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Austin DWI Lawyers

• Copeland, Justin: (a) A person commits an offense if the person is intoxicated while operating a motor vehicle in a public place. (b) Except as provided by Subsection (c) and Section 49.09, an offense under this section is a Class B misdemeanor, with a minimum term of confinement of 72 hours. (c) If it is shown on the trial of an offense under this section that at the time of the offense the person operating the motor vehicle had an open container of alcohol in the person's immediate possession, the offense is a Class B misdemeanor, with a minimum term of confinement of six days. Explanation of the Law A person commits DWI if the person is intoxicated while operating a motor vehicle in a public place. DWI is a Class B misdemeanor, with a minimum term of confinement of 72 hours. If an open container of alcohol was in the driver's immediate possession, the minimum term of confinement is six days. A second DWI is a Class A misdemeanor, with a minimum term of confinement of 30 days. A third DWI is a third degree felony. A second DWI within 5 years will cause installation of a breath test devise on the vehicle to prevent operation if ethyl alcohol is detected in the operator's breath. Intoxicated means 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. If the driver had a passenger who is younger than 15 years of age, the DWI is a state jail felony, instead of a Class B misdemeanor. The fact that the driver is or has been entitled to use the alcohol, controlled substance, drug, dangerous drug, or other substance is not a defense. A person commits Boating While Intoxicated if the person is intoxicated while operating a watercraft. BWI is a Class B misdemeanor, with a minimum term of confinement of 72 hours. A person commits Intoxication Assault if the person, by accident or mistake while operating an aircraft, watercraft, or motor vehicle in a public place while intoxicated, by reason of that intoxication causes serious bodily injury to another person. Intoxication Assault is a third degree felony. Often, the injured person will be the driver's own passenger. If the passenger or another person dies, the offense is Intoxication Manslaughter, a second degree felony. Each year, the Department of Public Safety (DPS) assesses a surcharge on the driver's license of drivers who during the past 3 years were convicted of DWI. The surcharge is $1,000 per year for 3 years. A second DWI conviction costs a surcharge of $1,500 per year for 3 years. If the driver had an alcohol concentration of 0.16 or more, the surcharge is $2,000 per year for 3 years. Driver licenses can be suspended for one year for DWI. Driving with a suspended license is a Class B misdemeanor with increased license suspension time. In addition, the DPS assesses a $250 surcharge on the license per year for 3 years. If a driver of any age refuses a breath or blood test, the DPS shall suspend the driver's license for 180 days. The suspension term increases to two years if the driver has one or more alcohol-related or drug-related enforcement contacts during the past 10 years. If a driver who is 21 years of age or more fails to pass the test for intoxication, the DPS shall suspend the driver's license for 90 days. The suspension term increases to one year if the driver has one or more alcohol-related or drug-related enforcement contacts during the past 10 years. For a driver under the age of 21 years, the suspension term for failure to pass the test for intoxication is 60 days for the first offense, 120 days for the second, and 180 days for the third. An ignition interlock device will have to be installed on the car of a person convicted of driving with a blood alcohol level of .15 or more, if the defendant is to receive probation.
• Gill, James: What are the penalties for D.W.I.? As a general rule of thumb, the penalties for DWI are as described below: a) First offense: fine not to exceed $2,000.00 and/or the possibility of serving jail time-anywhere from 3 to 180 days, and a driver's license suspension of 90 to 365 days. (Class B Misdemeanor). b) Second offense: maximum fine increases from $2,000 to no more than $4,000.00 and/or jail from 30 days to one year, and a possible driver's license suspension ranging from 180 days to 2 years. (Class A Misdemeanor). c) Third offense: Fines increase up to $10,000.00 and/or 2 to 10 years of imprisonment, and suspension of your driver's license ranging from 180 days up to 2 years. (3rd Degree Felony). DWI with an open alcohol container First offense in addition to the penalty referenced above you face a minimum 6 days in jail and a fine of no more than $2,000.00.(Class B Misdemeanor). DWI with an accident where serious bodily injury occurred as a proximate cause of the intoxication Upon conviction you may serve a minimum of 2 years up to a maximum of 10 years in jail. You may also be fined up to $10,000.00.