Law Office of Penny Wymyczak-White

Standing Up For The Accused In Houston, Texas

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DWI

DWI Lawyer Houston, Texas   CALL 281-733-0264

  • First offenders may be eligible for DIVERT PROGRAM – THIS GETS YOUR DWI DISMISSED IF YOU COMPLETE THE PROGRAM
  • Police Reports: Harris county now gives defense attorney copies of the offense report
  • The police report is only the officer’s interpretation.
  • Were you properly read your Miranda warnings?
  • Did the police officer stop you for a valid reason?
  • Were any statements made by you coerced, taken out of context or misinterpreted?

Important:

The Intoxilyzer 5000 assumes that everyone has the same blood breath partition ratio, hematocrit ratio and assumes that all samples are at an air temperature of 93.2 F. Texas DWI Law does not utilize any methods which would allow for a retest of samples given. The computer software is proprietary and is not available to scientific peer review.  There are many things which have been shown to affect a breath test score.  Texas does not allow for non-law enforcement or government personnel to become certified as breath test technical operators.  Much of the Texas breath program remains limited to outsiders despite a generally assumed belief that these machines have undergone and passed wide general scientific review.

Field Sobriety Tests:

Police make arrests on the basis of probable cause. This is not the same thing as “beyond reasonable doubt.”  These test are subjective.  There is much technical training for a police officer in the field of Texas DWI Law.  There is no law in Texas which states they must keep up their training on a yearly or any other type of basis with respect to standardized field sobriety training. Many police officers do not make any form of notes on the side of the road with respect to numerous details.  Most police officers do not include mitigating or exculpatory information in their reports, mainly negative observations.

  • Where there distractions during the testing?
  • Were you nervous or tired during the testing?
  • If there was a video taping of the event, does it accurately depict your true state of sobriety at the time, or was it unfairly effected by perhaps traffic, poor lighting, noise or lack of sound. Was it night time?
  • Was the lighting poor?
  • Did they have you walk a straight line on the side of a busy highway?
  • CAUTION SOMETIMES THERE IS VIDEO IN THE PATROL CAR – YOUR CONVERSATION MAY BE BEING TAPED ALL THE WAY TO THE JAIL.
  • What is your normal balance and coordination?
  • Do you have any physical disabilities that can cause false results?

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.  It is important to note that being on prescription drugs is not a defense to a DWI criminal prosecution.  If the label suggests that ingestion will impair ones 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. It is also important to note that intoxication must occur and be proven to occur while driving.

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
  • 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.

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 courts often request 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: Many courts require that a person not consume any alcohol during probation. This provision may be 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: 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 Texas 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 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.

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 §49.07}.  ” ‘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.

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