Texas DWI Laws for Beginners

July 1, 2010

By Collin County Criminal Defense Attorney Jeremy Rosenthal

texasdefensefirm.com

(972) 369-0577

For Starters:

Everyone is presumed innocent and the police and prosecution must prove the case beyond all reasonable doubt… and that goes for DWI’s and DUI’s too.  Accused people are acquitted of DWI in Courthouses all over Texas every day.  Just because the Police believe something does not make it so.

The nuts and bolts:

Texas DWI law can be extremely complicated but we’ll start with the basics.  For more advanced discussions, you can read here, here, and here.

Tex.Pen.C. 49.04(a) makes driving while intoxicated illegal.  That provision says, “A person commits an offense if the person is intoxicated while operating a motor vehicle in a public place.”

Tex.Pen.C. 49.01 (A) and (B) define “intoxication” as… “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  having an alcohol concentration of 0.08 or more.”

A first time driving while intoxicated charge is a class b misdemeanor with a minimum of 72 hours of jail and a maximum of 180 days; and/or a fine not to exceed $2,000.

Punishment

You can read more about DWI punishment in Texas here.  A big point with DWI’s is that there is no deferred adjudication in a DWI case, meaning that in any case where the charges are pursued — it will result either in an acquittal or a final conviction.  There is no middle ground.

Also, the legislature has made it a class a misdemeanor even for a 1st time offense if the blood alcohol level is tested at or over 0.15.

Driver’s License Suspension

Under the Texas Transportation Code, your Texas driver’s license can be suspended for up to 180 days for refusing a breath test or 90 days for taking and failing the breath test.  The police won’t tell you this — but the suspension is not automatic.  You have typically 15-days to appeal the suspension.  Even if your license is suspended, you may be eligible for an occupational driver’s license which would allow you to drive for various reasons including work and household purposes.

Surcharges

If you are convicted of a DWI in Texas, you will be required to pay money for three years after your conviction to maintain your driver’s license.  For a first DWI the surcharge is $1,000 per year; for a second DWI the surcharge is $1,500 per year, and if your breath test result is greater than 0.16 or greater, the surcharge is $2,000.

My Aggressive Stance

There is generally little, if any, reason to not be aggressive in attacking these cases.  The Texas Legislature is continually making laws on DWI and DUI harder and harder and harder.  For that reason it is often the case that we don’t have anything to lose by taking a stand and fighting these charges.

When choosing a lawyer for defense of a drunk driving charge, be sure to ask how often that lawyer takes cases to trial and what they do to prepare.

*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 about any specific situation you should consult an attorney.


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.


What Happens After an Arrest and Release From Jail on a DWI

February 18, 2010

By Collin County Criminal Defense Lawyer Jeremy Rosenthal

texasdefensefirm.com

(972) 369-0577

You’ve been released from jail after the worst night of your life after a DWI arrest.  Now what?

You’re immediately responsible for two things when you get released.

First is that if your driver’s licenses was taken by the officer because you either refused the breath test or the machine reading was above a 0.08 – you have 15 days from the date of the arrest to file for an Administrative Law Review Appeal (“ALR”).  If you don’t file your appeal, your temporary driver’s license (the yellow sheet of paper they’ve given you at the jail) will be valid for only 40 days from the date of arrest.  If you do appeal – the suspension is put off until your hearing, which is usually farther out than 40 days.  If you win the ALR, your license doesn’t get suspended.  If you lose the ALR, you may be eligible for an occupational license.

Second is that, in all likelihood, you’ll get a notice to come to Court.  Collin County will mail your court date usually somewhere between one and two months after your arrest — but it can be sooner so watch your mailbox!  Dallas gives you a case number and has you check in every few weeks until the case is filed – at which point you can begin evaluating the nuts and bolts of your case.

Collin County will sometimes give you an immediate court date a week or so after your release from jail on a DWI for the purposes of complying with Texas code provisions that require a judge to assess whether you need an interlock device (deep lung device) on your car.  You should get this notice upon leaving jail if you get it at all.

*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 this situation or any legal matter you should consult an attorney.