Arrested for DWI? Here’s What You Need to Know

The Law Office of Ken Gibson approaches the law a little differently than most. Let other law firms plead their clients guilty – we’re only interested in having your case dismissed or the charges against you reduced. To do that, we look at every single piece of evidence against you, challenging it in court and undermining the case against you. It’s a tenacity that we’ve proudly built our reputation on.

And when you’re arrested, the day in court and the night in jail is just part of what you’re facing. Beyond the possibility of a longer prison stay, there are long-lasting consequences that will impact your life for years. Which is why we move quickly to protect your liberty, working one-on-one with prosecutors and district attorneys to reveal the flaws in the charges against you.

We work quickly to get charges dropped before trial. And if the prosecution does proceed, we remain one step ahead of them with a battle-tested method of intense preparation that has proven successful for thousands of clients.

This method means digging deeper, starting with an independent investigation that launches as soon as you meet with us. We find the evidence that will demonstrate your innocence. We find witnesses who can corroborate your story. We pick up apart all the evidence from police reports and test results to footage from nearby security cameras to build an iron-clad defense.

DWI FAQ’s

What is the likelihood my case will end with a conviction for DWI?

If you choose to proceed without an attorney, sadly, the likelihood is high. But if you have the right attorney, one who specializes in DWI cases, it is likely your charges can be dismissed or reduced.

Is DWI considered a felony in the state of Texas?

Felony charges carry much higher consequences than most DWI charges, with more jail times, higher fines and suspension of your driver’s license. In addition, it can have far-reaching impacts on your job, child custody and more. It’s a more serious charge, but generally speaking, a first offense DWI will not be prosecuted as a felony in Texas, although circumstances can lead to elevated charges. In most cases, a DWI only becomes a felony after a third or subsequent DWI conviction.

What potential jail time does a DWI conviction carry?

Obviously multiple factors will affect a sentence, but the general sentencing guidelines in Texas suggest 180 days imprisonment for a first offense, a full year for a second offense, and 10 years or more for any subsequent convictions. There are additional minimum sentencing guidelines with a second or third conviction that include 3 days in jail for a second offense and 10 years for third or subsequent offenses.

What potential costs and fines does a DWI carry?

Even for a first offense, the average DWI case can cost you anywhere from $7,000 to $25,000 depending on the specific circumstances of the case. This stems from the numerous primary and ancillary fees you’ll be paying, including:

• • Court fees, including any punitive or restitution fees.
• • Fees that stem from a court-mandated ignition interlock device, probation, bail or alcohol education program fees.
• • Fees associated with your ability to drive, from impound fees and increased insurance rates to SR-22 fees.
• • The court’s bail fees.

There are tremendous cost savings that come from hiring an attorney to get your case dismissed, as the courts will return your money and rescind any fines or fees.

How long can I expect a trial to last?

Again, there are multiple factors unique to your case that could make your trial run longer or shorter. Generally, however, DWI cases take anywhere from 5 months to a year.

I refused the breath test – what can I expect?

In the state of Texas, you drive under the notion of implied consent. What that means is, by virtue of receiving a driver’s license, you agree to tests of your blood, breath or urine by law enforcement if they suspect that you have been driving while intoxicated. Essentially, what it says is that you have the right to refuse this test, but by doing so you trigger an automatic suspension of your license.

In this scenario, the arresting officer asked you to submit to a chemical test to determine your degree of intoxication, and you refused, which is your right. At that point, you would have been given a 180-day administrative suspension of your license. This suspension, however, can be challenged.

How do I get my license back?

A DWI arrest can create two separate obstacles. First, the State of Texas can try to take away your driver’s license and your ability to get to work and provide for yourself and your family. Second, prosecutors can try to convict you of DWI, leaving a permanent blemish on your criminal record.

In this day and age, most people cannot afford to lose their ability to drive or have a DWI conviction follow them around for years. The good news is that you have the right to fight both.

The first opportunity to fight back is the Administrative License Revocation (ALR) hearing. This hearing is separate from your criminal DWI case and gives your attorney a chance to fight to keep your driver’s license intact. That means you can continue driving to work, taking your children to school, going to the grocery store, and handling the everyday responsibilities of life.

But keeping your license is only one reason the ALR hearing is so important.

