Texas DWI Guide

In Texas, the penalties for a DWI conviction depend on several factors. Is it a first-time DWI? Is it a second-time DWI, or a third or more? What is the breath or blood test result that got you in trouble? If it’s a blood or breath test result under a .15 and it’s a first-time DWI, the range of punishment is up to six months in jail and up to a $2,000 fine. However, I’ve never had anybody go to jail on a DWI-first with under a .15, and that’s with 30 years of defending DWIs. On a DWI-second and third, the penalties ratchet up dramatically. On a second, it’s up to one year in jail, and it’s up to a $4,000 fine. On a felony DWI, depending on the number of prior felonies, and if someone’s been to the penitentiary, all those play a role in determining the range of punishment. Generally, on a felony DWI, which is three or more DWIs, the range of punishment is up to 10 years in the penitentiary.

If you’re charged with a second DWI, there are a couple things that happen. The range of punishment is greater because instead of a Class B misdemeanor, it becomes a Class A misdemeanor. With a Class A misdemeanor, the fines are up to $4,000, and if you’re prior DWI was within five years, then you’ll lose your license. There’s a period where you can’t even get an occupational license. That’s difficult for a lot of people because you’ll have a period of 90 days when you can’t even drive a car, and if you get caught driving a car, it’s another offense.  Of course, that is dependent upon having the DPS hearing and losing, so it’s important on a DWI-second to request a DPS hearing within 15 days because you could have a period in which you can’t even get an occupational license.

Some courts want to give somebody some days in jail as a condition of probation on the DWI-second. I’ve been able to avoid that with prior clients, and I think in most cases you can avoid it. There’s a lot of prosecutors and a lot of DAs that feel that somebody with a prior DWI and gets a second, that they need to spend a weekend in jail, but if you mount a defense, and so forth, they will drop that requirement.

If you’re charged with a third DWI, the penalties are potentially much greater. You can serve up to 10 years in prison. You can have a $10,000 fine. Even if you’re given probation on a felony DWI, the judge can give you 180 days in jail as a condition of getting the probation. On a felony DWI, it’s real important that your lawyer make sure he collects all of the evidence, all of the breath tests, and collects the prior judgments, because very often, what they’re using to enhance is a prior judgment that they can’t prove is you.

It’s their obligation to prove the prior judgment is yours, but very often if a judgment is more than 10 years old, they can still use it, but very often they can’t prove it’s you because they don’t have fingerprints; all they have is a name. In those circumstances, sometimes you can get them to drop one of your priors so that your case now becomes a misdemeanor. That’s one of the first things that we need to do on a felony DWI, is see, if in fact, it should be a felony DWI, because you don’t want to be looking at up to 10 years in prison. If we can get it dropped to a misdemeanor, then you can still fight the case, and if you’re convicted, probably just get probation. It’s a much better position to be in.

If you’ve been charged with a DWI, for your initial meeting what I would like to have you do is bring in all your paperwork that you got in the arrest. There will be a paper that’s described as a DIC-24. You may have gotten some police report, and some preliminary matters. Bring all that in with you because I can review those and it gives me a starting point.

From you, I’m going to want to know whether the officer told you why he stopped you. If an officer stopped you for weaving within your lane, if he stopped you for speeding, those are good defensive reasons for a stop; they help you. If an officer said he stopped you for driving the wrong way, or he didn’t stop you because there was an accident, those are obviously things that will help the prosecution.

What we need to do is we need to set in motion the DPS hearing. We need to get copies from the District Attorney’s office, police reports, lab reports, breath tests, and I also make an inquiry into the officer’s background as to what his training is. Very often, the officers that are making an arrest don’t have any training on the field sobriety test. If they don’t have any training on the field sobriety test, I usually find that they’re done incorrectly.

There are three field sobriety tests that they’re going to do in every case. One is the nine-step walk-and-turn; there’s the 30 second lift-the-leg-count-out-loud; and there’s the HGN, where they ask you to follow the pen with your eyes. Sometimes clients come in and say, “I passed all the tests.”  That’s good; that helps. That helps me know that the case may be defendable, and is probably defendable. However, most people get arrested based on the HGN, when an officer asks you to follow a pen with your eyes. Juries usually don’t buy that. It’s not visible on the video, and if that’s what the officer based the arrest on, then I usually feel the case is defendable.

If a case is defendable, most counties have started to offer alternatives to the DWI. If you go in with a defendable case and start fighting, arguing, and filing motions, they’ll offer you an alternative to a DWI. If a case is not defendable – and when I say not defendable, I mean that you are likely to lose at trial –you can still put up the fight and they may offer you an alternative to DWI. If they don’t you’ve got a choice to make; you set it for trial or you work out a plea bargain. What I usually do is sit down with the client and explain the pros and cons. Ultimately, it’s your choice.

