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.