By Collin County Criminal Defense Lawyer Jeremy Rosenthal
First I’ll talk a bit about the technical/ legal information of a 2nd DWI charge in Texas — then I’ll discuss some of the more practical aspects or things you won’t find written down anywhere about the attitudes of police, prosecutors and even judges about second DWI arrests.
The Law on a 2nd DWI Charge
Texas Penal Code 49.09(b) says in relevant part:
“an offense… is a Class A misdemeanor… if it is shown on the trial of the offense that the person has previously been convicted one time of an offense relating to the operating of a motor vehicle while intoxicated, an offense of operating an aircraft while intoxicated, an offense of operating a watercraft while intoxicated, or an offense of operating or assembling an amusement ride while intoxicated.”
I should point out what I consider to be several extremely important parts of this provision. The most obvious is a 2nd DWI is enhanced from a Class B to a Class A misdemeanor and carries a heavier punishment which I discuss in more detail below.
What can be confusing to many, though, is the requirement the first case must have resulted in a “conviction.” The law is actually a bit tricky here even though it may seem straight forward — it normally means the previous arrest must have resulted in either a guilty plea or a trial where the person was convicted by the judge or jury. But there are some weird fact scenarios that tend to pop up from time to time.
To be clear for starters — if a first DWI arrest resulted in a dismissal, reduction, or acquittal, then it cannot be used to enhance the first DWI arrest into a 2nd DWI arrest.
A common scenario is where a person is arrested for DWI and before that case can be resolved — the person is arrested again for DWI. Both arrests would technically qualify as first DWI arrests because on the date of arrest for either, the person had never been “convicted” of Driving While Intoxicated. Each case would be regarded as a first DWI arrest although if ultimately convicted of both, a third DWI arrest would be enhanced to a Felony DWI 3rd.
Another common issue is that the person’s first DWI, DUI or OUI arrest might be from a state, territory or jurisdiction besides Texas. The problem here is 49.09(b) has rather loose language that the previous conviction must be of “…an offense relating to the operating of a motor vehicle while intoxicated.” The result is a court must harmonize whatever happened elsewhere to see if it’s substantially similar to our DWI law. This is very problematic because some state’s have very different requirements for what constitutes DWI, DUI or OUI.
The last major part of 49.09(b) I should point out is there is no time limitation in the statute — meaning the first DWI conviction can be more than 10, 20, or 30 years ago and the second arrest will still be enhanced. This was a change from previous Texas law which held that the first conviction must have been within 10 years of the second arrest. In what can only be described in a constant patter of tightening DWI laws — the legislature did away with the 10 year requirement.
More Major Differences Between a First and Second DWI
- If you’re arrested for a DWI 2nd offense, you’re required by law upon release from jail to have an interlock ignition device installed on your car as a term and condition of bond pursuant to Tex.Code.Crim.P. 17.441;
- The punishment range goes from 72 hours jail to 180 days and up to $2,000 fine (on a Class B – 1st DWI ) to 30 days minimum to 1 year confinement in the county jail and up to $4,000 fine for the Class A misdemeanor;
- Though an the entire jail sentence (as described above) can be probated, the Judge must order a person convicted of a second DWI to at least 10 days of jail as a minimum “term and condition” of probation under Tex.Code.Crim.P. 42.12 Sec.13(a)(1).
- An interlock ignition device is mandatory on probation.
- The sur-charge to keep your driver’s license with the Texas Dept. of Public Safety in Austin is $1,500 per year for three years (up from $1,000 per year on a first DWI arrest).
DWI Court/ Drug Court
Collin County has several courts which act as special courts trying to deal with drug and/or alcohol abuse issues. If someone either pleads guilty or is found guilty of a Second DWI offense, the DWI Court can evaluate a person to see if they’re appropriate candidates for the program. The court can conduct an intensive but incentivized probation for the person convicted of the second DWI.
Fighting the 2nd DWI Charge
The good news is almost always the Texas Rules of Evidence will disallow a jury from any knowledge of a first DWI conviction during the guilt-innocence portion of a trial. This means not-guilty verdicts are still just as possible as they are for first time arrestees and juries aren’t tainted with the irrelevant knowledge of a previous arrest . If anything, the tougher punishments and sentences for a 2nd DWI actually gives a person more incentive to fight than to plead guilty on average.
What You Won’t See in Books
Police and prosecutor attitudes about 2nd DWI arrests can be a bit stubborn. Remember, it’s not the police or prosecutor’s job to presume a person innocent — and with a 2nd DWI they surely don’t. Many think even though the first arrest may have been years and years ago that they are dealing with an alcoholic who needs to be taught a lesson.
Fortunately you have options. First is that these cases can still be defended aggressively, powerfully and persuasively and often do result in acquittals. Secondly, although punishment on intoxication cases have progressively gotten meaner and meaner — there has been more of a prevailing attitude over the past decade which finally understands cruelty, jail and harshness don’t help someone battling alcohol issues.
*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 an attorney directly. Contacting the attorney through this forum does not create an attorney-client relationship. Communications sent through this forum are not confidential nor protected by the attorney-client privilege.