Texas Criminal Attorney Blog

Texas Penal Code Section 49.02. PUBLIC INTOXICATION.
(a) A person commits an offense if the person appears in a public place while intoxicated to the degree that the person may endanger the person or another.
(b) It is a defense to prosecution under this section that the alcohol or other substance was administered for therapeutic purposes and as a part of the person's professional medical treatment by a licensed physician.
(c) Except as provided by Subsection (e), an offense under this section is a Class C misdemeanor.
(d) An offense under this section is not a lesser included offense under Section 49.04.
(e) An offense under this section committed by a person younger than 21 years of age is punishable in the same manner as if the minor committed an offense to which Section 106.071, Alcoholic Beverage Code, applies.

Texas DWI Laws: A Review

From Collin County DWI Attorneys

Charged with DWI in Texas: Here is a quick review of the Texas DWI Laws

Classification of DWI under Texas Law: Texas Penal Code §49.04.
Under Texas Law, an offense for Driving While Intoxicated (DWI) can be classified many ways depending on the facts surrounding the arrest for drunk driving and the prior criminal history of the accused. The Classifications of DWI under Texas Law are as follows:
• DWI, First Offense: Class B Misdemeanor
• DWI, Second Offense: Class A Misdemeanor
• DWI, Third Offense (or more): Third Degree Felony
• Intoxicated Assault: Third Degree Felony

First Offense DWI: Class B Misdemeanor: Texas Penal Code §49.04
A first offense or Driving While Intoxicated is a class B misdemeanor and defined by Texas Penal Code § 49.04. Under Texas Law, the State must prove the following elements beyond a reasonable doubt to convict a person of driving while intoxicated:
1. The defendant;
2. On or about a certain date;
3. Operated a motor vehicle;
4. In a public place;
5. In a particular county in the State of Texas;
6. While Intoxicated.

Definition of “Intoxication” under Texas Law
The most commonly disputed element in a DWI trial is the “while intoxicated” element. The State of Texas has defined “Intoxication” as [Texas Penal Code §49.01(2)]:
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 0.08 or more.”

Therefore, the State may prove a person is “intoxicated” for the purposes of a DWI conviction in three (3) different ways:
1. not having the normal use of physical faculties OR
2. not having the normal use of mental faculties OR
3. having an alcohol concentration of 0.08 or more.

It is important to note that a jury does not have to reach a unanimous decision on the manner or means of intoxication. Therefore, the jury does not have to agree how a person is intoxicated, only that they all agree the defendant is intoxicated by one of the three ways above. BUT, it is important to remember that the State must prove a person is intoxicated at the time of driving. This can sometimes be a problem for the State when a long period of time elapses between when a person was arrested and when sobriety tests were preformed.

1st Offense DWI: Class B Misdemeanor: Range of Punishment and Consequences.

The punishment for a first offense DWI is:
• A fine not to exceed $2,000.
• Confinement in the County Jail for a term not less than 72 hours and not more than 180 days.
NOTE: Most people convicted of a first DWI offense are granted community supervision (“probation”) instead of serving time in the County Jail. Generally, probation can last anywhere from 12 to 24 months. If you are granted community supervision in your case, the following conditions could apply:
• Not less than 24 hours of community service nor more than 100 hours.
• Drug and/or Alcohol evaluation and any conditions associated with that evaluation.
• Complete a DWI Education course within 180 days for the date of conviction.
• Attend and complete a M.A.D.D. Victim Impact Panel.
• Maintain suitable employment, commit no other crimes, and remain at the same residence and employment unless notification is given to the community supervision officer.
• Report monthly to the supervision office and pay a monthly supervisory fee (usually between $40-$60).
• Pay all fines and costs in a timely manner.
If your case involves certain “bad facts” then additionally conditions may be imposed as well. “Bad Fact” cases are those which involve either a high level of intoxication, dangerous driving facts, or prior criminal history. In these types of cases, a judge in his or her discretion may impose the following conditions:
• Deep lung air device: This condition requires you to install and maintain a device on your vehicle. The device requires a breath sample before it will allow your car to start. In addition, these devices may require you to give periodic breath samples while your car is running.
• Restitution: If you are involved in an accident, the court may require you to pay restitution for damages not covered by insurance.
• Confinement: Even if you are given community supervision, the court may require you to be confined in the County Jail as a condition of your probation. In some cases, judges will require a defendant to go to jail for 3 to 5 days as a condition prior to being placed on probation.
• Alcohol Treatment: The court may order a person to attend AA or other counseling programs during probation. This condition is usually ordered if you have an unfavorable drug or alcohol evaluation.
• No Alcohol: Some courts require a person not to consume any alcohol during the period of community supervision. Courts monitor this condition by requiring a person to submit to random urinalysis.