( 3rd Degree Felony). DWI where a death has occurred as a proximate cause of the intoxication Also known as intoxication manslaughter. This is serious! Upon conviction you might have to pay a maximum fine of $10,000.00 and/or be imprisoned from 2 to 20 years (Intoxicated Manslaughter or Manslaughter with use of Deadly Weapon are both 2nd Degree Felonies). DWI with a child passenger A person commits a state jail felony if they drive while intoxicated with any persons in the vehicle under 15 years of age. Punishment for a non-enhanced state jail felony is by confinement in a state jail for any term of not more than 2 years or less than 180 days and a fine not to exceed $10,000.00. In some of the above minor classifications you may be eligible for probation, but there is no guarantee that you will receive a probated jail sentence or fine. What is the Process for Defending a D.W.I.? This defense is a lengthy multi-step process. Let me break it down for you so you can better understand how this will work. Lets begin with probable cause. Each step in the process causes the case to turn for better or worse. So lets break down this process addressing each major turning point. 1. Probable Cause for a stop. For a police officer to stop you, there must be some probable cause for the stop. Usually, it is a standard traffic violation that causes the stop.Furthermore, if police believe that a crime has been committed or is in the process of being committed, they have the right to detain you further in order to complete their investigation. ¥ You do not have to do the field sobriety tests! ¥ You do not have to talk with police officers. ¥ You do have to get out of your car if asked! 2. Arrest If the police officer believes that he or she has enough evidence to make a DWI charge, then the officer will arrest and transport you to either their station house or the county jail for further tests. It is here where they conduct further testing and the breathalyzer. 3. Breathalyzer You do NOT have to take the breathalyzer!! You do not have constitutional right, but you do have a statutory right to refuse. Refusal, will deny the prosecution and the state vital evidence to their case. A very good idea. If you refuse, your driver's license will be automatically suspended and the officers will confiscate the license. However, they will give you a temporary license, a paper license, that is good for 45 days. 4. Driver's License Suspension. Since you, hopefully, refused the breathalyzer, your drivers license will be suspended. You must petition the court to grant you an "Occupational License" which will allow you to drive during the suspension period. This requires the filing of a Petition for Occupational License, hearing on Occupational License, and Order Granting Occupational License. Further, an occupational license fee of $25.00 must be paid to the Texas Department of Transportation. At the end of your suspension period, the department will return to you your license upon payment of the reinstatement fee of $125.00. 5. Administrative License Revocation Hearing Because you refused to "blow," you have a right to request an Administrative License Revocation Hearing which must be done within 15 days of your arrest. I advise that you request the ALR hearing. Since an A.L.R. hearing is civil case, we have the power to subpoena the police officer to the hearing. This is an opportunity for you to question the police officer as to the reasons he made the stop, and to test his knowledge with regards to field sobriety testing. Further, the District Attorney is not present and is not available to "prep the witness." Requesting an A.L.R. hearing increases the cost of your D.W.I. defense but it is a good idea. 6. Investigation Administrative License Revocation, copy the breathalyzer room tape, examination of the scene of arrest, interviewing your witnesses, reviewing the police report, etc. are all part of a complete investigation of your Driving While Intoxicated Defenses. If you have a good defense, then we recommend a jury trial. Investigation is part of getting prepared. 7. Plea If you have an outstanding tape, it is possible, not guaranteed to get a recommendation from the County/District Attorney that your D.W.I. charge be reduced to an obstruction of a highway charge, or reckless driving. This charge is still a Class B misdemeanor, but you can get deferred adjudication which means that, after a period of probation, the obstruction of a highway charge will be dismissed but your record will only show Deferred Adjudication or no finding of guilt. If the D.A. will not recommend a plea reduction, you can still plea to the DWI. In Travis County, the standard plea is (1) no deferred adjudication, (2) 6 months in jail probated for 2 years, (3) fine, (4) court costs, and other court imposed probationary requirements including payment to crime stoppers, drug and alcohol awareness, and community service among other items. 8. Trial If you would like to try the cause, we will likely exercise your constitional right to a jury trial. The jury will either render a not guilty verdict or guilty if the government proves their case beyond a reasonable doubt. If found guilty, punishment is usually assessed in the same manner as a straight up plea. If you are found not guilty, you are entitled to have your criminal records expunged. All documents relating to your arrest will be destroyed. 9. Expungement of Criminal Records If not guilty, please have the records expunged! Remove the alcohol related contact from your driving record. Further, you do not want any subsequent D.W.I charge or other criminal matter to reflect this charge.
