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

If you want to have your charges reduced or dismissed altogether, we compiled critical information you need now to increase your chances.

Don’t Plead Out

Other attorneys will happily stand beside their clients as they plead guilty. We don’t believe in that, and we simply don’t do it. If you want to have your charges dismissed or reduced, work with an attorney who won’t stand by and watch you take the fall.

Make the First Move – Challenge Your Driver’s License Suspension

Challenging your license suspension is one of the most effective ways to increase your odds of getting your charges reduced or dismissed. You can do so right now by requesting an Administrative License Revocation (ALR) hearing online. As your attorney, we can do this for you as well. Once you submit this request, your license will not be automatically suspended.

At the ALR hearing, your attorney will be able to hear arguments made by the Department of Public Safety (DPS). DPS is required to prove that the officer had reason to believe you were under the influence when he or she arrested you. The arresting officer is also required to present evidence that shows you either failed a blood or breath test or refused to take the test. Then, the judge will determine if your license should be suspended.

Not only could you retain your driving privileges by challenging your suspension, but your attorney will also get the chance to get a preview of the prosecution’s evidence against you – valuable information for your case.

Proving Your Guilt By Law Enforcement
When you are charged with Driving While Intoxicated (DWI) in Texas, there are two very important things that law enforcement needs to prove. The first is that they had a reason to stop you in the first place. The second is that, upon initiating the traffic stop, they were able to prove that you were impaired.

Reasonable Suspicion in Texas
The first factor we mentioned is reasonable suspicion, meaning that the officer had reason to believe – if not evidence to believe – that a crime was being committed or had been committed. This needs to be more than just something the officer feels through intuition; it must be an assertion based on objective evidence.

For example, if an officer were to observe a vehicle driving erratically, swerving on the road or making illegal U Turns and lane changes, that might provide them with reasonable suspicion. While this can be somewhat subjective, it does give the officer a right to stop the vehicle. That said, even if an officer has reasonable suspicion to initiate a traffic stop, they must still demonstrate afterward that those suspicions are based on evidence.

Observations Made by Police and Probable Cause in Texas
Next, the officer must present probable cause. Probable cause are observations made from law enforcement that a crime either had been committed or could potentially happen.  Observations for a DWI case could include the odor of alcohol, slurred speech or trouble standing up. It is important to note that police do not always follow their own guidelines and protocols for both reasonable suspicion and probable cause.  Meaning, If law enforcement did not follow proposer procedures, it can greatly favor the outcome of your DWI charge.

Ultimately, law enforcement and the prosecution must demonstrate that you were in control of the motor vehicle, that you were driving in a public place, that you were offered the opportunity to consent to tests of your blood or breath, that your tests showed a blood alcohol content (BAC) of .08 or higher, and that you were read your rights in accordance with the law.

Your DWI Defense Attorney’s Job
Conversely, the job of your DWI defense attorney is to create reasonable doubt that you were driving while intoxicated. “Reasonable doubt” means that that there is insufficient evidence for any jury or judge to convict someone of DWI.  Creating reasonable doubt could be from filing legal motions to suppress evidence, challenging police reports, bodycam footage, and any of the tests that were administered by law enforcement (breath test, blood tests, and field sobriety tests.).  There are numerous way to create reasonable doubt to secure a reduction or dismissal in any DWI case.

How To Beat DWI Cases and Win in Texas
When you or someone you know is arrested for DWI, there are actually two different records associated with the charge. There is the arrest record, which simply shows that an arrest was made based on suspicion of a possible DWI. The arrest record is not proof that a law was broken, but a DWI conviction record is.

The conviction record comes after a person has been arrested, charged, tried, and found guilty in a court of law. This record does show that a law has been broken, and it’s our goal at The Law Office of Ken Gibson to ensure the best possible outcome for clients by working to beat DWI charges and clear their record of any conviction.

These are just a few of the strategies we use with every client to protect their criminal record and their dignity.

Controlling the Narrative Through Evidence
Police officers, like all of us, make mistakes. In the heat of the moment, they could see intoxication where none exists. They might unwittingly make missteps in filing paperwork. Any number of errors might present themselves in the evidence against you, and finding those errors is a crucial first step. By contesting or suppressing evidence that may have been improperly or illegally gathered, we can determine what makes it to trial and what doesn’t.

Using legal motions, we challenge every shred of evidence against you, and the methods that were used to collect it. Fortunately, there is a clear and concrete legal process that must be followed to the letter during an arrest. If you were not properly read your Miranda rights, if there were issues with the equipment or procedure of the blood or breath tests, or if the initial stop and search were not properly executed in accordance with Texas law, there are much greater chances of having charges dropped or reduced.

What Outcomes Can You Expect?
The ideal outcome in any DWI case is to have the case dismissed altogether. It’s an open secret that the State of Texas views DWI charges as a revenue stream, so it’s not uncommon to see people accused of DWI with flimsy evidence. Effectively demonstrating this is a great way to show that the case against you is weak and that moving forward with prosecution would be a waste of the state’s time and resources.