Think of the ALR hearing as an early opportunity for your attorney to legally open the State’s evidence chest and see what is really inside. Your attorney can look at why you were stopped, what the officer saw and did, whether there was a legal reason to stop and arrest you, whether the officer followed the rules, and what happened with any breath or blood testing.

Your attorney may also get the chance to question the arresting officer under oath. This can be extremely valuable because it allows your attorney to hear the officer’s story early and lock that story into sworn testimony that may later be used in your DWI case.

Instead of waiting for the criminal case to unfold, your attorney can start comparing the officer’s testimony with the police report, video, test results, and other evidence.

Does the officer’s story match the video? Does it match the police report? Did the officer make a mistake? Were proper procedures followed? Is something missing? Did something happen differently than the officer claims?

These are the kinds of things your attorney wants to find out as early as possible.

If the officer later changes their story, contradicts the evidence, or says something that does not match what actually happened, your attorney already has their sworn testimony. That can become powerful evidence for challenging the State’s case.

That is why we strongly recommend fighting the license suspension.

And there is very little time to act.

In Texas, you have only 15 days after receiving notice of suspension to request an ALR hearing, and failing to act on time results in an automatic, uninterrupted license suspension. You can start the process by requesting the hearing, and your attorney can then handle the hearing on your behalf.

Best of all, your attorney can often handle the ALR hearing without requiring you to attend, as these proceedings are frequently conducted virtually by phone or video conference. This means you may not have to miss work or put your life on hold while your attorney fights to protect your license and starts building your DWI defense.

And if your attorney wins the ALR hearing, which happens often at The Law Office of Ken Gibson, and your license is returned, that can be an important sign that the State’s case is beginning to unravel. If the State cannot prove what it needs to take away your driver’s license, weaknesses uncovered at the ALR hearing may also increase the odds that the actual DWI charge will not stick.

Understanding Charges, Consequences and Alternatives

What Consequences Can I Expect for a First-Time DWI Conviction?

The good news is, most first-time offenders will not return to jail following the initial arrest. Obviously, that depends heavily on the circumstances of your case. If another person was injured, there were children in the car or your Blood Alcohol Content (BAC) tested unusually high, you could be facing additional jail time. But there are consequences for first-time convictions that go beyond jail time, including:

• • Compulsory community service and probation
• • Attendance of a victim impact panel, DWI school and a drug and alcohol evaluation
• • Installation of an ignition interlock device (IID)
• • Driver’s license suspension (which can be challenged at the ALR hearing)

In addition, there are separate consequences based on your BAC at the time of the arrest. Those with a BAC below .15% can expect fines up to $2,000 and a jail sentence between 3-180 days in addition to the consequences above. With a BAC above .15%, fines reach $,6000 and jail time extends anywhere from three days to a year in addition to probation, installation of an IID, etc. There are alternatives to these punishments that you can pursue for a first-time DWI in the state of Texas. For example, your attorney may urge you to:

Attend a Pretrial Diversion Program: The pre-trial diversion program in Travis County, Texas, offers an alternative legal pathway for individuals facing DWI charges, focusing on rehabilitation rather than traditional criminal justice proceedings. Eligible individuals with unfiled DWI cases must apply within six months of their arrest and undergo a non-refundable Driver’s Risk Inventory evaluation conducted by Travis County Counseling and Education Services. Over 12 months, participants are required to adhere to counseling recommendations, attend a MADD Victim Impact Panel, and complete 25 hours of community service. Progress is monitored through status conferences—court meetings involving the judge, defense, and prosecution—at 3, 6, and 12-month intervals to assess compliance and development within the program. Successful completion can lead to charge dismissal and eligibility for early expunction, clearing or sealing the record to reduce future repercussions.

Negotiate or Plea Bargain: This tactic relies heavily on the expertise of your attorney and allows them to negotiate a deal with the state to withdraw the charges against you, replacing them with lesser charges. It’s worth noting that under Texas law, charges cannot be amended or reduced, only withdrawn and replaced, possibly with charges as minor as a class C ticket. For example, a common alternative charge is Obstruction of Highway. In Texas, ‘Obstruction of Highway’ serves as a lesser alternative to Driving While Intoxicated (DWI). This charge is applied when someone disrupts the normal flow of traffic without causing any physical obstruction and is under the influence. Typically classified as a Class B misdemeanor, it carries milder penalties, such as lower fines and potentially no jail time, in contrast to the more severe consequences associated with a DWI. Opting for an Obstruction of Highway charge can also mitigate the negative impacts on one’s driving record and criminal history.

