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Defense Attorneys Fighting DUI and DWI Charges in Texas

Driving under the influence of alcohol is outlawed in virtually all jurisdictions. The specific violation depends on the state where the conduct occurred, but such conduct is generally charged as driving while intoxicated (DWI) or driving under the influence (DUI) or in some instances as both. In some states these offenses are misdemeanors, while in others they are felonies. Texas has both DUIs and DWIs.  Its DUIs are misdemeanors, and its DWIs can be misdemeanors or felonies depending on the underlying circumstances.

Driving Under the Influence

In Texas, the DUI is an offense for minors established by the Texas Alcoholic Beverage Code, not the Texas Penal Code.  Texas is a “zero tolerance” state and the Texas Alcoholic Beverage Code prohibits a minor from operating a motor vehicle or a watercraft in a public place while having any detectable amount of alcohol in their system.  Intoxication is not an element of a DUI.

DUIs can be civil or criminal, and generally, a DUI arrest results in both civil and criminal cases proceeding against the defendant.  For the civil case, the government must only show that the police officer had reason to stop the individual and that the minor had ingested any amount of alcohol.  If proven, The Texas Department of Public Safety may automatically suspend the minor’s driver’s license.  In contrast, a criminal DUI conviction requires proof that the minor was driving after ingesting alcohol beyond a reasonable doubt.

DUI Penalties

The penalties for a DUI depend on the severity of the offense as well as the defendant’s history. For a first-time offender, DUI is a Class C misdemeanor punishable by) a fine of not more than $500; Additionally, alcohol education classes, twenty to forty hours of community service, probation and court costs are all possibilities when facing a DUI conviction.

Some DUI charges are resolved favorably for the defendant through deferred disposition or adjudication. A deferred disposition is a form of plea deal where the defendant pleads guilty or no contest to criminal charges in exchange for alternative requirements, such as probation, treatment, community service, fine, or some other program. If successfully completed, the defendant may avoid a formal conviction and have their case dismissed. Deferred adjudication requires the defendant to complete a probationary period in which no additional convictions are received and the defendant satisfies all requirements imposed in the deferral.

Under certain circumstances, the DUI offense and penalties may be enhanced.  Minors with two or more prior DUI convictions face a Class B misdemeanor that face a maximum jail term of 180 days and a maximum fine of $2,000. A minor who has been previously convicted twice or more of alcohol related offenses is not eligible for deferred disposition or deferred adjudication.  Adjudication under the Juvenile Justice Code that the minor engaged in conduct pertaining to §106.041 of the Alcoholic Beverage Code is considered a conviction. An order of deferred disposition for a previous charge for minor under the influence is also considered a conviction.

If an analysis of blood, breath, or urine reveals an alcohol concentration level of 0.15 or more at the time the analysis was performed, the DUI is a Class A misdemeanor that may result in a jail term of up to one year and a fine of up to $4,000.

Driving While Intoxicated

DWI applies to both minors and adults. Like a DUI, a DWI arrest can result in both a civil and a criminal case.  Civil cases are reviewed solely by the Texas Department of Motor Vehicles. The DMV issues Administrative License Revocations (“ALR”). Once the DMV serves a driver with notice of an ALR, the driver has 15 days to request a hearing. If the driver fails to request a hearing, the suspension automatically goes in to effect on the 40th day after the notice has been served. This suspension is for a minimum of 90 days and a maximum of a year. If, in the past ten years, a person was charged for alcohol related conduct, the Texas DPS will attempt to suspend the person’s license for the maximum duration of a year.

Texas law also requires that the Texas DPS collect a surcharge from any individual convicted of DWI. This surcharge is a fee entirely separate from the criminal or civil case. If a person refused to provide a specimen or provided a specimen while having an alcohol concentration under 0.15, then they must pay a surcharge of $1,000 a year for three years after being convicted of DWI. If a person provided a specimen while having an alcohol concentration of 0.16 or above, the surcharge is $2,000 a year for three years. If the surcharge is not paid it can result in further license suspensions or cancellation of a person’s driver’s license altogether.

