By Collin County Criminal Defense Attorney Jeremy Rosenthal
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:
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.
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.
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 F. Rosenthal is an attorney licensed to practice in Texas and is Board Certified in Criminal Law. Nothing in this article should be considered legal advice. For legal advice about any specific situation you should consult an attorney.