• Hines, Ranc & Holub: Frequently Asked Questions: DWI What is the first thing I should do, now that I am out of jail on a DWI charge? Call DPS at 1-800-394-9913. Here's why. If you don't call that number and request a hearing within 15 days of being arrested, you will automatically lose your driver license on the 40th day following your arrest. Should I give a Sample of My Breath and Blow into the Machine? The short answer is no. Here's why. Advantages of Refusing to Blow: ¥ First, you prevent police agencies from getting scientific evidence of the amount of alcohol in your bloodstream. Specifically, if the breathalyzer machine shows that your blood alcohol content is 0.08% or higher, then you've just given the prosecution a lot of help in proving that you were driving while intoxicated. This is because one of the definitions of "intoxicated" depends only on your blood alcohol content, regardless of how well or poorly you were driving. If your blood alcohol content is 0.08% or higher, then you are intoxicated as far as Texas DWI law is concerned. ¥ Second, even if the breathalyzer machine shows that your blood alcohol content is less than 0.08%, you'll still probably spend the night in jail. ¥ Third, if your blood alcohol content is 0.16% or higher, the annual surcharge on your driver's license goes from $1,000 to $2,000 for 3 years. ¥ Fourth, if the breathalyzer machine shows that your blood alcohol content is less than 0.08%, the arresting officer will then probably ask for a Drug Recognition Expert (DRE) officer to examine you to see if you are intoxicated by something other than alcohol. Disadvantages of Refusing to Blow: ¥ First, your refusal to blow is admissible as evidence against you in court. The prosecution will ask the jury "why would an innocent person refuse to blow?" The logical answer to this question is that even though you knew you were innocent, you believed at the time the police asked you to blow that the test is not accurate. There's evidence to back up that belief. ¥ Second, when the Department of Public Safety seeks to suspend your license, a refusal to blow will usually result in a suspension of 180 days. But a person who blows and fails will usually (more than 75% of the time) have his or her license suspended for 90 days anyway. This is not much of a disadvantage if you are arrested for DWI for your first time, since you can usually get an occupational driver's license without much trouble, and you would need that occupational license regardless of whether you blow and fail, or refuse to blow. Advantages to Blowing: ¥ Particularly if you are arrested for DWI for the first time, you only get the advantages to blowing if your result is lower than 0.08%. The trouble is: how will you know in advance whether your result will be higher or lower? You won't. ¥ Just the same, here are the advantages available to those citizens who can know the future: (1) if your result is lower than 0.08%, then DPS is a little less likely to ask to have your license suspended administratively; (2) if your result is lower than 0.08%, then that will weaken the State's case against you somewhat. Could I Lose My Driver's License? Yes. DPS will move to suspend your driver's license. If you blew, DPS has to prove that it is a little more likely than not that: (1) you were lawfully stopped or lawfully arrested; and (2) that your blood alcohol content was 0.08% or higher while you were driving. If you refused to blow, then DPS only has to prove that it's a little more likely than not that: (1) you were lawfully stopped or lawfully arrested; (2) that there was mere probable cause to believe you had been driving while intoxicated; (3) that you were given a chance to blow; and (4) that you refused to blow. The big difference, proof-wise, between whether you blew or not is that if you blew, DPS has a tiny bit higher burden of proof. More than 75% of the time, the Administrative Law Judge rules in favor of DPS and against you. You can request a hearing in front of a judge to challenge DPS's efforts to suspend your license.Ê But you only have fifteen days after you were arrested to request this hearing. If you wait longer, you lose the right to challenge the suspension. Can I Drive During the Suspension Period? Yes, but generally you must petition a court for an occupational driver's license. This license will permit you to drive if you prove that you have an essential need to drive. By law, you may drive no more than four hours per day, in order to go to work and school and perform other necessary household chores and duties. You may petition the court to waive the four-hour limit and request up to 12 hours in a day to drive, providing that you show an essential need. None of the information here should be substituted for an actual consultation with an attorney.
• Robert Kiesling: If I am convicted of drunk driving can my insurance company cancel me? Yes, and many companies will do so as soon as they learn of the conviction. Others may not cancel, but will not accept renewal of your policy when it expires. That doesnÕt mean that you cannot purchase insurance, but you will probably be limited to an Òassigned riskÓ policy, and your premiums will be very expensive.