In Texas, on a DWI-first, you normally don’t go to jail. In fact, I’ve never had anybody go to jail on a DWI-first or second. However, legally, it can happen. When you’re in the court room, you’ll see it happen. People do occasionally go to jail on DWI-first or second, but I’ve never had it happen with a client, and that’s with 30 years of defending people with DWIs. If someone’s injured in a DWI accident or if it’s a third or more DWI, there’s a chance of going to prison or jail. That does not happen all the time, but there is a chance it will.

You need to hire somebody that knows what they’re doing and can prepare you. For a felony DWI, or when you have three or more DWIs, I normally recommend to my client right away that he gets involved in some sort of treatment because a judge is not going to accept that the client does not have a problem. We need to be proactive, get involved in those things, in case you are convicted. That allows your San Antonio DWI attorney to make a good argument that you do not need to go to jail or prison.

On a DWI-first, you could lose your license at the DPS hearing. The DPS hearing is an administrative hearing, it’s held about 60 days after your arrest, and it’s a very informal hearing. I don’t have my clients show up; I show up without my client. If we win that hearing, you’re not going to lose your license on a DWI-first. If we lose that hearing, I can get you an occupational license.

With the occupational license, you’re really not going to notice much difference than your normal license. You’re going to be able to drive for essential household duties, going to the grocery store, and going to work. The only thing you really can’t do is go out to a bar; you can’t go out and socialize. That could get you in trouble, potentially. However, in a lot of cases, you’re not going to lose your license. You don’t lose your license because of being convicted of a DWI. What we make sure is, if the judge orders that you take a DWI education course, upon a conviction, then you don’t lose your license.

If it’s your second DWI, then it is a Class A misdemeanor and it’s up to one year in jail. In most cases, on a second DWI, the worst case is that you’ll end up with being placed on probation. If you have two or more prior DWIs, then your third is a felony; there’s a high risk of going to prison. What I usually recommend to people when they come in and they have multiple prior DWIs, is that they need to be proactive. They need to absolutely quit drinking. They need to start going to AA. If they have the money, the need to go to treatment, in-patient if possible.

A judge is going to look at that person and think they’re high-risk to the community, they’re high-risk to the judge’s position, they’re high-risk to the DA, and so you need to do what you can to make yourself look low-risk. If we do all the things we need to do, if it ends up that you have to work out some sort of plea bargain on a felony DWI, in most cases, you can end up being placed on probation and avoiding prison.

When you say aggravated DWI, there are two or three ways a case can be aggravated. Aggravated generally means enhanced penalties. One of the ways, on a DWI-first, to be aggravated is if your blood or breath result is a .15 or above. Normally, if it’s just barely over a .15, we can get the prosecutor to drop it down to under a .15. That affects the length of probation, fines, and surcharges. If you are barely over, very often, we can get the court and the DA to drop that so it’s not enhanced.

There are also other enhancements for injuring someone while drunk driving. There are enhancements if you have multiple DWIs. If you’ve had two DWIs 20 years ago and you get another, this could be a felony and you could go to the penitentiary. It’s a serious enhancement, so we really need to pull out all the stops and try to get the cases thrown out. You need to get priors thrown out. Very often, even when you’re charged with enhanced DWI, it doesn’t stay enhanced.

In Texas, we see both breath tests and blood tests. Which one is more defendable? It depends on the case and the facts and who ran the blood test. Probably, overall, a breath test is more defendable because the jurors have some doubt about the results of breath tests. Depending on who did them and who’s testifying, that makes a difference because on a breath test, usually there are one or two people that come in to testify about a breath test.

On a blood test, the people have more qualifications and come in to try to set up the blood test as the greatest test. However, also what ends up happening in some blood tests is the state has difficulty getting those people in. Also, there are other issues that occur with blood tests. Was the blood drawn properly? Did they use the right type of swabs when they cleaned the area of the arm? There’s a lot to look at, but jurors generally have more faith in blood tests. I would say probably a breath test is more defendable.

If you’re pulled over for a DWI and the officer requests that you take a blood or breath test, you can refuse. If you refuse, some things are going to happen. If you are in a larger county or city, they will go to a magistrate and they’ll get a warrant and they’ll draw your blood. In a smaller county or city, very often they don’t have that ability and they’ll just accept your refusal. There are a few things that happen when you refuse. The driver’s license suspension is longer if you refused to take the breath or blood test.

