HOW BAD WILL IT HURT?
Good resolutions are simply checks
that men draw on a bank
where they have no account.
There are several different crimes in Texas dealing with drinking and driving. The most common is driving under the influence of alcohol and/or drugs. These two crimes are tied together under one law and referred to as DWI.
The definition of DWI is you were intoxicated while operating a motor vehicle in a public place. To prove you were intoxicated from the introduction of alcohol or drugs, the State must show you lost the normal use of your mental and 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 in the body. Another way for the State to prove intoxication is to show you have an alcohol concentration of 0.08 or more.
Driving While Intoxicated does not actually require driving a motor vehicle. For example, a vehicle that is in park in a parking lot or asleep at a drive-thru can be sufficient for DWI if the other elements of the crime are also proven. There is a case out of Austin that allows that evidence can be admitted to show there was no intent to actually operate or drive the vehicle.
A motor vehicle is defined as “a device in, on, or by which a person or property is or may be transported or drawn on a highway, except a device used exclusively on stationary rails or tracks.” It does not matter if the vehicle has a license plate or is eligible to get a license plate. The term motor vehicle does include implements of husbandry. Implements of husbandry are vehicles used in farming. For example, a tractor would be an implement of husbandry.
The penalties for DWI can vary between the different counties of Texas. The reason it varies is because district attorneys and county attorneys have wide latitude in determining the punishment for DWI. But no matter what standard of punishment they decide, the fine and the jail time cannot be greater than what the statute prescribes. A first time DWI is a Class B misdemeanor. This means you have to pay a fine that could cost up to $2,000 or be confined a minimum of 3 days up to 180 days or both fine and time. You’d also have to pay court costs which are separate from the fine. The sentence can be probated for up to two years. Additionally, the sentence can include community service hours, installation of an ignition interlock device, and attendance at a victim impact panel, mandatory alcohol assessment, DWI education class, alcohol treatment, restitution and pay a monthly supervisory fee.
If you have been charged with a DWI and have had one prior conviction for DWI, the new charge will be a Class A Misdemeanor. The punishment is not more than one year of confinement, a fine of up to $4,000, court costs. Additionally, the sentence can include community service hours, installation of an ignition interlock device, and attendance at a victim impact panel, mandatory alcohol assessment, DWI education class, alcohol treatment, restitution and pay a monthly supervisory fee. If the State can prove that you had an open container of alcohol in your immediate possession while DWI, then there is a minimum term of confinement for six days in both Class A and Class B cases. A two year probationary period can also be given.
If you have had two or more prior convictions for any intoxication offense such as DWI, BWI FWI etc., the new DWI you face is enhanced to a Felony of the Third Degree. The jail time further increases to not less than two years to not more than ten years in the state penitentiary and a fine up to $10,000 for a Felony DWI. Additionally, on felony charges, the court has the power to order you to submit to electronic monitoring during any term of probation.
If you’ve had a conviction for Intoxication Manslaughter or Intoxication Assault, the new DWI is enhanced to a Felony of the Third Degree as well. Intoxication Manslaughter carries a potential sentence of 2 to 20 years while Intoxication Assault is 2 to 10 years in prison. There is a mandatory 120 day jail sentence attached to all Intoxication Manslaughter convictions. ***If you have a conviction for either of these offenses your next DWI will be filed as a Felony 3rd degree.
Obstruction of a Highway – DWI
An additional charge to DWI could be the “Obstruction of a Highway or Other Passageway.” This charge is commonly known in Texas as Obstruction. The class of offense is a Class B Misdemeanor just like a DWI. The punishment for Obstruction is the exact same as for a first time DWI. This charge is often used as a bargaining tool to avoid a DWI conviction even though technically it is not a lesser included offense of the DWI category.
DUI Under 21
There is an additional statute that only applies to drivers under the age of 21. Texas has a zero tolerance policy towards minors. If you are under 21 and have any detectable amount of alcohol in your system you can be charged with the crime of Driving Under the Influence of Alcohol Under the Age of 21.
A “DUI Under 21” does not carry jail time on the first offense and is a Class C Misdemeanor. The judge could impose 20 to 40 hours of community service hours, installation of an ignition interlock device, and treatment. It also carries driver’s license consequences for the first offense. On a second conviction for DUI, the fine ranges between $500 and $2,000 and/or confinement in jail for up to 180 days. This enhancement also increases community service to somewhere between 40 and 60 hours.
CAUTION: This statute does not prevent the State from charging a person under the age of 21 with a regular DWI if you have a breath or blood alcohol level greater than .08. The prosecutor’s decision will determine if the charge is filed as an Under 21 DUI or the more severe DWI statute.
High BAC Aggravated DWI
If your breath or blood alcohol level is greater than .15 grams per 2100 milliliters, you can be charged with DWI with enhanced penalty. The fact that you are charged with DWI changes the punishment range from a Class B Misdemeanor to a Class A Misdemeanor. This class of offense carries a fine not to exceed $4,000 and/or confinement in jail for up to one year.
Driving While Intoxicated With Child Passenger
A caution to parents or anyone who has custody of a child: If you are arrested for DWI while having a person under the age of 15, in your vehicle the State will charge you with DWI With Child Passenger. This offense becomes a State Jail Felony and carries up to 2 years and not less than 180 days imprisonment. This time must be served day for day with no credit for good time. There may also be a fine of not more than $10,000.
If you are charged with DWI resulting in an accident involving serious bodily injury to another, the offense becomes a Felony of the Third Degree. In these cases, the minimum jail time increases to not less than 2 years and not more than 10 years imprisonment and a fine of up to $10,000. If it is shown in trial that the person harmed was a peace officer, a firefighter, or emergency medical services personnel who was doing his/her job, then it becomes a Felony of the Second Degree. This means you will be imprisoned for at least 2 years and at most 20 years. The fine is the same.
When a death results from a DWI, you can be charged with Manslaughter, which carries not less than 2 years imprisonment and not more than 20 years. If the person who was killed was a peace officer, a firefighter, or emergency medical services personnel performing his/her job, then it becomes a Felony of the First Degree. The term of imprisonment for this case is between 5 years and 99 years. The fine is not to exceed $10,000.
Recently, a number of Intoxication Manslaughter cases have been filed as Felony Murders to enhance the penalty to a sentence of 5 to 99 years. This occurs when a twice convicted DWI driver kills someone while committing their third DWI. This is somewhat disturbing since there is a statutory crime that specifically deals with a DWI death but the Texas Court of Criminal Appeals has approved this method of prosecution.
A DWI charge carries significant penalties and a loss of liberty. It is very important for anybody who is charged with DWI or DWI related crimes to immediately consult and retain a highly qualified DWI attorney.