Texas DWI - The Law...
In order convict you of Driving While Intoxicated, the state must prove to a jury beyond a reasonable doubt that 1) you, 2) while operating a motor vehicle, 3) in a public place, 4) on or about a certain date, 5) were intoxicated.
PENAL CODE § 49.04. DRIVING WHILE INTOXICATED. (a) A person commits an offense if the person is intoxicated while operating a motor vehicle in a public place. (b) Except as provided by Subsection (c) and § 49.09, an offense under this section is a Class B misdemeanor, with a minimum term of confinement of 72 hours. (c) If it is shown on the trial of an offense under this section that at the time of the offense the person operating the motor vehicle had an open container of alcohol in the person's immediate possession, the offense is a Class B misdemeanor, with a minimum term of confinement of six days.
The state must, to prove that you were intoxicated, that you 1) did not have the normal use of mental or physical faculties because of the use of alcohol or drugs (even prescription drugs), or 2), that you had a .08 blood alcohol concentration at the time. Intoxication is defined below.
PENAL CODE § 49.01. DEFINITIONS. In this chapter: (1) "Alcohol concentration" means the number of grams of alcohol per: (A) 210 liters of breath; (B) 100 milliliters of blood; or (C) 67 milliliters of urine. (2) "Intoxicated" means: (A) 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 (B) having an alcohol concentration of 0.08 or more…
It is not a defense that you are entitled to use the alcohol or drug, and the state does not have to prove that you intended to drive drunk.
PENAL CODE § 49.10. NO DEFENSE. In a prosecution under Section 49.03, 49.04, 49.045, 49.05, 49.06, 49.065, 49.07, or 49.08, the fact that the defendant is or has been entitled to use the alcohol, controlled substance, drug, dangerous drug, or other substance is not a defense.
§ 49.11. PROOF OF MENTAL STATE UNNECESSARY. (a) Notwithstanding Section 6.02(b), proof of a culpable mental state is not required for conviction of an offense under this chapter. (b) Subsection (a) does not apply to an offense under Section 49.031.
First time DWI is a Class B Misdemeanor. If you are willing to say that you are guilty and plea with the DA, he will normally offer to “probate” the sentence for a term of two years (which is NOT a good plea deal in itself), which means you report to a probation officer over that period and comply with other terms and conditions of probation, which could include a deep-lung ignition device, up to 100 hours of community service, and many other burdensome conditions and that, if you do not live up to the conditions, you can be sent back to jail for 180 days. This is why it is very important to hire a lawyer for DWI representation to negotiate your conditions effectively. Worst of all, you must say that you are guilty and be convicted of DWI to enter into a plea-bargain unless the state is willing to let you plead to a less serious offense. A subsequent DWI will be enhanced to a Class A Misdemeanor, and if convicted the second time, the DWI 3rd or more is enhanced to a third degree felony.
PENAL CODE § 12.22. CLASS B MISDEMEANOR. An individual adjudged guilty of a Class B misdemeanor shall be punished by: (1) a fine not to exceed $2,000; (2) confinement in jail for a term not to exceed 180 days; or (3) both such fine and confinement.
Second time DWI is a Class A Misdemeanor.
PENAL CODE § 12.21. CLASS A MISDEMEANOR. An individual adjudged guilty of a Class A misdemeanor shall be punished by: (1) a fine not to exceed $4,000; (2) confinement in jail for a term not to exceed one year; or (3) both such fine and confinement.
DWI 3rd or more is a third degree felony.
PENAL CODE § 12.34. THIRD DEGREE FELONY PUNISHMENT. (a) An individual adjudged guilty of a felony of the third degree shall be punished by imprisonment in the institutional division for any term of not more than 10 years or less than 2 years. (b) In addition to imprisonment, an individual adjudged guilty of a felony of the third degree may be punished by a fine not to exceed $10,000.
DWI with a Child Passenger is a State Jail Felony.
PENAL CODE § 49.045. DRIVING WHILE INTOXICATED WITH CHILD PASSENGER. (a) A person commits an offense if: (1) the person is intoxicated while operating a motor vehicle in a public place; and (2) the vehicle being operated by the person is occupied by a passenger who is younger than 15 years of age. (b) An offense under this section is a state jail felony.
State Jail felony punishment is extra-tough because there is no good conduct time credit in State Jail Facilities.
