DWI
& "Intoxication" under
Texas
Law:
Driving while intoxicated, first offense, is a Class B Misdemeanor
that is defined at Texas Penal Code ß49.04. That provision states that,
" A person commits an offense if the person is intoxicated while
operating a motor vehicle in a public place".
This definition sets forth the elements that must be proven to
sustain a conviction.
Those elements are: - The defendant, on or about a particular date -
Was operating a motor vehicle - In a public place (street, highway,
beach, parking lot, etc) - In a particular county - While intoxicated
The Texas legislature has specifically defined the term
"intoxication", as that term is used for prosecution of DWI
cases {Texas Penal Code ß49.01(2)}.
In addition, there are two definitions to encompass those who do or
do not submit to chemical testing: 1) "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 2)
"having an alcohol concentration of 0.08 or more."
It is important to note that the law provides for intoxication by the
introduction of any intoxicating substance into the body. This is
designed to make our roadways safe from dangerous drivers.
Typically, proof at trial is restricted to alcohol unless some
statements or other indications suggest that the driver has become
impaired by some other substance.
Equally as important, being on prescription drugs is not a defense to
a DWI prosecution. If the label suggests that ingestion will impair
one's ability to operate a motor vehicle or machinery, taking such
medicine and driving may subject you to DWI arrest and conviction.
At trial, the State therefore may prove intoxication in three (3)
different ways: - not having the normal use of physical faculties
OR-
not having the normal use of mental faculties
OR-
having an alcohol concentration of 0.08 or more. The jury does not have
to be unanimous on the manner and means of intoxication, only that the
person was intoxicated.
Plus, intoxication must occur and be proven to occur while driving.
Many other States provide for prosecution of a "lesser
included" offense other than DWI (i.e. reckless driving, impaired
driving, driving under the influence, etc.).
Texas
however has no lesser included offense of DWI. Some counties offer plea
bargain agreements to other charges than DWI, but they are the exception
and not the rule.
Classifications & Range of Punishment for
DWI Conviction
DWI, 1st Offense: Class B Misdemeanor.
Fine: A
fine not to exceed $2,000.00.Jail: Confinement in the County Jail for a
term of not less than 72 hours nor more than six (6) months.
Open
Container: If there was an open container of alcohol in your car when
arrested, the minimum term of confinement is six (6) days in the county
jail.
Community Service:
Texas
law mandates that a judge order not less than 24 hours nor more than 100
hours.
Absent unusual facts, most persons convicted of a first offense DWI are
granted community supervision ("probation") of any confinement
ordered. The general length of DWI probation is from 1-2 years.
There are also conditions of community supervision ordered that are
fairly standard in most courts.
Typical conditions imposed are: Drug/Alcohol Evaluation. A person
convicted of DWI will be required to submit to evaluation for
probability of committing DWI in the future and/or to disclose a
potential problem with alcohol or drug abuse.
If a problem is detected, additional terms and conditions of probation
are ordered to be administered through the Community Supervision
Department.
Attend
and complete an approved DWI Education class within 180 days from the
date of conviction (Satisfying this requirement will avoid the one (1)
year drivers license suspension, unless if you were a minor (under 21)
at the time of the offense.)
Attend
and complete a Victim Impact Panel. This is a forum that presents
victims of drunk drivers to address persons convicted of DWI and warn of
the dangers and perils of driving while intoxicated.
Work
faithfully at suitable employment, commit no other crimes, remain at the
same residence and employment unless notification is given to the
community supervision officer, report monthly to the supervision office,
pay all fines and costs in a timely manner.
Pay a
monthly supervisory fee (approximately $40.00 in Harris and surrounding
counties) Perform a specified hours of community or volunteer service
NOTE:
If convicted, you will be given an Order Granting Probation. This
Order will be specific and unique to your case and fully sets forth the
terms and conditions of your probation which apply to you. It is the
blueprint for your probation.
Additional Conditions of Probation that may be
Ordered:
If your
case presents unusual facts (accident, alcohol problem, prior alcohol
contacts, bad driving record etc.), additional conditions may be
ordered.
Most conditions are designed to address a problem that appears from the
facts or alcohol/drug evaluation that is performed on the subject after
conviction. Again, a specific order is given after each conviction.
The following list is only a general discussion of conditions that have
been imposed in some DWI cases in my experience and may not apply to
you.
Deep lung air device: Some counties (Harris,
Galveston
,
Fort
Bend
, Brazoria, Montgomery) are requesting this condition for all subsequent
offense DWI probations.
This provision requires that you install and maintain a device on any
car which you intend to drive during probation. The device requires a
breath sample before it will allow your car to start. Some devices
require periodic breaths while driving.
This
condition is sometimes recommended after an unfavorable drug/alcohol
evaluation during a first-offense probation, and is almost always
ordered as a condition of bond on a subsequent offense arrest.
Alcohol
Treatment: Attendance at AA or other counseling programs offered through
the probation department. In extreme cases outpatient programs may be
ordered. This condition is recommended after an unfavorable drug/alcohol
evaluation.
Consume
no alcohol: Most courts require that a person not consume any alcohol
during probation. This provision is monitored by periodic and random
urinalysis at the probation office. Some courts will not even allow a
probationer to enter a bar, tavern or lounge where alcohol is sold and
consumed.
