As recently as the 1990s, DWI arrests in North Texas were few and far between. Because of the way the law was written, the cases were difficult to prove in court. Furthermore, MADD and other advocacy groups were just getting started. So, to many people, drinking and driving was not a serious matter. As a result, when officers detained intoxicated motorists, they often released them, as long as they agreed to drive straight home.
Times have changed drastically. For one thing, Legislators re-wrote the law. Now, if the defendant provides a chemical sample, the conviction rate is close to 90 percent. New technological tools, such as more advanced Breathalyzers and Ignition Interlock Devices, are available as well.
Now more than ever, you need the best DWI lawyer at your side in these cases. Gregg Gallian is a former prosecutor who knows how these lawyers think. So, he quickly evaluates your case and identifies all possible defenses. Once Gregg and his clients develop a plan of action together, he does not relent until we achieve the best possible result under the circumstances. That result could be a complete dismissal of charges, a plea to a lesser-included offense, or a not guilty verdict at trial.
Under Section 49.04 of the Texas Penal Code, “A person commits an offense if the person is intoxicated while operating a motor vehicle in a public place.”
For a first-time infraction, the offense is normally a Class B misdemeanor. Some DWI enhancements, along with the direct and indirect DWI penalties in Texas, are discussed below.
As for intoxication, like most states, Texas now has a per se DWI law. If the defendant’s BAC (Blood Alcohol Content) is above the legal limit of .08, the defendant is intoxicated as a matter of law. That’s assuming the Breathalyzer, blood test, or other chemical test was working properly, and authorities followed all procedures to the letter.
Prosecutors may also use circumstantial evidence to prove the defendant did not have “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.”
In circumstantial evidence DWI cases, prosecutors must establish guilt beyond any reasonable doubt. That’s the highest standard of proof in Texas law.
The other two primary elements, operating a motor vehicle and a public place, both have specific meanings in this context.
The legal principles discussed above and the defenses discussed below apply to all DWIs in Texas. Depending on the facts of the case, prosecutors may modify the charges when the case gets to court. The specific kinds of DWI in Texas are noteworthy mostly for their unique collateral consequences.
If the defendant was under 21, the state need not prove intoxication. Instead, prosecutors must only establish that a detectable amount of alcohol was in the defendant’s system. That’s because Texas has a zero-tolerance law in this area.
Note that knowledge or intent is not an element of an underage DUI or any other such offense.
The zero-tolerance law also applies in other alcohol-related offenses, such as public intoxication.
The science connecting marijuana use and driving impairment is unclear. Marijuana use certainly has impairing effects, such as:
However, a landmark study from the National Highway Traffic Safety Administration found no significant link between marijuana use and driving impairment. In fact, according to this study, drivers who use marijuana have much lower crash risks than drivers who use alcohol.
Despite these uncertainties, the criminal law on this subject is clear. As mentioned, it’s illegal to operate a motor vehicle if the defendant is under the influence of an illegal drug like heroin, marijuana, or a legal drug like Benadryl.
There is no Breathalyzer test for marijuana. Even if there was, the Legislature has not established an intoxicating quantity of marijuana. Therefore, these prosecutions hinge on circumstantial evidence, which is outlined below.
DREs, or Drug Recognition Experts, are increasingly common in Dallas as well. These “experts,” who are really police technicians, claim they can conclusively tell if a driver is stoned or not.
In addition to a lack of qualifications, DREs mostly rely on results from the field sobriety tests. So, if a Dallas DWI attorney undermines these test results, the DRE’s testimony is largely worthless.
Furthermore, police officers usually summon DREs to a scene so they can confirm drug use. In other words, there is a self-fulfilling prophecy. If you are looking for evidence of something, you normally find it, even if you must reach awkwardly for it.
More than half of Americans take prescription drugs. Many of these individuals take prescription drugs and get behind the wheel. This combination could lead to a DWI charge.
Even if you have a prescription for Oxycontin, Vicodin, Percocet, or any other such medication, it is illegal to drive if the substance is intoxicating, as mentioned above. There’s a difference between a therapeutic level and intoxication, which is the loss of normal mental or physical faculties.
