Have you been arrested and/or charged with driving while intoxicated (DWI) in Texas? You are not alone – in the Houston area, a DWI is one of the most common crimes people are arrested for. Our DWI lawyers understand the situation you are in and that the penalties can be life-changing and severe.
Under Texas Penal Code §49.04, a person commits a DWI offense if they are intoxicated while operating a motor vehicle in a public place. The Penal Code goes on to define 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, 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 (which is a per se legal violation)
When you are arrested for a DWI in Texas, two cases may be filed against you – a civil case to suspend your driver’s license and a criminal case to try and convict you for the crime of driving while intoxicated.
Will a DWI Arrest Get My Texas Driver’s License Suspended?
A driver arrested for a DWI in Texas does not automatically have their driver’s license suspended. Even if local law enforcement issues a DIC-25 or “Notice of Suspension,” that does not mean your license has actually been suspended – it means you are entitled to a hearing regarding the state’s attempt to suspend your license. The Administrative License Revocation (ALR) program in Texas gives you only 15 days following a DWI arrest to request a hearing. This hearing is your chance to fight law enforcement to prevent DPS from suspending your license. If you don’t request a hearing within 15 days, you waive the hearing and your Texas driver’s license is automatically suspended.
Types of DWI Charges
The penalties levied by the court for a DWI conviction can vary based on the facts of each individual’s case. For example, the number of prior offenses can affect the severity of the punishment.
First DWI: Even if your DWI is your first, you can still face serious penalties; however, in most cases, a first-time DWI is a Class B Misdemeanor. This can become a Class A Misdemeanor if your BAC is 0.15 or higher. A Class B Misdemeanor can result in up to 180 days in jail and/or a fine of up to $2,000. A Class A Misdemeanor can result in up to a year in jail and/or a fine of up to $4,000. Many people arrested for their first DWI have never been arrested before – that’s why it’s important to remember an arrest is not the same thing as a conviction. You can work with an experienced criminal defense lawyer to push back against a prosecutor seeking to prove their case beyond a reasonable doubt.
Second DWI: Once you have been convicted of a DWI if a second charge comes your way you will be treated as a repeat offender and your offense will be classified as a Class A Misdemeanor. This means your driver’s license can be suspended for six months to two years, you will likely spend a year in jail, and you will have to install an Ignition Interlock Device on your car. Texas courts can also impose other punishments including but not limited to at least 80 hours of community service, up to two years’ probation or community supervision, completing an approved DWI education class, and obtaining an evaluation to see if alcohol or substance abuse treatment is needed.
Third DWI (or more): If you are found guilty of a third or more DWI in Texas, this becomes a felony offense. A third DWI is usually classified as a Third-Degree Felony. The penalties increase significantly, including you can lose your driver’s license for up to two years, pay up to a $10,000 fine, be incarcerated for up to 10 years, lose the ability to possess a firearm, not be able to vote, and more. Past your third offense, if charged again it will likely be a Second-Degree Felony which can send you to prison for 20 years. The charged offense of DWI 3rd or more is governed by CCP Art. 12.01(7), which sets the limitation period of three years for felonies not specifically listed in subsections one through six of Article 12.01. Article 12.03(d) does not apply.
There are a variety of additional factors that can increase the severity of your potential punishment for a DWI, including but not limited to:
- Being drunk while driving with a child passenger
- Driving with a BAC of 0.15% or more
- Being under age 21
- Having an open container of alcohol in your vehicle
Frequently Asked Questions About DWI
What Does Intoxicated Mean in the Legal Sense?
Legally, “intoxicated” is used to describe an altered mental state in which the person has lost some of their mental or physical capabilities. An intoxicated person may or may not be drunk.
For example, a drunk person can be considered intoxicated; however, a person can be considered intoxicated and not be drunk.
Intoxication can happen due to ingesting the following:
- Alcoholic beverages
- Controlled substances
- Illegal drugs
Concerning alcohol, a person must have a blood alcohol concentration (BAC) of .08 or more in their body. If a person is driving and exhibits behavior that is deviant from “normal” mental and physical faculties, they may be charged with a DWI.
How Does Law Enforcement Decide if a Person is Acting in a Manner Not “Normal”?
