The Texas DWI Guide
Section 49.04 (2011)
DWI w/ a Child Passenger
Section 49.045 (2011)
Administrative license revocation (ALR)
I just got arrested for a Texas DWI charge. What happens now?
ISSUE ONE: The Implied Consent / ALR Civil Proceeding: The most pressing matter may be requesting an appeal / hearing on your proposed Administrative License Revocation (ALR). Your Texas driver license will most likely be suspended for anywhere from 90 days to two years for failing or refusing a breath test or a blood test. This administrative suspension typically begins on the 40th day after the date of your DWI arrest. If you had a valid Texas license at the time of your arrest the officer should have seized it and given you a temporary driving permit.
The table below shows the suspension lengths for persons 21 years of age or older who fail or refuse a chemical (breath / blood) test. The "2nd Offense" column applies to persons previously suspended for failing or refusing a chemical test or previously suspended for a DWI conviction, Intoxication Assault conviction or Intoxication Manslaughter conviction during the past 10 years. [Similar suspension lenghts apply if you're boating while intoxicated (BWI).]
If you would like to challenge the proposed suspension, you must request an ALR Hearing no later than the 15th day following your DWI arrest. If you represent yourself on this issue, make sure that you do not miss the deadline or you will waive your right to challenge your suspension. If you hire a Texas defense attorney in time, your lawyer will make the ALR Hearing request on your behalf.
Upon receiving a timely hearing request, the State Office of Administrative Hearings (SOAH) will schedule a hearing where an SOAH administrative law judge (ALJ) will determine whether to uphold or overturn your suspension. The judge cannot shorten the suspension only uphold it or overturn it. The ALJ does not rule on or grant hardship / occupational license requests.
Again, you may hire an attorney to represent you in this hearing or you may represent yourself. You cannot get a court appointed attorney for your ALR hearing. The ALR hearing may be conduct either in person or by telephone.
ISSUE TWO: The DWI Criminal Case: Separate from the ALR is the criminal charge for driving while intoxicated (DWI) and / or driving while intoxicated with a child passenger.
In the State of Texas, a person commits the crime of DWI if the person is intoxicated while operating a motor vehicle in a public place. The term “intoxicated” means either:
(1) not having the normal use of your mental or physical faculties by reason of the consumption 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
(2) having an alcohol concentration of 0.08 percent or higher (sometimes referred to as a "per se DWI").
A person commits the offense of driving while intoxicated with a child passenger if: (1) the person is intoxicated while operating a motor vehicle in a public place; and (2) the vehicle being operated by the person is occupied by a passenger who is younger than 15 years of age.
Make sure you do not miss your court appearance or a warrant will be issued for your arrest (more on that below).
Important: These two issues (the ALR proceeding and the Texas DWI criminal charge) are completely separate from one another. Refer to the boxes below:
Will my Texas drivers license be revoked / suspended?
RELATED TO ISSUE ONE ABOVE: Your Texas drivers license (or your right to drive in Texas if you do not have a valid Texas license) may be suspended for failing―blood alcohol content .08% or greater (lower for minors (persons under 21 years of age))―a breath or blood test or for refusing a breath, or blood test. If you act quickly (typically within 15 days of your arrest), you can request an appeal of the proposed administrative license suspension for failing or refusing the test. A hearing will then be scheduled on your appeal request.
If you had a valid Texas drivers license at the time of your breath test failure / refusal, you should have received a temporary permit that allows you to drive for the 40 days following your arrest On the 40th day following your arrest, the suspension begins (unless your appeal is successful).
RELATED TO ISSUE TWO ABOVE: If you are convicted of a DWI or a charge of DWI with a Child Passenger, you will also lose your Texas license (or your right to drive in Texas if you don't have a valid Texas license). These criminal DWI conviction suspensions typically last from 180 days to two years.
Also keep in mind that your license can be suspended for a variety of other reasons unrelated to any Texas DWI arrest such as for a drug conviction or failure to pay child support.
