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Driving While Intoxicated (DWI)

In the past several years, police have been cracking down on drunk drivers with increasing frequency as a result of influence and pressure from groups like MADD and public outcries in general. Texas has lowered the legal blood alcohol concentration (BAC) limit to .08 percent for adults, which is a low level and often leads to many driving while intoxicated (DWI) charges, while penalties and punishments for driving while intoxicated continue to increase, especially for repeat offenders. Due to the way the Texas DWI statute is construed, you may be charged with DWI even if your BAC is under the legal limit! If you find yourself charged with DWI, it is imperative that you hire a qualified criminal defense attorney to represent your interests and aggressively work toward the best possible outcome available.

Definition of DWI and Other Intoxication Related Offenses in Collin County, Texas

Driving While Intoxicated — In Texas, a person commits an DWI if the person is intoxicated while operating a motor vehicle in a public place. Generally, a 1st DWI offense is charged as a Class B Misdemeanor. A 2nd DWI offense is usually charged as a Class A Misdemeanor, while a 3rd or subsequent DWI offense is charged as a 3rd Degree Felony.

Driving While Intoxicated with Child Passenger — In Texas, a person commits DWI with child passenger if the person is intoxicated while operating a motor vehicle in a public place and the vehicle being operated by the person is occupied by a passenger who is younger than 15 years of age.  Generally, DWI with child passenger is charged as a State Jail Felony.

Intoxication Assault — In Texas, a person commits intoxication assault if the person, by accident or mistake, operates a motor vehicle in a public place while intoxicated and, by reason of that intoxication, causes serious bodily injury to another. Generally intoxication assault is charged as a 3rd Degree Felony.

Intoxication Manslaughter — In Texas, a person commits intoxication manslaughter if the person operates a motor vehicle in a public place and is intoxicated and, by reason of that intoxication, causes the death of another by accident or mistake.

Definition of “Intoxication” in Collin County, Texas

In Texas, many people think of intoxication strictly in terms of a number or legal limit. To some extent this line of thinking is correct, as you are legally intoxicated if your BAC is .08 or higher. This is a very low limit, and it can be reached when a person ingests a minimal amount of alcohol. For example, a man who weighs 165 and drinks four drinks in one hour likely has a BAC of over .08. Further, if a woman in Texas drinks 2 glasses of wine her BAC is likely close to the legal limit, if not over it. Indeed, if having a BAC of .08 or greater were the only standard or measure of intoxication in Texas, DWI charges and trials would be much simpler for both the State and criminal defense attorneys. However, Texas actually has two different legal definitions of intoxication.

Intoxicated — In Texas, intoxicated means (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 .08 or more.

Carefully notice that, according to the first prong of the definition, you can be arrested and charged with DWI if the police have probably cause to believe that your mental or physical abilities are impaired. Standardized field sobriety tests are not required to establish intoxication. The testimony of the police office, alone, that a person is intoxicated provides sufficient evidence to establish that a person is intoxicated. This leaves a great deal of power and discretion in the hands of police because they may arrest you for any evidence whatsoever that leads them to believe that you may be under the influence and, if a jury believes that you lost the normal use of your mental and physical faculties, you will very likely be found guilty of DWI.

Judges routinely characterize the normal use of a person’s mental and physical faculties as that which a normal, non-intoxicated reasonable person would exhibit in the same situation and under similar circumstances. In DWI cases where the State has no breath or blood specimen to introduce into evidence, the district attorney will capitalize on the obscurity of normal use and try to convince the jury that any loss of faculties is evidence of intoxication. However, an experienced criminal defense attorney can counter the State’s argument by focusing on the reasonable person language. Reasonable people do not perform the physical exercises required by the field sobriety tests in their normal day to day lives. A person cannot be found to be intoxicated if he or she lacks the normal use of mental or physical faculties for a different reason, such as disability, illness, fatigue, stress, or clumsiness.