When police evaluate a driver against what is considered to be normal mental and physical abilities, they are looking for a combination of physical and behavioral signs. The criteria law enforcement uses to determine if a person is possibly intoxicated or acting in a way that is not “normal” can be vast.
Physical symptoms of intoxication can include:
- Bloodshot or watery eyes
- Slurred speech
- Smell of alcohol
- Flushed face
- Dilated pupils
- Unreasonable sweating
- Coated tongue
Behavioral signs of intoxication may include:
- Slowed reaction time, including abnormal pauses before answering questions
- Speaking nonsensically to police officer or car passengers
- Overtly aggressive behavior
- Lethargic behavior
If an officer suspects a driver may be under the influence of drugs or alcohol, they may request a field sobriety test or a breath test.
What is Blood Alcohol Concentration?
Blood Alcohol Concentration (BAC) is the percent of alcohol in an individual’s bloodstream. BAC develops over time with the consumption of alcoholic beverages.
Acting as a toxin, alcohol is absorbed by the digestive system. A person’s liver then begins to filter it out of the bloodstream. When a person consumes alcohol faster than the liver can filter it out, their BAC will increase.
Your BAC can be affected by the following factors:
- The type of alcohol consumed (e.g., wine, beer, liquor)
- How quickly drinks are consumed
- If the individual ate before drinking and how much
- The age and weight of the individual
A person’s BAC level can range from nothing to a potentially fatal .40 percent. The following are examples of how varying BAC levels can affect a person’s mental faculties:
- BAC 0.0 percent: There is no presence of alcohol, and the individual is completely sober.
- BAC 0.02 percent: A person may “buzzed.” Their mood is slightly altered, they may be more relaxed, and there is a slight loss of judgment.
- BAC 0.05 percent: A person may feel increasingly uninhibited and have a loss of reasoning skills.
- BAC 0.08 percent: Individuals experience impaired judgment and reduced coordination and may have difficulty detecting danger. In Texas, this is the beginning of legal intoxication.
- BAC 0.10 percent: Individuals usually experience impaired judgment and reasoning, have difficulty processing information, may slur their speech, and have considerably reduced reaction time.
- BAC 0.15 percent: People often feel nauseous, have difficulty balancing, experience vomiting, and lose some muscle control.
- BAC 0.15 percent to 0.30 percent: People with this level of alcohol present are likely confused, will vomit, and feel severe drowsiness.
- BAC 0.30 percent to 0.40 percent: Most people will suffer alcohol poisoning and may lose consciousness with a BAC in this range. Alcohol poisoning is potentially life-threatening, killing an estimated 2,200 people a year. Alcohol poisoning reduces vital bodily functions, including breathing, heart rate, temperature, and blood pressure.
- BAC Over 0.40 percent: Considered fatal. People often suffer severe respiratory arrest and may slip into a coma.
Will A Higher BAC Lead to Harsher Criminal Charges in Texas?
Having a higher BAC will lead to harsher charges in Texas. Generally, when a person reaches a .08 percent BAC, they are over the legal blood alcohol limit in the state. Once a person’s BAC reaches the legal limit, they are considered intoxicated under the law and subject to a DWI charge.
Penalties for a .08 percent BAC, if it is the first offense, can include:
- Two days to six months in jail
- Fines of $2,000 or more
- Yearly fines between $1,000 and $2,000 to keep their driver’s license
A .08 percent BAC or higher is often charged as a Class B misdemeanor. However, when a person’s BAC levels are significantly higher, they may face a Class A misdemeanor charge. A .15 percent BAC is often charged like a second DWI offense. Penalties are typically twice that of a Class B misdemeanor, such as:
- Up to a year in prison
- Fines of $4,000 or more
- License suspension of 18 months
On average, it only takes between four and eight drinks for an individual to have a .15 percent BAC.
Contact the DWI Defense Lawyers at J.D. Silva and Associates today
Were you arrested for drunk driving in Houston, Texas? The criminal defense attorneys of J.D. Silva & Associates represent alleged offenders throughout Harris County, Brazoria County, Friendswood, Pearland, Seabrook, League City, Deer Park, Pasadena, La Porte, Fort Bend, and many other locations. Call (281) 944-4354 or fill out an online contact form to have our dwi defense lawyers review your case and explain your legal options during a free, confidential consultation.