Driving While Intoxicated is a common criminal offense which affects all types of individuals. Driving While Intoxicated can apply to both minors and adults. Generally, most people associate DWI with the consumption of too much alcohol. However, the charge of DWI encompasses a wide range of drugs and/or alcohol which impair a person's ability to drive. Thus, a person can be arrested for DWI whether they have consumed alcohol or drugs, even if the drugs are prescription drugs. A common misconception some people have is that they can't be charged with DWI the do not consent to a breath or blood sample. This is WRONG. Whether you take a breath test or not, you can be charged with DWI. DWI can be proven in one of three ways: (1) having a Blood Alcohol Content (BAC) of 0.08 or more, (2) not having your normal mental faculties, or (3) not having your normal physical faculties; due to alcohol or drugs. The penalties for DWI are dependent upon the severity of the offense as well as an individual’s history. DWI convictions are enhanceable offenses, meaning that an old conviction will be considered in punishment of a second conviction. The same is true for any license suspension which may occur after an arrest.

 

There are actually two different cases brought against a person charged with DWI: a Civil case and a Criminal case.

 

Driving While Intoxicated - Civil Case:
A person who is arrested for a DWI can face significant automatic license suspensions. If a person who submits to a breath or blood test has a blood alcohol concentration (BAC) at or above a 0.08, DPS will try and suspend the person’s driver’s license for a minimum 90 days to a maximum 1 year. If a person has a previous alcohol related contact, like a DWI, within ten years and they provide a specimen, DPS will attempt to suspend the person’s license for a term of not less than one (1) year.

 

If, a person refuses to provide a specimen of breath or blood, DPS will try to suspend a person’s driver’s license for no less than 180 days and no more than 2 years. IT IS IMPORTANT TO KNOW THAT YOU ONLY HAVE 15 DAYS TO REQUEST A HEARING TO CHALLENGE YOUR DRIVER’S LICENSE SUSPENSION. Due to the fact that a suspension is automatic after 15 days, it is important to contact an attorney immediately after an arrest for DWI so the attorney has the opportunity to challenge the suspension. The suspension hearing can provide the attorney with valuable information concerning the events leading up to the DWI arrest.

 

In the case of a refusal, actions as well as words can be considered refusing to provide a specimen. The officer is not required to obtain a “no” or “I refuse”, in order to make that determination. In fact, requesting an attorney or not answering at all can also be considered a refusal. These license suspensions are completely independent of the criminal case. The burden on the Department is extraordinarily low and most people arrested for DWI suffer through some type of license suspension. If a person has a previous alcohol related contact, like a DWI, within ten years and refuse to provide a specimen, their license will be suspended for a term of not less than two (2) years. The Texas Legislature enacted a law which requires that the Department of Public Safety collect a surcharge from any individual convicted of DWI. This surcharge is a fee entirely separate from your criminal or civil case. If a person refused to provide a specimen or provided a specimen under 0.15, then they must pay a surcharge of $1,000 a year for three (3) years after being convicted of DWI. If a person provided a specimen of 0.16 or above, the surcharge is $2,000 a year for three (3) years. If the surcharge is not paid it can result in further license suspensions or cancellation of a person’s driver’s license altogether.

 

Driving While Intoxicated - Criminal Case:
If this is a first time arrest for DWI, it will be classified as a Class “B” misdemeanor. The punishment range for a Class “B” DWI is not less than three (3) days in jail up to six (6) months in jail and a two thousand dollar ($2000) fine. This may be increased to a minimum of six (6) days in jail is a person is arrested for DWI and also has an open container of alcohol in the vehicle. The offense of DWI can be enhanced to a Class "A" misdemeanor if it is shown that the person's blood alcohol level was greater than 0.15. The punishment range for a Class "A" DWI is up to one (1) year in jail and a four thousand dollar

($4000) fine.

 

As with DUI, alcohol education classes, community service, probation and court costs are all possibilities when facing a DWI conviction. An additional license suspension, independent of the civil case, may also occur as a result of a DWI conviction. Because this is an enhanceable offense, the punishment for subsequent DWIs will included significant jail time, fines and community service hours.

 

Driving Under the Influence

Driving Under the Influence (DUI) is reserved for minors (a person under 21 years of age). "Under the influence" is means the person has ANY detectable amount of alcohol. Texas law has zero tolerance for minors with any detectable amount of alcohol in their system. DUI is a class “C” misdemeanor. The maximum punishment for a Class “C” misdemeanor is a $500 fine (but no jail time). However, repeat offenders would be subject to higher fines and the possibility of jail time. The Texas Department of Public Safety (DPS) will strictly adhere to a tough stance policy because Texas has "zero tolerance" for underage drinking. The Department of Public Safety adheres to this public policy and will suspend the driver’s license of any minor who is found to be operating a vehicle after consuming any amount of alcohol. In other words, if an officer testifies that he could smell and odor of alcohol coming from a minor’s breath the Department of Public Safety can suspend the license automatically for 60 - 120 days. You can challenge a driver’s license suspension upon arrest through an ALR (Administrative License Review) hearing. The hearing must be requested within 15 days of arrest or citation. Generally, an officer will simply give a citation to a minor if he feels that they have only consumed a small amount of alcohol and release them to an adult. However, if the officer feels that the minor is possibly intoxicated, that individual can be arrested for DUI (or DWI). A minor may refuse a breath test if arrested for DUI but would be subject to the penalties for refusal.

Breath or Blood Tests

Once you are arrested for DWI or DUI, an officer will request a blood or breath test. At this point, you are already under arrest so passing the breath test will probably not mean you are free to go home. BE VERY CAUTIOUS IN DECIDING TO CONSENT TO TAKE A BREATH OR BLOOD TEST. The most common question most people have is, "Can I refuse to take a breath or blood test?" The simple answer is, yes, but your refusal has consequences. We have discussed some of those consequences above. Again, generally, here are some implications of a refusal:

 

Consequences of Refusing a Breath or Blood Test:

  1. If you refuse a breath test, DPS will try and suspend your driver’s license for a period of 180 days if you have never had a DWI before. If you have had a prior DWI or were asked to take a breath test before, the suspension could be two (2) years.

  2. The fact that you refused a breath test can be used against you in trial! Courts have determined that you have no constitutional protection against self-incrimination regarding a Breath or Blood Test.

 

 

Consequences of Taking the Breath of Blood Test:

  1. If you take a breath or blood test and the test reveals that you have an alcohol concentration of 0.08 or more, your driver’s license will be suspended for 90 days if this is your first DWI, or up to one (1) year if you have a prior DWI or alcohol suspension.

  2. You just gave the State evidence to convict you.

  3. Even if you pass the Breath or Blood test, you can still be charged and convicted of DWI.

 

DWI laws are constantly changing so it is important to contact a lawyer who has experience handling these types of cases. The attorneys at Gary E. Patterson, P.C. have the experience you are looking for. We would like the opportunity to help you or your loved one through this difficult matter.

TEXAS DRIVING WHILE INTOXICATED & DRIVING UNDER THE INFLUENCE

© 2018 Gary E. Patterson, P.C.