h

*The Driving While Intoxicated Laws
*Administrative License Revocation
*The Collateral Consequences
*Moral of the Story - FIGHT!


Getting a DWI (Driving While Intoxicated) is serious! You need to take it seriously - so should your lawyer. Even a conviction for a first-time DWI can carry serious consequences, not the least of which is $1,000 or more per year for three years just to keep your driver’s license.

If you are like the vast majority of those who get arrested for DWI, this is the ONLY way that you would ever have come into contact with the criminal justice system. Only because Texas DWI laws exist, do many people who would never dream of breaking the law find themselves arrested, photographed, fingerprinted, and generally “treated like criminals.” This is serious business. And once you have posted your bond, the whole process is really just beginning.


The Driving While Intoxicated Laws

A first-time DWI is a “Class B Misdemeanor.” This means it carries a criminal penalty of up to 6 months in the county jail and a fine of up to $2,000.

A second DWI is a “Class A Misdemeanor.” This grade of offense carries up to a year in county jail and up to a $4,000 fine.

A third DWI is a “Third Degree Felony,” which carries a penalty of up to ten years in prison and up to a $10,000 fine. That is penitentiary time, not county jail time.

A conviction for any of these also carries a mandatory driver’s license suspension of at least a year.


Administrative License Revocation

Since 1995, the State of Texas has had ALR. If you have been arrested for DWI, you know the police officer serves on you a “Notice of Suspension / Temporary Driving Permit” and takes your license away from you.

From the date of your arrest, you then have 15 days to request a hearing on what will otherwise be a mandatory driver’s license suspension from at least 90 days for failing a breath test, to at least 180 days for refusing to take a breath test. If this is not your first DWI arrest, then the suspension times increase dramatically.

IT IS EXTREMELY IMPORTANT TO GET A HEARING REQUESTED AND NOT JUST LET THE 15 DAYS GO BY!!

The ALR hearing is an opportunity that should be exploited. You have the opportunity to make the arresting officer appear at the hearing and give testimony. This could come in handy at a future trial. If you took and failed a breath test, then you have the opportunity to make the breath test operator and technical supervisor show up as well. And if you request their presence and they don’t show up, you win. If they do show up and you do not prevail, at least you have some testimony you may be able to use later in fighting your DWI case.


The Collateral Consequences

“Collateral consequences” are those not specifically outlined in the criminal codes, but nonetheless attach to a DWI conviction from other sources.

I already mentioned the driver’s license “surcharge” of at least $1,000 per year for three years just to keep your license. That is a “collateral consequence” and a bad one at that. This surcharge was enacted by the 2003 Legislature.

A DWI conviction carries other consequences as well. For instance, if your insurance company finds out you are convicted of DWI, then it will no doubt drop you and you will have to get “high risk” insurance at a vastly higher cost. Car rental companies may not rent a car to you if they know you are convicted of DWI. If you have a job that requires you to be under a fleet insurance policy, such as with a trucking company, you may lose your job if the insurer finds out you have a DWI and drops you. The list goes on.


The Moral of the Story - FIGHT!

I always tell prospective clients that I go into a DWI case with the mindset that we are going to fight it. I collect all the information I can so that you can be in the best position possible to make the crucial decision whether you want to go to
trial or not.

There are two reasons I go into every DWI case with the intent of fighting it:
(1) the consequences I have already outlined above are severe – too severe, really; and
(2) DWI cases are WINNABLE!

Remember those tests you were given on the roadside? Here is the breakdown on the accuracy of those tests as determined by the National Highway Traffic Safety Administration (the agency that dreamed them up in the first place):

Horizontal Gaze Nystagmus (the “eye test”): 77% accurate
The Walk & Turn (the “walk the line” test): 68% accurate
The One Leg Stand (“count to 30”): 65% accurate

And these percentages are really only valid when the tests are given under “laboratory conditions.” Needless to say, tests given in questionable lighting on the side of the road on what was in all likelihood not a flat surface and with traffic whizzing by are not given under “laboratory conditions.”

The effective criminal defense lawyer with experience trying DWI cases can make the jury understand this and thus be more apt to discount the “field sobriety tests,” as they are called.

As you have probably guessed, most of the state’s witnesses in a DWI case are going to be police officers. These officers have testified time and time again in DWI trials. Effective cross-examination of these officers requires experience with DWI and the issues surrounding these particular cases (such as the field sobriety tests). But the good news is that when your
attorney has this experience and knowledge, you will almost always have a chance to win.

Even a “breath test failure” case is not a lost cause. The Intoxilyzer 5000 (the breath test machine, or “black box”) has some scientific limitations. For instance, it assumes that everybody on the planet has the same body temperature, metabolism, and physiology. The police will deny that this is a limitation, but doesn’t it seem like one? Further, the machine itself is designed to have a container attached which would save the breath sample for re-testing, but Texas has decided not to use it. If you took a breath test, remember that you got two “scores?” If those two scores are within .02 of each other, then it is considered by law enforcement to be a valid test. Thus, if you blew .081 and then .100, that’s good enough. Doesn’t that seem like a “margin of error” to you?

Needless to say, my philosophy is that a DWI should be fought, unless after full and careful consideration, you, the client, decide otherwise. Call me.


Back to the top