My name is Justin Wilson, and I’m a criminal defense attorney and DWI lawyer based in Collin County, Texas. I fight for the rights of those accused of DWI throughout Collin County and the rest of the Dallas-Fort Worth Metroplex. I’m writing this blog series to provide general information about common issues and concerns that arise when someone has been arrested for driving while intoxicated. Remember, every case is unique, and I always recommend contacting a DWI lawyer to discuss your particular situation. In this article, we’re going to take a broad survey of Texas DWI laws.
DWI Texas Penal Code
Texas Penal Code Chapter 49 governs Intoxication and Alcoholic Beverage Offenses in Texas. The chapter of statutes addresses not only DWI, also known as driving while intoxicated, but also criminal offenses such as: public intoxication, flying while intoxicated, boating while intoxicated, assembling/operating an amusement ride while intoxicated, intoxication assault, intoxication manslaughter, and enhanced penalties for certain offenses.
When the police arrest someone for DWI, their investigation gathers evidence, which assistant district attorneys later use to prosecute the case. To earn a DWI conviction, prosecutors must prove all elements of the offense beyond a reasonable doubt. The core elements in Texas DWI laws are:
- Identity of the Defendant
- Date of the Offense
- County Where the Offense Took Place
- Operation of a Motor Vehicle
- In a Public Place
- While Intoxicated
Certain DWI charges in Texas involve additional elements that prosecutors must prove beyond a reasonable doubt, such as proof of a prior conviction for driving while intoxicated, a blood or breath alcohol concentration of 0.15 or greater, or that the defendant caused serious bodily injury or death to another as a result of operating a motor vehicle while intoxicated. But all Texas DWI charges involve the six core elements listed above.
Driving While Intoxicated Definition
Texas DWI laws include several important definitions that govern how prosecutors must prove their cases. Those definitions also provide DWI lawyers opportunities to poke holes in the prosecution’s case. The most important of those definitions is intoxication. Contrary to what most people think, DWI laws in Texas do not prohibit drunk driving. They do not prohibit drinking and driving. Rather, they prohibit intoxicated driving. Texas Penal Code § 49.01(2) defines intoxicated as:
(A) 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
(B) having an alcohol concentration of 0.08 or more.
The definition provides three different ways for prosecutors to prove a person was intoxicated. First, prosecutors can prove intoxication by convincing a jury or judge, beyond a reasonable doubt, that the defendant did not have the normal use of their mental faculties. Prosecutors use evidence like geographic confusion, difficulty following simple instructions in field sobriety tests, nystagmus in the eyes, and slurred speech to prove a person lacks the normal use of their mental faculties. It is not enough, however, to merely prove a person does not have the normal use of their mental faculties because brain injuries, illnesses, symptoms of diabetes, and other conditions could also make someone seem like they do not possess the normal use of their mental faculties. That is why Texas DWI laws force prosecutors to also prove the means of intoxication – alcohol, drugs, or a combination of alcohol and drugs – through a blood, breath, or urine test.
Second, prosecutors can prove intoxication by convincing the finder of fact that the defendant did not have the normal use of their physical faculties. They use evidence such as a person’s balance while exiting their vehicle and ability to walk a line or stand on one leg during field sobriety tests. But, as with mental faculties, physical conditions such as injury, symptoms of gout, or age and being overweight can also cause someone to appear as if they lack the normal use of their physical faculties. Therefore, prosecutors again must prove the loss of normal use of physical faculties is due to alcohol, drugs, or a combination of alcohol and drugs.
BAC 0.08 or Greater
Third, prosecutors can prove intoxication by offering evidence that the defendant’s blood or breath alcohol concentration was 0.08 or greater. This definition is known as per se intoxication, meaning that, as a matter of law, an alcohol concentration of 0.08 or greater is considered proof of intoxication. But, this number by itself is not enough. Prosecutors have to prove that a defendant’s alcohol concentration was not only 0.08 at the time police officers sampled their breath or blood. They have to back track and prove the alcohol concentration was 0.08 or greater at the time of driving. Back tracking like this requires an expert to perform a calculation known as retrograde extrapolation, and to do so, the arresting officer must have gathered important facts like what time the defendant consumed their last drink of alcohol. Without that information, an expert cannot accurately estimate the defendant’s alcohol concentration at the time of driving. Also, DWI lawyers strictly scrutinize lab testing procedures to make sure the blood or breath test results are true.