The old way of looking at it was that you always refuse, and that still may be good advice in a lot of circumstances. However, if your blood or breath test is barely over the legal limit, I find it very often easier to defend a breath test than a blood test. Very often, the advice is if you think you’re just barely over the legal limit or close to it, then sometimes you might be better off taking the breath test. One, you have a lower suspension period, and two, you’ll end up with a case that’s more defendable.

In most cases, an officer requesting that you take a breath test, if you do it, is not admissible against you at trial, because that machine he used at the scene, in most cases, is what’s called a PBT, a portable breath test machine and they are not accurate. The results from those can vary dramatically. An officer might be able to use it against you, or the state can use it against you if you denied consuming alcohol. They can use it to show the consumption of alcohol, but not the result. The reason is, of course, like I mentioned earlier, that the results from that machine are not accurate.

A .08% is kind of a threshold for blood alcohol content. A lot of people over the years have come in and said, “I took the breath test and my breath test result was a .08, I guess I’m guilty.” Well, the fact is, you’re not. What happens with that breath test is that is the result when you took the test. The law is, what is your result when you were driving?

Very often, the breath test occurred an hour after you were driving. In probably most cases, people’s blood-alcohol level is going up during that period from the stop to when they took the test. If your blood level is going up after you’re driving, then when you’re driving it was lower. In fact, most experts will say that your blood-alcohol level can vary by.03, within an hour. If someone blew a .09, well, it’s obvious that they could’ve been under the legal limit when they were driving. A .08 doesn’t mean you’re automatically intoxicated, and doesn’t mean you’ll automatically be found guilty.

There is a second prong to DWI. The second prong is that they can also prove you were intoxicated by loss of normal, mental or physical factors. What ends up happening is there’s a video in most cases of somebody there at the scene, or of the defendant, and if you look good on the video, it’s a real strong argument that at the time you were driving, you were under the legal limit. We have to look at all the facts to see if the argument works, that when you were driving you were under the legal limit.

In Texas, multiple field sobriety tests can be given by the officer. It’s up to the officer to decide what field sobriety test will be given. However, if an officer is well-trained, he knows what he’s doing. If he is a DWI task force officer, he’ll perform just three tests. One is the HGN; that’s a horizontal gaze nystagmus. The horizontal gaze nystagmus basically means the officer takes a pen, he moves it in front of your face, asks you to follow it with your eyes, and if your eyes make any jerky motion, you fail that test. There are many of causes of HGN. If you’re tired, if you’ve taken some cold medicine, if you’ve had a prior head injury, all those things can cause you to fail the HGN. If you fail the HGN, he’s probably going to arrest you, even if you did the other tests perfectly.

One of the other tests they give is a nine-step walk-and-turn. The nine-step walk-and-turn is where you touch heel-to-toe, turn around and come back, and touch heel-to-toe counting nine steps, but there are also other parts of that test that the officer is looking at, and he doesn’t tell you that he’s grading you on these other things. One of the things he does is he tells you to stand heel-to-toe while giving you the instructions. So he gets you to stand in a heel-to-toe position and he goes through a long description of the test. Because it’s uncomfortable, and it doesn’t feel natural, a lot of people then switch to stand with their feet shoulder-width apart; you’ve just failed the test according to the officer.

The other thing he looks for is when you walk heel-to-toe, he literally means touching heel-to-toe. If you are more than a half inch apart on any of the steps, it’s a failure. That’s very awkward. It’s very uncomfortable. You’re out at night. You might be cold. It might be windy, and he asks you to perform this test. The other thing that occurs is he really doesn’t take into consideration the ground. If you fail the test, you fail the test. However, there could be stones; there could be gravel; it could be unlevel. All those things make it difficult to perform that test.

The other test they ask you to do is do a one-legged stand. During the one-legged stand, part of the instructions is to lift your foot up, tip your toe down, and look at your toes. The reason they want you to look at your foot or your toe is it makes it harder to balance. If you look out on the horizon, it’s easier to balance. But he asks you to do the unnatural act of looking at your toe and count. Very often, clients do very well at that, but the officer will fail them for not looking at their foot; he fails them for not pointing their toe down; or maybe once during the test, they drop their foot slightly.

The officer grades all the tests and if you’ve failed any part of it, you’re probably going to be arrested for DWI. If you’re arrested for DWI, then he’s going to ask you to take a breath or blood test. Before he does that, he reads a form and he describes to you the ramifications of the test, and then it’s up to you whether to take the breath or blood test. If an officer asks you to perform other tests, it probably means to me, in most cases, the officer’s not well-trained, and that may help us.

