A Field-Sobriety-Test-Certified DWI Defense Attorney With Over 100 DWI Trials And Hearings
Sometimes, law-abiding Texans make mistakes. If you have been charged with a DWI after enjoying Plano’s nightlife, or driving home from a sporting event elsewhere in the Dallas-Fort Worth Metroplex, our attorneys at the Law Office of J. Barrett Wilson, PLLC, can help. Plano DWI lawyer Justin Wilson knows from all the calls he’s answered in the middle of the night just how intimidating a DWI arrest can be. As a former Collin County prosecutor, Justin became certified to administer standardized field sobriety tests, and he taught courses on DWI investigation to officers in training. He uses his depth of knowledge and experience to fight for those accused of driving while intoxicated.
Below, you will find information explaining basic concepts in Texas DWI law and describing what it’s like to navigate the criminal justice system after an arrest for driving while intoxicated. But don’t fight the charges against you alone – contact our experienced Texas DWI defense attorney at the Law Office of J. Barrett Wilson, PLLC, today.
Understanding Texas DWIs
While the underlying facts of every DWI are different, the process from initial contact with the police to arrest and all the way to resolution follows a similar path for most of cases. The major differences lie between misdemeanors and felonies because felony charges add grand jury deliberations to the process, and between cases resolved by an agreed plea versus those resolved through trial. If you or someone you love has been charged with driving while intoxicated, we can help.
What Is A DWI?
DWI stands for Driving While Intoxicated, and those of us who practice criminal law know it as an “every person” crime. It is perfectly legal to drink alcoholic beverages and then operate a motor vehicle in Texas. That’s why so many people from all walks of life experience a DWI arrest in their lifetime. They go out for dinner or meet friends to socialize or celebrate with family and consume some alcohol. They are having fun and are completely sober until they’re not. Alcohol depresses the central nervous system, and losing track of how alcohol is impacting your brain is one of the most common symptoms of a depressed central nervous system. We all can recognize someone who is clearly drunk, and most of us don’t drive a vehicle when we’re stumbling drunk. So what separates drunk driving from intoxicated driving?
Defining Driving While Intoxicated
The technical term for driving is “operating a motor vehicle.” While Texas does not have a statutory definition of operating, the highest criminal court in our state has indicated 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.
That’s about as clear as mud. Sometimes the facts of a DWI arrest present doubt as to whether the arrested person was actually operating a motor vehicle. Courts look at a long list of factors when determining whether a person was operating a motor vehicle, and it is important to have an experienced DWI attorney with knowledge of case law representing you if the operating element is in question.
`The second aspect of defining DWI is intoxication. Texas Penal Code § 49.01(2) defines intoxicated 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, or 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.
The reason the Texas Penal Code provides these two different definitions of intoxicated is to account for tolerance. Some inexperienced drinkers or very small people don’t have to drink much before losing the normal use of their mental and physical faculties. Their alcohol concentration could be low, but they are not safe to drive a vehicle.
On the other hand, an experienced drinker might appear to have the normal use of their mental and physical faculties, but our state legislature cites studies, which indicate that at alcohol concentrations of 0.08 or greater, a person’s mental or physical faculties are impaired even if they can mask that impairment due to a high tolerance.
You may have heard the term, BAC. BAC can stand for Blood or Breath Alcohol Concentration. Blood Alcohol Concentration is determined by drawing a specimen of your blood after your arrest and sending that sample to a DPS crime lab for analysis. Breath Alcohol Concentration is determined by blowing a specimen of breath into a machine known as an Intoxilyzer 9000.
DWI Versus DUI
Many people use DWI and DUI interchangeably, but Texas law defines the two terms differently. You’ve already read the definition of Driving While Intoxicated, and you’ll notice it says nothing regarding the legal drinking age of 21. That’s because the DWI statute only concerns itself with those elements and enhancements listed above. Anyone, no matter the age, can be arrested and charged with DWI.
DUI, on the other hand, is age dependent. The term stands for Driving Under the Influence, and the DUI statute says nothing about whether the arrested person must be legally intoxicated. It does, however, only apply to people under the legal drinking age. In Texas, if you are under 21 years of age and operating a motor vehicle with any detectable amount of alcohol in your system, you can be arrested for DUI. Texas law, however, treats DUI as a Class C Misdemeanor, which is the legal equivalent of a speeding ticket.
Texas DWI Penalties
Texas law punishes driving while intoxicated through probation or incarceration. The offense level of the DWI charge determines the range of punishment for probation or incarceration, and certain statutory enhancements will trigger additional conditions of probation.