Painkillers are a prime example. If you recently had knee surgery and are in intense pain, one or two pills are most likely not intoxicating, even though you show physical symptoms of drug use and you may not have the normal use of your mental or physical faculties. The loss of function is due to your injury and not the pills. However, if you are not in severe pain and takes one or two pain pills, the pain pills are most likely intoxicating.
In terms of evidence of intoxication, we discussed DREs above, and we will discuss the field sobriety tests below. Other circumstantial evidence in a DWI prescription drug case includes:
In addition to pain pills, some other possibly intoxicating drugs include antihistamines which cause drowsiness, like Benadryl, antidepressants, and muscle relaxers.
The law for commercial vehicle DWI is much the same as the law for noncommercial DWI. The biggest exception is the BAC level. The legal limit for commercial operators in Texas is .04, or half the limit for noncommercial motorists.
Generally, commercial drivers are any drivers who haul people and/or cargo for money. This category includes truck drivers, taxi drivers, and ridesharing operators.
DWIs put commercial drivers’ licenses at risk. A first conviction could mean one-year disqualification. A second DWI conviction could mean a lifetime disqualification. The rules are different if the commercial license-holder used a commercial vehicle while committing a felony. That includes the felony DWIs listed below. The maximum penalties are a three-year disqualification for a first offense and a lifetime disqualification for a subsequent offense.
Usually, an Administrative Law Judge from the Texas Department of Public Safety must hear the evidence before assessing punishment. A Dallas DWI lawyer can represent you during this hearing.
On a related note, a DWI could mean the loss of a commercial vehicle job. Many insurance companies do not cover commercial drivers with DWIs on their records. Or, they raise insurance rates so much that employers cannot afford to keep these drivers.
Until recently, commercial drivers could usually avoid these consequences by entering into a special plea agreement. But the Legislature closed this loophole. So, while these alternatives are still available, they do not affect the collateral consequences of a commercial vehicle DWI.
In addition to the law discussed above, these special DWI matters usually rely almost exclusively on DREs. In Texas, most Drug Recognition Experts use a set approach:
DREs use this same basic process in all other non-alcohol DWIs, such as DWI prescription drug and DWI marijuana matters.
Incidentally, the defendant has a Fifth Amendment right to refuse to cooperate with the DRE. Officers almost always make arrests in these situations. But, without the DRE’s testimony, the prosecutor might not be able to move forward with the case.
Technically, Penal Code Section 49.031 is not a special kind of DWI. Instead, it’s usually a fallback offense. If officers stop the defendant and do not have enough evidence to charge him/her with DWI, they normally press open container charges.
It is a Class C misdemeanor to have an open container of alcohol in the passenger area. Basically, the passenger area is anything within reach of anyone inside the vehicle. The passenger area does not include the trunk, glove compartment, or pickup bed. Exceptions apply if the vehicle was a motorhome or otherwise used as a residence.
A Class C misdemeanor is basically a traffic ticket. It’s punishable by a maximum $500 fine. No jail time is possible. Possession of more than one open container is a single offense (e.g. three beer cans equals one charge).
Dallas County prosecutors are among the most aggressive prosecutors in Texas. If there is any indication that a DWI enhancement might apply, prosecutors almost always levy the most serious charges possible.
This aggressive stance often intimidates less-experienced Dallas DUI/DWI lawyers or pro se defendants who do not have attorneys. But the best DWI attorneys know that this approach often backfires. Since the burden of proof is so high, there often is not enough evidence for these enhancements to hold up in court.
All felonies have significant collateral consequences. For example, convicted felons cannot hold most professional licenses in Texas. Other effects include the loss of voting and gun ownership rights.
Under Texas Penal Code Chapter 12 § 49.045, it is a felony to operate a vehicle while intoxicated if a child under 15 is in the vehicle. The child need not be related to the defendant.
Conviction means between 180 days and two years in a state jail facility. Probation and parole are normally unavailable in state jail felony matters. Some defendants might be eligible for Diligent Participation Credit, a program which is similar to parole. Additionally, some defendants might be eligible for a 12.44 reduction to a Class A misdemeanor.
As for evidence, police officers normally cannot testify about what the child said when the officer asked “how old are you.” Instead, the state must normally subpoena the child, and the prosecutor must get admissible evidence of the child’s age into the official record.
Furthermore, a DWI child passenger conviction usually prompts a CPS investigation.