2nd Offense DWI: Class A Misdemeanor.
Under Texas Law, if it is shown that a person has been previously convicted of DWI, the punishment and penalties after the conviction are increased or enhanced. NOTE: Texas can use prior convictions that occurred in a different state to enhance a Texas DWI.

The punishment for a second offense DWI is:
• A fine not to exceed $4,000.
• Confinement in the County Jail for a term not less that 30 days or more than one (1) year.
• 80 to 200 hours of community service.
• A Deep Lung Device is typically required for all DWI second offenders.
• A possible driver’s license suspension of 180 days to two (2) years.
• T & C Jail Time: Texas law requires that a person serve some time in jail for a second offense DWI even is he or she is granted community supervision. This is known as “T&C” time or “Terms and Conditions” or probation time. T&C time can be up to 30 days. However, most courts impose five (5) days of T&C time if your prior DWI is less than five (5) years old and three (3) days T&C time if your prior DWI is grater that five (5) years old.
• NOTE: Condition of Bond: Most courts will require a person who has been charged with a second DWI offense to install a deep lung device on his or her vehicle as a condition of bond. This means that in order to get a bond and be release from jail, a person must install a deep lung device on his or her car and it must remain there while the case is pending or until the judge orders that it can be removed.

Third Offense (or greater) DWI: Third Degree Felony.
The Punishment for a third offense (or greater) DWI is:
• A fine not to exceed $10,000.
• Confinement in the Texas Department of Criminal Justice, Institutional Division (Penitentiary) for a term of not less that two (2) years nor more that ten (10) years.
• A Deep Lung Device is generally order as a condition of bond and as a condition of any occupational or provisional license that may be awarded after a conviction for Felony DWI.
• A possible driver’s license suspension of 180 days to two (2) years.
• SAFP: Substance Abuse Felony Probation. The court may order mandatory rehabilitative treatment for people convicted of felony DWI. This treatment may be imposed as an alternative to serving time in the penitentiary. SAFP is an in-patient; incarceration program ran by the state of Texas. This program requires confinement in a state facility for alcohol rehabilitation. After completing the SAFP program, the person is then released and placed on probation for a term not to exceed ten (10) years.

From the State Bar of Texas' online "Citizen's Guide" to the Texas Criminal Justice Process.

WHAT HAPPENS AFTER A CRIME IS COMMITTED?

After a crime is committed, the preliminary investi- gation by a law enforcement agency generally begins when responding officers arrive at the scene of the incident. Emergency matters are handled and the crime scene secured. In most cases an officer will meet with the victim in person to obtain important information concerning the crime. Witnesses are questioned. Any suspect at the scene is detained, questioned, and then released or arrested, depending on the circumstances. Additional responsibilities during the preliminary investigation may include: photo-graphing, videotaping, measuring and sketching the scene; searching for evidence; identifying, collecting, examining, and processing physical evidence; and recording all observations and statements in notes.

Despite a thorough preliminary investigation, many cases require a follow-up investigation to close the case, arrest an offender, and/or recover weapons or stolen pro-perty. The follow-up investigation can be conducted by the officers who responded to the original call or, most often, by detectives. Investigative leads that may need to be followed-up include: checking the victim’s background; determining who would benefit from the crime and who had knowledge to plan the crime; tracing weapons and stolen property; and searching modus operandi (manner of operation), mug shot, and fingerprint files. Petty thefts and like misdemeanors will obviously not receive the same in-depth investigation as a major crime like murder or sexual assault.

After the law enforcement agency has completed its investigation, the case may be filed with the prosecuting attorney for review and, if appropriate, criminal prosecution. The prosecuting attorney considers such matters as the legality of the arrest, whether certain evidence essential to the case was legally obtained, and/or whether additional investigation is required. Depending on the facts and law involved, the prosecuting attorney may: accept the case for prosecution as filed; increase/reduce the charge filed; file additional/different charges; return the case for further investigation; or reject the case for prosecution.

