DWI, 1st Offense: Class B Misdemeanor

* Fine – A fine not to exceed $2,000.

* Jail – Confinement in the County Jail for not less than 72 hours nor more that six (6) months. Open Container – If there was an open container of alcohol in your car when arrested, the minimum confinement is six (6) days in the county jail.

* Community Service – A Texas judge must order not less than 24 hours nor more than 100 hours.

Absent unusual facts, most people convicted of a 1st offense DWI are granted community supervision (“probation”) from 1-2 years. There are also conditions of community supervision ordered that are fairly standard in most courts. Typical conditions imposed are:

* Drug/Alcohol Evaluation – A person convicted of DWI will be required to submit to evaluation for probability of committing DWI in the future and/or to disclose a potential problem with alcohol or drug abuse. If a problem is detected, additional terms and conditions of probation are ordered to be administered through the Community Supervision Department.

* Attend and complete an approved DWI Education class within 180 days from the date of conviction (Satisfying this requirement will avoid the one (1) year drivers license suspension, unless if you were a minor (under 21) at the time of the offense.)

* Attend and complete a Victim Impact Panel. This is a forum that presents victims of drunk drivers to address persons convicted of DWI and warn of the dangers and perils of driving while intoxicated.

* Work faithfully at suitable employment, commit no other crimes, remain at the same residence and employment unless notification is given to the community supervision officer, report monthly to the supervision office, pay all fines and costs in a timely manner.

* Pay a monthly supervisory fee. Perform a specified hours of community or volunteer service.

NOTE: If convicted, you will be given an Order Granting Probation. This Order will be specific and unique to your case and fully sets forth the terms and conditions of your probation which apply to you. It is the blueprint for your probation.

Additional Conditions of Probation that may be Ordered:

If your case presents unusual facts (accident, alcohol problem, prior alcohol contacts, bad driving record etc.), additional conditions may be ordered. Most conditions are designed to address a problem that appears from the facts or alcohol/drug evaluation that is performed on the subject after conviction. Again, a specific order is given after each conviction. The following list is only a general discussion of conditions that have been imposed in some DWI cases in my experience and may not apply to you.

* Ignition Interlock Device – This provision requires that you install and maintain a device on any car which you intend to drive during probation. The device requires a breath sample before it will allow your car to start. Some devices require periodic breaths while driving. This condition is sometimes recommended after an unfavorable drug/alcohol evaluation during a first-offense probation, and is almost always ordered as a condition of bond on a subsequent offense arrest.

* Alcohol Treatment – Attendance at AA or other counseling programs offered through the probation department. In extreme cases outpatient programs may be ordered. This condition is recommended after an unfavorable drug/alcohol evaluation.

* Consume no alcohol – Most courts require that a person not consume any alcohol during probation. This provision is monitored by periodic and random urinalysis at the probation office. Some courts will not even allow a probationer to enter a bar, tavern or lounge where alcohol is sold and consumed.

* Confinement – Again, in some extreme circumstances, the Court may order that a DWI offender serve confinement in the county jail as a condition of being granted probation.

* Restitution – If there was an accident followed by a DWI arrest, and if your insurance company has not paid damages to the other party, restitution of any unpaid amounts will be ordered by the Court as a condition of probation.

* Enhanced Penalties – (Prior alcohol or drug related criminal history) – Under Texas law, if it is shown that a person has been previously convicted of DWI, the punishment and penalties after conviction are increased or enhanced. The prior DWI conviction must have occurred within ten (10) years of the present arrest for DWI. Additionally, if a person has any prior DWI conviction within the previous ten year period (measured from dates of arrest), the State is then allowed to use any prior DWI conviction since obtaining a drivers license to enhance the accusation to a DWI, third offense. NOTE: Texas can use prior convictions that have occurred in other states for enhancement of punishment.

DWI, 2nd Offense: Class A Misdemeanor Special Condition for Jail Release on Bond:

It is important to note that if arrested and accused of a DWI Second or greater offense, Texas law now requires the Court to Order as a CONDITION OF RELEASE FROM JAIL ON BOND, that the person install and maintain an Ignition Interlock Device on the car that the person intends to drive and operate while charges are pending. The device requires a breath sample before it will allow you to start your car. They also require periodic breaths while driving to monitor and insure sobriety. New technology has made these devices “user sensitive” so that someone else cannot blow into the device for the driver.

* Fine – A fine not to exceed $4,000.00.

* Jail – Confinement in the County Jail for a term of not less than 72 hours nor more than one (1) year.
* Community Service – Texas law mandates that a judge order not less than 80 hours nor more than 200 hours.

*Ignition Interlock Device  – Typically  devices are required for all DWI second offenders during probation.