Operating a Motor Vehicle
The next key definition is operation of a motor vehicle. Texas DWI laws do not provide a statutory definition of what it means to operate a motor vehicle. At first thought, it may seem so obvious that it doesn’t need a specific legal definition. But think, what if you sitting in a parking lot, waiting to sober up a little before driving home, and you have your engine running with the heater on because it’s cold outside. Are you operating a motor vehicle? It’s a tough question, and that is why DWI lawyers often take cases to trial, even when there is no doubt about intoxication, but there is doubt about operation.
The Court of Criminal Appeals, which is the highest criminal court in Texas, has held that:
a person operates a vehicle when the totality of the circumstances demonstrate that he “took action to affect the functioning of his vehicle in a matter that would enable the vehicle’s use.” Kirsch v. State, 357 S.W.3d 645, 650-51 (Tex.Crim.App.2012).
That sounds about as clear as mud, which is why courts have to consider a number of factors when determining whether a person was operating a motor vehicle. And a good DWI lawyer will always seek opportunities to show the prosecution cannot prove that the totality of the circumstances show a person was operating a motor vehicle.
Finally, the DWI Texas Penal Code defines alcohol concentration in § 49.01(1) as the number of grams of alcohol per:
- 210 liters of breath;
- 100 milliliters of blood; or
- 67 milliliters of urine
After reading through the three different ways the prosecution can prove intoxication and the obscure definition of what it means to operate a motor vehicle, you may be wondering, do I need a lawyer for a DWI in Texas? Is there any way I can possibly challenge a DWI charge in Texas? Check out my article on How to Fight a DWI for all the reasons to have hope and how the right Texas DWI attorney can make a huge difference in the outcome of your case.
Driving While Intoxicated DWI First Offense Is A…
challenging experience for anyone in Texas, especially if it is your first time to be arrested. The initial step in handling a first DWI in Texas is getting out of jail. If you’re reading this article and know someone who was just arrested for DWI in the Dallas-Fort Worth Metroplex, check out my articles and videos on Writ Bonds, the fastest way to get a person out of jail in Collin County. If a person accused of driving while intoxicated has already had bail set by a judge, you can post their bond by working with a bail bondsman or paying a cash bond.
DWI Bond Conditions
Next, there may be bond conditions to deal with. For example, in Collin County, a judge will require a person arrested for their first DWI to get a breathalyzer installed in their vehicle as a condition of bond if the person’s alcohol concentration is 0.15 or greater or if their DWI arrest involved a vehicle collision. The breathalyzer is known as an ignition interlock device, sometimes called a deep lung device (DLD). Texas DWI laws require judges in all counties to require the installation of a DLD when a person’s alcohol concentration is 0.15 or greater. The requirement of having the device as a condition of bond when a collision occurs is a policy unique to Collin County. If you don’t have a vehicle while you are out on bond but a judge requires you to have an ignition interlock device, the county will allow you to use a portable alcohol-monitoring device instead.
ALR Hearing & Occupational Driver’s License
Moreover, after your first DWI arrest in Texas, you will have 15 days from the date of the arrest to request an ALR Hearing. ALR stands for administrative license revocation. These hearings are civil matters, not criminal, and the opposing party is the Department of Public Safety. Texas DWI laws allow for the DPS to suspend your driver’s license for 90 days if you agree to provide a sample of your breath or blood, and your alcohol concentration comes back as 0.08 or greater. The law allows the DPS to suspend your driver’s license for 180 days if you refuse to provide a specimen of your breath or blood. A Texas DWI attorney can fight this driver’s license suspension at the ALR hearing. And if the DPS suspends your license, your DWI lawyer can get you an occupational driver’s license so that you may continue to drive for all your essential needs.