It is a third-degree felony (two to ten years in prison) to operate a motor vehicle while intoxicated and cause “serious bodily injury,” or SBI, to another person.
The serious bodily injury must be directly related to the intoxication. Meaning, an injury sustained from acts outside of the intoxication cannot be used as a basis to enhance the DWI charge.
Basically, SBI is a severe injury which requires overnight hospitalization. The legal definition is an “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.”
SBI cases often feature evidence problems. Medical records are only admissible in court under certain circumstances. Furthermore, if someone went to the ER and was treated and released, they most likely did not suffer an SBI, according to this section of the Texas Penal Code.
It is a second-degree felony (two to twenty years in prison) to operate a motor vehicle while intoxicated and cause “the death of another by accident or mistake.”
Once again, cause is often difficult to prove beyond a reasonable doubt. That’s especially true if a multi-vehicle accident killed the victim.
Additionally, many DWI crash victims do not die at the scene. Instead, they die later at a hospital. Many times, a pre-existing medical condition, like a bad heart, contributed to their unfortunate death. Other examples include a bacterial infection or a medical mistake. In these situations, the defendant’s intoxication may have been the substantial cause, but it was not the exclusive cause.
Why don’t prosecutors charge these defendants with murder? Murder, along with embezzlement, aggravated assault, and some other offenses, is a specific intent crime. The defendant must intend both the conduct (which in this case is striking the victim) and the result (killing the defendant).
First-time DWI offenses dominate the criminal court dockets across North Texas. In many jurisdictions, about a third of the probationers were convicted of first-time DWI.
This infraction is normally a Class B misdemeanor, unless one of the above-mentioned enhancements or special DWIs applies. The maximum punishment is 180 days in jail and/or a $2,000 fine.
Almost all DWI defendants receive probation. Offense-specific conditions of probation vary. However, they normally include:
Standard conditions include reporting to a probation officer, paying supervision and other fees, and staying out of trouble with the law.
Driver’s license suspension of up to one year is the other major direct punishment. An occupational drivers’ license is usually available.
Higher auto insurance rates is the most significant collateral consequence. Convicted defendants must purchase high-risk SR-22 insurance. As a result, their insurance rate often triples. Generally, these drivers must maintain these policies for at least three years.
DWI also has significant employment consequences. Many potential bosses believe that a DWI is evidence of poor judgement skills. Additionally, many commercial insurance companies do not cover people with DWI convictions.
A second conviction is a Class A misdemeanor. Additional direct consequences include a maximum two-year license suspension.
The field sobriety tests are central to most DWI prosecutions. In chemical test cases, the FST results usually serve as probable cause for the sample request. In non-test cases, prosecutors must use the FSTs as circumstantial evidence of guilt.
The National Highway Traffic Safety Administration has approved a three-test battery in DWI cases.
Most people have taken an HGN test. Subjects track moving objects with their eyes without moving their heads. If their pupils move involuntarily at certain angles, they probably have nystagmus, a condition also known as lazy eye.
The test is quite accurate under controlled conditions. But roadside HGN tests are not administered under controlled conditions. For example, the flashing squad car lights in the background cause flicker vertigo, a condition that’s tantamount to an epileptic seizure.
Furthermore, alcohol or drug use is not the exclusive cause of nystagmus. In fact, intoxication is not even the leading cause. A mild childhood brain injury usually causes nystagmus, a condition also known as lazy eye. Most people have a lazy eye. But the symptoms are so mild, they don’t know they have it.
Due to these weaknesses, most Dallas County judges only allow prosecutors to use HGN test results for limited purposes.
This test, which is also known as the heel-to-toe walk test, is perhaps the signature DWI field sobriety test.
Subjects must walk a straight line forward and backward heel to toe without using their arms or hands for balance. During the test, officers look for intoxication clues, such as:
It’s very difficult to walk heel-to-toe while wearing any footwear other than athletic shoes. It’s also much more difficult to walk an imaginary line than an actual line. Any debris in the parking lot, like loose gravel, adversely affects the test results.
Like the WAT, the OLS is a divided attention test. Medically, intoxicated people cannot multitask. They cannot follow instructions and execute them.
OLS specifics vary. Usually, subjects must elevate one leg at about a forty-five degree angle for about fifteen seconds. Intoxication clues include lifting using arms for balance, swaying, putting a foot down, or hopping.
