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DWI in Texas First Offense

On Behalf of | Jan 12, 2023 | DUI/DWI/OUI

In the world of criminal law, we use the expression, “DWI is the everyman crime.” The more accurate description would be that DWI is the “every person” crime because it strikes people from all ages, professions, and walks of life equally. In my career, I have represented doctors, nurses, teenagers, corporate executives, grandmothers, and everyone in between who have been charged with driving while intoxicated in Texas. A DWI arrest can be especially nerve-racking for folks who have never been arrested before, and no one starts their evening expecting to end it with a DWI charge.

The good news is, if you’re reading this article, you’re not alone. Many wonderful people with outstanding backgrounds have been accused of driving while intoxicated, and they get through it. Of course, it helps to have an experienced Texas DWI attorney by your side, fighting for your rights and guiding you through the potential legal pitfalls. If you or someone you care about has been arrested for a DWI in Texas, click here to schedule a free consultation.

Texas DWI Laws

If this is your first time dealing with a DWI, there are several categories of information of which you should be aware. The categories are:

  • DWI statutes in the Texas Penal Code;
  • Issues related to posting bond and bond conditions;
  • Administrative license revocation;
  • Occupational driver’s license;
  • Fighting the DWI charge;
  • Potential punishment; and
  • Clearing your record.

The following sections will provide enough information to understand the basics of a DWI charge and the immediate impacts on the person who has been arrested. DWI cases, however, are complicated. I always recommend contacting an attorney with a proven track record of success as soon as possible.

DWI Texas Penal Code

Chapter 49 of the Texas Penal Code governs all instances of driving while intoxicated. The vast majority of the time, Texas laws classify a person’s first DWI offense as a misdemeanor. Based on the person’s blood or breath alcohol concentration, the district attorney’s office will charge the offense as a Class A or Class B misdemeanor. The law does, however, carve out an exception for cases where officers arrest someone for driving while intoxicated with a child under the age of fifteen in the vehicle. DWI with Child, as it is known, is classified as a State Jail Felony. The primary DWI statute reads as follows:

Texas Penal Code § 49.04 Driving While Intoxicated

(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 Subsections (c) and (d) 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.

(d) If it is shown on the trial of an offense under this section that an analysis of a specimen of the person’s blood, breath, or urine showed an alcohol concentration level of 0.15 or more at the time the analysis was performed, the offense is a Class A misdemeanor.

Penal Code Section 49.04

DWI Class B Misdemeanor Texas

Here’s how you can interpret the statute above in practical terms:

  • If you’ve been arrested for driving while intoxicated and your blood or breath alcohol concentration is under 0.15, then you will be charged with the lower level Class B Misdemeanor.
  • If you are convicted or plead guilty to a Class B DWI and you choose to take a jail sentence instead of probation, you will have to serve a minimum of 72 hours’ confinement in the county jail.
  • If officers find an open container of alcohol in your vehicle when they arrest you, the minimum jail sentence increases to six days. Of course, that assumes you are convicted and elect to serve a jail sentence instead of probation.

If you consent to a breath test, you will know right away whether your breath alcohol concentration is above or below 0.15. And you will know whether the State of Texas is charging you with a Class A or Class B Misdemeanor. If officers take your blood, however, then the arresting agency will initially file the case as a Class B Misdemeanor pending lab results. If the blood test returns an alcohol concentration of 0.15 or higher, the district attorney’s office will change the charge to the higher level Class A Misdemeanor.

Class A Misdemeanor DWI Texas

In Texas, your first offense DWI becomes a Class A Misdemeanor if your blood or breath alcohol concentration is 0.15 or greater. This distinction modifies the minimum and maximum punishment ranges listed above. Strangely, the Texas legislature set a minimum 72-hour jail sentence for folks convicted of Class B DWI who choose to take a jail sentence instead of probation. But the same lawmakers did not set a minimum jail sentence for the higher level Class A variety of a first DWI. So a person charged with a first DWI where their alcohol concentration is 0.15 or greater could conceivably be convicted and serve a zero-day jail sentence whereas a person with a lower alcohol concentration might have to serve at least 72 hours.

DWI Bond Issues

Now that you know a little about the penal code statute that governs a person’s first offense DWI arrest, there are two bond-related issues that are important to understand. The first is something known as an attorney writ bond. The second is a bond condition that applies to those charged with having an alcohol concentration over 0.15.

