There have been several changes to the laws related to Driving While Intoxicated and the consequences of such charges over the past several years. These changes include new offenses such as increased punishment for blood or breath in cases of .15 or greater, alcohol monitoring for persons with a subsequent offense, both as bond conditions and probation requirements, and the manner in which subsequent offenses can be used to enhance the most recent arrest.
The Texas Penal Code Chapter 49 contains the law regarding the elements and punishment of violations of the state’s prohibition of operating motor or mechanical devices in Texas. It is important to note the offense includes the operation of motor vehicles, aircraft, boats and the assembly or operation of amusement rides. Although the offense is entitled “Driving While Intoxicated” it is actually defined “as operating” a motor vehicle, etc “in a public place” The term operating is loosely defined and depending on the circumstances can be found where a person has turned the vehicle on but not actually moved. It is for the trier of fact, either the judge in a bench trial or a jury, to make a finding if all the elements of the offense have been proven, including the element of “operation”.
“Public Place” is also broadly defined and can, under certain situations, include private property when the public is permitted access to such property such as parking lots in shopping centers, malls or other such businesses.
There are two (2) ways to prove “intoxication” in Texas. Intoxication is defined as 1) not having the normal use of mental or physical faculties by reason of the introduction of alcohol, a drug, a dangerous drug, a combination of two or more of those substances, or any other substance (emphasis added) into the body or 2) having an alcohol concentration of .08 or more in the body. The term “.08” means the number of alcohol grams in either 210 liters of breath, 100 milliliters of blood or 67 milliliters of urine. In other words the State is required to prove either that the person is in excess of the .08 standard or that the person does not possess the “normal” use of his or her mental or physical abilities. Frankly I have always been intrigued by the phrase in the statute “any other substance” because does that mean if one was to drink too much water and the fact that his bladder is about to explode causing him to lose some of his physical agility really mean that he is “intoxicated”. I fully expect some over zealous, self-righteously arrogant prosecutor to make that argument someday. After all there are a lot of John Bradley and Susan Reed types in this world.
A DWI can be punished anywhere from a Class B Misdemeanor to a First Degree Felony with a punishment range of five (5) years to life in prison and in certain situations as habitual criminal with a potential penalty of 25 years to life in prison. Generally speaking the first two (2) convictions for DWI are misdemeanors provided there is not a child under the age of 15 in the automobile or there are not any injuries associated with the incident. A first DWI is usually a Class B Misdemeanor with a maximum range of punishment of 180 days in jail, a fine not to exceed $2000.00, or both fine and jail. The jail and fine can be suspended (probated for up to two (2) years). A Class A Misdemeanor would include a subsequent DWI or a blood alcohol concentration in excess of .15. Class A Misdemeanors are punishable up to 365 days in jail, a fine not to exceed $4000.00 or both. Any DWI with a child passenger (child under the age of 15) is a State Jail Felony punishable by confinement in a State Jail facility for a period of 180 days to two (2) years and a fine up to $10,000.00, or both confinement and fine. It is a separate offense for each passenger under the age of 15 and it is possible for any such sentences to be ordered served consecutively (stacked one upon the other). All felonies carry a possible fine of up to $10,000.00. Texas used to have a ten year rule which treated any DWI occurring more than 10 years after a previous conviction as a first offense, however, after a series of changes the Texas Legislature did away completely with the 10 year rule and thus it does not matter how and when a conviction is obtained it can be used to enhance a subsequent offense. It should also be noted that there is an offense referred to as “Driving Under the Influence Minor” (DUI) which provides that any person under the age of 21 who has “any detectable amount” of alcohol in their system has committed a DUI. This means that an officer that claims he smells alcohol on the minor’s breath could arrest or cite the minor for this offense. It is a Class C misdemeanor punishable by fine only. However, a minor even under the age of 21 can be charged either with a DWI or a DUI at the discretion of the arresting agency.
A defendant on bond for a subsequent offense may also be required to have an Ignition Interlock Device (IID) installed on any automobile they operate. These devices detect very minute levels of alcohol on a person’s breath and a positive reading will most likely result in a bond revocation and additional sanctions such as a SCRAM bracelet (costing approximately $400.00 per month) and/or a Personal Alcohol Monitoring Device (PAM), which can cost up to another $160.00 per month. These are all pre-trial conditions and consequences required EVEN BEFORE a judge or jury has convicted the defendant for any offense.
In addition to the criminal sanctions there are consequences which will involve suspensions of the driving license of any one arrested and/or convicted of a DWI. The first such suspension is referred to as an ALR (Administrative License Revocation). This is a suspension for either refusing or failing a breath or blood test after being arrested for a DWI. The first suspension is for 90 days if the person submits to a test and 180 days if they refuse to submit a sample. A subsequent suspension could be for up to two (2) years if the prior suspension occurred within ten years of the first incident. The ALR is considered a civil sanction and the standard of proof at that hearing is the preponderance of the evidence (greater weight of the evidence) not the criminal standard of proof beyond a reasonable doubt. The arresting agency must show that there existed reasonable suspension for the initial stop and probable cause to believe the driver was intoxicated. Once these two (2) things are established the issue is whether a test was failed or refused.
DWI has essentially become a politically incorrect offense with increased fines, jail sentences, counselling requirements for those placed on probation, pre-trial bond conditions and driver license sanctions. It is essential that anyone charged with these offenses obtain experienced, competent counsel because DWI is the one conviction that will stay with you for the remainder of your life.