From the State Bar of Texas' online "Citizen's Guide" to the Texas Criminal Justice Process.

WHAT ARE THE RIGHTS OF THE PERSON ARRESTED?

The person making an arrest is required without unnecessary delay to take the person arrested before a magistrate. The magistrate is required to inform in clear language the person arrested of: (1) the accusation against the person arrested and of any affidavit filed therewith; (2) the right to retain counsel; (3) the right to remain silent; (4) the right to have an attorney present during any interview with peace officers or attorneys representing the state; (5) the right to terminate the interview at any time; (6) the right to request the appointment of counsel if the person arrested is indigent and cannot afford counsel; (7) the right to have an examining trial; and (8) the person arrested is not required to make a statement and any statement made may be used against the person arrested. The magistrate is also required to allow the accused reasonable time and opportunity to consult counsel and to be admitted to bail if allowed by law.

A peace officer who is charging a person with committing an offense that is a class C misdemeanor (other than public intoxication), may, instead of taking the person before a magistrate, issue a citation (ticket) to the person that contains written notice of the time and place the person must appear before a magistrate, the name and address of the person charged, and the offense charged.

Additional rights of an accused in a criminal prosecution include: the presumption of innocence until proven guilty be-yond a reasonable doubt; the right against self-incrimination; the right to not be prosecuted for a felony unless indicted by a grand jury; the right to a copy of the accusation and a speedy trial by an impartial jury; the right to confront (cross-examine) the witnesses and to have compulsory process (subpoena) for obtaining witnesses, and the right of appeal.

The defendant in a criminal prosecution for any offense may waive any rights secured him/her by law. It should be noted, however, that in a capital felony prosecution in which the prosecutor notifies the court and the defendant that the state will seek the death penalty, the defendant does not have the right to waive trial by jury.

Texas DWI Court Process

If you or someone you love has been arrested for DWI in Texas then you probably have many questions you need answered. DWI is a complicated law with many provisions that sometime confuse even the best of lawyers. This article’s purpose is to give you some basis information about the DWI process in Texas.

The first thing you need to understand is that DWI is a crime. A DWI charge caries penalties that may include license suspension and the possibility of being placed in jail for up to 180 days. Because one of the main causes of injury and death on Texas highways is DWI, the state legislature wrote the DWI laws to carry stiff punishment.

It is important to remember that it is not a crime to drink alcohol and drive. Responsible social drinking is not against the laws of the state of Texas. Drinking and driving only becomes a crime when a person consumes too much alcohol and loses his or her normal ability to safely operate a vehicle. Therefore, anytime you intend to consume alcohol ad the drive, you have a responsibility to do so responsibly so that no one is endangered by your conduct.

Continue reading " Texas DWI Process: What Happens After the Arrest. " »

There is a good reason why many people confuse a DWI with a DUI. In Texas, a DWI is the bigger offense and a DUI is a more minor offense. I published an article describing the difference between DWI and DUI here. The article centered on the DUI arrest of actress Heather Locklear.

Unlike Texas, most other states call their major drunk driving offense a DUI not a DWI. So, it is easy to confuse the two crimes. The most important difference is that a DUI in Texas is available only for someone who is under 21 years of age. In addition, police do not have to prove you are intoxicated to charge you with DUI. The officer only has to detect the presence of alcohol. This is usually done by the officer smelling alcohol on a person's breath.

For a more in-depth article about the difference between DUI and DWI, see the article below by Hunter Biederman

What is the Difference between DWI and DUI in Texas?

In Texas, DWI, or Driving While Intoxicated (1st), is a crime that can carry with it up to 180 days in jail, and up to a $2,000 fine. DWI carries with it a harsher punishment and penalties than DUI. In order for the state to convict someone of DWI, they must prove that the driver of a motor vehicle either had above a .08 BAC, or lost the normal use of their mental or physical faculties due to the introduction of alcohol, a drug, or a combination of the two. You can receive a DWI at any age (above or below 21). With each conviction, the punishment & ramifications of a conviction go up.

In Texas, DUI, or Driving Under the Influence is a crime that can only be committed by a minor under 21. The controlling statute is the Alcohol Beverage Code § 106.041. In order for the state to prove that you are Driving Under the Influence of Alcohol, the state must prove you were a motor vehicle in a public place while having any detectable amount of alcohol in the minor's system. BUT, if the police believe that you are above a .08 BAC, or you have lost the normal use of your mental or physical faculties, you may end up getting arrested for DWI, the more serious of the two crimes.