• Willie Dasher: Being stopped and arrested for a DWI is an extremely serious matter, and even if this is your first offense, the penalties can be substantial and lasting. Penalties for being arrested for a DWI include but are not limited to: ¥ Stiff fines ¥ License suspension ¥ Mandatory attendance in an alcohol prevention program ¥ Jail time ¥ Insurance rates as much as 500% higher for a period of several years You need a well qualified lawyer to represent you and help you understand all options available to you. For instance, did you know that if you do not request a hearing within a certain prescribed amount of time after being stopped for a DWI, your license could automatically be suspended? There are many extremely important and time sensitive decisions that must be made under the guidance of experienced counsel to help protect your rights and preserve defenses you may have. If you have been charged with a DWI, do not go it alone.
• Alan Cohen: You should consult an attorney for individual advice regarding your own situation.
• Ira Davis: As a practical matter, one drink would almost certainly not lead to a BAC of .08 percent or greater; generally, a person needs to have five drinks in an hour to develop a BAC of .08 percent. However, if there was something unique about the person or the drink, or other circumstance, one drink could raise the BAC above the legal limit.
• Bart Denum: Many people, especially those facing criminal legal difficulties for the first time, are not aware of the life-long consequences a criminal matter can have for them or their loved one.
• Dunham & Rogers: Alcohol and drug-related traffic offenses, commonly known as driving while intoxicated (DWI), are frequently prosecuted criminal offenses, and also carry with them administrative penalties. If the alcohol concentration in a person's blood, breath, or urine is .08 percent or greater, the person is considered intoxicated by law. Under some circumstances, the legal definition of intoxication is met even if a person's alcohol concentration is lower than .08 percent. Having alcohol, a drug, or a controlled substance in one's body that causes loss of normal use of mental or physical faculties also is considered intoxication. If the person is operating a vehicle, vessel, or even water skis in a public place, he or she is considered to be driving while intoxicated, which is a Class B misdemeanor. Boating or operating an aircraft while intoxicated also are crimes.
• Evans, Peek, McConnell & Veltman: You should consult an attorney for individual advice regarding your own situation.
• Ben Florey: A criminal conviction, whether for a misdemeanor or a felony, can result in serious consequences, including large fines, probation, loss of oneÕs drivers license or professional licenses, jail time, and state or federal prison time.
• David Frank: If you are convicted of a second or subsequent DWI within 5 years of your last conviction, you will face stiffer penalties and more serious driver's license suspensions. If you commit a second or subsequent DWI or intoxication manslaughter within five years of your most recent DWI, your driver's license will be suspended for one year. Additionally, if your driver's license is suspended for a second or subsequent intoxication assault committed within five years of your most recent intoxication assault, the suspension continues for a period of one year.
• Garrison Attorney at Law: Should I Submit to an Intoxilyzer Machine For the Breath Test? No. You should not take the test unless you have not had anything to drink. The machine has been proven to be faulty and has an acceptable rate of error.
• Ken Gibson: If you drive after losing your license, you will be arrested for a new criminal charge, your license can be suspended for additional time, and the fact you drove while your license was suspended may be admissible in your DWI case.
• Coral Gunter: Cases involving DWI can be very hard on those that often have little to no experience with the criminal justice system. When this happens to you, get an attorney who will work for your rights.
• Ian Inglis: In Texas, a first-time DWI conviction is a class B misdemeanor, punishable by up to six months in jail and a $2000.00 fine. A second DWI conviction is a class A misdemeanor, punishable by up to a year in jail and a $4000.00 fine. A third DWI conviction is a third degree felony, punishable by up to 10 years in prison and a $10,000.00 fine. A misdemeanor DWI defendant is eligible for probation of up to two years, and a felony DWI defendant is eligible for probation of up to 10 years. In addition to criminal punishment, a DWI defendant in Texas may be subject to a driver's license suspension for failing or refusing an alcohol test, or for being convicted of the DWI offense.
• Jones, Minton & Burton: The first line of defense is to challenge the reason that you were stopped. There are bad stops! There are many things that you need to do before appearing in front of a judge.
• Stuart Kinard: A breath test or field sobriety test does not automatically prove you guilty. According to the federal government, accuracy of field sobriety tests are as follows: HGN test...................77% Walk and turn.............68% One leg stand.............65%   Evaluating A DWI Case and the Deciding Factors... In most DWI cases, there are 3 pieces of evidence that are open to interpretation of the law.
• Scott Klippel: Driving While Intoxicated is the crime most likely to affect the average citizen.  The ramifications of a conviction of a DWI are very serious.  In addition to the sentence imposed upon conviction, a Defendant's automobile insurance rates can skyrocket and any arrest for another DWI will have very, very serious consequences.