PENAL CODE § 12.35. STATE JAIL FELONY PUNISHMENT. (a) Except as provided by Subsection (c), an individual adjudged guilty of a state jail felony shall be punished by confinement in a state jail for any term of not more than two years or less than 180 days. (b) In addition to confinement, an individual adjudged guilty of a state jail felony may be punished by a fine not to exceed $10,000. (c) An individual adjudged guilty of a state jail felony shall be punished for a third degree felony if it is shown on the trial of the offense that: (1) a deadly weapon as defined by Section 1.07 was used or exhibited during the commission of the offense or during immediate flight following the commission of the offense, and that the individual used or exhibited the deadly weapon or was a party to the offense and knew that a deadly weapon would be used or exhibited; or (2) the individual has previously been finally convicted of any felony: (A) listed in Section 3g(a)(1), Article 42.12, Code of Criminal Procedure; or (B) for which the judgment contains an affirmative finding under Section 3g(a)(2), Article 42.12, Code of Criminal Procedure.
The law of enhancements can seriously affect your sentencing range.
PENAL CODE § 49.09. ENHANCED OFFENSES AND PENALTIES. (a) Except as provided by Subsection (b), an offense under Section 49.04, 49.05, 49.06, or 49.065 is a Class A misdemeanor, with a minimum term of confinement of 30 days, if it is shown on the trial of the offense that the person has previously been convicted one time of an offense relating to the operating of a motor vehicle while intoxicated…(b) An offense under Section 49.04, 49.05, 49.06, or 49.065 is a felony of the third degree if it is shown on the trial of the offense that the person has previously been convicted: (1) one time of an offense under Section 49.08 or an offense under the laws of another state if the offense contains elements that are substantially similar to the elements of an offense under Section 49.08; or (2) two times of any other offense relating to the operating of a motor vehicle while intoxicated … … (e) Except as provided by Subsection (f), a conviction may not be used for purposes of enhancement under this section if: (1) the conviction was a final conviction under Subsection (d); (2) the offense for which the person is being tried was committed more than 10 years after the latest of: (A) the date on which the judgment was entered for the previous conviction; (B) the date on which the person was discharged from any period of community supervision on which the person was placed for the previous conviction; (C) the date on which the person successfully completed any period of parole on which the person was released after serving a portion of the term to which the person was sentenced for the previous conviction; or (D) the date on which the person completed serving any term for which the person was confined or imprisoned for the previous conviction; and (3) the person has not been convicted of an offense under Section 49.04, 49.05, 49.06, 49.065, 49.07, or 49.08 or any offense related to operating a motor vehicle while intoxicated within 10 years of the latest date under Subdivision (2). (f) A conviction may be used for the purposes of enhancement under this section regardless of when the conviction occurred if the conviction was for an offense under: (1) Section 49.08 involving the operation of a motor vehicle; or (2) Section 19.05(a)(2), as that law existed before September 1, 1994, involving the operation of a motor vehicle. (g) A conviction may be used for purposes of enhancement under this section or enhancement under Subchapter D, Chapter 12, but not under both this section and Subchapter D. (h) This subsection applies only to a person convicted of a second or subsequent offense relating to the operating of a motor vehicle while intoxicated committed within five years of the date on which the most recent preceding offense was committed. The court shall enter an order that requires the defendant to have a device installed, on each motor vehicle owned or operated by the defendant, that uses a deep-lung breath analysis mechanism to make impractical the operation of the motor vehicle if ethyl alcohol is detected in the breath of the operator, and that requires that before the first anniversary of the ending date of the period of license suspension under Section 521.344, Transportation Code, the defendant not operate any motor vehicle that is not equipped with that device. The court shall require the defendant to obtain the device at the defendant's own cost on or before that ending date, require the defendant to provide evidence to the court on or before that ending date that the device has been installed on each appropriate vehicle, and order the device to remain installed on each vehicle until the first anniversary of that ending date. If the court determines the offender is unable to pay for the device, the court may impose a reasonable payment schedule not to extend beyond the first anniversary of the date of installation. The Department of Public Safety shall approve devices for use under this subsection. Section 521.247, Transportation Code, applies to the approval of a device under this subsection and the consequences of that approval. Failure to comply with an order entered under this subsection is punishable by contempt. For the purpose of enforcing this subsection, the court that enters an order under this subsection retains jurisdiction over the defendant until the date on which the device is no longer required to remain installed. To the extent of a conflict between this subsection and Section 13(i), Article 42.12, Code of Criminal Procedure, this subsection controls.