I have created the chart below to help explain the differences. No matter which crime you are charged with, DWI or DUI, the ramifications can be extraordinary. This is especially true for what can happen outside of the punishment ranges. Drivers License suspensions, future loans or employers, may see your record, and future criminal proceedings may be enhanced.

DWI (1st)

AGE: Under 21 or Over 21
Not Having Normal Use of Mental or Physical Faculties (while driving)
Offense Level: Class "B" Misdemeanor
Punishment Range: 72 hours - 180 days Jail, Up to $2000 fine
Proceedings Held: County Court

DUI

Under 21
Any detectable amount of alcohol
Offense Level: Class "C" Misdemeanor
Proceedings Held: JP or Municipal Court
Punishment Range: Up to $500 fine

If you have been arrested for DWI in Collin County, Texas, here are 10 mistakes that people commonly make that you need to avoid:

10 DWI Mistakes to AVOID!
by Collin County DWI Lawyers Biederman & Burleson, P.L.L.C.

1. Not taking the matter seriously. This is a charge that will follow you for the rest of your life if you are convicted. The additional insurance charges alone could cost you thousands of dollars.

2. Not hiring an attorney. The law is complex and you need competent representation. You must raise the right defenses at the right time or you will lose them. Facts will disappear, memories fade and witnesses vanish. A winnable case can quickly become a loser.

3. Hiring an attorney based on the amount of the fee alone. The State of Texas has almost unlimited resources when it comes to your case. You need to hire an attorney and pay a fee which will allow him to put time and effort into your case to counter the prosecution. Attorneys must earn enough in the time they spend on your case in order to keep their doors open and make a living wage. If you go too low, your attorney will not be able to put in the time necessary to protect you. Look for a reasonable, predictable fee, not the lowest.

4. Not complying with driver's license laws. You could lose your right to drive.

5. Driving after your license has been taken away.

6. Not taking full advantage of your constitutional rights.

7. Taking the prosecutor's first offer. The first offer is not a bargain; it's just to get rid of your case with the least amount of work. Very few cases are dismissed or reduced to a non-alcohol charge at this stage. You do not give the judge an opportunity to rule on constitutional challenges. You give up your right to raise these issues and make the State prove it's case.

8. Fail to appear in Court. The Court will issue a bench warrant for your arrest and revoke any bond. The next time you are stopped for a traffic infraction, you will be spending some time in jail and posting a bond for your future appearances.

9. Talk to anyone but an attorney about your case. Anything you say to them can be used against you.

10. Think that talking to numerous attorneys will help you handle it on your own. You need to have an attorney go to court with you.

From the State Bar of Texas' online "Citizen's Guide" to the Texas Criminal Justice Process.

Are Juveniles Treated Differently?

There are significant differences in the procedures used to process juvenile and adult offenders. Despite the procedural differences and the considerable discretion asso-ciated with juvenile proceedings, juveniles have many of the rights and protections provided defendants in adult criminal proceedings.

Each county's juvenile board (county judge, district judges, and judges of any statutory courts designated as a juvenile court) is required to designate one or more district, criminal district, domestic relations, juvenile, county courts or county courts at law as the juvenile court. The juvenile court has exclusive original jurisdiction over proceedings under the Juvenile Justice Code involving children between the ages of 10 and under 17, and children who are between 17 and under 18, but who committed offenses before becoming 17. Venue is in the county in which the child resides or the county in which the alleged delinquent conduct or conduct indicating a need for supervision occurred.

A law enforcement officer who takes a child into custody may dispose of the case without referral to juvenile court, if: (1) guidelines for such disposition have been issued by the officer’s law enforcement agency; (2) the guidelines have been approved by the juvenile board of the county in which the disposition is made; (3) the disposition is authorized by the guidelines; and (4) the officer makes a written report of this disposition to the law enforcement agency, identifying the child and specifying the grounds for believing that the taking into custody was authorized.

If the case or child is referred to juvenile court, a person authorized by the court (usually someone from the juvenile probation department) is required to conduct a preliminary investigation to determine whether the person referred to juvenile court is a child under the Juvenile Justice Code and there is probable cause to believe the person engaged in delinquent conduct or conduct indicating a need for supervision. If it is determined that the person is not a child or there is no probable cause, the person shall immediately be released.