If a person has any mobility impairments whatsoever, it’s almost impossible to complete this test drunk, sober, or anywhere in between.
these gadgets use breath alcohol levels to estimate blood alcohol content levels. Because it uses such old technology, the Breathlayzer has a number of potential flaws, such as:
To highlight these flaws with jurors, Dallas DWI attorneys often partner with degreed chemists and other professionals.
These tests are much more accurate than Breathalyzer tests. Therefore, it’s difficult to challenge the results scientifically. However, if an independent doctor analyzes the results, this doctor often obtains different results from the ones police technicians claim they found.
Blood tests sometimes have procedural issues. Before they draw blood, police officers must have search warrants which are based on probable cause. Chain-of-custody problems could arise as well. At a minimum, the sample must travel from the defendant’s body to a police lab to a storage facility to a courtroom.
Quite frankly, criminal appeals are difficult to win. Basically, the defendant must prove that a serious error occurred at trial, and that error altered the trial’s outcome.
A pretrial error, such as a Brady violation, could come into play as well. Prosecutors have a duty to immediately turn exculpatory evidence over to a Dallas DWI attorney.
As an initial matter, there is a big difference between regular probation and deferred adjudication probation.
Regular probation results in a conviction on the defendant’s permanent record. Deferred adjudication was unavailable in DWIs until 2019. Now, it’s available in most first-time DWI matters. If the defendant successfully complies with all the aforementioned conditions of probation, the judge dismisses the case. The absence of a stain on a permanent record is a big advantage.
There is a significant downside to deferred adjudication as well. If the defendant violates any condition of probation, the judge may sentence the defendant to any jail sentence up to the maximum allowed by law.
The burden of proof is lower in most probation revocation matters. The state must only establish violations, like using a prohibited substance or picking up a new case, by a preponderance of the evidence (more likely than not).
DWI and related offenses qualify for expungement in Texas. Expunction is the process of removing all records of the case from judicial and law enforcement records. Eligibility requirements include:
Defendants might also qualify for expunction if the prosecutor recommends this remedy. These petitions are difficult to prove.
Most misdemeanors have a one-year waiting period. Most felonies have a three-year waiting period.
Alcohol-related offenses are some of the most complex criminal matters in Texas. For a free consultation with an experienced Dallas DWI attorney, contact the Gallian Firm LLC by going online or calling 214-432-8860 .
Technically, Driving Under the Influence refers exclusively to underage DUI cases. All other related matters are Driving While Intoxicated. However, many peopleuse DUI and DWI interchangeably.
The direct consequences include up to six months in jail, two years on probation, a $2,000 fine, and a six month license suspension. The indirect consequences include sky-high auto insurance rates and the stigma which DWI carries.
A conviction could mean a year in jail, two years probation, a $4,000 fine, and up to two-year drivers’ license suspension. Incidentally, your drivers’ license does not magically become valid again once the suspension period ends. These motorists must pay a fee, provide proof of insurance, and jump through some other hoops.
Gregg is a former prosecutor who has successfully resolved thousands of DWI cases throughout North Texas. His experience enables him to identify possible defenses.
It is illegal to operate a motor vehicle in a public place while intoxicated. “Intoxication” could mean a BAC above the legal limit or a loss of mental or physical faculties due to alcohol or drug use.
Most people are familiar with the direct and indirect consequences of a DWI. So, an arrest is scary to say the least. An experienced Dallas DWI lawyer like Gregg Gallian walks you through the pretrial process. This process usually includes one or two procedural hearings that involve little activity, followed by a pretrial hearing which determines some evidence issues. About 90 percent of DWI cases, and other criminal cases, settle out of court.
A third DWI conviction is a felony. Enhancements, such as DWI with a child passenger, intoxication assault (usually a vehicle collision that causes serious bodily injury), and intoxication manslaughter (causing a fatal accident) could apply as well. Generally, however, DWI is a misdemeanor.
In Texas, even if you refuse a blood or breath test, you are able to drive with your license for 40 days after the arrest. Usually. Texans with suspended drivers’ licenses are typically eligible for occupational drivers’ licenses (ODL). These limited drivers’ licenses allow people to drive to and from work, to and from school, and in performance of essential household duties, such as going to the doctor’s office, grocery store, or courthouse. An ODL is usually valid for two years, unless a judge extends it. Significant restrictions, such as a waiting period, apply.
