The DWI Process From Start to Finish in Texas

February 27, 2013

By Collin County Criminal Defense Lawyer Jeremy Rosenthal

(972) 369-0577

Today I’ll discuss the process of a drunk driving arrest as concisely as I can.  I’ll resist the urge to geek out on specifics for the sake of giving you the big picture.

The Initial DWI Arrest

These cases almost always start with an arrest on the roadside.  An officer needs “probable cause” based on “articulable fact” to make an arrest for DWI.  In other words the law requires he have enough underlying facts he can describe simply to avoid profiling, guessing, or arresting based on a “hunch.”  Most arrests include field sobriety tests plus questioning on the roadside by the officer.  The officer’s decision is highly subjective as one would think.  Virtually all roadside DUI arrests are videotaped today.

DWI Defined

DWI is defined by Texas Penal Code Section 49.04 which says a person is guilty of DWI if they operate a motor vehicle in a public place while intoxicated.  “Intoxication” is legally defined as (a) not having the normal use of mental faculties; (b) not having normal use of physical faculties; or (3) having a blood/ alcohol concentration of 0.08 or greater.  The cause of the intoxication must be because of a substance induced into the body or a combination thereof.

The Breath Test

Chapter 724 of the Texas Transportation Code affords people the right (if we want to call it that) to provide a breath or blood specimen.  In theory, the right to take a breath test or blood test could prevent officers from framing and arresting people they simply don’t like.

I’ll save my editorials about the breath test for other blogs (like this one, this one, and this one).

The breath test machine requires you to give two samples.  If both are over 0.08, the officer should confiscate your plastic driver’s license and replace it with a yellow sheet of paper which acts as your temporary driving permit (called a DIC-25).  The DIC-25 is valid for 40 days or until your Administrative Law Review hearing (“ALR”) should you decide to appeal the suspension.

If your result is below a 0.08 your drivers license should not be suspended or confiscated.  You can still be prosecuted for Driving While Intoxicated however, because the officer can still testify you did not have the normal use of your mental or physical faculties due to alcohol and/or drugs.

Blood Warrants

The Courts have liberalized law enforcement’s ability to apply for a search warrant to draw blood under Texas Code of Criminal Procedure Chapter 18.  This means police may try to seek a warrant for an involuntary blood draw from a judge.  These warrants are not automatic and can be fought-against later.  The blood generally takes several weeks (or months) to analyze.

Being Free on Bond

Once you are released from jail, you are said to be “on bond.”  This means you were released by the county in question on the condition you return to face charges in court when they are ultimately filed by the District or County Attorney’s Office.  

The Judge in your case may monitor your activities while you are free on bond.  The most common form of monitoring is through an interlock ignition device (also called deep lung device or “DLD” for short).  A DLD is a breath device which will not allow you to start your car if you have been drinking.  DLD’s are required a condition of bond under Texas Code of Criminal Procedure 17.441 if a person has a prior DWI arrest.  In addition, a judge may order a DLD on a first arrest if they believe it to be in the best interest of justice.  Judges are becoming far more aggressive about ordering DLDs as a condition of bond in recent years.

The Driver’s License Suspension, ALR, and Occupational License

A DWI can be split into two proceedings after the arrest — the ALR and the criminal case.  The ALR, as discussed above, is an administrative hearing when you appeal the officer’s decision to arrest you for DWI.  You have 15 days to appeal this decision to the Texas Department of Public safety from the date of arrest.

If you do not appeal or the appeal is denied you can apply for an Occupational Driver’s License (“ODL”).  An ODL is available for most people on a first DWI arrest and has limitations on a second or more DWI arrest.  The ODL can allow you to drive for up to 12 hours a day for work, office or household tasks.

The Criminal Case — Court Dates

Almost all DWI arrests result in charges being filed by the District or County Attorney’s Office.  Courts will require the Defendant be present one or multiple times in Court to see their case is resolved.  

Resolving Criminal Cases

Cases are typically resolved one of three ways.  Cases are resolved by guilty pleas, by trials or by dismissals.  

Dismissals for DWI Arrests

Dismissals for DWIs in Collin, Dallas, Tarrant and Denton Counties are extremely rare.  This is because groups such as MADD put a great deal of pressure on these offices to prosecute cases regardless of their strength.