Confinement:
Again, in some extreme circumstances, the Court may order that a DWI
offender serve confinement in the county jail as a condition of being
granted probation.
Restitution:
If there was an accident followed by a DWI arrest, and if your insurance
company has not paid damages to the other party, restitution of any
unpaid amounts will be ordered by the Court as a condition of probation.
Enhanced
Penalties: (Prior alcohol or drug related criminal history) Under
Texas
law, if it is shown that a person has been previously convicted of DWI,
the punishment and penalties after conviction are increased or enhanced.
The prior DWI conviction must have occurred within ten (10) years of the
present arrest for DWI. Additionally, if a person has any prior DWI
conviction within the previous ten year period (measured from dates of
arrest), the State is then allowed to use any prior DWI conviction since
obtaining a drivers license to enhance the accusation to a DWI, third
offense. NOTE:
Texas
can use prior convictions that have occurred in other states for
enhancement of punishment.
DWI, Second Offense: Class A Misdemeanor
Special Condition for Jail Release on Bond:
It is
important to note that if arrested and accused of a DWI Second or
greater offense,
Texas
law now requires the Court to Order as a CONDITION OF RELEASE FROM JAIL
ON BOND, that the person install and maintain a deep lung air device on
the car that the person intends to drive and operate while charges are
pending.
The device requires a breath sample before it will allow you to start
your car. They also require periodic breaths while driving to monitor
and insure sobriety. New technology has made these devices "user
sensitive" so that someone else cannot blow into the device for the
driver.
Although this provision seems to run afoul of the presumption of
innocence, Texas Courts have consistently held that such condition is
necessary to protect a legitimate governmental interest in making public
roadways safe for the motoring public. Fine: A fine not to exceed
$4,000.00.
Jail:
Confinement in the
County
Jail
for a term of not less than 72 hours nor more than one (1) year.
Community
Service:
Texas
law mandates that a judge order not less than 80 hours nor more than 200
hours.
Deep
lung air device: Typically deep lung devices are required for all DWI
second offenders during probation.
Suspension
of license: A person convicted of DWI, Second may have their driving
privilege suspended for not less than 180 days or more than two (2)
years.
DWI, Third Offense (or greater): Third degree
FELONY
Fine: A
fine not to exceed $10,000.00.
Jail: Confinement in the Texas Department of Criminal Justice,
Institutional Division (Penitentiary) for a term of not less than 2
years nor more than ten (10) years.
Deep
lung air device: Deep lung air devices are generally ordered on all
persons convicted of three or more DWI's both as conditions of bond and
as conditions of any occupational or provisional licenses that may be
awarded after conviction.
Community
Service:
Texas
law mandates that a judge order not less than 160 hours nor more than
600 hours.
Suspension
of license: A person convicted of DWI, Second may have their driving
privilege suspended for not less than 180 days or more than two (2)
years.
Other: A third conviction for DWI indicates a significant problem
with alcohol to the Court or jury assessing punishment. Some type of
rehabilitative treatment is therefore mandated in punishment if
confinement in the penitentiary is to be avoided. In some cases an
in-patient, incarceration program (Substance Abuse Felony Probation SAFP)
is ordered. This program requires confinement in a State Facility for
alcohol rehabilitation. After successful completion of the SAFP program,
the person is then released and placed on probation for a term not to
exceed ten (10) years. Another popular condition for habitual DWI
offenders is a prescription for a drug named "Antabuse". This
drug will make a person violently ill if any alcohol is consumed. The
alcohol can be contained in mouthwash or marinated food and will still
have the same effect on the user. If a person has any type of liver
problems, this drug can cause liver failure and death.
Texas
law does not provide for any increased punishment after DWI, third
offense. If a person presents a DWI, fourth offense or beyond, the
typical punishment is confinement in the penitentiary from two (2) to
ten (10) years without probation being granted. In some cases SAFP may
be granted upon proper request and showing that it is appropriate.
Intoxication Assault: Third degree Felony "A person commits an
offense if the person, by accident or mistake, while operating a ....
motor vehicle in a public place while intoxicated, by reason of that
intoxication causes serious bodily injury to another" {Texas Penal
Code þ49.07}. " 'Serious Bodily Injury' means injury that creates
a substantial risk of death or protracted loss or impairment of the
function of any bodily member or organ".
Fine: A fine not to exceed $10,000.00.
Jail: Confinement in the Texas Department of Criminal Justice,
Institutional Division (Penitentiary) for a term of not less than 2 year
nor more than ten (10) years.
Community Service:
Texas
law mandates that a judge order not less than 160 hours nor more than
600 hours.
Intoxication Manslaughter: Second Degree Felony "A person
commits an offense if the person:1)...operates a motor vehicle in a
public place, and...2)...is intoxicated and by reason of that
intoxication causes the death of another by accident or mistake."
Fine: A fine not to exceed $10,000.00.Jail: Confinement in the Texas
Department of Criminal Justice, Institutional Division (Penitentiary)
for a term of not less than 2 year nor more than twenty (20) years.
Community Service:
Texas
law mandates that a judge order not less than 240 hours nor more than
800 hours.
NOTE: If a person is involved in an accident where there is risk of
death or death, a mandatory blood sample will be taken for analysis and
use in the prosecution of either Intoxication Assault or Intoxication
Manslaughter.
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