  The Texas Penal Code states that "A person commits an offense if the person is intoxicated while operating a motor vehicle in a public place."  Intoxication is defined 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 .10 or more" in a person's breath, blood or urine.  A first time DWI is a Class B misdemeanor, punishable by up to 6 months in jail and up to a $2,000 fine.  A second DWI conviction is a Class A misdemeanor punishable by up to 1 year in jail and a $4,000 fine.  Third DWIs are 3rd degree felonies, punishable by up to 10 years in a Texas prison.  A person can be charged with a second DWI if they have been convicted of a DWI within the past 10 years.  A person can be charged with a felony DWI, if the second DWI occurred any time within the past 10 years, regardless of how many years have passed from the first DWI conviction.  A person who is arrested for a DWI also faces the imminent loss of driving privileges in a proceeding know as Administrative License Revocation (ALR), although it is possible to get an occupational driver's license to drive back and forth from work.  This revocation is a parallel civil procedure and is based upon a Defendant's having a breath or blood test result of .10% or higher, or based on the failure to take the test.

  There are several important concepts of which to take note.  First you must be operating a vehicle in a public place.  Several years ago, the law required that you had to be operating a motor vehicle on a public street or highway.  On occasion, when a person was arrested for DWI in a parking lot of a school or commercial establishment or on the beach, the charges ultimately were dismissed.  That is no longer the case.

  Next you must determine whether a person was operating a motor vehicle.  The answer is obvious if a person is driving down the street, but what happens if a driver is sitting (or passed out) in a car with the motor either running or off.  If the motor is off, there is a good chance that the courts will find that the vehicle was not being operated, but it is less clear if the engine was running.  Other questions arise if a person is involved in a single car accident (say, running off the road into a tree).  Two questions must be addressed in a case such as this.  The first is how does the State prove who was driving at the time of the crash, and second, how do they determine whether the driver was intoxicated at the time of the actual driving?

  The vast majority of DWI arrests result from an officer following a motorist down the highway.  In those cases, how is it determined whether a person was intoxicated.  It is important to note that the definition of intoxicated is not the same as what most people would consider drunk.  A driver must only lose the "normal use of mental or physical faculties . . ."  Prosecutors are very careful to point out this difference to jurors, and try to minimize the needed affect of the alcohol on a person to obtain a conviction.  Thus a driver's defense that "I am usually a lot worse" generally will not win any sympathy from prosecutors, jurors or judges.  You should also be aware that the taking medication that makes you more susceptible to the effects of alcohol is not a defense either.  Thus if you are on medication and have only one beer, the jury is entitled to find you guilty because you were intoxicated from both drugs and alcohol.  Williamson County prosecutors have convinced judges there to instruct juries that if lack of sleep or the lateness of the hour makes a driver more susceptible to the effects of alcohol, then they can find you guilty of DWI.  Time will only tell whether this will be upheld on appeal.  Factors that help determine whether you have your normal mental and physical faculties include how you were driving immediately prior to being stopped, how you performed on the agility tests the officer gives out at the scene, and how those tests are performed at the station house, if the officer allows you to do them again for recording on video tape.