Travis County DWI Court: The Travis County DWI Court is a dedicated program that assists repeat DWI offenders by integrating criminal justice resources, case management, and substance abuse treatment. Designed to last twelve months or more, this program focuses on rehabilitation rather than incarceration. Rehabilitation focuses on addressing the root causes of criminal behavior, such as addiction or mental health issues, making it more effective in reducing recidivism than incarceration.

Participants must regularly attend court to review their progress, with the frequency of appearances—weekly, bi-weekly, or monthly—depending on their advancement through various program phases. A court team meets weekly to assess each participant, providing incentives for compliance and achievements or imposing sanctions for failures.

To graduate, participants need to complete all treatment phases and consistently maintain sobriety. Eligibility requires being over 18 years old, a resident of Travis County, and having at least one previous DWI arrest within the last two years that did not involve a victim. Additional requirements include having no outstanding warrants or unresolved cases, no prior assessments or referrals for the same charge, and no history of violent or non-substance-related criminal activities.

What Consequences Can I Expect for a Second-Time DWI Conviction?

You should know that Texas law does not set a “lookback” period, so if you have any prior DWI convictions, no matter how long ago, they will count towards your second offense – even if they occurred in a different state. As a second-offense DWI is considered a misdemeanor, the maximum amount of time you can expect to spend in jail is 12 months, although an experienced attorney should be able to help you avoid that.

If your first offense did not include serious extenuating circumstances such as high BAC or injury, your attorney can challenge the second offense to avoid jail time. However, if they are not successful, a second conviction does carry with it a minimum three-day jail sentence, driver’s license suspension, and:

• • Compulsory community service and probation
• • Attendance of a victim impact panel, DWI school and a drug and alcohol evaluation
• • Installation of an ignition interlock device
• • Driver’s license suspension (which can be challenged at the ALS hearing)

What Consequences Can I Expect for a Third-Time DWI Conviction?

While most first- and second-offense DWIs are considered misdemeanors with the potential of felony charges, a third or subsequent DWI can and will be prosecuted as a hard felony in the state of Texas, carrying with it up to 10 years in jail. However, the majority of people who hire an experienced attorney will not have to serve that kind of time. Many are able to walk out after 10 days in jail, albeit with probation and further consequences as illustrated above. That said, felony DWI charges carry far greater penalties than simple misdemeanor charges.

What Are Some Alternatives to Jail Time?

There are multiple alternative punishments for jail time that your attorney will work with judges and prosecution to secure if you are convicted. They may be disruptive to your daily life, but will allow you to live freely and support your family outside of jail. They include:

Probation: If a judge agrees to probation, jail time will be waived as long as you follow rules set by the court for a period of time (generally up to two years after your first offense). Conditions of your probation may include regular meetings with a probation officer, screenings for drugs and alcohol, and installation of an ignition interlock device (IID) which requires a clean breath test to start and operate your vehicle. Failure to comply with any of these conditions can lead to reinstatement of jail time.

Attendance at a Victim Impact Panel: Another alternative is to attend a panel meeting led by victims, bystanders and family members who have had their lives disrupted by the impact of drunk driving.

Drug and Alcohol Evaluation: This alternative requires you to submit yourself to questions surrounding your use of drugs and alcohol, with the hope of identifying underlying substance abuse issues that can be treated appropriately.

DWI School: Generally part of the requirements for probation, especially in cases where it’s your first offense, this program educates participants on the dangers of drunk driving and educates them on how to identify and break patterns of substance abuse to discourage future drunk-driving incidents.

What Are Other Types of DWI Charges?

Beyond simply charges of driving while intoxicated, there are several factors that may lead to more severe charges, as there are several levels of DWI offense in the state of Texas. Among these separate charges, some of the most common are:

Underage DWI: Under state law, those under 21 years of age or prohibited from purchasing or consuming alcohol. As such, rather than the legal limit of .08, anyone under 21 driving with any detectable amount of alcohol in their system while driving could be charged with Driving Under the Influence of Alcohol by a Minor (DUIA by a Minor).

