The Texas DWI Guide

texas DWI Lawyer

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DWI

Section 49.04 (2011)

DWI w/ a Child Passenger

Section 49.045 (2011)

Open Container

 

 

Administrative license revocation (ALR)

TCADA

ALR Hearings

 

 

 Order Your Texas Driving Record

 

 

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 lengths apply if you're boating while intoxicated (BWI).]

 

TEXAS ALR PROGRAM SUSPENSION LENGTHS
  1st Offense 2nd Offense w/in 10 years
Test Refusal 180 days 2 years
Test Failure (BAC 0.08% or greater) 90 days 1 year

 

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: 

 

Issue One:  ALR Issue Two:  Criminal
‣ The Administrative License Revocation (ALR) for failing or refusing a breath / blood test.
‣  You have the option of contesting this suspension by requesting an ALR Hearing in writing within 15 days of your arrest.
  Whether you win or lose on your appeal of this issue (or do not appeal at all), it will not affect your DWI charge (though you may gain information in your ALR hearing that could help in defending the DWI charge).
  ‣  Criminal charge / citation for Driving While Intoxicated (DWI) (and any other offenses).
‣  You must personally appear in court or a bench warrant will be issued for your arrest for failure to appear.
‣  Whether you plead guilty to the charge, or win or lose at trial, it will not affect (lessen or overturn) your ALR for failing or refusing the breath / blood test.

 

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).

 

Note:  Law enforcement agencies are increasingly seeking search warrants or the statutory authority to draw the blood of Texas DWI suspects who refuse a breath test.  This is sometimes referred to as the Texas "no refusal" program.  If the police have a valid search warrant, they may draw your blood even if you do not consent.

 

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).  In Oregon, the law refers to DUII (driving under the influence of an intoxicant).  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: 

 


TEXAS DWI CONVICTION PENALTY CHART

First DWI Conviction
misdemeanor
Second DWI Conviction
misdemeanor
Third DWI Conviction
felony
DWI w/ a Child < 15
felony

At least 3 days jail

(if open container in vehicle while DWI

6 days minimum)

 

Up to a $2000 fine

 

Up to a 1 year Texas license suspension

At least 30 days jail

 

Up to a $4000 fine

 

Up to a 2 year Texas drivers license suspension

2 -10 years prison

 

Up to a $10,000 fine

 

Up to a 2 year Texas license suspension

Up to 2 years prison

 

Up to a $10,000 fine

 

Up to a 180 day Texas drivers license suspension

  1. All Texas DWI convictions require completion of either a DWI Alcohol Education Program or a DWI Alcohol Intervention Program.
  2. In addition to the fine, a first DWI conviction results in a $1,000 surcharge, paid annually for three years.  A second or third conviction results in a $1,500 surcharge, paid annually for three years.  A DWI with a BAC > 0.15 percent results in a $2,000 surcharge paid annually for three years.

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:

  • Obey all laws;

  • Do not consume alcohol or controlled substances without a valid prescription;

  • Do not associate with criminals or inmates;

  • Stay out of bars, lounges, dance halls, taverns and liquor stores;

  • Report as directed to the Probation Department;

  • Notify your probation officer of any change of address, employment, marital status or arrest not more than three days from change;

  • Permit the Probation Department to visit your home or elsewhere without restriction, reluctance or delay;

  • Work at suitable employment as far as possible and support your dependents;

  • Remain within specified counties of the State of Texas, and do not leave the confines of said counties without written consent of the Probation Department and / or the Court;

  • Do not possess or use any narcotic drugs or controlled substances, unless taken under a physician's directive.

  • Pay your bills and debts;

  • Be home each night not later than Midnight and remain there unless his work requires you to be out later;

  • Pay all fines, fees, restitution and court costs;

  • Appear as directed before the Court.

  • Submit to testing for alcohol or controlled substances if so directed by the Probation Department;

  • Submit to educational testing as required and work toward a GED.

  • If so directed attend and participate in Alcoholics Anonymous and / or Narcotics Anonymous meetings at least two times weekly and submit proof of attendance to the Probation Department.

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

(800) STOP-DWI

 

Draeger

Draeger Safety Diagnostics Inc – Irving

(866) 385-5900

 

Guardian

Guardian - Lewisville, TX

(972) 353-5692

 

Intoxalock

CST Inc. – Des Moines, Iowa

(877) 777-5020

 CST Inc - Austin, TX

(512) 374-1833

 

Lifesafer

Advantage Interlock, Inc

(800) 993-4990

 Lifesafer Interlock of Texas - Carrollton, TX

(866) 503-4500

 National Interlock Services of TX

(866) 863-4350

 

Smart Start

Smart Start – Irving

(800) 880-3394

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.