Fighting the DWI in Court
Finally, the District Attorney’s Office will prosecute your first offense DWI charge as either a Class A or Class B misdemeanor, depending on whether your alcohol concentration is over or under 0.15. They charge your DWI through a document known as the Information, and they must prove every element listed in the Information beyond a reasonable doubt. A Texas DWI attorney will fight your DWI by evaluating evidence, forming a trial strategy, and engaging the prosecution in plea negotiations. Your DWI lawyer will counsel you thoroughly, and ultimately, the decision to plead guilty (accepting a plea deal) or not guilty (going to trial) is up to you.
Driving While Intoxicated Class B Misdemeanor Texas
Texas Penal Code § 49.04 states:
(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.
A DWI under § 49.04(b) carries a punishment range of 72 hours to 180 days in the county jail, a fine up to $2,000.00, or a combination of jail and fine. Or, a person convicted under § 49.04(b) can receive probation for up to two years. There is no requirement of an ignition interlock device as a condition of probation when punished under § 49.04(b). And under certain circumstances, a person charged under this statute may receive deferred adjudication and/or be eligible to seal the record of the DWI through a nondisclosure.
Driving While Intoxicated Class A Misdemeanor Texas
(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.
Texas Penal Code § 49.04(d)
Strangely, the minimum punishment range for the higher level Class A misdemeanor DWI in Texas is zero days in the county jail, but it carries a maximum sentence of 365 days in the county jail along with a fine not to exceed $4,000.00. Like a Class B DWI, a Class A misdemeanor DWI in Texas also my be punished by up to two years of probation. Class A DWI carries with it the requirement of an ignition interlock device while on probation, and anyone convicted under § 49.04(d) is not eligible for deferred adjudication or a nondisclosure.
Second DWI in Texas
Texas Penal Code § 49.09(a) classifies a second DWI in Texas as a Class A misdemeanor, stating:
(a) Except as provided by Subsection (b), an offense under Section 49.04 [Driving While Intoxicated], 49.05 [Flying While Intoxicated], 49.06 [Boating While Intoxicated], or 49.065 [Assembling/Operating an Amusement Ride While Intoxicated] is a Class A misdemeanor, with a minimum term of confinement of 30 days, if it is shown on the trial of the offense that the person has previously been convicted one time of an offense relating to the operating of a motor vehicle while intoxicated…
A Second DWI in Texas raises the ante from a First DWI in Texas. You will notice that the minimum punishment for a jail sentence is now 30 days. The maximum remains the same as a Class A DWI 1st, which is 365 days in the county jail. The maximum fine is also not to exceed $4,000.00, and a second DWI may also be punished by up to two years of probation. Texas DWI laws also require an ignition interlock device as a condition of bond as well as probation for a second DWI, just like a Class A DWI with an alcohol concentration of 0.15 or greater.
Jail Time as a Term and Condition of Probation
A key difference between a Class A DWI 1st and a DWI 2nd, however, is that probation for a second DWI in Texas carries with it a brief stay in the county jail as a term and condition of probation. Texas Code of Criminal Procedure § 42A.401(a)(1) requires that anyone serving probation for a second DWI in Texas spends at least 72 hours in the county jail as a condition of probation. And § 42A.401(a)(2) requires a person serving probation for a second DWI to serve a minimum of five days in the county jail as a condition of probation if Penal Code § 49.09(h) applies, meaning that the second DWI occurs within five years of the first. And unfortunately, back time credit for days you’ve already served cannot be applied to satisfy the sentence. However, prosecutors can agree to a plea bargain that reduces a DWI 2nd to a second DWI 1st, thus eliminating the requirement of jail time as a term and condition of probation.