Each county is required to provide a suitable place of detention for children, separated by sight and sound from any adults detained in the same building. When a child is taken into custody, if the child is not released a detention hearing without a jury shall be held within two working days after the child is taken into custody; the next working day if the child is detained on a Friday or Saturday. The juvenile court must release the child from detention unless it finds that:

1. the child is likely to abscond or be removed from the jurisdiction of the court;
2. suitable supervision, care, or protection for the child is not being provided by a parent, guardian, custodian, or other person;
3. the child has no parent, guardian, custodian, or other person able to return him/her to the court when required;
4. the child may be dangerous to himself/herself or he/she may threaten the safety of the public if released; or
5. the child has previously been found to be a delinquent child or has previously been convicted of a penal offense punishable by a term in jail or prison and is likely to commit an offense if released.

The court must make a finding whether there is probable cause to believe that a child taken into custody without an arrest warrant or a directive to apprehend has engaged in delinquent conduct or conduct indicating a need for supervision. The finding must be made within 48 hours of the time the child was taken into custody.

If a preliminary investigation results in a determination that further proceedings in the case are authorized, the designated officer of the court may, subject to the direction of the juvenile court, advise the parties for a reasonable period of time not to exceed six months concerning deferred prosecution and rehabilitation of the child if: (1) deferred prosecution would be in the interest of the public and the child; (2) the child and his parent, guardian, or custodian consent with knowledge that consent is not obligatory; and (3) the child and his parent, guardian, or custodian are informed that they may terminate the deferred prosecution at any point and petition the court for a court hearing in the case.

A juvenile court may, on petition filed by the prosecuting attorney, waive its exclusive original jurisdiction and transfer a child to the appropriate district court or criminal district court for criminal proceedings if:

1. the child is alleged to have committed a felony;
2. the child was:
1. 14 years of age or older at the time he/she is alleged to have committed the offense, if the offense is a capital felony, an aggravated controlled substance felony, or a felony of the first degree, and no adjudication hearing has been conducted concerning that offense; or
2. 15 years of age or older at the time he/she is alleged to have committed the offense, if the offense is a felony of the second or third degree or a state jail felony, and no adjudication hearing has been conducted concerning that offense; and
3. after a full investigation and a hearing, the juvenile court determines that there is probable cause to believe that the child committed the offense alleged and that because of the seriousness of the offense alleged or the background of the child the welfare of the community requires criminal proceedings.

If the juvenile court waives jurisdiction and transfers the child for criminal proceedings, he/she shall be dealt with as an adult and in accordance with the Code of Criminal Procedure. However, no person may be punished by death for an offense committed while younger than 17 years.

If the juvenile court does not transfer the child for adult criminal proceedings, the juvenile court may, on peti-tion of the prosecuting attorney, conduct an adjudication hearing. Trial shall be by jury unless waived by the child and his/her attorney. If the judge or jury does not find beyond a reasonable doubt that the child engaged in delinquent con-duct or conduct indicating a need for supervision, the court shall dismiss the case. If the finding is that the child did engage in delinquent conduct or conduct indicating a need for supervision, the court shall conduct a disposition hearing.

At the disposition hearing, if the judge or jury does not find that the child is in need of rehabilitation or the protection of the public or the child requires that disposition be made, the court shall dismiss the child and enter a final judgment without any disposition. If the judge or jury finds that the child is in need of rehabilitation or the protection of the public or the child requires that disposition be made:

1. the judge or jury may place the child on community supervision for any period, except that the probation may not extend to or after the child's 18th birthday;
2. if the judge or jury finds at the adjudication hearing that the child engaged in delinquent conduct and if the petition was not approved by the grand jury under section 53.045, Family Code, the court may commit the child to the Texas Youth Commission (TYC) without a determinate sentence;
3. if the judge or jury found at the conclusion of the adjudication hearing that the child engaged in delinquent conduct that included a violent offense listed under section 53.045(a), Family Code, and if the petition was approved by the grand jury under section 53.045, Family Code, the judge or jury may sentence the child to commitment in the Texas Youth Commission with a possible transfer to adult prison for a term of confinement of not more than:
1. 40 years for a capital felony, first degree felony or an aggravated controlled substance felony;
2. 20 years for a second degree felony; or
3. 10 years for a third degree felony;
4. the judge may assign the child appropriate sanctions under section 59.003, Family Code; or
5. if applicable, the judge or jury may make a disposition for habitual felony conduct under section 54.04(m) of the Family Code.