A criminal case is prosecuted through the criminal court system according to the Texas statutes pertaining to DWIs. Criminal cases may result in varying penalties depending on the severity of the conduct and can include imprisonment, fines, and other penalties.  A DWI occurs when a defendant is intoxicated while operating a motor vehicle in a public place.  Intoxication occurs in one of the two following ways: (1) if a person provides a specimen of blood, breath, or urine indicating a blood alcohol concentration of 0.08 or more; or (2) if a person loses their normal use of mental or physical faculties by reason of alcohol, a controlled substance, a prescription drug, a dangerous drug, or a combination of these.  It should be noted that a DWI applies to various types of vehicles including automobiles, boats, airplanes, amusement park equipment, and other water vessels.

Intoxication is primarily proved through a person’s alcohol concentration. Alcohol concentration can be measured through breath, blood, and urine. It is defined as the number of grams of alcohol per (a) 210 liters of breath; (b) 100 milliliters of blood; or (c) 67 milliliters of urine. If instead the state relies upon an allegation that the defendant lost the use of his or her mental or physical faculties, an opinion based on observation is sufficient. No expert testimony is required.

Misdemeanor DWI

The criminal penalties for DWI depend on the severity of the offense as well as the defendant’s history. A first-time DWI is generally a Class B misdemeanor. Penalties for a Class B misdemeanor include a maximum fine of $2,000, up to six months in jail, a driver’s license suspension for up to one year, an annual fee of at least $1,000 up to $2,000 each year for three years to keep a driver’s license, completion of 12-hour DWI Education Program, and at least 24 hours up to 100 hours of community service.

Several factors, may result in enhanced penalties for a misdemeanor DWI.  If, at the time of the offense, the person operating the motor vehicle had an open container of alcohol in the passenger compartment, the DWI carries a mandatory minimum jail term of six days. In McDonald v. State, the Houston Court of Appeals held that the requirement of a minimum jail term upon conviction of DWI with an open container enhancement was constitutional.

To prosecute a misdemeanor DWI defendant as a Class A enhanced offense, the State must establish an intoxication-related prior conviction. Penalties for a Class A misdemeanor include a maximum fine of $4,000, up to one year in jail, a driver’s license suspension for up to two years, an annual fee of at least $1,000 up to $2,000 every year for three years to keep driver’s license, and at least 80 hours up to 200 hours of community service.

Felony DWI Based on Prior Convictions

Defendants can also face felony DWI charges.  One form of felony DWI occurs when a defendant has two or more prior DWI (or substantially similar) convictions. A DUI is substantially similar and may be used to enhance a misdemeanor DWI into a felony DWI. The prior convictions need not be in Texas.  In Tate v. State, the Fort Worth Court of Appeals held that a prior Mississippi conviction could be used to enhance a Texas felony DWI charge where both states required proof of a diminished mental or physical state as an element of the offense. In Bell v. State, the Texas Court of Criminal Appeals held that prior DUI convictions in Federal Court could be used to enhance a current DWI charge.  Similarly, in People v. Wolfe, the court found that although the Michigan and Texas laws use different words, it was clear that each of the statutes in question used similar subjective criteria to prohibit similar conduct pertaining to drunk driving and because both Texas and Michigan laws have identical blood alcohol thresholds, measured in identical ways, Wolfe’s Texas conviction could be used to enhance his present offense to felony level.

The Dallas Court of Appeals in State v. Christensen held that a conviction under Colorado’s DWAI statute could be used to enhance a DWI conviction under §49.09(b)(2) of the Texas Penal Code. The defendant argued that his Colorado DWAI conviction could not be used to enhance his DWI charge because DWAI did not require intoxication, but rather a lesser degree of impairment. But the court held the Colorado DWAI statute met the requirements of §49.09(b)(2) of the Texas Penal Code and noted that although Colorado recognizes different degrees of impairment, this does not mean a person impaired for purposes of the DWAI statute is not intoxicated for the purposes of the Texas Penal Code. Additionally, the evidence needed to prove a person is impaired under the Colorado DWAI statute was almost identical to the evidence needed to prove intoxication in Texas.

