Which DWI Charges are Felonies and Which are Misdemeanors?

February 23, 2010

By Collin County Criminal Lawyer Jeremy Rosenthal

(972) 369-0577

All the “tough-guy” talk from law enforcement about DWIs in Dallas and Collin Counties in Texas has created a lot of confusion.

Most DWI Arrests Are Misdemeanors

Most are relieved to hear a first arrest is a Class B misdemeanor and a second is a Class A.  But when do DWI’s become felonies?

Several ways.  What makes the identical act of driving a motor vehicle in a public place while intoxicated (which is normally a misdemeanor) a felony is generally additional or surrounding factors.

It is important to note that every jail term I describe below may be probated in certain circumstances.

Driving While Intoxicated With a Minor

DWI with a minor 15 years-old or younger is a State Jail Felony punishable between 180 days and 2 years jail and/or a fine not to exceed $10,000.

Driving While Intoxicated (3rd Charge or More)

If you’ve been convicted of DWI two times before, then the third DWI is a 3rd degree felony carrying a possible prison sentence between 2 and 10 years and/or a fine not to exceed $10,000.  Additional convictions pile-up like bricks with the enhancements getting progressively harsher.  For details on specific enhancements for a 4th DWI or greater, consult an attorney.

Intoxication Assault

Intoxication assault is typically a non-fatal accident where someone is seriously hurt or disfigured and is a 3rd degree felony.  The prosecution must prove not only that the defendant caused the accident, but the accident was caused by the intoxication — and that a person suffered “serious bodily injury.”

Intoxication Manslaughter

Intoxication manslaughter is the same as intoxication assault, except that the accident causes someone to die.  It is a second degree felony carrying a sentence between 2 and 20 years prison and a fine not to exceed $10,000.

The Texas Legislature has allowed for the “stacking” of punishments for intoxication assault and/or manslaughter.  What this means is that if there is more than one victim (hence multiple counts), those punishments can be added together whereas most felony punishments run concurrently (or together).

Enhancements for felony punishment can be complex in Texas, so it’s essential to discuss the specifics with an attorney.

*Jeremy Rosenthal is Board Certified in Criminal Law by the Texas Board of Legal Specialization and licensed by the Supreme Court of Texas. Nothing in this article is intended to be legal advice.  For legal advice, please consult an attorney.

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Posted by Jeremy Rosenthal, Esq.

Punishment for a 2nd DWI in Texas

February 22, 2010

By Collin County Criminal Lawyer Jeremy Rosenthal

texasdefensefirm.com

(972) 369-0577

Convictions for DWI’s are like stacking bricks higher and higher.  To recap, a first DWI is a Class B misdemeanor in Texas.  A second DWI is a Class A Misdemeanor.  The punishment range is between 72 hours of jail and 365 days, an/or a fine between $0 and $4,000.

A 2nd DWI means that you’ve been convicted of the first — regardless of how long ago that may have been.

Like a 1st DWI, probation is often the result of a conviction for a 2nd DWI — but clearly there is more jeopardy involved in a 2nd offense.  The maximum probation is 2 years and the probation itself gets stickier.  For example, in Texas we have what is called jail as “a term and condition” of probation.  What this means is that the Judge can send you to jail for up to 30 days as a part of your probation.  The minimum community service for a 2nd DWI is 80 hours.

Additionally, the Judge is required to place an interlock device on your car when you are originally released on bond from jail in the case while you await trial.  You can expect it to stay on during probation with a conviction.

As for driver’s license suspensions — the term of the suspension increases to 2 years (from the max of 180 days).  A person can qualify for an occupational license to assist them in driving to work, however, if the 2nd DWI was within 5 years of previous law enforcement contact involving alcohol, then the person doesn’t qualify for the occupational for 180 days after the suspension begins.  This is what DWI lawyers in Dallas and Collin Counties call a “hard suspension.”  It means no driving for six months.

Also the surcharge is $1,500 per year for 3 years.  Again, the surcharge is $2,000 for a breath test score over 0.16 for 3 years.

In Texas, some County Courts at Law have DWI programs for 2nd time DWI convictions.  In Collin County they have courts with intensive treatment but that offer some incentives to join the program such as lesser fines.

*Jeremy Rosenthal is Board Certified in Criminal Law by the Texas Board of Legal Specialization and licensed by the Supreme Court of Texas. This article is not intended to be legal advice.  For legal advice you should consult an attorney.

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Posted by Jeremy Rosenthal, Esq.

What is the Result or Punishment for a 1st DWI in Texas?

February 22, 2010

By Collin County Criminal Lawyer Jeremy Rosenthal

texasdefensefirm.com

(972) 369-0577

In Dallas and Collin County where I practice, DWI’s are statistically very winnable.  Today’s blog, though, deals with what happens if you plead guilty or are found guilty at trial.

A first DWI in Texas is a Class ‘B’ misdemeanor.  A first DWI conviction in Texas is not a felony.  Even as a misdemeanor a conviction stays on your criminal record forever.

The punishment range for a Texas DWI is between 72 hours an 180 days of jail and/or up to a $2,000 fine.

Don’t panic!  That time is usually probated — meaning you’re on probation for DWI and only if you violate your probation do you look at going back to jail.  I can safely say in my experience as a prosecutor and a DWI defense lawyer the vast majority of persons arrested for DWI spend no time in jail after their original arrest.  Of course, no lawyer can guarantee you any result.