What happens if I get caught driving while my license is suspended / invalid (DWLS) in the State of Texas?
A driving while license suspended (DWLS) charge can be either a Class B or Class A misdemeanor. If convicted of a Texas DWLS misdemeanor, a defendant typically faces a fine of between $100 and $500 and jail time ranging from 3 to 180 days. An SR-22 filing (see below) is also required for two years following the DWLS conviction. Also, an additional license suspension is imposed.
If you are on probation for a DWI or other crime(s) at the time you commit a DWLS you will also face a probation violation hearing as well.
I really need to drive. Will I be able to get a occupational / conditional / probationary permit?
An occupational drivers license (ODL) may be available to you if your license is suspended and you had a valid Texas Driver License at the time of your suspension. An occupational license authorizes the operation of a non-commercial motor vehicle in connection with a person’s job, for educational purposes or in the performance of essential household duties. You must file an SR-22 in order to obtain an occupational license.
Speak to your Texas lawyer about whether you qualify and how to apply for an occupational license. The State of Texas not issue Occupational CDL permits. Put another way, you cannot get a ODL to drive commercial motor vehicles.
What is the difference between a DWI, DUI, DUII, OWI, DWAI, OUI, OMVI, DWUI etc.?
These terms are all acronyms that refer to the crime commonly known as "drunk driving." Many states have different names for the charge. For example, California, Arizona, Oklahoma and a number of other states use the term DUI (driving under the influence). Other states like Michigan, Wisconsin and Iowa use OWI (operating while intoxicated). Maine and Massachusetts use OUI (operating under the influence). In New Mexico, Arkansas, and Louisiana the charge is DWI (driving while intoxicated). Texas law also uses the phrase "driving while intoxicated" so the term DWI is used here.
[Note: There is a separate charge of driving under the influence of alcohol by a minor found in Section 106.041; this offense is a Class C misdemeanor.]
Is a DWI offense in Texas a misdemeanor or felony crime?
In Texas, a first or second DWI offense is a misdemeanor crime unless you had a child 14 years of age or younger in the car with you. DWI with a child passenger is a felony crime.
A third or greater DWI conviction is also a felony under Texas law.
What type of sentence / penalties might I face if I am convicted of a Texas DWI charge?
If convicted of a Texas DWI, a defendant will receive a variety of penalties including probation. A range of penalties is set forth below:
Will my lawyer be able to plea bargain / negotiate my Texas DWI offense down to a lesser type charge?
Possibly. Plea bargaining to a non-DWI offense is a negotiation tactic that any experienced Texas lawyer will discuss with the prosecutor on the client's behalf. Whether your attorney will be able to obtain pleas to another offense (such as reckless driving) for you will depend on a number of factors including the strength of the case against you and your DWI history. Many times a plea to an alternate charge will not be possible. In these cases, you will have to plead guilty to the DWI or take your case to trial.
Will a Texas DWI conviction go on "my driving record?"
Yes. A DWI conviction will go on your Texas driving record. However, if you are found not guilty of the DWI offense or the charge was dismissed for some reason, you may be able to apply to seal your arrest record.
Just how much jail time will I have to do if I am convicted of a DWI in Texas?
The amount of incarceration (jail or prison) received for a Texas DWI conviction will depend on a number of factors, including (but not limited to) the following:
• your prior known driving record especially your DWI history (including DWI-type convictions in other states);
• your level of intoxication / impairment (your BAC level);
• whether there was a collision / accident involved (assuming you were at fault);
• whether there was an injury / death to another in the collision;
• which Texas county or municipal court your case is in;
• what judge you are sentenced by;
• whether there was a passenger or a child passenger in your car (especially a child under 15 years of age);
• whether the court feels you have accepted responsibility.
Refer to the table above for a sentencing range. Speak to an attorney for more specific information.