But even if the charges can’t be completely dismissed, there are multiple methods we can use to have the charges negotiated to lesser offenses and reduced. This is also favorable, as a reduced charge will not only come with less jail time and fewer fines, it will also help avoid long-term ramifications including probation, community service and use of an ignition interlock device. Furthermore, by eliminating the presence of a DWI conviction on your criminal record, it keeps the incident from becoming a blemish on your permanent criminal record.

A few of the methods used to reduce or dismiss charges include:

• • Pretrial Diversion Program: A pretrial diversion program allows you to have charges dismissed if you follow certain program guidelines and meet their conditions. Acceptance into this program is on a case-by-case basis. This may include a year of alcohol monitoring, counseling and 25 hours of community service, during which time you will be required to use a monitoring device, remain free of drugs and alcohol and maintain a clean criminal record. Failure to do so will allow the prosecution to resume their case against you.
• • Plea Bargaining or Negotiation: This involves cutting a deal with the State. Experienced DWI defense attorneys can usually make this happen more often than inexperienced attorneys.
• • Reducing to Lesser Charges: Strictly speaking, DWI charges cannot be amended (reduced) under Texas law. Your attorney, however, can negotiate with the state to have the DWI charge withdrawn and replaced with a separate, lesser, charge such as reckless driving or obstruction of a passageway. If the BAC at the time of the arrest was low, and if there are no prior arrests or collisions, it may also be possible to please down to a deferred class C ticket.

Implied Consent Law in Texas Explained
At any point during the process, from the initial stop to the final hearing, it’s crucial that you know your civil liberties under Texas state law.

For example, Texas is one of many states that abides by an implied consent law. Simply put, by virtue of holding a driver’s license and driving on public roads, you have already implicitly agreed to undergo blood or breath tests if law enforcement has probable cause to believe you have driving while intoxicated.

That said, you do have the right to refuse either a field sobriety test or a test of your BAC. You just have to understand that there will be consequences. Under the implied consent law, if you refuse a test of your blood or breath, the arresting officer can take your driver’s license on the spot. Depending on the situation in your case, you may given a temporary permit, but once the suspension of your license begins, you can expect to lose driving privileges for at least 180 days or longer.

And that is just for those refusing a test of blood or breath for the first time. If your record reflects a previous DWI or a previous refusal within the last ten years, your license could be suspended for a period of up to two years or longer.  It depending on many different variables.

Understand Blood and Breath Tests

Legal Limit in Texas: .08% blood alcohol concentration (BAC)

DWI with BAC Below .15%

If your BAC tested below .15%, your DWI is considered a Class B Misdemeanor. For a simple, first-offense DWI below .15 in Texas, you could face the following punishments:

• • Fines up to $2,000.00
• • Jail sentence from 72 hours up to 180 days
• • Potential license suspension from 90 days to one year
• • Potential use of an ignition interlock device
• • Probation
• • Service hours
• • Drug and alcohol evaluation
• • DWI educational classes or “DWI school”
• • Victim Impact Panel
• • DWI on your criminal record

DWI with BAC Above .15%

If your BAC tested above .15%, your DWI is considered a Class A Misdemeanor. This charge includes more serious consequences than a Class B Misdemeanor. For a DWI with BAC above .15%, you could face the following punishments:

• • Fines up to $4,000
• • Jail sentence from 72 hours to one year
• • Potential license suspension from 90 days to one year
• • Potential use of an ignition interlock device
• • Probation
• • Service hours
• • Drug and alcohol evaluation
• • DWI educational classes or “DWI school”
• • Victim Impact Panel
• • DWI on your criminal record

Quick Answers to DWI Questions

How does law enforcement prove my BAC was over the legal limit?

The state can use either a blood test or a breath test to determine if your BAC was over the legal limit of .08%.

Can I refuse the DWI breath or blood test in Austin, Texas?

Yes.

Should I refuse the DWI breath or blood test?

It is your right to refuse the breath or blood test, but even if you take the test and your BAC is over the legal limit, we can refute the test. We’ve done so successfully in many cases that seemed unwinnable. If you take the test, understand that you are giving law enforcement evidence to use against you in court.

Can my blood be taken against my consent?

Yes. If the arresting officer gets a warrant from a judge to take your blood, they can do so without your consent.

What is a “no refusal weekend”?

In Austin, Texas, some holiday weekends and weekends where there are major events will be considered “no refusal weekends.” During these weekends, judges are on call to sign warrants immediately so officers can take your blood without your consent. We can always challenge these test results.

What if I have a prior DWI?

If you have a prior DWI, the state will charge you with a Class A Misdemeanor rather than a Class B Misdemeanor. A Class A is more severe than a Class B.

DWI Consequences Explained

In addition to a potential jail sentence, fines and losing your license, you may face the following additional consequences in Texas for a DWI:

Ignition Interlock Device

In Texas, multiple-DWI offenders will be required to use an ignition interlock device (IID). First-time offenders may be required to install one as well.