A single prior conviction is never enough to result in a felony enhancement, even if the prior conviction was itself a felony.  For example, in Ex parte Roemer, the Texas Court of Criminal Appeals held that a single prior conviction for intoxicated manslaughter could not enhance a DWI offense to a felony.  But multiple convictions arising from the same conduct can justify enhancement.  In Gibson v. State, the Texas Court of Criminal Appeals held that the State could rely on two prior convictions arising out of a single DWI to enhance a subsequent DWI offense. The appellant had been convicted of two counts of involuntary manslaughter as a result of killing two persons while operating a motor vehicle while intoxicated.

In addition to jurisdictional enhancements (from misdemeanor to felony), prior convictions can also result in penalty enhancements.  In 1995, the Texas legislature added §49.09(f) allowing felony DWI convictions to be used to enhance punishment under Chapter 12 of the Penal Code for a DWI offense. The State can use the same prior offense to enhance the punishment that it uses to upgrade the DWI to a felony.  For example, in Carroll v. State, the Houston Court of Appeals held that a misdemeanor DWI was not impermissibly used for both jurisdictional and punishment enhancement. This conclusion is similarly supported by the Fort Worth Court of Appeals in Perez v. State and in Ex parte Serrato.

However, the State cannot rely on prior convictions that are too distant in time.  In order for a conviction to be sufficiently proximate, it must be either be (1) within 10 years of the current charge, or (2) within 10 years of another DWI conviction that occurred within 10 years of the current charge.  In Uriega v. State, the San Antonio Court of Appeals held that the defendant’s 23-year-old DWI offense could not be used to enhance a current DWI charge. There, the defendant’s 1979 conviction occurred more than 10 years before he committed the charged offense on May 21, 2002, and defendant was not convicted of another intoxication related offense until 1994, which was outside the 10-year period from 1979. Thus, the later conviction was too remote to be used to elevate the charged DWI offense to a felony. In Howard v. State, the defendant’s twelve-year-old DWI conviction could not be used for because the conviction was too remote because it was more distant than 10 years and there was not another conviction that occurred within 10 years of the old conviction.

In contrast, in Anderson v. State, the Dallas Court of Appeals found that a prior conviction that occurred more than ten years prior to the current DWI could be used to enhance the current DWI since the defendant incurred additional DWI convictions during the following 10-year period within 10 years from the current DWI. Similarly, in Smith v. State, the Texarkana Court of Appeals held that felony DWI had been proved when only one of the prior convictions alleged occurred within 10 years of commission of the primary offense.

Felony DWI with Child Passenger

It is a felony to operate a vehicle while intoxicated with a passenger who is a minor under the age of 15 under Texas Penal Code §49.045.  If an individual pleads or is found guilty of a DWI with a child passenger, this is a state jail felony punishable by a fine of up to $10,000; and a prison term of at least 180 days and up to 2 years.  In addition, in State v. Guzman, the Austin Court of Appeals held that double jeopardy did not bar prosecution for child endangerment arising from the same conduct to which the defendant pleaded guilty to DWI. Both offenses had unique elements and the DWI offense was not included within the proof required to establish the child endangerment offense.

Felony Intoxication Assault and Intoxication Manslaughter

It is a third-degree felony carrying a maximum prison term of 2 to 10 years and a maximum fine of $10,000 for an intoxicated driver to cause serious bodily injury by mistake or accident as a result of the intoxication.  This offense is a second-degree felony carrying a prison term of 2 to 20 years and a maximum fine of $10,000 if it is shown on trial that the person caused serious bodily injury to a peace officer, a firefighter, or emergency medical services personnel working in their official capacity.

