What Does Texas DWI Law Say?
It is illegal for a driver in Texas to operate a motor vehicle in a public place with a BAC of 0.08 % or higher. A person is also prohibited from operating a motor vehicle in a public place while the ingestion of alcohol or drugs impairs their driving, according to the state’s DWI statute. This is contained in Texas Penal Code section 49.04.
So, in other words, it is illegal to operate a motor vehicle in a public place with a BAC of less than 0.08% if the driver is impaired due to the ingestion of alcohol or any other substance that can cause impairment of a person’s physical and mental capabilities.
Generally, a person is deemed “intoxicated” if they “lack the normal use of mental or physical faculties” because they ingested alcohol, drugs, or any other substance that can impair their faculties.
A drunk driving offense based on a BAC of 0.08% is known as per se DWI. This means that if a person’s BAC is 0.08% or higher, it can be presumed that their driving is impaired. Impairment does not have to be proven by other evidence.
If a person’s BAC is under 0.08%, impairment of their driving would have to be proven by evidence other than a blood alcohol test. The amount of alcohol a person must consume to get a BAC of 0.08% depends on their weight, gender, the amount of alcohol they have consumed, and other factors. It is virtually impossible to determine exactly how much alcohol a person must consume to get to a BAC of 0.08%. Generally, it is a rather small quantity.
What Is the New Texas Law for Drunk Driving?
A recently enacted law in Texas provides that a person convicted of DWI whose intoxication causes an accident in which the guardian of a child is killed must pay child support for that child until the child is 18 or graduates from high school. The definition of “motor vehicle” includes aircraft, watercraft, or an amusement ride.
What Are the Elements of Driving Intoxicated in Texas?
The elements of DUI in Texas are as follows:
- A person operated a motor vehicle in a public place;
- The person’s faculties, physical or mental, were impaired, which affected their operation of the motor vehicle, e.g., the person was driving while their car was weaving within a lane of traffic or between lanes;
- The person had ingested alcohol, a controlled substance, a prescription drug, an over-the-counter medication or another substance that caused their impairment.
Again, if the person’s BAC is 0.08% or higher, they may be presumed to have been impaired, and the prosecution does not have to offer other evidence to prove impaired driving.
If the driver’s BAC is below 0.08%, the fact of their impairment would have to be shown by evidence at trial. For example, an officer would testify that they observed the car driving at a speed below the speed limit and weaving from lane to lane. When the officer stopped the car, they noted the odor of alcohol around the driver.
Additional evidence of impairment would be the results of a field sobriety test if the driver fails the test. Breathalyzer and blood tests could also show that the person had alcohol in their blood, even if it did not equal 0.08%.
A police officer will probably ask someone who has been pulled over to get out of the car and do one of the following tests to see if they are intoxicated.
Using a handheld gadget called a breathalyzer, a person can determine how much alcohol is in their system by blowing into the instrument. It might be given either at the location where the car was stopped or at a police station.
Blood or urine testing is a little more difficult because it needs to be done by a doctor who will also provide the lab results. In addition, a warrant must first be obtained by the police. As a result, this test is not typically conducted at the site of the stop.
A person’s balance and agility are tested during field sobriety tests, frequently administered on the spot and involving various tasks. For example, a person might have to tap their finger to their nose while reciting the alphabet or balancing on one foot while counting.
The police have probable cause to arrest the person for drunk driving if they fail any of these tests. Additionally, if a person refuses to submit to any of the tests that can be performed at the scene and a police officer has reason to believe they have been driving under the influence, they can still be arrested.
Last but not least, a police officer may rely on such evidence as the smell of alcohol on a person’s breath, drug paraphernalia in the passenger compartment of the vehicle, or open containers of alcohol in the car to make an arrest for DWI.
In Texas, Is a First Offense DUI a Misdemeanor or a Felony?
A first DWI offense in Texas is punished by a mandatory minimum of 3 days in jail. The maximum term of imprisonment in jail is 180 days. In addition, a person may have to pay a fine of up to $2,000. Their driver’s license is suspended for up to 1 year.
Additional punitive consequences are possible. A person convicted of DWI may have to participate in drug or alcohol counseling. They may have to install an ignition interlock device (IID) in their vehicle. A court might impose other conditions, e.g., limitations on their driving.
In some circumstances, additional penalties on top of these standard consequences may be imposed under DWI law in Texas. For example, if a person drives while impaired with a child passenger under 15 in their vehicle, they could be charged with child endangerment.
Child endangerment that occurs while driving impaired can result in an additional fine of up to $10,000, up to two years of incarceration, and an additional 180 days suspension of a person’s driving privilege.
What Legal Problems Might I Have for Drinking and Driving?
Driving while intoxicated is a crime that carries serious repercussions. A person is typically regarded as being legally drunk if they have a blood alcohol level (BAC) of 0.08% or 0.10%.
Driving while intoxicated, also known as driving under the influence, is a crime that carries a criminal fine, an arrest, and a host of other consequences if someone chooses to operate a motor vehicle after consuming alcohol or substances that impair their senses.
A person accused of drunk driving often only faces a misdemeanor charge for their first violation. However, if they have injured someone or damaged property, they may face felony charges.