* Suspension of license – A person convicted of DWI, Second may have their driving privilege suspended for not less than 180 days or more than two (2) years.

DWI, 3rd Offense (or greater): 3rd degree FELONY

* Fine – A fine not to exceed $10,000.00.

* Jail – Confinement in the Texas Department of Criminal Justice, Institutional Division (Penitentiary) for a term of not less than 2 years nor more than ten (10) years.

*  Ignition Interlock Device – Devices are generally ordered on all persons convicted of three or more DWI’s both as conditions of bond and as conditions of any occupational or provisional licenses that may be awarded after conviction.

* Community Service – Texas law mandates that a judge order not less than 160 hours nor more than 600 hours.

* Suspension of license – A person convicted of DWI, Second may have their driving privilege suspended for not less than 180 days or more than two (2) years.

* Other – A third conviction for DWI indicates a significant problem with alcohol to the Court or jury assessing punishment. Some type of rehabilitative treatment is therefore mandated in punishment if confinement in the penitentiary is to be avoided. In some cases an in-patient, incarceration program (Substance Abuse Felony Probation SAFP) is ordered. This program requires confinement in a State Facility for alcohol rehabilitation. After successful completion of the SAFP program, the person is then released and placed on probation for a term not to exceed ten (10) years. Another popular condition for habitual DWI offenders is a prescription for a drug named “Antabuse”. This drug will make a person violently ill if any alcohol is consumed. The alcohol can be contained in mouthwash or marinated food and will still have the same effect on the user. If a person has any type of liver problems, this drug can cause liver failure and death.

Texas law does not provide for any increased punishment after DWI, third offense. If a person presents a DWI, fourth offense or beyond, the typical punishment is confinement in the penitentiary from two (2) to ten (10) years without probation being granted. In some cases SAFP may be granted upon proper request and showing that it is appropriate.

Intoxication Assault

3rd degree Felony “A person commits an offense if the person, by accident or mistake, while operating a …. motor vehicle in a public place while intoxicated, by reason of that intoxication causes serious bodily injury to another” {Texas Penal Code §49.07}. ” ‘Serious Bodily Injury” means injury that creates a substantial risk of death or long term loss or impairment of any body part or organ.

* Fine – A fine not to exceed $10,000.00.

* Jail – Confinement in the Texas Department of Criminal Justice, Institutional Division (Penitentiary) for a term of not less than 2 year nor more than ten (10) years.

* Community Service – Texas law mandates that a judge order not less than 160 hours nor more than 600 hours.

Intoxication Manslaughter

2nd Degree Felony “A person commits an offense if the person:
1) …operates a motor vehicle in a public place, and…
2) …is intoxicated and by reason of that intoxication causes the death of another by accident or mistake.”

* Fine – A fine not to exceed $10,000.00.Jail: Confinement in the Texas Department of Criminal Justice, Institutional Division (Penitentiary) for a term of not less than 2 year nor more than twenty (20) years.

* Community Service – Texas law mandates that a judge order not less than 240 hours nor more than 800 hours.

Overview
ALR went into effect on January 1, 1995. This program is the administrative process by which the Department suspends the driver licenses of individuals who are arrested for the offense of driving while intoxicated (DWI). Specifically, an individual may be suspended if he/she either refused to submit to a chemical test or provided a specimen with an alcohol concentration of 0.08 or greater. The DPS is also authorized to suspend the driver licenses of minors who commit the offense of driving under the influence (DUI).

The governing statutes require that the arresting officer confiscate the offender’s Texas driver license upon service of a Notice of Suspension and issue a 40-day temporary permit. In addition, the statutes provided for increased suspension periods, as well as a suspension for individuals who refuse to provide a specimen following an arrest for the offense of boating while intoxicated (BWI).

Personnel

The staff attorneys stationed in each office prepare and prosecute administrative hearings before the State Office of Administrative Hearings (SOAH). These attorneys also respond to appeals by defendants, which are filed in the County Court at Law in the county of arrest.

How the Law Works in Texas

Adult Offenders
A law enforcement officer determines that there is reasonable suspicion for an initial traffic stop of a motorist. After contact with the individual is initiated, the officer develops probable cause to arrest the person for DWI. Specifically, if the officer has reason to believe that the driver is impaired, a set of field sobriety tests may be administered. If the driver performs poorly, the driver is arrested for DWI and transported to the police station.

At the station, the driver is asked to submit to a chemical test to measure his/her alcohol concentration. Usually, the individual is asked to take a breath test, although the officer may request a blood specimen. If the driver refuses to provide a specimen, or provides a specimen with a prohibited alcohol concentration, the officer serves the individual with a Notice of Suspension and confiscates the driver license.