Collin County Writ Bond

A writ bond is the fastest way to get out of jail in Collin County. People arrested for a first DWI are often ideal candidates. Normally, when a person is arrested for a DWI, police officers will take them to a hospital or jail to test their blood or breath for alcohol concentration. After the test concludes, the officer writes the offense report, determines if any additional criminal charges apply, and eventually the arrested person is transferred to the county jail for magistration. The local magistrate will set the bond amount and determine what conditions of bond will apply once the person is released. This process can take up to 48 hours.

Most people charged with a first offense DWI in Collin County are eligible for a writ bond. With a writ bond, a licensed attorney can get the arrested person out of jail as soon as the offense report is complete, many hours before magistration. Writ bonds are perfect for people who have jobs or travel plans to attend the day after their arrest or for anyone who does not want to spend the night in jail. For more detailed information about writ bonds, click here.

Breathalyzer in Car

For anyone whose alcohol concentration comes back at 0.15 or greater, Article 17.441 of the Texas Code of Criminal Procedure requires that those individuals have an alcohol monitoring device as a condition of bond. The statute can be long and difficult to understand, so for practical purposes, you should understand the following:

  • As soon as a judge finds out your BAC is 0.15 or greater, the judge must require you to have an Ignition Interlock Device, also known as a Deep Lung Device (DLD) installed on any vehicle you operate.
  • You must get this device installed on your vehicle at your own expense.
  • You must show proof to the court of installation within 30 days of the judge ordering you to get the device.
  • If you do not drive, then the court will require you to obtain a portable alcohol-monitoring device.
  • If you do drive, a judge may allow you to use a portable alcohol-monitoring device only if the judge believes that requiring the device on your vehicle is not in the interest of justice.
  • If you drive a work vehicle owned by your employer, then you can drive that vehicle without a DLD so long as you provide your employer with written notice that you are required to operate any other vehicle you drive with a DLD.
  • Positive violations for alcohol will prevent you from starting your vehicle temporarily and will likely result in a bond violation hearing in front of the judge who has jurisdiction over your case.

Administrative License Revocation

A first offense DWI arrest in Texas will likely trigger an Administrative License Revocation, which is a temporary suspension of your license to drive. The arresting officer shall read the arrested person a document called the Statutory Warning, also known as the DIC-24. After reading this document, the officer will request a specimen of breath or blood. When the arrest is for a first offense DWI, the statutory warning informs the arrested person of three potential outcomes:

  • If you consent to provide a specimen of your breath or blood and your BAC is 0.08 or greater, the Department of Public Safety will suspend your driver’s license for 90 days;
  • If you consent to provide a specimen of your breath or blood and your BAC is less than 0.08, the Department of Public Safety will not suspend your driver’s license;
  • But if you refuse to provide a specimen of your breath or blood, then regardless your BAC, the Department of Public Safety will suspend your driver’s license for 180 days.

ALR Hearing

The statutory warning, or DIC-24, also states that the arrested person may request a hearing to challenge the administrative license revocation. You have 15 calendar days, including the date of arrest, to file your request with the Department of Public Safety. Otherwise, the DPS will order your license suspended. While it is possible to request an ALR hearing without an attorney, the DPS will not recognize any request that is not properly submitted. I always recommend hiring an experienced DWI attorney as soon as possible after a first DWI arrest to make sure you preserve your ability to challenge the administrative license revocation. To schedule a free consultation, click here.

Basics of a Texas ALR Hearing

  • The ALR hearing is a civil matter between you and the DPS
  • The hearing only determines whether the DPS can suspend your license
  • It does not determine your guilt or innocence for the DWI charge
  • Your attorney subpoenas the arresting officer to appear at the hearing
  • If the officer fails to appear at the hearing after receiving a subpoena, you win the hearing by default, and your license is not suspended
  • If the officer appears, your attorney gets to cross examine the officer on record
  • Your attorney may be able to catch the officer saying something that will benefit you in the criminal case
  • The DPS must prove that the officer stopped you for a lawful reason, that you were operating a motor vehicle while intoxicated, and that you refused to give a specimen of breath or blood or you agreed and your BAC is over 0.08
  • The burden of proof is much lower at an ALR hearing as compared to a criminal trial, so it is much easier for the DPS to prove their case than it is for the prosecuting attorney to prove the DWI

Occupation Driver’s License

If the ALR judge rules in favor of the DPS and orders an ALR suspension of your driver’s license, then you will need an Occupational Driver’s License (ODL) to drive legally during the period of your suspension. There are two types of ODLs that will allow you to drive during your suspension, each with advantages and disadvantages.