If it was not the person’s first DWI, they could also be charged with a felony. Last, but not least, it is significant to note that driving while intoxicated is a crime punishable by more than just a simple traffic ticket. So, if a person is convicted of DWI, it is entered into the person’s criminal record.
Is Jail Time Required for a First DUI Conviction?
In Texas, a first-time DWI offender is required to serve a mandatory 3-day jail sentence. They may be sentenced to a maximum of 180 days in jail. If the person was stopped with an open alcohol container, the mandatory minimum jail term is 6 days.
What Tests Determine Intoxication?
A police officer will have good reason to pull someone over if they have reason to believe they are driving under the influence of alcohol or drugs. This can happen in a variety of situations. These include when they witness someone speeding or swerving across the road or if they spot drug or alcohol paraphernalia inside the car once it is stopped.
As part of a DWI stop, a police officer usually asks the driver who has been pulled over to get out of the car and do one of the following tests to see if they are impaired.
The police can determine how much alcohol is in a person’s system by having the person breathe into a handheld instrument called a breathalyzer. It might be given either at the location where the car was stopped or at a police station.
Blood or urine testing is a little more difficult because it needs to be done by a doctor who provides the lab results. In addition, the police must first get a search warrant. As a result, this test is not typically conducted at the site of the stop.
A person’s balance and agility are tested during field sobriety tests, frequently administered on the spot, and involve various tasks. These include having the person tap their finger to their nose, recite the alphabet, or balance on one foot while counting.
The police have cause to arrest the person for drunk driving if they fail any of these tests. Additionally, if a person refuses to submit to any of the tests that can be performed at the scene and a police officer has reason to believe they have been driving under the influence, they can still be arrested.
If a driver is arrested for a DWI in Texas and refuses to submit to a BAC test, they face an administrative penalty in addition to the standard punishment for DWI. Even if they are found not guilty of DWI, these administrative penalties still apply for refusing a DWI test.
When a driver refuses to take an alcohol or drug test as required by the Texas implied consent law, an officer may seize the person’s driver’s license and issue a temporary driving permit. The officer transmits a report of the incident to the Department of Motor Vehicles (DMV). The DMV suspends the person’s driver’s license as follows:
- For a period of 180 days for a first offense;
- For 2 years, if the driver has had a prior test refusal, test failure, or DWI conviction within the previous 10 years.
Under Texas law, a person has 15 days from the date of their arrest to request a formal hearing before the Department of Public Safety (DPS). If a person does not ask for a hearing, they are considered to have waived their right to a hearing, and a default judgment suspending their license is made against them.
If a person asks for a hearing, they appear in front of an administrative law judge (ALJ). At the hearing, the ALJ considers whether the police had probable cause to arrest the person for DWI and whether the person refused a lawful blood or breath test. If the police had probable cause and the person refused the test, they would lose their driver’s license.
What Takes Place After a DUI Arrest?
A police officer asks a person who has been pulled over to exit the car and take a breathalyzer or field sobriety test.
The police arrest the person for DWI if they fail any of these tests. The police would then transport the person to a police station. They would be booked and then released on bail or on their own recognizance. They may be jailed until they return to sobriety. They are given a date on which they should appear in court.
The person must appear at their arraignment, where they are formally charged, and they enter a plea. A trial date may be set, or a date for pre-trial motions. At some point, the person’s lawyer would negotiate a plea agreement, or the person may opt to go to trial. If the latter, there is a trial, and if the person is convicted, a sentencing hearing at which the person is sentenced. If a person is found not guilty at trial, their case comes to an end.
Does a Higher Blood-Alcohol Content Affect the Possible Penalty?
Having a BAC of 0.15 percent or greater constitutes a Class A misdemeanor, which carries the following penalties:
- Incarceration in county jail for 1 year;
- Payment of a $4,000 fine;
- A fine, as well as a local jail sentence.
- What Is the Penalty in Texas for a Second DUI?
As a Class A misdemeanor, a second DWI carries the following penalties:
- A term of 12 to 30 months in a county jail;
- Payment of a $4,000 fine;
- Both payment of a fine and a term of incarceration in the county jail for 12 to 30 months.
What Is the Penalty for a Third DUI in Texas?
A first or second DWI offense in Texas is generally a misdemeanor criminal offense. However, a third or subsequent DWI offense is going to be charged as a third-degree felony.
The punishment is a minimum of 2 years and a maximum of 10 years in state prison, plus payment of a fine of up to $10,000. In addition, the perpetrator’s driver’s license is suspended for 2 years. Texas charges third and subsequent DWI offenses at the same level.
Also, the number of DWI offenses can still affect the sentence that a judge imposes for conviction and whether a judge imposes the minimum mandatory term of incarceration or the maximum possible term of incarceration. Prior DWI convictions do not have to be Texas DWI convictions. If a person has been convicted of a DWI or DUI conviction in another state, these prior convictions may count as DWI in Texas.
Do I Need to Speak With a Lawyer About My DWI Charge?
If you have been charged with DWI in Texas, you want to consult a local Texas DUI/DWI lawyer. LegalMatch.com can connect you to a lawyer who can challenge the accuracy of test results and otherwise mount any defense supported by the facts.
The punishment for DWI in Texas has become more harsh. You may face jail time and suspension of your driver’s license. You need an experienced local Texas lawyer on your side to represent your interests.