In Texas, there are three field sobriety tests that are given for almost every single DWI. One is a nine-step walk-and-turn; one is a 30-second leg lift; and the other test is an HGN. What that stands for is horizontal gaze nystagmus. The problem with the horizontal gaze nystagmus is that there are numerous causes of it. I’ve had clients in my office, when I perform the test on them, they have the horizontal gaze nystagmus when we’re sitting sober in my office. An HGN test is when an officer takes a pen, moves it across in front of your face, and is looking to see if your eyes bounce. That’s what they’re looking for. If your eyes bounce or wiggle when he’s doing this test, you will be arrested. Jurors can’t see it and often don’t consider it good evidence. It’ll show the officer performed the test, but the movement in your eyes normally is not visible to the jury, so they’re going to be looking at the nine-step walk-and-turn and the one-legged stand. A lot of times, jurors go back and they say they couldn’t do that either. It’s very often that someone does well on those tests, and when they do well, the case is usually defendable.

If an officer asks somebody to perform other field sobriety tests – occasionally they ask somebody to do a 1-2-3-4, 4-3-2-1 with their fingers, that’s not a valid test. Sometimes they ask somebody to do the alphabet, start at the letter C, or do the alphabet starting at the letter Q; those aren’t valid tests either. Some judges will not allow that into evidence, some will, but NITS – the National Highway Traffic Safety Administration – only recognizes the three tests I’ve mentioned; the horizontal gaze nystagmus, the nine-step walk-and-turn, and the one-legged stand.

You also have to realize the officer counts it as a failure on the nine-step walk-and-turn if your toes miss heel-to-toe by half an inch; that’s a failure. If you raise your arms up six inches for balance, that’s a failure. If at the start of the test he tells you to stand one foot in front of the other while he’s instructing you, if you get a little tired and you change and step with your feet shoulder-width apart, that’s a failure. No matter how good you are, those are all failures. When he asks you to perform the one-legged stand and one of the things he tells you is to point your toe down, if you don’t point your toe down, that’s a failure. No matter who good you are.

Jurors usually don’t count that against clients, but the policeman did in making the arrest. Very often, people are arrested who look very sober, but they just failed the officer’s grading system. Another problem is that the officer does not tell you what he’s grading you on, so it’s kind of like you’re taking a test in school and you’re not told how the grading works. So you start off, you perform the test and you do well, but he fails you because you missed some minor aspects of the test.

For example, when you’re doing the nine-step walk-and-turn, when you think of it, it’s 18 steps. It’s a failure if you just miss touching heel-to-toe a couple of times. It’s also a failure if when you do the turn you don’t take multiple steps. If you spin around and do a perfect ballet move, that’s a failure. The fact is, it is really hard to perform those tests. You’re set up for failure, but the fact that according to the officer you failed, doesn’t mean that you failed in front of a jury.

In Texas, a DWI will stay on your record forever. When I say forever, I mean for as long as you live. The DWI number of years ago can only be used for enhancement purposes for 10 years. Today, they can go back forever to enhance a subsequent DWI. It’s real important, if you’re charged with a DWI, to do what you can to get the case either dismissed or win at trial because it will stay on your record forever.

If you’re charged with a DWI, the decision about whether to work out a plea bargain or whether to set a case for trial usually takes about three months to reach that point because there’s a discovery process that we go through. We collect video tapes, we collect DVDs, we collect breath tests, we collect blood tests, we collect the police reports, and then we usually sit down with the client and we look at it all. In a lot of cases, there are other things that we also consider. Did the officer know what he was doing? Sometimes an officer is in training and he doesn’t do the field sobriety test correctly. Very often, in Texas for instance, a police officer stops somebody for weaving within their lane. Weaving within your lane is not an offense, but a lot of new officers stop somebody for that. The fact is, even if someone is quite intoxicated, if the stop was not a good stop, you can have the case thrown out. What we end up doing is collecting all the evidence, and then after we collect it all, we sit down with the client and we map out a game plan. Sometimes the game plan is to work out a deal because the situation is not worth spending the money and the delay to end up with the same result. Very often, that decision is made three or four months down the road, we look at the case and it’s made jointly with the client.

There are multiple steps that have to happen. A DPS hearing needs to be requested within 15 days. After you make the request for the DPS hearing, that hearing will happen in about 60 days. Your actual criminal case, which is separate from the DPS hearing, can take anything from two to three months up to two years. Normally, it’s around a nine-month period, where you end up in a situation where you’d make a decision. Are you going to try it? Are you going to resolve it? I would say probably 50% of the time the cases are resolved in around six months.