Two activities, an administrative proceeding and criminal proceeding, usually stem from a DWI arrest. Administratively, defendants usually have fourteen days to request an ALR drivers’ license suspension hearing. If they miss this deadline, the full suspension period automatically takes effect on the 40th day. Criminally, most defendants have their first court dates about three months after their jail release dates. Defendants who remain in jail usually see a judge within 24 hours.
DWI arrests usually involve drivers’ license suspension proceedings. The state can suspend your drivers’ license if you refuse a lawful request to provide a chemical sample or your BAC is above the legal limit. At this hearing, an Administrative Law Judge determines if officers had probable cause to demand a sample or the sample provided was above the legal limit. The ALJ, who serves as judge, jury, and executioner, can enforce the entire suspension period, impose a lesser suspension, or throw the matter out altogether.
Probation length varies, usually depending on the facts of the case, especially the presence or absence of aggravating factors, like a child passenger or a .15 or higher BAC level. Typically, DWI probation for first-time DWI lasts about a year. Defendants may ask for early discharge after they complete one-third of the probationary period.
A variety of defenses are available. Non-intoxication defenses include not operating a motor vehicle. Usually, the vehicle must be fully functional and the defendant must have the keys. Furthermore, a DWI must be in a public place in Texas. Apartment complex or shopping mall parking lots are not public places, no matter how big they are.
Jurisdictional issues sometimes arise as well. Many North Texas cities are partially in one county and partially in another one. If prosecutors bring charges in the wrong county, they must start over from the beginning.
Intoxication defenses are available as well. The Field Sobriety Tests, like the walking-a-straight-line test, are quite subjective. Furthermore, they do not have sound scientific foundations. Like all machines, the Breathalyzer is not perfect. Its flaws are usually related to issues with its underlying technology. Blood tests often have procedural problems, such as the lack of a proper search warrant.
Did the officer have the legal authority to stop you in the first place?
Did the officer have enough evidence prior to arresting you to make a legal arrest?
Was the warrant legally obtained? Did the Judge have legal authority to sign the warrant? Did the officer tell the truth in the affidavit?
Was the officer properly trained to administer field sobriety tests?
Did the officer perform the field sobriety tests exactly as required by the National Highway and Traffic Administration?
Can the officers prove that you were the one driving in the first place?
Most people who are arrested for Driving While Intoxicated, Driving under the Influence, or have never been arrested before. That is because Driving While Intoxicated does not have a mental requirement – intentional, knowingly, recklessly – like many other offenses do. It is not required that you must have known you were intoxicated prior-to driving. For that reason, individuals like you, who had no intention of ever breaking the law, have now been arrested and charged. Unfortunately, simply operating your vehicle while intoxicated is all the police think they need. However, that is not always the case.
If you have never been arrested before, you can begin to feel like your world is caving in around you. You will start to worry about what your friends, family, and employers might think or do. But, there’s something you need to do first – hire Your Criminal Defense Attorney or to be more specific hire Dallas DWI lawyer.
If the officer asked you to take a blood or breath test, and you refused (which you should), the officer likely took your driver’s license. Meaning, you only have 14 days to request an ALR hearing. Failure to do so mean you will lose your driving privileges in the State of Texas for at least 180 days.
With so many things on your mind already – friends, family, employers, car insurance, etc. – let Gallian Firm take care of the criminal case from the very beginning and put your mind at ease. I am focused on fighting, every day, for people just like you. Let me be Your Dallas DWI lawyer.
(a) A person commits an offense if the person is intoxicated while operating a motor vehicle in a public place.
(b) Except as provided by Subsections (c) and (d) and Section 49.09, an offense under this section is a Class B misdemeanor, with a minimum term of confinement of 72 hours.
(c) If it is shown on the trial of an offense under this section that at the time of the offense the person operating the motor vehicle had an open container of alcohol in the person’s immediate possession, the offense is a Class B misdemeanor, with a minimum term of confinement of six days.
(d) If it is shown on the trial of an offense under this section that an analysis of a specimen of the person’s blood, breath, or urine showed an alcohol concentration level of 0.15 or more at the time the analysis was performed, the offense is a Class A misdemeanor.
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