Essential Need Occupational Driver’s License

Folks arrested for a first offense DWI in Texas are automatically eligible for an essential need ODL. All you need is an attorney who can draft the petition and order and pay the court’s filing fees, and you will be able to drive. But an essential need ODL does have its drawbacks:

  • It may restricts the purposes for which you can drive to things like work, school, transporting children, and performing essential life matters such as going to the grocery store.
  • It may restrict the hours during which you can drive to windows of time not to exceed 12 hours total during a day.
  • It may restrict the locations to which you can drive, limiting you to drive in your county of residence and contiguous counties only.

DLD Occupational Driver’s License

Alternatively to an essential need ODL, you may petition for a DLD ODL. As you might guess, you must have a DLD installed on any car you operate while using a DLD ODL. A deep lung device carries monthly fees as well as inconvenience, and for some people, embarrassment. But, it allows you to drive with none of the restrictions possible under an essential need ODL.

Consequences for Not Getting an Occupational Driver’s License

If police officers catch you driving a vehicle during the period of an ALR suspension and without an occupational driver’s license, they can arrest you for a Class B Misdemeanor.

Beating a DWI in Texas

Many clients have said to me, Justin, what is the point of fighting? I was intoxicated. My BAC was over 0.08. How can we possibly beat a charge for driving while intoxicated? This is where the real art of DWI defense comes to play. Every DWI investigation contains multiple stages, and at each stage, there are ways law enforcement can make mistakes and/or we can create reasonable doubt. All it takes is one doubt, based on reason, and the law requires that the jury or judge find you not guilty. Here are but a few of the many ways we can fight your case.

Was the Traffic Stop Lawful?

Most DWI investigations begin with a traffic stop. When an officer initiates a traffic stop, legally speaking, you are detained. In order to initiate a lawful detention, officers must have probable cause that you violated some traffic statute or reasonable suspicion that you were driving while intoxicated.

The first thing I analyze in a DWI case is the lawfulness of the stop. If I don’t see a clear violation of a traffic code statute, I will closely scrutinize what evidence the officer had to create reasonable suspicion of DWI. Reasonable suspicion requires an officer to have reasonable, articulable facts supporting the commission of a crime, not merely a hunch. If the officer appears to have initiated a detention without reasonable suspicion or probable cause, I file a motion to suppress.

What is a Motion to Suppress?

A motion to suppress is like a miniature trial where we go before a judge and present evidence and witness testimony up to the point where the unlawful act allegedly takes place. In the context of an unlawful stop, the evidence in the hearing is presented up to the point where the officer initiates the traffic stop. Attorneys from both sides make arguments to the judge based on case law. If the judge grants our motion to suppress, all evidence gathered after the stop gets thrown out. In the context of a DWI, if we can suppress the stop, we can get the entire DWI investigation thrown out, leaving the prosecution no choice but to dismiss your case.

Standardized Field Sobriety Tests

The National Highway Traffic Safety Administration (NHTSA) created a standardized battery of tests for officers to conduct in the field in order to determine whether a person is intoxicated. The tests are based on scientific research. And they are designed to look for impairment in a person’s mental and physical faculties due to the introduction of alcohol. Those tests include:

  • Horizontal Gaze Nystagmus (HGN)
  • Walk and Turn
  • One Leg Stand

The HGN test looks for an involuntary jerking of the eyes as they pass from side to side while following the tip of a pen or the officer’s finger. The Walk and Turn and One Leg Stand test are known as divided attention tests because they divide your brain’s attention between processing instructions and controlling your muscles to maintain balance. Officers look for clues of intoxication while administering these tests.

While the science behind the tests is well-established, officers must administer them properly. Improper administration of these tests causes them to not be standardized, thus invalidating the results. Also, many other physical and mental conditions can mimic signs of intoxication, such as diabetes, a physical injury, a head injury, age, fatigue, anxiety, and cold temperature to name a few.

I scrutinize the officer’s administration of the standardized field sobriety tests closely. I gather facts about my client’s medical and psychological condition. And I fight to contest the validity and trustworthiness of the officer’s findings while conducting these field sobriety tests.

Alcohol Concentration

Many people see a number over 0.08 and think all hope is lost, but that is simply not true. First, the prosecutors must prove that your alcohol concentration was not merely over 0.08 when a test took place; they must prove your alcohol concentration was over 0.08 at the time you were driving. They also have to prove that your blood or breath sample was collected, stored, and tested correctly. Here are a few of the potential areas to create reasonable doubt based on blood and breath testing:

Retrograde Extrapolation

This is the fancy term describing the calculation analysts perform to estimate what your alcohol concentration was at the time you were driving. In order to make that calculation with any degree of reliability, the investigating officer must determine your gender, weight, time of stop, time of test, and time of last drink. The last one, time of last drink, is frequently forgotten by officers, and without that evidence, an analyst cannot pinpoint what your BAC was at the time you were driving.

