Driving While Intoxicated
WARNING:You May Lose Your Driver's License Unless You Act Now
At the time of your arrest, the police officer likely presented you with a Notice of Suspension/Temporary Driving Permit (DIC – 25). Hopefully you have thoroughly read this document and are aware that your driver’s license will automatically be suspended 40 days from the date of arrest (or the date you were served with the notice, whichever is later) unless you or your attorney request a hearing in the manner prescribed by law. The importance of requesting this hearing can not be overstated. As your attorney, this is the first formal step I will take to protect your legal rights and preserve your right to drive.
The Legal Limit The legal limit for intoxication in Texas is .08 blood alcohol concentration (BAC). However drivers can be stopped and cited for impaired driving due to alcohol or other drugs regardless of BAC. Texas also has a zero tolerance law. For anyone under 21 it is illegal to drive with any detectable amount of alcohol.
How much is too much? Impairment begins with the first drink. Gender, body weight, the number of drinks consumed and the amount of food in one's stomach affect the body's ability to handle alcohol. Women, younger people and smaller people whether male or female, often have lower tolerances.
Blood Alcohol Content Calculator
Important Note: There is no blood alcohol calculator that is 100% accurate because of the number of factors that come into play regarding the consumption and reduction (burnoff) rates of different people. Factors include the sex (male/female) of the drinker, differing metabolism rates, various health issues and the combination of medications that might be taken, drinking frequency, amount of food in the stomach and small intestine and when it was eaten, elapsed time, and others. The best that can be done is a rough estimation of the BAC level based on known inputs.
What happens if you're stopped? If a law enforcement officer asks you to take a blood or breath test to measure how much alcohol is in your system, you should know that if you refuse, you are subject to a 180-day driver's license suspension and this refusal may be used against you in court. Punishment for DWI varies depending on the number of times you have been convicted.
On the other hand, if you submit to a blood or breath test and do not pass the test, then you may have provided the government with additional evidence of intoxication.
THE FACTS:
A single arrest for DWI may give rise to two cases in two distinct judicial forums. These include 1) the criminal charge which will be litigated in the criminal court; and 2) the administrative license revocation (ALR) proceeding wherein the state will seek to suspend your driver’s license.
TEXAS DWI LAWS
There are two separate ways a person may be legally INTOXICATED and found guilty of DWI in Texas. If a person is operating a motor vehicle on a public street while:
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
Having an alcohol concentration of .08 or more.
The .08 alcohol concentration definition is only for cases where the person arrested has taken a breath, blood or urine test. Breath test is the most common. If the person did not take one of the tests then the prosecution must prove the person did not have the normal use of his/her mental or physical faculties from drinking alcohol or doing drugs or both a combination of alcohol and drugs. The evidence the prosecution presents at trial is limited to the ingesting alcohol, unless there is some evidence or reason to believe the person could have lost the normal use of his/her faculties from some drug other than alcohol.
Many times a person will make a statement to the police when arrested saying that he/she took a prescription drug. Taking a prescription drug is NOT A DEFENSE to DWI. If the prescription is the type of drug that can cause a person to lose the normal use of their mental or physical faculties then they can be found guilty of DWI from the effects the prescription has on their faculties or from the combined effect of the prescription drug and the alcohol. The prosecution will generally attempt to prove intoxication by drugs by having a chemist testify at trial about the effects the alleged drugs (or combined effect of alcohol and drugs) can have on a person. It is then the jury's job to determine if they think the person lost the normal use of his/her faculties from taking the prescription drugs.
OCCUPATIONAL DRIVER'S LICENSE
An arrest for DWI can lead to suspension of your driver’s license under two circumstances 1) ALR suspension as a result of refusing to take or failing a breath/blood test; 2) consequence of criminal conviction for DWI. If you drive while your license is under suspension, you may be charged with Driving While License Suspended, a misdemeanor. If you do so while on probation for your DWI offense, you risk having your probation revoked.
An occupational driver’s license is a restricted license issued by DPS which allows you to drive to and from work, school and in the performance of necessary household duties during the period of suspension. The license may limit the times you are allowed to drive to specified hours, counties or roadways. Alternatively, the court may authorize you to keep a log detailing your driving activities which can be inspected to ensure that your driving does not exceed what the judge has authorized.
PENALTIES
Driving While Intoxicated is a class B misdemeanor with a range of punishment of 3 to 180 days in jail and a fine not to exceed $2,000.00. However, Texas law increases punishment for persons with prior DWI convictions. An individual who pleads “guilty” or “no contest” to a DWI charge may not received deferred adjudication. In addition to criminal penalties, a person convicted of a first DWI will be required to pay a surcharge of $1,000.00 per year for three years as a condition to maintaining his license. The surcharge increases for persons with prior convictions.
In most circumstances a person convicted of DWI for the first time will not be required to spend time in jail but will, upon his timely application, receive community supervision (probation). The maximum term of probation is 2 years. As a condition of probation the person will be ordered to pay a fine, report to a probation officer, perform community service, abstain from the use of alcohol and attend an alcohol education course. In addition, a person’s driver’s license may be suspended for up to 1 year. However, if you receive community supervision and take the court ordered alcohol education course you will be able to keep your license.