Will I be placed on probation if I am convicted of a DWI in Texas?
Yes. A Texas DWI conviction will almost certainly result in a period of probation that you must complete. While there are a number of special probation conditions, most probationers will have to follow these standard conditions:
I am licensed to drive in a state other than Texas and I was arrested for a DWI in Texas. Will my driver license be suspended / revoked?
Texas only has the authority to suspend your right to drive in the State of Texas. However, Texas and 44 other states and the District of Columbia have adopted an agreement known as the "Driver License Compact." Texas will report a Texas DWI conviction to the home state of the driver (assuming the home state has also adopted the Compact). Your home state will then generally take action to suspend or revoke your license.
This also works in reverse. If you are a Texas licensed driver and you are convicted of a DWI / DUI / OWI / OUI / OVI charge in another state (such as Oklahoma), Texas will likely suspend your license if it learns of the conviction. See Section 523.005 of the Texas Transportation Code. This also applies to vehicular manslaughter charges; felony hit and run charges; and other motor vehicle felonies.
Will I have to install an Breath Alcohol Ignition Interlock Device on my car?
An breath alcohol ignition interlock device (BAIID aka IID) is a breath alcohol measurement device that is connected to a motor vehicle ignition. In order to start the motor vehicle, a driver must blow a breath sample into the device which then measures alcohol concentration. If the alcohol concentration exceeds the startup set point on the interlock device, the motor vehicle will not start.
You may have to install an ignition interlock device in your car depending on your circumstances. Such a device is often required if you have two or more DWI convictions within a five year period. Talk to your Texas DWI lawyer about this requirement.
If you are required to install a BAIID you may contact one of the providers approved by the State of Texas:
Alcohol Detection Systems
Alcohol Detection Systems, Inc - Baltimore, MD
Draeger Safety Diagnostics Inc – Irving
Guardian - Lewisville, TX
CST Inc. – Des Moines, Iowa
CST Inc - Austin, TX
Advantage Interlock, Inc
Lifesafer Interlock of Texas - Carrollton, TX
National Interlock Services of TX
Smart Start – Irving
What will a DWI charge do to my insurability?
If your insurance company finds out about a DWI conviction one of two things typically happen. Either your insurer will raise your rates or you may be cancelled or non-renewed.
Neither the court nor the prosecutor affirmatively notifies insurance companies about DWI convictions. Your company may learn about your DWI simply through a periodic check of your driving record. Although you do not have an obligation to affirmatively notify your insurance company when you get a DWI, you must answer honestly should they ask you about past or pending charges.
Your insurance company will learn of your DWI if you have to file an SR-22.
What is an SR-22?
An SR-22 is a certificate from an Texas licensed insurance company certifying that you have purchased liability insurance that meets the minimum required coverage limits. The SR-22 provides proof to the Texas Department of Public Safety that you are insured. If you cancel your insurance or the insurance company cancels your policy before your suspension period is over, the company must notify DPS that the certificate is canceled. You will need to get a new SR-22 certificate on file with DPS within 30 days or your license will be suspended. If you are asked to prove “future financial responsibility” by having an SR-22 on file with DPS, a copy of your insurance binder or your insurance card is not considered acceptable proof.
What if someone was killed or seriously injured in my DWI?
If someone was was seriously injured as a result of a DWI offense, you probably also face the additional crime of Intoxication Assault (a third degree felony). If someone was killed as a result of a DWI, you probably face a charge of Intoxication Manslaughter (a second degree felony). Both of these charges are quite serious.
Consult an attorney immediately if you face any type of assault or manslaughter charge.
What about an open container violation?
It is a Class C misdemeanor under Texas law to possess an open container of alcohol in the passenger area of a motor vehicle which is on a public highway or the right-of-way adjacent to a public highway. It doesn't matter whether the vehicle is moving or stopped or parked. You can be fined up to $500 for having an open alcohol container in a vehicle regardless of whether you're the driver or passenger.