Short Answers to Random Texas Drunk Driving Questions
Q.  Does an OWI / OUI count as a prior offense in Texas?
A.  Yes.  Assuming the court / prosecutor learns about the offense it will count as a prior DWI.

Q.  Can the State of Texas suspend a Mexican drivers license?
A.  No.  Texas can only suspend your right to drive in the State of Texas not in other states or other countries.

Q.  Will a DWI conviction bar me from Mexico?
A.  No.  However, if you're convicted of a Texas DWI you will not be allowed to enter Canada for at least 10 years.

Q.  Can I get arrested for DWI in Texas if I'm high? 
A.  Yes.  It is unlawful to operate a vehicle in Texas if you're mental or physical faculties are affected by controlled substances (drugs) and / or alcohol.  Driving while high is DWI in Texas.

 

Set forth below are selected Texas statutes related to DWI.  The statutes are paraphrased:

Sec. 49.04.  DRIVING WHILE INTOXICATED.  (a)  A person commits the offense of DWI if the person is intoxicated while operating a motor vehicle in a public place.

(b)  Except as provided by Subsection (c) 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.

Sec. 49.045.  DRIVING WHILE INTOXICATED WITH CHILD PASSENGER.  (a)  A person commits the offense of DWI 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.

(b)  This offense is a state jail felony.

Sec. 49.07.  INTOXICATION ASSAULT.  (a)  A person commits the offense of intoxication assault if the person, by accident or mistake:

(1)  while operating an aircraft, watercraft, or while operating a motor vehicle in a public place while intoxicated, by reason of that intoxication causes serious bodily injury to another; 

(b)  In this section, "serious bodily injury" means 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.

(c)  Except as provided by Section 49.09, an offense under this section is a felony of the third degree.

Sec. 49.08.  INTOXICATION MANSLAUGHTER.  (a)  A person commits the offense of intoxication manslaughter if the person:

(1)  operates a motor vehicle in a public place, operates an aircraft, or a watercraft;  and

(2)  is intoxicated and by reason of that intoxication causes the death of another by accident or mistake.

(b)  Except as provided by Section 49.09, an offense under this section is a felony of the second degree.

Sec. 49.09.  ENHANCED OFFENSES AND PENALTIES.  (a)  Except as provided by Subsection (b), a DWI is a Class A misdemeanor, with a minimum term of confinement of 30 days, if it is shown on the trial of the offense that the person has previously been convicted one time of a prior DWI.

(b)  A DWI offense is a felony of the third degree if it is shown on the trial of the offense that the person has previously been convicted:

(1)  one time of intoxication manslaughter or an offense under the laws of another state if the offense contains elements that are substantially similar to the elements of intoxication manslaughter;  or

(2)  two times of any other offense relating to a DWI.

(b-1)  An intoxication assault offense is a felony of the second degree if it is shown on the trial of the offense that the person caused serious bodily injury to a peace officer, a firefighter, or emergency medical services personnel while in the actual discharge of an official duty.

(b-2)  An intoxication manslaughter offense is a felony of the first degree if it is shown on the trial of the offense that the person caused the death of a person described by Subsection (b-1).

(h)  This subsection applies only to a person convicted of a second or subsequent offense relating to the operating of a motor vehicle while intoxicated committed within five years of the date on which the most recent preceding offense was committed.  The court shall enter an order that requires the defendant to have an ignition interlock device installed, on each motor vehicle owned or operated by the defendant. 

Copyright 2013, 2012, 2011, 2010, 2009 by David Lesh.

 

Websites, including this one, provide general Texas DWI information but do not provide legal advice or create a lawyer / client relationship.  General information cannot replace legal advice specific to your TX DWI case, problem, or situation.  Consult qualified Texas DWI attorneys for advice about any specific problem or charge that you have.  The owner / author of this website is not a Texas attorney, and this website is not an advertisement for legal services.  Attorneys in Texas are governed by the Texas Disciplinary Rules of Professional Conduct.  This website may be considered an advertisement for services under these Rules.  Information contained in this website is believed to be accurate but is not warranted or guaranteed in any way.  No lawyer associated with this website claims any specialization or certification.  Not certified by the Texas Board of Legal Specialization.  Copyright 2009 - 2013 by David N Lesh.

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