DWI Trials

Many DWI cases go to trial and most lawyers (myself included) will tell you those cases are very winnable even with facts that look bad.  A guilty verdict obviously results in a conviction and a not-guilty verdict will allow someone to expunge an arrest.

DUI arrests are the most commonly tried cases in misdemeanor courts in Collin County.  DWI trial is almost it’s own skill in trial advocacy and most trials take between one and three days.  The trial includes jury selection, cross examination and arguments.

If both the Defense and the State agree, a judge instead of a jury can decide the case.

Guilty Pleas

Most cases are resolved through guilty pleas.  You can read herehere (DWI 2nd arrest), and here about the punishment for DWI cases upon guilty pleas or convictions at trial.  By statute, the prosecutors cannot offer deferred adjudication to resolve DWI cases.  Some counties will change charges to “obstruction of a roadway” which is also a class b misdemeanor, but carries far less requirements after conviction and which can be sealed from the public.


If you’ve been convicted for DWI in Texas, regardless of whether you received probation, you are responsible to pay the Texas Department of Public Safety a sur-charge for 3 years to keep your driver’s license.  

If there was no breath or blood specimen, your annual fee is $1,000 per year.  If it is a 2nd DWI conviction, it is $1,500 per year.  For a blood/ alcohol concentration above a 0.16, the fine is $2,000 per year.

DWI arrests which result in convictions cannot be expunged or non-disclosed.  Convictions can be used to enhance (or increase) future punishment for future arrests.


Clearing an Arrest From Your Record is Like Digging up a Tree

February 8, 2013

By Collin County Criminal Defense Lawyer Jeremy Rosenthal

(972) 369-0577

Clearing your criminal history is the goal in every single case.  Knowing how to get there is the trick.

An Expunction under Texas Code of Criminal Procedure Art. 55 is essentially a Court order for the FBI, Texas Department of Public Safety, and anyone who has possession of information about your case to destroy the information.  Not to save or hide the information.  Destroy it.  As you can see in Art. 55.03(2), a person can even deny the occurrence of the arrest in many circumstances.

But how do we get to be eligible for expunction and when does your right become able to be exercised?  That’s an extremely complicated question which depends on the certain underlying facts and charges in your case and could honestly be the subject of 30 blogs instead of 1.

The Core Basics of Expunction Eligibility

Think of an expunction like digging up a tree.  You have to get the root.  An expunction applies to a “unit of prosecution” which is the actual arrest.  Therefore it is the actual “arrest” being erased and all things stemming from the arrest (such as the actual prosecution.)  The arrest is like the root of the tree.  If you get the root, you’ve gotten it all.

As a rule of thumb, if someone is acquitted at trial for all the charges they face from a single arrest — the arrest will be expungible immediately.  For example, being found not guilty for a DWI where no other charges were filed from the same case will allow you to be eligible for an expunction.

Facing Multiple Charges

Facing multiple charges is like a tree with a root system fractured into different pieces in the ground.  You still have to get them all or you’ve not destroyed the tree.

Where a person faces multiple charges from the same arrest, the person must be eligible for each individual charge to be expungible for the case to ultimately be expunged.  So if the person arrested and acquitted for DWI above also was charged with marijuana possession from the same arrest — they would have to be eligible for expunction on both.

Different Ways to Become Eligible for Expunction

Acquittal isn’t the only theoretical path to expunction though practically speaking many times it is.  Most prosecuting agencies will not reduce or dismiss DWI arrests in Texas.  This means usually the only path to expunction is acquittal.  Dismissals and reductions of other certain charges, however, will allow those arrests to become expunction eligible.  In addition, the Collin and Dallas County District Attorney’s office’s have adopted pre-trial diversion programs for the express purpose of incentivizing probation with ultimate expunction depending on the charge.

Translation:  there’s more than one way to skin this cat.

Final Note:  Expunctions don’t happen on their own.

An expunction is a petition filed with the District Clerk of the County.  It is literally it’s own separate lawsuit.  The most common mistake people make is failing to follow up and get their arrest expunged.  A criminal record doesn’t go away on it’s own.  After you win your case, get it reduced, dismissed or however you become eligible for expunction — do yourself a favor and finish the thing off!

For criminal defense lawyers an expunction is like kicking an extra-point after the touchdown… it’s a really fun thing to file after a hard-fought battle for a client!

*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.