Offenders Under 21 Years of Age
As with adult offenders, a law enforcement officer must have reasonable suspicion to conduct a traffic stop. However, a full custodial arrest is not required for a DUI offense, but is permitted, according to the officer’s discretion. Once the officer determines that the individual is under 21 years of age, and has reason to believe that he/she has consumed alcohol, two distinct methods of enforcement are possible.

In less serious cases, the officer will issue the driver a citation for DUI, serve the individual with a Notice of Suspension and confiscate the driver license. The minor will not be placed under arrest and no chemical test will be requested. Alternatively, the officer may proceed with a custodial arrest procedure if he believes that the individual is seriously impaired. Field sobriety tests may be administered and the minor will be arrested (or taken into custody) and transported to the police station. The driver may be asked to submit to a chemical test to measure his/her alcohol concentration. If the minor refuses to provide a specimen or provides a specimen with any detectable amount of alcohol, the officer will issue a citation for DUI, serve the individual with a Notice of Suspension and confiscate the driver license. Of course, the officer may arrest the minor for the more serious offense of DWI if the circumstances warrant such a charge.

15 Days from Date of Notice of Suspension to Request Hearing

Regardless of age, the driver has 15 days from the date the Notice of Suspension is served to request a hearing. If no hearing is requested, the suspension automatically goes into effect on the 40th day after notice was served. If the individual requests a hearing, the temporary driving permit remains in effect until the date of the final decision of the administrative law judge. The driver is required to pay a fee of $125 to reinstate the license after the suspension period expires.

Hearing Procedures
The ALR hearing is conducted at a location designated by SOAH in either the county of arrest (if the arrest occurred in a county with a population in excess of 300,000) or within 75 miles of the county seat of the county of arrest. Alternatively, both parties may agree to hold the hearing by teleconference. The hearing is conducted by an Administrative Law Judge (ALJ) employed by SOAH and the DPS has the burden of proof by a preponderance of the evidence. If the judge makes an affirmative finding on all the relevant issues, the license is suspended.

Adult Offenders
If the driver failed the breath or blood test, the ALJ must determine whether (1) the person had an alcohol concentration of 0.08 or greater while operating a motor vehicle in a public place; and (2) reasonable suspicion to stop or probable cause to arrest the person existed.

If the driver refused to submit to a chemical test, the ALJ must determine whether (1) reasonable suspicion or probable cause existed to stop or arrest the person; (2) probable cause existed to believe that the person was operating a motor vehicle in a public place while intoxicated or operating a watercraft powered with an engine having a manufacturer’s rating of 50 horsepower or more while intoxicated; (3) the person was placed under arrest by the officer and was requested to submit to the taking of a specimen; and (4) the person refused to submit to the taking of a specimen on request of the officer.

Offenders Under 21 Years of Age
If a chemical test was not requested or if the driver provided a specimen with any detectable amount of alcohol, the ALJ must determine whether: (1) the person is a minor and had any detectable amount of alcohol in the minor’s system while operating a motor vehicle in a public place; and (2) whether reasonable suspicion to stop or probable cause to arrest or take the minor into custody existed.

If the driver refused to submit to a chemical test, the ALJ must determine whether; (1) reasonable suspicion or probable cause existed to arrest or take the minor into custody; (2) probable cause existed to believe that the minor was operating a motor vehicle in a public place while intoxicated or while having any detectable amount of alcohol in the minor’s system or operating a watercraft powered with an engine having a manufacturer’s rating of 50 horsepower or above while intoxicated; (3) the minor was placed under arrest or taken into custody and was requested to submit to the taking of a specimen; and (4) the minor refused to submit to the taking of a specimen on request of the officer.

An individual whose license has been suspended following an administrative hearing may appeal the decision rendered by the ALJ. The petition must be filed within thirty days of the decision in the county court in the county of arrest. A properly filed appeal petition stays the suspension for first offenders for up to ninety days.

Periods of Suspension

Penalties for Adults
Refused to provide a specimen following an arrest for an offense prohibiting the operation of a motor vehicle or watercraft while intoxicated, while under the influence of alcohol, or while under the influence of a controlled substance:

Provided a specimen with an alcohol concentration of 0.08 or greater, following an arrest for an offense under Section 49.04, 49.07, or 49.08, Penal Code, involving the operation of a motor vehicle:

Penalties for Offenders Under 21 Years of Age
Refused to provide a specimen following an arrest for an offense prohibiting the operation of a motor vehicle or watercraft while intoxicated, while under the influence of alcohol, or while under the influence of a controlled substance:

Provided blood or breath specimen with an alcohol concentration of 0.08 or greater, (or any detectable amount of alcohol) or was not requested to provide a specimen following an arrest for an offense under Section 106.041 Alcoholic Beverage Code or Sections 49.04, 49.07, or 49.08, Penal Code, involving the operation of a motor vehicle:

This is called the “exclusionary rule” and is one of the most important protections against government abuse of power.   Some people believe that the “exclusionary rule” is one of those “technicalities” that sneaky defense lawyers use to get their guilty clients off.  But If it weren’t for the “exclusionary rule” there would be no way to deter police from violating our constitutional rights.  Without it  we would all be living in a fascist state where anyone could be stopped for any reason, whatsoever, which is where we’re heading considering the reactionary views held by the Texas Court of Criminal Appeals.