Common DWI punishment ranges are:
Class B Misdemeanor DWI
- Fine not to exceed $2,000;
- 72 hours to 180 days in the county jail; or
- Up to two years of probation
Class A Misdemeanor DWI (with a BAC greater than or equal to 0.15)
- Fine not to exceed $4,000;
- 0 days to 365 days in the county jail; or
- Up to two years of probation
Class A Misdemeanor DWI second
- Fine not to exceed $4,000;
- 30 days to 365 days in the county jail; or
- Up to two years of probation
Felony DWI w/Child Under 15
- Fine not to exceed $10,000;
- 180 days to 2 years in the state jail; or
- Two years to five years of probation
Felony DWI third or More
- Fine not to exceed $10,000;
- Two years to ten years in prison; or
- Two years to Ten years of probation
One good thing for anyone arrested for driving while intoxicated is that prosecutors typically want to see you on probation rather than see you in jail, especially if it is your first or second DWI. The reason is simple. Jail sentences for DWIs usually fall at the low end of the punishment range, and when a person is on probation, their alcohol intake and ability to operate a vehicle after drinking can be limited.
Typical DWI probation conditions include.
- Duration of probation
- Fine and court costs
- Community service
- 12-hour DWI education class
- Victim impact panel presentation
- Substance abuse evaluation
- Random urine testing
- No alcohol consumption
- Requirement to consent to breath or blood testing if under investigation for another DWI while on probation
- Restitution to the DPS for testing blood
- Donation to MADD
If the DWI is a Class A Misdemeanor or Third-Degree Felony.
- You must have an ignition interlock device installed on any vehicle you operate while on probation
If the DWI is being punished as a 2nd or subsequent offense.
- There will be a small jail sentence to be served as a condition of probation
You’ve Been Arrested For A DWI: What Happens Next?
The specific facts of your DWI are unique, but every DWI case follows a similar path from beginning to end. Police first make contact with you, whether that is a traffic stop for an alleged traffic code violation, response to a vehicle accident, performing a welfare check on a possibly stranded motorist, or knocking on your window when you’re asleep in a parking lot. They ask you a series of questions while you’re sitting in your vehicle, all designed to see if your mental faculties seem impaired and to provide the officer time to see if your breath smells like alcohol. The officer will then have you step out of your vehicle and perform standardized field sobriety tests. At the conclusion of the tests, they almost always make an arrest. Once they transport you to a jail or hospital, they will request a specimen of your breath or blood. Then their investigation is complete.
After you are booked for the DWI charge, you will need to post bond to get out of jail. You will face a driver’s license suspension and must file a timely request for a hearing to fight the suspension.
Eventually, your case will be filed with the District Attorney’s Office once alcohol concentration results are returned from the lab or breath test machine. From that point, your attorney will review evidence, engage prosecutors in plea negotiations, and advise you whether to fight your case at trial or accept a negotiated plea agreement. Ultimately it is your decision whether to enter a guilty plea or set the case for trial. At the Law Office of J. Barrett Wilson, PLLC, we help you make the right decision for your situation.
Your DWI Arrest
Almost every DWI arrest begins with a traffic stop. To stand up in court, a police officer must have probable cause that you committed a traffic code violation or reasonable suspicion that you are driving while intoxicated in order to initiate a traffic stop. If an officer stops you based merely on a hunch, the initial detention is unlawful and will not survive a motion to suppress evidence. Motions to suppress, when granted, cause all evidence gathered after a police officer’s unlawful act to be thrown out. In the case of a DWI, suppressing the initial traffic stop will leave the prosecution with no evidence of intoxicated driving.
After the traffic stop, the officer will ask you to exit your vehicle and perform a series of tests known as Standardized Field Sobriety Tests. These are divided attention tests, validated by scientific research, that look for clues of intoxication. The tests include Horizontal Gaze Nystagmus, Walk and Turn and One Leg Stand. Officers use these tests to gather evidence supporting a loss of the normal use of mental and physical faculties.
At the conclusion of the Standardized Field Sobriety Tests, the officer will likely place you under arrest, thinking that enough clues of intoxication have been observed to support probable cause.
Blood Alcohol Concentration And Writ Bond
Once arrested, an officer will take you back to jail, at which point in time he or she will ask for a specimen of breath or blood. While breath tests used to be common, these days officers almost always request blood. You have a choice to consent to provide a specimen or refuse. If you refuse, most officers will obtain a search warrant to take your blood anyway.