With the punishment range as it is, your lawyer must admonish you that it is legally possible for you to be assessed 180 days and a $2,000 fine.  This is not to minimize the consequences, but most experienced DWI lawyers in Dallas and Collin Counties will tell you that result is highly unlikely.

You should also be aware that if you’re convicted of DWI and your breath test result was a 0.15 or above, you’re legally required to have a deep lung device installed on your car for at least half of the probation period.

Beginning in September, 2011, a DWI with a blood alcohol concentration above a 0.15 is now a class A misdemeanor punishable by up to a year of jail — again — typically probated.

Also there is a surcharge for renewing your driver’s license of $1,000 upon conviction for 3 years following the conviction.  The surcharge goes up to $2,000 per year if your breath and/or blood is a 0.16 or higher.

*Jeremy Rosenthal is Board Certified in Criminal Law by the Texas Board of Legal Specialization and licensed by the Supreme Court of Texas. Nothing in this article is intended to be legal advice.  For legal advice please consult an attorney.

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Posted by Jeremy Rosenthal, Esq.

Your Driver’s License Isn’t Actually Automatically Suspended If You Refuse A Breath Test

February 20, 2010

By Collin County Criminal Defense Lawyer Jeremy Rosenthal

(972) 369-0577

Texas DWI’s have two sides.  There is a criminal side and the administrative side (i.e., the driver’s license suspension.)  Today I’m only discussing the administrative driver’s license suspension side.

Texas has an “implied consent” law.  This means when you got your driver’s license, you implied to the Department of Public Safety (“DPS”) that if an officer ever offered you a breath-test, you would comply.  If you fail to comply – or you do comply and blow over 0.08 – then your driver’s license can be suspended.

What the DPS media blitz omits is that this isn’t automatic.  You have 15 days from the date of arrest to submit an appeal.  The instructions are on the sheet of paper they should have given you when they confiscated your driver’s license.

You are appealing the officer’s decision to ask you to take the breath test and/or the breath test score.  These things can be very legally technical and it is frankly difficult for people to win without lawyers.  These proceedings are generally called ALR’s by lawyers which is short for Administrative Law Review.

ALR’s are done in Collin and Dallas Counties like a deposition in a conference room and most lawyers advise their clients not to attend.  If the ALR Judge determines DPS lost your ALR, then your driver’s license is not suspended.  This happens all the time.

The ALR proceedings run concurrently or parallel to your criminal DWI case.  Sometimes the ALR proceedings take longer and sometimes they’re shorter.  If you win your DWI on the criminal side, the driver’s license suspension can also be negated.

*Jeremy Rosenthal is Board Certified in Criminal Law by the Texas Board of Legal Specialization and licensed by the Supreme Court of Texas. Nothing in this article is intended to be legal advice.  For legal advice consult an attorney.

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Posted by Jeremy Rosenthal, Esq.

Notice to Appear Letter

February 19, 2010

By Collin County Criminal Defense Lawyer Jeremy Rosenthal

texasdefensefirm.com

(972) 369-0577

I Just Got a “Notice to Appear” Letter.  What Does it Mean?

You have been charged with a criminal offense in Collin County, Texas.  In all likelihood it stems from an arrest in the previous months perhaps for DWI, marijuana possession, assault or theft.

This letter means the case has been formally charged by the District Attorney’s Office (for misdemeanors) or a Grand Jury (for felonies).

Why Do I Need to Be In Court?

Court appearances serve two functions.  It’s the Court’s way of making sure (1) you are attempting to resolve the case; and (2) you’re honoring your conditions of bond.

Collin County Courts handle thousands of criminal cases per year.  Having Appearances is how they keep cases moving through the system.

What Will Happen at this Appearance?

An appearance is like a work session between your lawyer and the prosecutor.  This is your lawyer’s opportunity to get a police report, video evidence, and plea recommendations from the prosecutor.

Most of the time a first appearance in Collin County results in the case being “passed” for another announcement – meaning you’ll come back in another month for another court date.

By the second month, though, hopefully your lawyer will have been able to do even more legal research and factual research based on what they learned on the first setting so they can have a better picture in your case.

Your case may have several announcement settings before it is resolved either by a trial, plea or dismissal.

What Do I Need to Do to Prepare?

Nothing.  An appearance in Collin County isn’t a trial or a contested matter.

If you do see the judge it’s almost always going to be your choice.  If you chose to plead guilty on the very first setting, you’ll see the judge or if you come to court without a lawyer, many judges will lecture you on the dangers and disadvantages of not having a lawyer in front of the court reporter.

What Happens if I Don’t Come to Court for My Appearance?

If you don’t come to court, a warrant can be issued for your arrest.  Some Courts will excuse your appearance on a first or second announcement IF YOU HAVE A LAWYER.  You should never assume your attendance is excused, however, and should always clear it in advance.

Do I Need a Lawyer for a First Appearance?

Yes.

Many people feel like they just want to talk with the prosecutor first.  That might be okay if you were charged with a parking ticket or moving violation.  If you have a court case in County Court at Law or District Court in Collin County, though, your charges are a bit more severe.

Here’s what I think about visiting directly with a prosecutor about your case.

*Jeremy Rosenthal is Board Certified in Criminal Law by the Texas Board of Legal Specialization and licensed by the Supreme Court of Texas. Nothing in this article is intended to be legal advice.  For legal advice you should consult an attorney.

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