A court may issue an order against a child to protect a victim of the child’s conduct who, because of the victim’s participation in the juvenile justice process, risks further harm by the child. In the order, the court may prohibit the child from doing specified acts or require the child to do specified acts necessary or appropriate to prevent or reduce the likelihood of further harm to the victim by the child.

An appeal from an order of a juvenile court is to a court of appeals, and the case may be carried to the Texas Supreme Court (unlike adult criminal appeals which may be carried to the Court of Criminal Appeals).

If you are charged with DWI in Texas, you may face a suspension of your driver's license. For an explanation of the driver's license suspension process see our previous post.

If your driver's license is suspended as a result of a DWI arrest, you may be able to obtain a limited, temporary license to operate a vehicle. This temporary license is known as an occupational driver's license. We have written about the occupational driver's license procedure on our website. The full article can be found below:

Occupational Driver's License Procedure

What is an occupational license?

An occupational license is a special restricted license issued to persons whose license has been suspended or revoked for certain offenses. An occupational license authorizes the operation of a non-commercial motor for up to 12 hours a day for work related purposes, educational purposes and to perform basis household duties.

How do You Obtain an Occupational License?

There are several requirements that must be satisfied prior to a judge granting an occupational driver’s license. First, a Petition of an Occupational Driver’s License must be drafted and filed, with the required filing fee, with a court that has jurisdiction over the matter. This court is usually made in either a county or district court located in the petitioner’s county of residence or in the court that retains original jurisdiction. This court is where the offense occurred. Second, the petitioner must obtain SR-22 insurance which is a special insurance policy, require by the State of Texas, as a prerequisite to obtaining an occupational license. Third, some courts require a copy of the petitioner’s driving record. Finally, the Petition for Occupational License must be presented to a judge for his or her approval. Also, some judge’s require an in-person hearing before granting an occupational license. See, Texas Transportation Code Section 521.242, 37 Texas Administrative Code 15.7.

Is the court order the occupational license?
No, the court order is only the first step to the occupational license. After the court grants the request, the court order and all other required items must be submitted to the Texas Department of Public Safety (DPS). After these items are received by the DPS the occupational license is issued.

However, the court order will function as an occupational license for no more than 30 days from the judge signing the order. This allows a person an opportunity to drive for up to 30 days from the dates of the judge’s signature to allow the request to be processed by the DPS.

I have a commercial driver’s license; will an occupational license allow me to drive a commercial vehicle?

No. If your license is suspended, cancelled, or revoked under any Texas law you MAY NOT be granted an occupational driver’s license to operate a commercial motor vehicle. See, Texas Transportation Code 522.086, Texas Transportation Code 522.089.

From the State Bar of Texas' online "Citizen's Guide" to the Texas Criminal Justice Process.

HOW ARE CRIMINAL CASES RESOLVED?

Plea Bargaining
The disposition of criminal charges by agreement between the prosecutor and the defendant, under judicial supervision, is called "plea bargaining." In exchange for the defendant pleading guilty or nolo contendere (no contest) and waiving the right of trial by jury, the prosecutor recommends a specific punishment which the judge can follow or reject. If the judge rejects the agreement, the defendant is permitted to withdraw his/her plea. If the judge follows the agreement, the defendant must obtain the judge's permission before the defendant may appeal any matter in the case except matters raised by written motions filed prior to trial. The defendant usually waives the right of appeal as part of the plea bargain. The vast majority of all criminal cases are resolved by plea bargaining.

Nonnegotiated Guilty Plea (Open Plea)

A defendant may plead guilty or nolo contendere to a criminal charge without an agreement with the prosecutor as to the punishment the prosecutor will recommend. The judge has the responsibility to assess the punishment appli-cable to the offense unless the defendant requests that a jury assess punishment. This is called a “nonnegotiated guilty plea” or “pleading open to the court.” The defendant retains the right to appeal, but nonjurisdictional defects occurring prior to the entry of the plea may have been waived.

Trial

The Texas Constitution guarantees the accused in all criminal prosecutions the right to a trial by jury. The defendant may waive trial by jury and proceed with trial to the court (judge) with the consent and approval of the judge and the prosecutor in any criminal prosecution except a capital felony in which the prosecutor notifies the court and the defendant that the state will seek the death penalty.

