What is the Punishment for a First DWI Offense in Texas?

March 23, 2010

All the hype and rhetoric over DWI enforcement in Texas causes people who get arrested to have the expectation of a very harsh punishment — like a felony conviction, having their arm lopped off, or a bright orange DD tattooed on their forehead.

DWI punishment isn’t a walk in the park, but it’s not quite that bad.

A first offense is a class b misdemeanor — which is in the middle of the misdemeanor range.  It’s punishable by a minimum confinement of 72 hours jail and/or a $2,000 fine.  While no lawyer can guarantee you any particular result, statistically the vast majority of convictions on first DWI arrests result in probation.  This means that any jail time assessed may be put off while you complete community service and various other tasks such as a victim impact panel.  There is no deferred adjudication for DWI cases in Texas on any level.

Also if you’re convicted of DWI in Texas for a first offense — you will be assessed a surcharge for three years to retain your driver’s license of $1,000.00.  If you have a breath test result of above a 0.15, then the surcharge is bumped to $1,500 per year.

What I’ve been describing so far are the criminal aspects of a DWI.  The driver’s license suspension for a breath test refusal is a separate, civil matter, but is usually handled in conjunction with your DWI defense.

Jeremy F. Rosenthal, Esq.

(972) 562-7549

*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 directly.

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The Difference Between DUI and DWI in Texas

March 22, 2010

By Collin County Criminal Defense Lawyer Jeremy Rosenthal

(972) 369-0577

texasdefensefirm.com

Every state has laws preventing drunk driving.  Some call their laws DWI (driving while intoxicated) and some call it DUI (driving under the influence).  Texas actually has both, but there is a big difference between the two.

DUI – Minors

Only a minor can commit a DUI in Texas.  A DUI is where a person under 21-years of age has consumed any detectible amount of alcohol and is operating a motor vehicle.  A DWI can be committed by anyone (including minors) who do not have the normal use of their mental or physical faculties due to the introduction of drugs, dangerous drugs, or other substances into the body and are operating a motor vehicle.

A DUI is a Class c misdemeanor meaning it is the lowest level offense and it’s typically handed by a justice of the peace or at the municipal level.  The maximum fine is $500 and there is a big push in those cases towards rehabilitation, community service, and alcohol eduction.  The burden is clearly lower for those cases as the state only needs to show the driver consumed, “a detectible amount of alcohol.”  Both offenses carry possible drivers license suspensions.

DWI – Both Adults and Minors

A DWI is a class b misdemeanor punishable between 72 hours and 180 days jail and/or a fine not to exceed $2,000.  Generally speaking, a DWI is what people are referring to in Texas when they talk about drunk driving laws.

Jeremy F. Rosenthal

(972) 562-7549

*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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Passing The Breath Test Doesn’t Mean You Don’t Get Charged with DWI

March 5, 2010

By Collin County Criminal Defense Lawyer Jeremy Rosenthal

(972) 369-0577

texasdefensefirm.com

Texas Penal Code Section 49.01(2) defines intoxication as

“(A) not having the normal use of mental or physical faculties by reason of the introduction of alcohol, a controlled substance, a drug, a dangerous drug, a combination of two or more of those substances, or any other substance into the body; or

(B)  having an alcohol concentration of 0.08 or more.”

As you can see the legislature used the word “or” between subsection (A) and (B).  This means that you can be charged with DWI where the officer believes you “do not have the normal use…” regardless of whether a breath test was taken — and regardless of whether a breath test result was below 0.08.

Technical Supervisors, who are the state’s “breath test experts” at trial have training on alcohol, it’s effects on the body, and it’s effects on driving.  They testify, in general, that no one has the “normal use” above 0.08 for the purposes of operating a motor vehicle and some lack the “normal use” below 0.08.

The end analysis is simple — if the officer says you’ve lost the “normal use,” then you are getting arrested for DWI regardless if you blow a 0.11 or a 0.06.

Many police officers will also suspect marijuana, narcotics, or medications may be responsible for someone’s condition even if there is little or no evidence of it.

As a former Collin County Prosecutor and as a Criminal Defense Lawyer in Dallas and Collin Counties, I have yet to see or hear of anyone that got taken back to the police station for DWI, was asked to take a breath test, and wasn’t charged with DWI regardless of the result.  Maybe it has happened.  I’ve just never heard about it.

This is part of the lose-lose equation which is the breath test.  And then the police actually wonder why people refuse the breath test all the time.

*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 should be considered legal advice.  For legal advice, you should consult with an attorney.

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Bonding Someone Out on a Felony Charge

February 28, 2010

By Collin County Criminal Defense Lawyer Jeremy Rosenthal

texasdefensefirm.com

(972) 369-0577

This is actually an easy process to understand, but unfortunately it moves at the speed of government.

First you need to learn exactly what they are being charged with by the police.

Once you find out what they are charged with, your next step is to find out whether they have been before a magistrate judge to set a bond.  A bond is an amount of money paid or pledged to insure the accused appears for court.

Section 14.06 of the Texas Code of Criminal Procedure gives the police 48 hours to take someone arrested before a magistrate for the purposes of setting bond in felony cases.  If they don’t, then it triggers an automatic $10,000 bond under Section 17.033.  Rarely will anyone wait that long.  You can expect someone to be taken before the magistrate within the first 24-hours of arrest — hopefully sooner.

You have several ways to satisfy the bond.  If you pay the bond in cash then the bond is refundable once the case is over and the defendant complies with all the terms and conditions of bond.  If you cannot pay the bond, you can either contact an attorney-surety approved by the local county or you can contact a bail bondsman.  Both attorney-sureties and bondsman pledge to pay the county money in the event of non-appearance of the defendant.

Make sure any bondsman or attorney-sureties are licensed, bonded with the county, and reputable.

If the bond is too high, you can have an attorney petition a Court to have it lowered.

*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 should be considered legal advice.  For legal advice, please consult an attorney.

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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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