By Dallas and Collin County Criminal Defense Lawyer Jeremy Rosenthal
A person with a blood alcohol concentration with a 0.15 or higher at the time the test is taken can now be charged with a Class A misdemeanor DWI instead of a Class B if it is their first offense. This change took effect as of September 1, 2011.
First, let’s discuss the practical effects of the change. A Class A misdemeanor on a DWI is punishable between 30 days and 1 year of county jail and a fine not to exceed $4,000. A Class B DWI is punishable by between 72 hours jail and 180 days and a fine not to exceed $2,000. Unlike a 2nd DWI, however, this law does not require the defendant serve 10 days as a term and condition of probation — meaning that a person doesn’t have to go to jail for 10 days just to be granted probation.
Second, you can see that I’ve italicized the words above “at the time the test is taken.” This is a significant departure from normal drunk driving law which prohibits one’s blood/ alcohol concentration being above a 0.08 at the time of driving. This is a “tie goes to the prosecutor” provision because it is very difficult for prosecutors to prove whether a person’s blood alcohol concentration was higher or lower at the time of driving due to a process known as retrograde extrapolation. So this twist is really just punishing people who have blood alcohol concentrations that are on the rise when they are driving.
Texas’ prosecutorial mentality of “when you have a hammer, everything looks like a nail” with this new change gives a person even more incentive to refuse a breath test and to take a DWI to trial.
*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 about any situation, you should contact a lawyer directly. Contacting the attorney through this blog does not create an attorney-client relationship and no communication is considered privileged.