Intoxication Assault: A standard DWI charge requires four elements for the prosecution: that you were (1) found to be operating (2) a car or other motor vehicle (3) while under the influence of drugs or alcohol (4) while in a public place. In the instance of a fifth element, causing injury to another person regardless of intention, an additional charge of Intoxication Assault can be added to the DWI charges.

Intoxication Manslaughter: As with Intoxication Assault, this charge requires that all four elements of a DWI be in place. In order to be charged with Intoxication Manslaughter, your actions while operating a motor vehicle under the influence must lead to the death of another person, either intentionally or accidentally.

DWI with a Child Passenger: This more serious charge results when you are found to have committed DWI while transporting a passenger younger than 15 years of age.

Driving Under the Influence of Drugs: Whether under the influence of illegal drugs or prescription medications, being found to be driving while on drugs can lead to greater consequences than simply being intoxicated by alcohol.

Understanding Blood and Breath Testing

Part of how the prosecution will attempt to charge you with DWI is by using the results of the Blood Alcohol Content (BAC) tests that were administered at the time of the arrest. A working knowledge of how these results are measured and what they mean can be a vital part of your defense. Getting these test results dismissed from evidence, or challenging their credibility, is how experienced attorneys help secure their clients’ freedom.

BAC Levels

What follows is a brief primer on the various levels at which your BAC might be tested during the initial traffic stop. Not only does your ability to function weaken as BAC increases, so do the potential legal ramifications.

.02-.06%

At this level you might experience reductions in your ability to track objects, operate your vehicle or respond to sudden emergencies. While still below the legal limit of .08, you can be charged with DWI at this level if you are under 21 years of age or hold a commercial driver’s license which carries a legal limit of .04%.

 .07-.09%

A range just above and just below the legal limit of .08%, this level of BAC carries with it a reduced ability to control speed, process new information, apply brakes in a timely fashion, maintain your position in the lane and perceive the road ahead. Physically, at this point you will be mildly impaired in terms of balance, vision and speech.

 .10-.12%

At this point, beyond the legal limit, you will experience sluggish response times in braking and avoiding hazards, impaired ability to control a vehicle as well as your own body, and significant loss of judgement.

.13-.15%

Adding to the significantly decreased ability to operate a motor vehicle, this level of intoxication brings with it severe physical effects ranging from vomiting and queasiness to substantial loss of balance and vision. As this extreme level of intoxication represents a dangerous situation behind the wheel, Texas law allows for much higher penalties for drivers who test at this level. This means more jail time, greater fines, and smaller chances of having charges reduced.

.16-.2

The greater penalties outlined above apply to drivers found to have a BAC at this level and higher. Apart from an impaired ability to operate a motor vehicle, this level of intoxication can lead to the inability to walk without assistance, loss of consciousness and/or bladder control and overall inability to function.

.35-.4

At this level of intoxication, a person can expect to lose consciousness and in extreme cases fall into a comatose state.

.4% and higher

At this stage, a coma is a certainty, with death by respiratory failure highly likely.

How Can I Challenge My BAC Reading?

As the standard police-issue breathalyzer simply measures the alcohol content of a driver’s breath, it cannot actually measure the precise amount of alcohol in their blood. This has been backed up by scientific research, which suggests that most breathalyzers have a shocking 50% margin of error when compared to measurements taken by blood. In addition, factors ranging from your age, gender, health and emotional state can all skew readings, as can your rate of consumption and any medications you might be taking.

This widely known unreliability is just one way that BAC readings can be challenged. If the breathalyzer device itself is not regularly tested for accuracy, routinely calibrated and carefully maintained, its readings can be skewed upward. While this maintenance is crucial, most police departments fail to follow proper protocols in keeping their devices accurate.

In addition, there are procedural mistakes that can skew the results of a BAC test, mistakes made on the part of the officer. As one example, police officers are required to observe anyone suspected of DWI for a period of 15 minutes to ensure they do not belch, vomit or inject any fluids that could alter the results. Official procedure dictates that they must restart the test if this happens, but officers rarely pay attention.