Once officers have a specimen of your breath or blood, their DWI investigation is complete. Now it is time to get out of jail. You can wait up to 48 hours to see a magistrate and have your bond set. Or you may be eligible for a writ bond. A writ bond is the fastest way out of jail in Collin County and other select locations where writ bonds are accepted. The cash bond amount for any misdemeanor DWI is $500 if you hire an attorney to post a writ bond. If you wait for magistration, the magistrate has wide discretion on the dollar amount of bond set.
ALR Hearing And Occupational Driver’s License
Your driver’s license is subject to an Administrative License Revocation issued by the Texas Department of Public Safety. You have 15 days from the date of your arrest to file a request for an ALR hearing in order to fight the suspension. If you consent to a breath or blood test and your BAC returns 0.08 or greater, your driver’s license is subject to a 90-day suspension. If you refuse, your license to drive is subject to a 180-day suspension, regardless your alcohol concentration. We always recommend having an attorney request your ALR hearing and fight the suspension.
If the judge presiding over the ALR hearing orders DPS to suspend your privilege to drive in Texas, you will need something called an Occupational Driver’s License, sometimes called an Essential Needs License. This license is designed to allow you to drive during the period of the ALR suspension but not without restrictions. An essential needs license restricts the time, places, and purposes for which you can drive. An interlock occupational driver’s license does not restrict your driving, but it does require you to have an ignition interlock device installed on your vehicle.
Fighting Your DWI Charge
A DWI arrest in Texas can be intimidating. With the scientifically validated field sobriety tests and blood or breath alcohol concentration scores, it’s natural to feel like there is no point in fighting. But a DWI investigation can go wrong in a number of ways.
First, the officer must have a lawful reason to initiate a traffic stop or detain you. The first step a DWI lawyer will take is to analyze the reason and facts behind officers’ initial contact with you. A skilled DWI lawyer with extensive knowledge of case law can find errors officers make when they initiate a detention without developing a proper foundation, and in some cases, you may be able to get all evidence of intoxication suppressed.
Second, many things can mimic signs of intoxication. Some people don’t have good balance even on their best day. Other times a driver might be extremely tired and not thinking quite like normal due to fatigue. Health conditions like diabetes and past head injuries can cause a sober person to seem intoxicated.
Third, standardized field sobriety tests must be conducted in strict adherence to the procedures directed by the Nation Highway Traffic Safety Administration (NHTSA). If the officer varies from the rule book, the tests are no longer scientifically validated and can be discredited in court.
Finally, it is not simply enough for prosecutors to point out an alcohol concentration score of 0.08 or greater and call it a day. They must first prove that everyone in the chain of custody followed proper procedures when collecting and testing your breath or blood. Prosecutors must also prove that the equipment testing your breath of blood was operating according to specifications. And they must show that your alcohol concentration was greater than 0.08 at the time you were actually driving, not just a couple hours later when you were tested at the jail.
At the Law Office of J. Barrett Wilson, PLLC, we are focused, creative and compassionate. We can learn the full details of your DWI arrest, and will build a case that can beat your DWI charge.
We Help With DWI Expungements
Expunctions completely destroy all traces of an arrest, and you can legally deny ever being arrested for this DWI charge after a statutory waiting period. To be eligible for an expunction, one of the following must happen:
- You are acquitted at trial
- Prosecutors dismiss your case
- Or in the case of a felony, the grand jury issues a no-bill
A nondisclosure normally seals the record from public view after you successfully complete deferred adjudication probation. Once discharged from deferred adjudication probation, the court dismissed the charge, and at the appropriate time, you may petition to have your record nondisclosed. The nondisclosure allows you to not disclose the arrest on job applications, rental applications and other such matters.
Until recently, nondisclosures were not available for DWI charges. Now, however, there is a path to a nondisclosure for driving while intoxicated. You must plead guilty to a Class B DWI, the charge must be your first DWI arrest, and you must not have crashed into another vehicle leading up to the arrest. Once you complete probation, whether deferred adjudication or with a conviction, you must wait a statutory waiting period of at least two years and at most five years. Then you may petition for a nondisclosure.
Put Our Experience On Your Side
Going to court on any charge can be an intimidating process. We give you the confidence you need to reclaim your life. We encourage you to schedule an initial consultation with our Plano DWI attorneys. We can discuss the details of your case in a private environment. We’ll walk you through the process of navigating the criminal justice system. We’ll talk about the events leading up to your arrest, and the strategy we anticipate using to defend you. And most importantly, you’ll know you are not going through this challenging time alone. We look forward to meeting you and fighting for justice on your behalf. Call 469-565-1221, or complete our online form.