A criminal trial before a jury (sometimes called a "petit jury") proceeds as follows:

1. The jury is impaneled following voir dire examination and any challenges for cause or peremptory challenges.
2. The information or indictment is read to the jury.
3. The defendant enters his/her plea.
4. Opening statements may be made by each side.
5. The testimony on the part of the state is offered.
6. The testimony on the part of the defense is offered.
7. Rebutting testimony may be offered by each side.
8. The court's written charge setting forth the law applicable in the case is read to the jury.
9. Attorneys for each side argue their case to the jury.
10. The jury deliberates. If the jury finds that the state proved beyond a reasonable doubt that the defendant committed the offense charged (or a lesser included of-fense), the trial proceeds to the punishment phase. A not guilty verdict ends the trial and discharges the de-fendant. If the jury is unable to agree to a unanimous verdict, a mistrial or "hung jury" occurs and the jury is discharged. The case may be retried at a later date.
11. The judge assesses punishment unless the defendant requests the jury to assess punishment or the state seeks the death penalty in a capital felony. The judge may be required to direct a supervision (probation) officer to prepare a presentence investigation report.

Testimony concerning the circumstances of the offense may be considered by the judge or jury in determining the punishment to be assessed. Victim impact evidence (e.g., degree of physical or emotional injury to the victim) may be admissible as a circum-stance of the offense if the evidence has some bearing on the defendant's personal responsibility and moral guilt. Evidence is also admissible concerning the defendant's prior criminal record, his/her general reputa-tion and character, and any other evidence of an extra-neous crime or bad act shown beyond a reasonable doubt to have been committed by the defendant.

After the introduction of evidence relevant to pun-ishment has been concluded, if the jury has the responsibility of assessing the punishment, the judge will give additional instructions as may be necessary and the order of procedure is the same as on the issue of guilt or innocence. If the jury fails to agree to a unanimous verdict on punishment, the verdict is not complete and a mistrial is declared and the jury discharged. The entire case may be retried at a later date.

Prior to the imposition of sentence by the court, if the court has received a victim impact statement it must consider the information provided in the statement. Before sentencing the defendant, the court is required to permit the defendant or his/her counsel a reasonable time to read the statement, comment on the statement, and, with the approval of the court, introduce testimony or other information alleging a factual inaccuracy in the statement.

Dismissal

The prosecutor may, with the consent of the judge, dismiss a criminal case. Common reasons for dismissal in-clude: (1) insufficient evidence - for example, after indict-ment trial preparation reveals a fatal lack of evidence such that the court would instruct a verdict for the defendant; (2) crucial evidence is suppressed (excluded) because of an ille-gal arrest or search; (3) the case is re-filed to correct mistakes in the information or indictment or to better plead the case; (4) at the request of the victim; (5) the defendant pleads guilty to other offenses; (6) the defendant has never been arrested; and/or (7) necessary witnesses cannot be located.

Texas Administrative License Revocation Process: The ALR Hearing

If you are charged with DWI in Texas, you will AUTOMATICALLY lose your driver’s license UNLESS your request an ALR Hearing within 15 days of your arrest.

An ALR Hearing is an administrative hearing in which your continued ability to drive will be decided. The ALR hearing is a civil proceeding and is separate and distinct from the criminal DWI proceeding. The State has to prove the following by a preponderance of the evidence before your license may be suspended:
1. There was reasonable suspicion or probable cause for the officer to stop for arrest the driver?
2. There probable cause for the officer to believe the driver was intoxicated?
3. The driver was offered the opportunity to provide a specimen of breath or blood?
4. The driver either refused to submit a specimen or the specimen was over the legal limit of 0.08.
If the State proves the above facts, then you will face the following license suspension:
a) Not less than 180 days if your refused to take a breath or blood test;
b) Not less than 90 days if you provided a breath or blood sample.

License Suspension Facts

Texas courts have held that as a condition of receiving a Texas State driver’s license Texas residents give their implied consent that they will submit to a breath test or blood test is you are suspected of driving drunk. Under the implied consent law your license can be suspended if you refuse to take a chemical test even if you are later found not guilty of DWI. Under certain circumstances, you cold also loose your drier’s license if you submit to a breath test or blood test if the result of the chemical test shows your BAC is over the Texas legal limit of 0.08.