If you had an open container while you were arrested for the DWI then the minimum jail time is increased from three days to six days.
What about a reckless driving charge?
Under Texas law, a person commits the misdemeanor crime of reckless driving if the person drives a vehicle in wilful or wanton disregard for the safety of persons or property. See Section 545.401 of the Texas Transportation Code.
What if I failed to stop when the police tried to pull me over?
If you failed to pull over when the police turned on their lights / sirens, you were probably charged with fleeing or attempting to elude a police officer. This offense is a misdemeanor crime. See Section 545.421 of the Texas Transportation Code.
What if I left the scene of a accident (hit and run) with my DWI charge?
Leaving the scene of an accident without rendering aid or exchanging information (commonly referred to as hit and run) is a seperate criminal offense. If someone was killed or injured in the collision failing to render aid / provide information is a felony crime. If only property was damaged and you failed to provide the required information, you face a misdemeanor charge. See Sections 550.021 and 550.022 of the Texas Transportation Code.
What happens if I was on probation for another offense when I was arrested for my DWI?
Committing a new offense while you're on probation for a previous crime creates two concerns. First, you face the new DWI charge. Second, you face a probation violation hearing for failing to obey all laws. The most serious scenario is when you receive a new Texas DWI offense when you're already on probation for a previous DWI conviction. When this happens, its in your best interest to speak to a criminal defense lawyer as soon as possible.
I'm not a US citizen. Will a Texas DWI conviction result in my removal from this country?
Probably not if you're in the country legally. Typical, first time Texas DWI offenses (no priors; no child in car) are generally not considered crimes of moral turpitude or aggravated felonies resulting in removal. It is important to consult an experienced immigration lawyer about your situation just as you should consult with an experienced Texas criminal defense lawyer about your pending DWI offense.
Keep two points in mind. First, it is very important to answer honestly all questions about prior arrests / convictions on immigration and Visa applications and forms. Lying on these forms is often considered more serious than any DWI conviction. Second, non-citizens should take extra care not to drive on a suspended or revoked license.
Will a DWI conviction effect my ability to get a Texas concealed handgun license?
Yes. In Texas, a DWI is classified as at least a Class B misdemeanor. Therefore, a DWI conviction makes you ineligible for a CHL for at least five years. [This includes cases that were dismissed after one completes probation or a deferred adjudication.] If you have been convicted of two or more alcohol or drug related offenses within the last 10 years, you may not be eligible for a CHL at all.
Are there special concerns for licensed pilots who get a Texas DWI?
Yes. The FAA has special reporting requirements for certain Motor Vehicle Actions including Texas DWI convictions and certain administrative (ALR) driver license suspensions. Learn more here. Do not risk failing to report the incident if you're required to do so.
Are there any concerns for mariners licensed by the United States Coast Guard who get a DWI in Texas?
Yes. An applicant for a Coast Guard credential must disclose all criminal convictions on their application form. In addition, the Regional Exam Center (REC) performs a National Driver Register check on applicants. Once a DWI conviction is identified, the REC evaluates the applicant's reported conviction and associated facts.
I missed my court date. What do I do now?
Failing to appear (FTA) for court is to be avoided. When you miss a court appearance, bad things follow. At a minimum, the court typically issues a warrant for your arrest (known as a bench warrant). Talk to a Texas attorney as soon as possible. Sometimes, your only option is to turn yourself in at the jail on the outstanding warrant. A new court date will then be scheduled for your appearance.
Can I represent myself in court on my Texas DWI and / or other charge(s)?
Yes. You have an absolute right to represent yourself on any Texas criminal charge no matter how serious including a DWI. Keep in mind that Texas DWI defense is a complex area of the law as shown by the information above. If you cannot afford to hire your own counsel, you definitely should apply for court appointed counsel to represent you. You have no right to court appointed counsel at the administrative license revocation proceeding.
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