you had an alcohol concentration of 0.08 or more at the time of driving your vehicle. The government generally does this by use of a breath of blood test. 

What if my alcohol concentration is tested to be below the .08 legal limit?

Generally speaking, an alcohol concentration of below a .08 is very helpful to your case, but that doesn’t mean you’re out of the woods yet. 

The government may attempt to use a technique known as retrograde extrapolation to prove scientifically that you had a BAC over .08 at the time you were driving. 

Also, the government may adopt a theory that even though your BAC was below the legal limit, you still lost the normal use of your mental or physical faculties. 

What is the difference between DWI and DUI under Texas law?

In everyday speech, most people use the terms DWI and DUI interchangeably, but under Texas law they have very different meanings. 

DUI (Driving Under the Influence) is charged under Section 106.041 of the Texas Alcoholic Beverage Code. DUI’s only concern those under the legal drinking age of 21. A minor cannot have any detectable amount of alcohol in their system while driving under Texas law. So, a DUI does not deal with intoxication – only a detectable amount of alcohol. 

Keep in mind, it is entirely possible for someone under 21 to be charged with a DWI. DWI is prosecuted under Section 49 of the Texas Penal Code. It deals with operating a motor vehicle while in a state of intoxication due to alcohol or drugs. 

What is the best way to challenge a Driving While Intoxicated (DWI) charge?

The most effective defenses are specially tailored to the individual case. This means carefully reviewing, analyzing, and scrutinizing all the government’s evidence. Because DWI’s are such complicated prosecutions, there are a number of pitfalls that can lead to someone being treated unfairly. Officers are not trained to account for age, weight, or many impactful physical and medical conditions when administering their field sobriety tests. They grade the tests so harshly that ordinary people stand little chance. 

It’s possible the officer in question did not comply with proper protocol according to the National Highway Traffic Safety Administration’s standards when administering the field sobriety tests. 

  • It’s possible that the officer’s traffic stop and detention were unlawful. 
  • it’s possible that the nurse or phlebotomist who withdrew blood did not follow appropriate procedure, leading to the risk of contamination in your sample. 
  • It’s possible that the search warrant seeking a blood specimen was obtained illegally or in error by the arresting officer. 
  • It’s possible that the government laboratory did not perform their testing pursuant to acceptable standards or best practices, or in an environment that would eliminate the possibility of foreign substances entering the blood sample. 
  • It is very possible that the arresting officer just flat out got it wrong, and you were not intoxicated while behind the wheel. 

What is the punishment range for a first Driving While Intoxicated (DWI) charge in Texas?

The punishment range for a first offense DWI in Texas is usually as follows – a fine not to exceed $2,000 may be assessed, and you’ll face jail time ranging between 3 days and 180 days. 

As an alternative to jail time, the government will often offer a period of probation that will last for up to two years, or three years should the judge elect to extend your probation. 

You could also face a driver’s license suspension ranging between 90 days to 1 year. 

It is important to note on the subject of first time DWI’s, that very few of them result in actual jail time. Jail time for first time offenders is credited by time served in many Texas counties.

What are state traffic fines related to DWI in Texas?

In 2019, the Texas legislature did away with the Driver Responsibility Program that imposed surcharges for DWI. Instead, they imposed mandatory traffic fines that accompany any DWI conviction. The fine structure is as follows: $3,000 for a first DWI in a 36-month period; $4,500 for a subsequent DWI in a 36-month period, and $6,000 if the driver’s BAC was .15 or more.

It is important to note that these state traffic fines are in addition to the criminal penalty fines discussed above.

The court has power to waive a state traffic fine upon finding that a defendant is indigent.

What is deferred adjudication for a first time DWI offense? 

In 2019, the legislature passed a new law enabling deferred adjudication for most first time Driving While Intoxicated offenses. Deferred is a special kind of probation where you plead guilty before a judge, and the judge does not find you guilty. Instead, you’re placed on community supervision for a period of up to two years. If you successfully complete the terms and conditions of the deferred adjudication, there will be no final conviction on your record, and the case against you will be dismissed. However, if you fail to follow the terms and conditions of the probation, you could be exposed to the full range of punishment for your charge. 

Some first time DWI offenders are disqualified from deferred probation. If your blood alcohol concentration was over .15, or if you caused an accident, injury, or death, you’re not eligible for deferred probation. 

What if I refused to provide a breath or blood specimen?

Most people arrested in Texas for DWI can refuse to take a breath or blood test. Some people are exercising their rights, while others may be scared of needles. Refusing a test does not mean you did anything wrong, but the government will certainly make a big deal of it to suggest you were hiding alcohol in your system. Refusing to provide a breath or blood specimen can have negative consequences for you. The Department of Public Safety will immediately move to suspend your driver’s license, and you may be ineligible for certain pre-trial diversion programs that disqualify those who refused. 

On the other hand, it may not be in your best interest to give the government evidence to be used against you.

If you refused a breath or blood test, and the government did not secure a warrant to obtain a specimen of your blood, the video evidence and standardized field sobriety tests become all the more important pieces of evidence at trial. 

Are there any factors that can increase the punishment range for a first time DWI?

Yes. If the government charges you with an open container enhancement, the minimum jail time you face will increase to six days. It is worth noting that the government is usually willing to abandon this open container enhancement to secure a plea agreement. It is also worth noting that if your case goes to trial, this open container enhancement is a separate array of elements that the government has to prove in court. 

The second enhancement to be aware of is the “high BAC” enhancement where the government alleges your BAC was above a .15 at the time of testing. This is a significant enhancement in that it increases your charge to a Class “A” misdemeanor where the punishment range is up to a year in jail and a fine not to exceed $4,000. 

What exactly are the standardized field sobriety tests?

Standardized Field Sobriety Tests (SFST’s) are a battery of tests used by the police to investigate Driving While Intoxicated suspects at the roadside.  There are three standardized tests – the Horizontal Gaze Nystagmus (HGN) test, the Walk and Turn test, and the One Leg Stand test. The tests are a useful tool for officers, but they are also widely criticized. None of the studies underlying their credibility have been published in peer-reviewed journals. They are subjective tests, and officers have different standards of grading. 

How will a Driving While Intoxicated (DWI) charge affect my driver’s license? 

Texas has what’s known as an implied consent law, meaning that all drivers are expected to submit to a breath or blood test if suspected of driving while intoxicated. You’re entitled to refuse a breath or blood test as discussed above, but refusal to submit to testing can potentially result in a license suspension.

This type of suspension is called an administrative license suspension and can be triggered if you refuse to take a breath or blood test after being requested by law enforcement. 

Performing the breath or blood test does not necessarily mean that your license is safe. If you performed a breath or blood test and your blood alcohol results were .08 or above, the government will move to suspend your license.

In addition to the administrative license suspension, you may face a criminal penalty license suspension if you’re convicted of Driving While Intoxicated. A conviction for DWI will trigger a criminal penalty suspension under §521.344 of the Texas Transportation Code. For first time DWI offenders, this suspension will typically last between 90 days 1 year. More serious or repeated intoxication related charges can cause the suspension to be longer.

It is important to note that these criminal penalty suspensions are controlled by the trial court, so your lawyer should ask the judge to run the criminal penalty suspension concurrent with the ALR suspension, so you’re not being punished twice. 

How can I get to work if I can’t drive?

You should discuss with your attorney the chance to apply for an Occupational Driver’s License. This is a special restricted license that lets you drive a noncommercial vehicle for work, school, or to perform essential household duties. Eligibility for this license will depend upon your criminal history and a host of other factors, so it is best to ask your attorney for help in applying for one.