It is a second-degree felony intoxication carrying a prison term of 2 to 20 years and a maximum fine of $10,000 if the intoxicated driver causes a death by mistake or accident as a result of the.   It is a first-degree felony carrying a prison term of 5 to 99 years and a maximum fine of $10,000 if it is shown on trial that the person caused the death of a peace officer, a firefighter, or emergency medical services personnel.

In Ex parte Benson, the Texas Court of Criminal Appeals held that felony DWI and intoxication assault resulting from the same conduct were different offenses for double-jeopardy purposes. The crimes were not the same because they were codified in different statutory sections and they had different element requirements.

Refusing to Take an Alcohol Concentration Test

Texas’s implied consent statute creates a presumption of consent. A person arrested for DWI is deemed to have consented to submit to taking one or more specimens for breath or blood analysis. However, the implied consent statute does not apply to unsuspecting, unconscious motorists to gain probable cause for arrest. Under both state and federal law, taking a blood specimen is a search and seizure. This carries serious implications because it may infringe on a person’s right to privacy.  This means that a defendant may generally refuse to take a breathalyzer or blood test.

For example, in Weems v. State, the San Antonio Court of Appeals held that the Texas implied consent and mandatory blood draw statutes could not be considered an exception to the warrant requirement of the Fourth Amendment to the United States Constitution even though the case involved an automobile accident. The officer at the scene handcuffed Weems and read the DIC–24 form requesting a breath or blood specimen to which Weems refused. Due to medical complaints, Weems was transported to the hospital, and a mandatory blood draw was taken there. No warrant was procured for this blood draw. Hours after the accident, Weems’s blood ethanol concentration was 0.18 grams per deciliter. However, this evidence was inadmissible, even if the officer relied in good faith on the implied consent and mandatory blood draw statutes.  Blood collected by a hospital for medical purposes may only under certain circumstances be used for governmental purposes without violating the defendant’s right to privacy.

There are exceptions to the general rule that a defendant may refuse to comply with a blood test. A defendant is required take a test if: (1) the current arrest involved an accident where someone else was seriously injured or killed; or (2) the defendant has had two prior DWI convictions or only one prior DWI conviction but there was a child in the car, or someone was seriously injured or killed.

Even if a defendant can refuse to submit to a test, there are significant penalties for doing so.  Once arrested, the defendant is given a notice in writing that evidence of refusal can be used against the defendant in court and that refusal will result in license suspension for at least 180 days. Defendants that refuse to take the test are asked to sign a statement that says that they were warned of the consequences of refusal, that they were asked to take a test, and that they refused. Express refusal is not necessary. Refusal may be implied by requesting a criminal defense attorney or not answering at all. Then, an officer will take the defendant’s license and give a temporary permit that is good for 41 days. Within 15 days, the defendant can request a hearing to challenge the suspension of your license. But if the defendant does not request a hearing or if they do but fail to prove that the officer did not have a reasonable belief that they were driving intoxicated, then the license will remain suspended for 180 days. For any subsequent refusal within ten years, the defendant will receive a two-year suspension.

DWI Retrograde Extrapolation

When an alcohol concentration test occurs significantly after the time of the alleged DWI, retrograde extrapolation may be particularly important.  Retrograde Extrapolation is the estimation of blood-alcohol concentration at the time of driving based on a test result from some later time.  Retrograde Extrapolation is performed by experts, and in determining the reliability of retrograde extrapolation, courts consider the length of time between the offense and the test(s) administered, the number of tests given, the length of time between each test, and to what extent any individual characteristics of the defendant were known to the expert in providing his extrapolation.

For example, in Bhakta v. State, an expert was qualified to give retrograde extrapolation testimony in a DWI prosecution. Breath tests were performed two and a half hours after defendant’s last drink and an hour and a half after defendant was stopped. The State used an expert witness testimony to establish that defendant was legally intoxicated at the time that he was pulled over. Bhatka’s conviction was affirmed because the expert was qualified; the expert’s testimony was useful; there was sufficient evidence on which to base a retrograde extrapolation; and the probative value of the expert testimony was not outweighed by any prejudicial effect. Further, in Garcia v. State, a defendant’s blood test results that were conducted two hours after an automobile accident were admissible. Evidence supported by an accident reconstructionist, several eyewitness testimonies, and defendant’s blood alcohol content were sufficient to sustain defendant’s conviction.