  The second way that you can be declared to be intoxicated is by having a breath test result of higher than .10%.  On occasion, the police request a blood test to determine alcohol concentration.  The law also allows for urine testing, but I have never seen a law enforcement officer use this test.  The law says that if your breath or blood shows an alcohol level higher than .10%, then you are guilty of a DWI, regardless of whether you lost your normal mental or physical faculties.  The issue of the trial then becomes what the results of the test would have been at the time of the actual driving, since these tests are usually performed some time later.  Also, the accuracy of the machine can be challenged for several reasons.  If there is some evidence that you had not lost your normal use of your mental or physical faculties, then an argument can be made that the test machine was not operating properly.  This argument is easiest to use if there is a very high test result which should make physical and mental impairment obvious, and such a level of impairment was not apparent to those around a Defendant. 

  As most DWI arrests are made without a warrant, a Defendant is entitled to a pre-trial hearing, at which time, the prosecution, generally through testimony by the arresting officer, must show the court that probable cause existed not only to stop the Defendant but to give the Defendant the DWI Field Sobriety Tests and later, any breath or blood test.  This gives a Defendant and the defense attorney the first real opportunity to see what the evidence is going to look like at trial.  After evaluating this evidence, a decision needs to be made whether to plea bargain with the State, or to set the case for a judge or jury trial.

  It would be very unusual for a person who is charged with a first time DWI to actually be sentenced to jail.  Usually, a Defendant receives a suspended jail sentence and is placed on probation for two years.  Among the usual conditions of probation, a Defendant is ordered not to consume any alcohol or use any illegal drugs, to do drug and alcohol counseling as indicated by a drug and alcohol evaluation, to work at a job or go to school, and to do a specified number of hours of volunteer work.  If you are convicted for a first DWI and are placed on probation, you keep your driver's license as long as you complete certain counseling classes.  If you convicted on a second DWI, your chances of going to jail are very good, and in addition, your driver's license will be suspended, usually for 1 year (although you would be entitled to get an occupational license).  Things are exceptionally bleak if you get a second DWI while still on probation for the first.  And those convicted of their third DWI face a possible prison sentence.

  As can be seen, the consequences of being arrested for a DWI are very dire.  Most DWI arrests result in convictions.  There are a number of things than can be done, however, to attempt to avoid a conviction.  As pointed out above, the pre-trial hearing is a crucial part of a defense strategy to see whether or not the State can prove their case beyond a reasonable doubt.  If it turns out that the pre-trial shows problems with the State's case, the State sometimes will agree to a disposition other than a DWI conviction.  These dispositions range from a plea to several traffic tickets, to an informal probation, to a plea to a lesser misdemeanor such as reckless driving.  Whether a prosecutor offers such a lesser plea will depend upon how the prosecutor evaluates the evidence and whether the prosecutor believes the defense attorney is serious about trying the case.  In those instances where a plea is offered to a non-DWI offense (or in the event of an acquittal after trial), the criminal records related to the DWI charge can be erased from a person's record. 

  From the brief outline above, I hope that you understand how important it is to get competent, experienced legal counsel to guide you through the maze of DWI law, if you or a loved one is ever arrested for DWI.

• Kris Davis-Jones: In a landmark 1969 U.S. Supreme Court case, Chimel v. California, the Court held that law enforcement officers may conduct warrantless searches of arrested individuals and their immediate surrounding areas. This rule is known as the "search incident to an arrest" exception to the Fourth Amendment's prohibition against unreasonable searches and seizures. The rationale behind this decision is that officers should be protected from the danger that an individual could reach for a concealed weapon. The rule also serves to prevent the destruction of evidence. Such searches are not only considered to be an exception to the Fourth Amendment's general requirement that officers have warrants prior to conducting searches, such searches are also presumed to be "reasonable" as interpreted by the U.S. Supreme Court in United States v. Robinson (1973).