Moreover, an attorney who wishes to receive appointments from a judge may feel pressure to resolve a case through a plea rather than fight for his client if he knows that to do so will mean this lawyer will no longer receive court appointments. And even if this does not happen, the appointment system  raises the appearance of impropriety and decreases confidence in the criminal justice system.

In addition,  no judge wants to be accused of being soft on crime by his or her opponent when he or she is up for re-election, so most want to make sure the conviction and sentencing rate in their court is high and the best way to do this is to appoint lawyers who do not rock the boat.  Lastly, court appointed lawyers cannot possibly match the resources and manpower at the disposal of the District Attorney’s Office.

You may want to think about this when deciding whether to use a court-appointed lawyer or hiring a private attorney to defend against  your DWI or DUI charges.

“More than 1,200 Harris County DWI convictions will be set aside and the cases revisited, prosecutors said Friday after the sentencing of Deetrice Wallace, a Department of Public Safety contractor who faked inspections of alcohol breath testing devices.

“Quite frankly, a lot of these cases are gone,” Harris County Assistant District Attorney Terese Buess said. “A lot of those cases will not have evidence to go forward again.”

About 1,000 defendants convicted of driving while intoxicated can petition for a retrial without evidence submitted by Wallace, the prosecutor said. Some defendants had more than one case affected.

Buess said Wallace signed off on about 4,000 test slips. Of those, some did not result in convictions and others were not in Harris County. Buess did not know how other counties would address the problem.

The prosecutor was not optimistic about seeking 1,200 convictions again because the office will not have test results, and other evidence has been destroyed, including videotapes.

Buess prosecuted Wallace for three counts of tampering with a governmental record, a state jail felony. State District Judge Jeannine Barr sentenced her to a year behind bars.

She had faced a maximum of two years and a fine of up to $10,000.

Wallace’s attorney, George “Mac” Secrest, said his client was contrite and embarrassed at Friday’s hearing.

“She apologized profusely,” Secrest said.

Wallace also taught robotics at Sharpstown High School and had been named Teacher of the Year in 2006 by the Education Foundation of Harris County.

DPS officials invalidated all breath tests recorded by Intoxilyzers under Wallace’s supervision because they could not pinpoint a date where she became unethical.

Falsified inspections

From 2002 until she was arrested in October 2008, Wallace handled DPS instruments that were used to determine alcohol concentration in DWI cases for at least seven police departments — League City, Friends­wood, Webster, Seabrook, Galveston, Clute and South Houston.

In court documents, Wallace told investigators that she had falsified inspection records for both the South Houston and Clute police department Intoxilyzers.

Some of the police departments owned the Intoxilyzers under Wallace’s supervision, while others borrowed or leased the devices from her.

Buess said Wallace manipulated the machines instead of changing the reference sample every month, and pocketed $146,000.

Although she was paid for work she did not do, Wallace’s impact will be on the hundreds of cases that will have to be litigated again from the very beginning.

“We were astounded to see that there were so many,” said JoAnne Musick, president of the Harris County Criminal Lawyer’s Association. The group is contacting the attorneys who represented each convicted defendant.

Once contacted, the attorney of record will contact the defendant and determine if they want to try the case again. If the defendant wants a new trial, the district attorney’s office will agree to it.

The case will then start over in the court where the conviction was obtained.

Could affect felony DWIs

Buess said some defendants who were convicted of two DWIs and a felony DWI may get a clean slate after the dust clears.

One defendant who will be able to get a new trial, she said, was sentenced to 60 years in prison for a felony DWI.

“It’s just a massive problem that is not going to go away,” Buess said. “It’s a huge mess.””

The only way to keep a DWI or DUI off of your record is to receive a “not guilty” verdict or have your charges dismissed by the prosecution. Even then, you’ll have to file a petition for expungement in the District Court of the county in which you were charged in order for it to be permanently removed from your record.

Do you want the company considering you for a job against 50 other applicants to discover that you have a DWI or DUI in your past? Just another reason that you must consider hiring an attorney for your Houston DUI or DWI charge.