Breath Test

Police agencies use a machine called the Intoxilyzer 9000 to perform breath tests. Officers must first make sure the arrested person does not put anything in their mouth or have a deep belch during the 15 minutes prior to the test. Then the officer operating the Intoxilyzer must administer the test properly. All fail-safes with the machine must work properly. An analyst must testify that the machine had been calibrated and was working properly during your test. And like any machine, it is possible to have operator or mechanical error.

Blood Test

First off, blood must be drawn in a manner that complies with the specifications described in the Texas Transportation Code. If the blood is taken as a result of a search warrant, the search warrant affidavit must contain probable cause that the arrested person was driving while intoxicated and their blood likely holds evidence that would prove intoxication. Then the blood must be store and transported to the lab properly, maintaining an accurate chain of custody. And the lab must test the blood specimen correctly, not mixing up your sample with someone else’s.

Texas DWI Penalties

Sometimes the State of Texas has enough evidence to prove their case beyond a reasonable doubt. Even if that is the case, there may be reasons why we need to take your case to trial – for example, an officer’s or analyst’s credibility may have recently come under fire after your arrest. But other times it may be in your best interest to accept a negotiated punishment through a plea deal.

Pleading Guilty to a DWI in Texas

When you plead guilty, you are accepting a punishment that your attorney has worked out with the prosecutors. Sometimes that plea agreement involves reducing a Class A DWI to a Class B. It may seem like a better outcome that what you would receive from a judge or jury after trial. And at the very least, you know exactly what punishment will be, as opposed to letting a jury or judge determine punishment.

For a first offense DWI in Texas, you will have a choice of serving jail time or going on probation. You will not be required to serve jail time as a condition of probation. If you choose to accept a plea agreement for probation, the only way you can go to jail is if you violate the terms and conditions of probation, and the State revokes your probation and the court sentences you to jail. But if you complete your probation, you will never have to set foot in jail after your initial arrest.

DWI Jail Sentence

Class A and Class B Misdemeanor DWIs carry ranges of punishment to allow for discretion based on the severity of the facts, or the lack thereof. The rangers are:

  • Class A DWI (first offense): 0 to 365 days in the county jail
  • Class B DWI (first offense): 72 hours to 180 days in the county jail
  • Class B DWI (open container): 6 to 180 days in the county jail

Statutory Fine

Sometimes people will choose to accept a jail sentence as punishment for a first DWI offense because they do not want to be on probation for several months, having to complete classes and be under someone’s supervision. But just a heads up, serving a jail sentence for a DWI will trigger a statutory “super fine” levied by the DPS. The super fine is $3,000 for a Class B DWI and $6,000 for a Class A DWI where the BAC is 0.15 or greater.

DWI Probation

Probation for a DWI first offense in Texas can last up to two years. Usually probation sentences range from 12 – 18 months. The typical probation conditions for a misdemeanor DWI are as follows:

  • Fine (Up to $2,000 for a Class B, Up to $4,000 for a Class A)
  • Duration of probation
  • 12-hour DWI Education class
  • Victim Impact Panel presentation
  • Substance Abuse Evaluation
  • Random Urine Testing
  • Community Service
  • No Alcohol
  • Must provide specimen of breath or blood if under stopped or DWI
  • Donation to Mothers Against Drunk Driving

If you are placed on probation for a Class A DWI where your BAC is 0.15 or greater, you will also have to have a DLD on your vehicle for at least half of the time you are on probation.

DWI Expungement Texas

When people face a first offense DWI in Texas, especially if it is their first and only arrest ever, one of their chief concerns is getting the DWI off their record. The only way to completely destroy all traces of a criminal charge is through an expunction. In Texas, there are two paths toward expunging a DWI arrest:

  • Take your case to trial and win. You will be immediately eligible for an expunction.
  • Get your case dismissed, usually by winning a motion to suppress.
  • If your case is dismissed, you must wait two years from the date of your arrest to apply for an expunction.

Can a DWI Conviction be Expunged?

Unfortunately, convictions cannot be expunged. If you are convicted of a DWI, the record of that conviction will follow you for the rest of your life.

Schedule a Free Consultation

If you or someone you care about has been charged with a driving while intoxicated in Texas, I am here to help. Contact me anytime through phone, email, chat, or schedule your consultation online. I look forward to helping you.