Can the Police Force You to Give a Blood Sample?

Any judge or magistrate who is an attorney licensed in Texas may issue a search warrant to collect a blood sample from a person who:

  1. is arrested for DWI, DWI with a child passenger, flying while intoxicated, boating while intoxicated, assembling or operating an amusement ride while intoxicated, intoxication assault, or intoxication manslaughter; and
  2. refuses to submit to a breath or blood alcohol test.

However, just because the police have obtained a sample of your blood does not mean that you will be found guilty. If the person who took your blood sample was not authorized to do so or did so incorrectly, the results of the blood sample may be inadmissible against you. In addition, a significant amount of time may have lapsed during the time when you operated a motor vehicle and the time when your blood was drawn which can often call into question the validity of the test results.

Texas Administrative License Revocation and Driver’s License Suspension in Collin County, Texas

The Texas “implied consent” law states that, if a person is arrested for driving while intoxicated, the person is deemed to have consented to submit to either a breath or blood test, or both, to determine the person’s BAC. Therefore, if the police arrest you on suspicion of DWI and request that you submit to a breath or blood test, your driver’s license will automatically be suspended if you refuse. In addition, your driver’s license will also be suspended if you comply with the police officer’s request to submit to a breath or blood test and your BAC is determined to be .08 or more. A suspension of your driving privileges in these instances is considered a civil penalty and can result in a suspension regardless of whether you are ultimately convicted of a DWI.

A first DWI refusal will result in your driving privileges being suspended for a period of 180 days.  If you have had one or more alcohol or other drug-related DWI refusals within 10 years before the current offense for which you are charged, your driver’s license will be suspended for a period of 2 years.

If you agree to submit to a breath or blood test and you are found to have a BAC of .08 or over, your license will be suspended for a period of 90 days. If you have previously had any alcohol-related contact on your driving record within the preceding 10 years, your license will be suspended for 1 year.

If your driver’s license is confiscated by the police because you either refused a breath or blood test or you submitted to testing and were found to have a BAC of .08 or over, the police will give you a temporary driver’s license (yellow piece of paper). You must request a hearing in writing within 15 days of receiving your temporary driver’s license in order to appeal the administrative license suspension or the Texas Department of Public Safety will suspend your driving privileges. If you do not file your appeal or do not file it in time, your temporary driver’s license will only be valid for 40 days from the date you were arrested.  However, if you file an appeal within 15 days, the suspension is delayed until the date of your hearing which is usually considerably longer than 40 days. Furthermore, if you win the administrative license revocation hearing, your license will not be automatically suspended. Worst case scenario, even if you lose the administrative license revocation hearing, you still may be eligible for an occupational driver’s license.

Driving Under the Influence in Collin County, Texas

In Texas, many people confuse the two offenses of driving while intoxicated and driving under the influence. However, only a minor (person who is under 21 years of age) may commit DUI. In Texas, a minor commits DUI if the minor operates a motor vehicle in a public place while having any detectable amount of alcohol in the minor’s system. The burden of proof to convict a person of driving under the influence is much lower than driving while intoxicated, as the State must only show that the driver of a vehicle consumed any detectable amount of alcohol. Driving under the influence is a Class C Misdemeanor and does not carry with it the possibility of being sentenced to any jail time. However, a person charged with DUI may still face having his or her driver’s license suspended.

Defending Driving While Intoxicated in Collin County, Texas

Laws related to driving while intoxicated and other intoxication-related offenses are some of the most complicated and specialized areas of law in Texas. Because deferred disposition is not available for those who are charged with driving while intoxicated, a DWI conviction can remain on your criminal record for the rest of your life. In addition to harsh fines and jail or prison time, a DWI conviction can result in increased insurance premiums and suspension of your driving privileges which can seriously jeopardize your employment and income. Mark O’Bryan is knowledgeable in all areas of Texas driving while intoxicated laws and will make every effort to ensure you achieve the best possible outcome available to you.