DWI with Child in Car Texas
If a person is arrested for driving while intoxicated and has a passenger in the motor vehicle who is younger than 15 years of age at the time of the offense, Texas DWI laws treat the DWI as a felony, regardless the alcohol concentration. Texas Penal Code § 49.045 states:
(a) A person commits an offense if:
(1) the person is intoxicated while operating a motor vehicle in a public place; and
(2) the vehicle being operated by the person is occupied by a passenger who is younger than 15 years of age.
(b) An offense under this section is a state jail felony.
A state jail felony carries a punishment range of no less than 180 days and no more than two years in a state jail facility along with a fine not to exceed $10,000.00, or a combination of jail and fine. State jail felonies may also be punished by a minimum of two years up to a maximum of five years of probation. Like a second DWI, anyone convicted of a DWI with a Child in Texas is not eligible for deferred adjudication or a nondisclosure. However, a DWI with Child does not require a jail sentence as a term and condition of probation, and the charge can be reduced to misdemeanor driving while intoxicated.
DWI in Texas 3rd Offense
Texas DWI laws treat every DWI after the second as a third degree felony. It does not matter whether a previous conviction was for DWI 2nd or a second DWI 1st, the third DWI in Texas is a felony. Texas Penal Code § 49.09(b) states:
An offense under Section 49.04, 49.045, 49.05, 49.06, or 49.065 is a felony of the third degree if it is shown on the trial of the offense that the person has previously been convicted:
(2) two times of any other offense relating to the operating of a motor vehicle while intoxicated…
A third DWI in Texas carries with it a punishment range of 2 – 10 years in prison, up to a $10,000.00 fine, or 2 -10 years of probation. Probation for a DWI 3rd in Texas requires a minimum confinement of 10 days in the county jail as a term and condition of probation. The confinement cannot exceed 180 days. The charge can be reduced to a Class A misdemeanor, second DWI 2nd if the prosecution agrees. Other probation conditions are similar to that of a second DWI in Texas.
DUI vs DWI Texas
People often use DUI and DWI interchangeably, but Texas DWI laws draw a clear distinction between the two. DUI stands for driving under the influence, and it applies only to minors with any detectable amount of alcohol in their system. Texas Alcoholic Beverage Code § 106.041 provides:
(a) A minor commits an offense if the minor operates a motor vehicle in a public place, or a watercraft, while having any detectable amount of alcohol in the minor’s system.
(b) Except as provided by Subsection (c), an offense under this section is a Class C misdemeanor.
Class C misdemeanors are punished by fine only, not to exceed $500.00. The Alcoholic Beverage Code enhances this fine-only punishment for minors, 17 years of age or older, who have previously been convicted of DUI at least twice. For those individuals, the fine ranges from $500.00 to $2,000.00, confinement in the county jail up to 180 days, or a combination of jail time and fine. Also, a minor found guilty of DUI in Texas must complete 20 – 40 hours of alcohol education-related community service. If a minor has previously been convicted of DUI, the community service hours may increase to 60.
Minor Charged with Driving While Intoxicated
Police officers have a choice when they encounter a minor operating a motor vehicle where evidence of alcohol consumption exists. Officers can issue a citation for DUI and let the minor go home. The minor would then dispose of the case in a municipal or justice of the peace court by paying a fine and performing community service.
On the other hand, police officers can arrest a minor for DWI. Remember, there are three different ways prosecutors can prove intoxication. A minor might not have an alcohol concentration of 0.08 or greater, but due to their small size or inexperience with drinking alcohol, they may no longer have the normal use of their mental or physical faculties. If an officer arrests a minor for driving while intoxicated, the officer will take the minor to the county jail, assuming the minor is 17 years of age or older. If the minor is under 17 years of age, the officer will take the minor to the juvenile detention center. If the minor is 17 years of age or older, the DWI will go through the exact same process as described above.
Free DWI Consultation
If you or someone you care about has been arrested for DWI, contact the Law Office of J. Barrett Wilson, PLLC. I am a former Collin County prosecutor, am certified to perform Standardized Field Sobriety Tests, and I used to train police cadets on the legal aspects of DWI investigation. I offer free consultations, and I look forward to discussing all the ways I can help.