However, inherently unreliable retrograde extrapolation testimony is inadmissible.  For example, in Burns v. State, retrograde extrapolation was inadmissible when an expert knew none of the individual characteristics and facts necessary to express an opinion as to any range of blood alcohol content.  Further, in State v. Franco, retrograde extrapolation testimony concerning alcohol concentration was too unreliable to be admissible. The expert admitted that to accurately testify regarding defendant’s blood alcohol concentration at the time of the accident, he would have needed more specific information about the defendant.

Concurrent DUI and DWI Charges

In Findlay v. State, the Houston Court of Appeals held that the State could prosecute underage motorists for a DWI in addition to a DUI. The court held that the DWI statute and the DUI statute are sufficiently different that they are not in pari materia or in irreconcilable conflict, even though both statutes cover same persons and similar subject matter. This is because the purpose of the DWI statute differs from the purpose of the DUI statute.

In Findlay, the appellant was arrested for driving while intoxicated, five months prior to his twenty-first birthday. Appellant filed a motion to quash, claiming that his prosecution for DWI violated Tex. Gov’t Ann. §311.026, which is essentially a codification of the common law doctrine of in pari materia. In pari materia dictates that if a general statute and a specific statute both proscribe a defendant’s conduct, he should be charged under the more specific statute. The appellate argued that the DWI and DUI statutes were in irreconcilable conflict, making the more specific DUI statute applicable. While the subject matters covered by the two statutes are similar, the court held that they are not the same – the DWI statute prohibits intoxication arising from alcohol consumption as well as intoxication from drugs while the DUI statute, on the other hand, covers any alcohol consumption.

Furthermore, the court held that the most important factor in determining whether the statutes were in pari materia was whether both statutes had the same purpose, and that they the DUI and DWI statutes had different purposes. The DWI statute is located in the Penal Code and the DUI statute is located in the Alcoholic Beverages Code. The purpose of the DWI statute is to protect the safety of those traveling on the roads by prohibiting intoxicated persons from driving a vehicle. In contrast, the DUI statute was enacted as part of a “zero tolerance” standard for minors driving under the influence of alcohol in an effort to prevent the loss of federal highway funding. Therefore, although the two statutes apply to the same persons and have common subject matter, they are contained in different legislative acts, address different situations, require different elements of proof, and serve different objectives.

DUI/DWI Convictions and Employment Background Checks

A DUI conviction may negatively impact one’s career, especially if the offender holds a commercial driver’s license.  Some potential employers choose to conduct background checks on current or prospective employees.  Background checks may expose a DUI or DWI charge or conviction. Title VII of the Civil Rights Act of 1964 prohibits employers from barring employment of individuals with criminal convictions unless there is a compelling reason to do so.  However, many state laws directly contradict this prohibition.  While Texas does not have such a law, a DUI or DWI conviction may impact an employer’s hiring decision.  A DWI may also limit an individual’s ability pursue certain professional occupations, such as being a doctor or lawyer.

DUI/DWI Record Expungement

Expunging or sealing a criminal record can be difficult, and each conviction is different. Many states limit expungement to arrests that do not result in a conviction. Texas law only allows for criminal record expungement or expunction in certain situations. These may include:

  • If an individual was arrested but later acquitted of the offense or if they were convicted and then pardoned;
  • An individual that was never charged with the offense;
  • An individual who was never convicted
  • If the individual was tried, convicted and subsequently acquitted of the charges

If you have been charged with a DUI, DWI, or other alcohol related offense, you need to hire experienced defense counsel who understand the process and can effectively advise you on your rights and options.  To schedule a free, confidential consultation and learn more about the Oberheiden, P.C.’s “Emergency Defense Package,” please contact us today.  You do not have time to waste, so call (888) 727-5154.

Oberheiden, P.C.
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