In addition, there are a slew of circumstances which can trigger false positives and skew BAC readings higher. These include:

• • Special diets like Atkins or keto which boost acetone production in the body
• • Digestive illnesses or diabetes
• • Eating certain foods before a test, particularly breads
• • Mouthwash, breath spray or oral treatment gels
• • Pharmaceutical medications of all kinds
• • Breathing in fumes from gasoline, propane or oil-based paints or varnish
• • “Mouth alcohol” produced through burping, vomiting, periodontal diseases or dentures|

High concentrations of naturally occurring alcohol, or chemicals in your body that mimic alcohol, can be found in your mouth or throat regardless of whether or not you’ve been drinking. And any one of them can skew a BAC reading.

How Can I Challenge the Results of My Field Sobriety Test?

More than any other piece of evidence that may be used against you following an arrest for DWI, field sobriety test (FST) results might just be the most meaningless. To begin with, complying with the officer in taking an FST is completely voluntary. You are under no obligation to take the test, and it really doesn’t benefit you because the test isn’t designed to determine your sobriety. It’s designed to help the arresting officer compile evidence against you.

Thankfully, even if you do submit to an FST, the evidence collected from them generally does not hold up well in court. As these tests were not designed with any credible scientific basis, they are notoriously difficult to pass, even by those who are stone sober. As such, there are numerous ways to have their results thrown out.

A skilled DWI attorney is one who is certified at FSTs, and can skillfully pull apart all the improprieties in the tests’ administration. If the officer failed at any part in administering the test, all or part of the results can be thrown out. Your attorney can also make the judge or jury aware of any medical conditions you might have, from obesity to injury and even neurological issues, that might have skewed the results of your FST.

How Can I Challenge the Results of My Blood Tests?

Although a blood test is considered the most accurate method for measuring blood alcohol concentration (BAC), it is important to recognize that issues can arise with the test process that may impact the reliability of the results. Your attorney might question the credentials of the person administering the test, or highlight any procedural errors that may have occurred. As an example, once blood has been extracted it must be stored with a preservative and an anticoagulant in a proper vial with a tamper-proof seal. Issues with any one of these requirements can call the integrity of the test into question. Your attorney might also raise questions about proper chain of custody for the test itself after it was administered, how it was stored or whether it was exposed to any chemicals which could affect the results.

Are There Other Ways to Challenge a DWI?

Many of the most effective ways to challenge a DWI charge is by closely examining whether the arresting officer followed proper procedure to the letter during the initial stop. In fact, the majority of DWI charges that are dismissed or thrown out entirely come from police failing to follow their own policies.

To begin with, the police must have reasonable suspicion to pull your vehicle over in the first place, if you are weaving in and out of your lane for example. Essentially, they need to show that the circumstances warranted pulling you over.

Even if they establish reasonable suspicion to pull you over, they must have shown probable cause to have placed you under arrest. More than reasonable suspicion, probable cause requires some form of evidence, be it physical characteristics like bloodshot eyes or slurred speech, the presence of open containers, an odor of alcohol on your breath or failure on an FST.

At nearly every step in the process, there are ways that an officer’s own prejudices or biases might tarnish their credibility. There are procedures that must be followed from the initial traffic stop on, and any errors can lead to a dismissal of charges. This is particularly important due to the lack of training most officers receive. While we’d like to think that officers are given proper instruction in determining if someone is under the influence, administering sobriety tests and checking BAC, the fact is they are often underequipped and uncredentialed.

The fact is, the science behind testing is questionable and the tactics used in determining sobriety aren’t grounded in reality. A skilled attorney can seek out missteps and errors in the case against you and use that to help reduce or dismiss your charges.

Invest in Yourself

An arrest for DWI does not guarantee a conviction. Those who choose to invest in themselves by hiring an experienced attorney, almost always enjoy the dividends or better outcomes. Beyond simply avoiding financially crippling fines and jail time, they can circumvent the long-term fallout from a DWI conviction which can hamper their ability to secure a job, keep their home and property intact, and live a full life.

At the Law Office of Ken Gibson, we strive to be the best investment you’ll ever make in yourself. We dig deeper into the facts of your case until we know every detail better than the prosecution. We collect the evidence that will exonerate you, do the research into the procedures that need to be followed and seek out expertise that casts doubt on the case against you.

We do all of this, because we know the secret to winning a criminal case. The secret is preparation, knowledge and a willingness to go the extra mile for clients. Call today to schedule a free, no-obligation evaluation of your case.