An IID requires a breath sample before starting your vehicle. It is basically a breath test that controls your ignition. If the IID detects any alcohol in your blood, even if it’s below the legal limit of .08%, your vehicle will not start. It also requires drivers to blow periodically while the vehicle is in operation.

Victim Impact Panel

At a Victim Impact Panel or VIP, victims, bystanders, and family give statements about the impacts they’ve experienced as a result of drunk driving.

Drug and Alcohol Evaluation

In a drug and alcohol evaluation, a convicted offender will submit to questioning regarding their drug and alcohol use to identify potential substance use issues and determine an appropriate treatment plan.

DWI School

DWI school is typically a requirement of probation for first-offenders. The educational program provides information about alcohol use and drunk driving. It also educates participants on harm reduction techniques to identify substance use patterns and reduce the chance of drunk driving in the future.

Community Service Hours

Convicted DWI offenders may be required to complete community service as part of their sentence or in lieu of fines or jail time. Judges frequently use service to help the community, decrease the burden on jails, and help defendants get involved.

Probation

Judges may order probation for convicted DWI offenders in Texas. With probation, the judge agrees to waive or “probate” jail time in exchange for following certain rules for a period of time (up to two years for a first-offense DWI). Installing an IID may be required as part of probation as well as meeting with a probation officer and taking drug and alcohol screenings.

If convicted offenders break any of the rules, the judge can reinstate the jail sentence.

DWI in Texas: Is it a Misdemeanor or Felony?

If you have been charged with Driving While Intoxicated (DWI) in the state of Texas, you no doubt have many questions about what to expect. What kind of crime is DWI? Is it a felony or a misdemeanor? What’s the difference? What kind of jail time or penalties can you expect?

The following should answer any questions you may have about receiving a charge of DWI.

To begin with, the most pressing question is whether you will be charged with a felony or a misdemeanor. The good news is that in the state of Texas, most DWI offenses are charged as a misdemeanor, with a punishment of a year at most in the county jail.

That said, there are circumstances in which you will be charged with a felony. Before explaining what those are, it’s important to know exactly what being charged with a felony entails. Essentially, a felony charge is considered a more serious crime, with a minimum sentence of more than a year in jail. In the state of Texas, there are five kinds of felonies, listed here from most to least severe:

• • Capital
• • First-degree
• • Second-degree
• • Third-degree
• • State jail

So how will it be determined whether you will be charged with felony DWI? If this is your first offense, there are three circumstances in which you could receive felony charges.

Three Ways Your First DWI Could be a Felony

The first circumstance that could lead to a felony DWI for your first offense is if the other driver suffers injury or permanent disfigurement as a result of your drunken driving. Charged as Intoxication Assault, this is considered a third-degree felony under Texas law.

The second way you could face felony charges is if your drunk driving results in the death of another person. In this case, your charges will be elevated to the second-degree felony of Intoxication Manslaughter.

Finally, another possibility that could lead to felony charges is if you drive drunk with a child in your vehicle. If the other occupant is 15 years old or younger, you could be charged with driving under the influence with a child passenger, which is considered a state felony.

What if This is Not a First-Offense DWI?

Obviously, with multiple offenses on your record, the legal consequences will be much more severe. And in the state of Texas, there is no set “lookback” period after which a DWI falls off of your record. When you are arrested for DWI in the Lone Star State, prosecutors can look all the way back to the beginning of your criminal record, going back decades if needed to find prior convictions.

If you have a prior DWI on your record, they will find it. And if this latest offense is your second DWI, you can expect to be charged under the Texas Penal Code with a Class A misdemeanor, carrying with it a jail term between 30 days and a year.  With your third or subsequent DWI, each one will be considered a felony, bringing with it a state prison sentence between two and 10 years.

Can I Get a DWI Charge Removed or Sealed in Texas?

In certain circumstances, it is possible to have a DWI charge expunged from your record, striking it out as if it never happened. There are also circumstances in which the record of your DWI can be sealed, depending on the specifics of your case. If your DWI is sealed, it remains on your record, visible to government and law enforcement agencies at the state and federal levels. However, it will not be a part of your public record, meaning that civilians will not be able to access it while running a background check for a job, a loan or a university application.

How Can my Record be Sealed?

• • If this is your first offense, and meet certain qualifications, you can file to have your arrest, your prosecution, and your conviction sealed.  This depending on the case and your past history.

How Can my Record be Expunged?

• • If your case went all the way to trial and you were either acquitted or found not guilty, your arrest and trial will remain on your criminal record, but you can request to have your acquittal expunged.
• • If you were arrested for DWI, and tried in court, but were never formally convicted, you may be allowed to have all records of your DWI expunged.
• • If you take a conviction of DWI to the Court of Appeals and win, overturning the conviction, you may also be allowed to have your DWI expunged.
• • If you are under the age of 21 and receive a DWI charge ONLY (that is to say, you weren’t in violation of another part of the Texas Alcoholic Beverage Code), you will most likely be eligible to have all arrests and convictions expunged.