How Can Your Prevent Your License from Being Suspended

When you are charged with drunk driving, your license is not immediately suspended. Although the arresting office typically will retain possession of your driver’s license card, you may continue driving without restrictions while your ALR hearing and criminal case are pending. However, you must request an ALR hearing prior to 15 days from the date of your arrest. If you fail to request an ALR hearing in time, your driver’s license will be suspended automatically on the 40th day after your arrest.

The following defense tactics are commonly used to defend people’s driving privileges at an ALR hearing:
• Requesting Discovery which allows your attorney to look for mistakes in the following paperwork/reports:
o Police officer’s sworn report/probable cause affidavit;
o Criminal complaint;
o DWI statutory warning;
o Notice of suspension;
o Breath or Blood test results;
o Technical Supervisor’s Affidavit;
o Etc.
• Subpoenaing of Witnesses:
o An attorney may subpoena the arresting officer, breath test operator and technical supervisor
o If any subpoenaed witness fails to appear you may be entitled to a dismissal of your ALR suspension case.
• Request a Live Hearing:
o A live hearing allows your attorney to cross examine the State’s witnesses and make an argument on your behalf.

How Long will the ALR Process Take?
Typically, our clients’ ALR hearing will occur prior to the criminal trial. Normally, you will have an ALR hearing anywhere from 2 to 4 months from the date of your arrest.

Click the link below to calculate your Breath Alcohol Concentration (BAC).

BAC Calculator

If you have been arrested and charge with a DWI in Texas, you need to see the list below describing 50 plus DWI facts you need to know.

6 Facts that MUST be proven before you can be found Guilty of a Texas DWI:
If you are arrested for DWI in Collin, Dallas, Denton or any other county in the state of Texas, the following facts must be proven by the State:
1. Your Identity;
2. You were operating a motor vehicle;
3. In a public place;
4. In a specific county (i.e., Collin, Denton, Dallas, etc.) in the state of Texas;
5. You blood or breath alcohol level was over the legal limit; OR
6. You did not have the normal use of your mental or physical faculties
These 6 facts must each be proven beyond a reasonable doubt before you can, lawfully, be convicted of a DWI in Texas.

8 Things the Prosecuting attorney doesn't want you to know.
1. His boss won't let him offer you a reduction of your charge even though they don't have a very strong case;
2. It doesn't matter if he believes your story, he will try to convict you anyway;
3. It is much harder for him to convict you if you refused all sobriety tests and did not give a breath or blood test;
4. He does not have all the necessary witnesses available to prove your case at trial;
5. He has evidentiary problems that will hurt the State's case at your trial;
6. He has exculpatory evidence which would prove your innocence;
7. Because of problems with your case, he plans on dismissing it if you set it for trial;
8. He is not telling you any of the above because he is attempting to BLUFF you into a plea of guilty.

What you must do immediately to preserve you right to drive:
1. The arresting officer should have provided you with paperwork about the suspension of your driver's license (DIC-24 statutory warning form);
2. You have 15 days from the day of your arrest to request an ALR hearing to contest the suspension of your license or your license will be AUTOMATICALLY SUSPENDED;
3. If you do not request an ALR hearing with 15 days of your arrest, there is no way to save your license from being suspended.
The request for an ALR hearing must be done according to SOAH (State Office of Administrative Hearings) rules. As a courtesy, my office will request your ALR hearing free of charge if your contact us for an interview.

Continue reading " Arrested for DWI in Texas: Here are 50 Facts You Need to Know. " »

The Texas Criminal Justice Process can be an intimidating and confusing process. Lawyers go to law school for years to study the rules and procedures of the Texas criminal justice system. The State Bar of Texas has prepared an online "Citizen's Guide" to the Texas Criminal Justice Process. The online guide can be found here.

The State Bar's online guide is a helpful resource for anyone going through the criminal justice system and covers the following topics:

How are the criminal laws classified?
What happens after a crime is committed?
What are the rights of crime victims?
Under what circumstances is an arrest made?
What are the rights of the person arrested?
How is a criminal prosecution initiated?
What are the procedures before trial?
How are criminal cases resolved?
What are the places of confinement?
What is community supervision?
What is an appeal?
What is parole?
Are juveniles treated differently?
Are court proceedings open to the public?
What courts handle criminal cases?
What is the Crime Victim's Compensation Act?