It is not against the law to drink and drive, as long as you are not intoxicated. If you are pulled over and an officer smells the odor of alcohol, they will assume you have been drinking and therefore that you are under the influence of alcohol. This “assumption of guilt” will be formed regardless of the reason for the stop. In order for the police to let you go home, they routinely require you to prove you are sober (no presumption of innocence when contacted). Since the deck is already stacked against you, it is imperative that you hire a lawyer who knows the system and will fight for you.
When you hire The Wilder Law Firm, we put our more than 25 years of experience to work for you at this critical time. We will listen to the facts of your case and explain the DWI process to you to ensure you fully understand the charges against you. We will begin strategizing immediately and develop the most effective defense for you. Additionally, you only have 15 days to request a hearing on the potential suspension of your driver license. Time is of the essence, so call The Wilder Law Firm immediately at 469-551-8609 for your free, confidential consultation.
What is a First Time Texas DWI?
The first offense DWI crime is defined by Texas Penal Code Section 49.04. According to this statute, “a person commits an offense if the person is intoxicated while operating a motor vehicle in a public place” (Section 49.04(a)).
Intoxicated is defined as:
- Not having the normal use of mental or physical faculties due to alcohol, drugs, a controlled substance, a dangerous drug, a combination of these substances, or any other substance in the body; or
- Having an alcohol concentration of 0.08 or more (Section 49.01(2)).
We Know How to Win
Defending someone accused of DWI goes beyond looking at the alcohol concentration in their body. We have a systematic method of reviewing each and every case which includes the following:
- The legality of the stop.
- Legal basis to conduct and results of the sobriety tests.
- What is normal for my client.
- The admissibility of the blood and breath tests.
- Improper conduct by the police.
Legality of the Stop
Every aspect of a DWI investigation is thoroughly analyzed, and this starts with the legality of the traffic stop or contact by the police. Police officers must have “reasonable suspicion” in order to pull someone over who is driving. Reasonable suspicion could include traffic violations (speeding) or defective equipment (burned out tail light). At times the rationale for being pulled over is not so clear. For example, failing to maintain a single lane of traffic, following too closely behind the car in front of you, or having an obstructed license plate requires the officer to render an opinion.
If the police officer did not have reasonable suspicion to make a stop, then stopping you would be illegal. We can fight the legality of the stop in court which could result in the judge suppressing all evidence against you. We have successfully defended many people resulting in dismissals and acquittals contesting the legality of the stop alone. In those cases, my clients’ alleged intoxication was never an issue.
Field Sobriety Test Issues
Once stopped, the officer has to have a legal basis to get you out of the car to conduct field sobriety tests. This takes very little evidence but requires more than just the odor of alcohol on your breath. In theory, these tests determine if someone is intoxicated by testing their coordination and memory recall. It is extremely easy for the police to improperly administer these tests as these tests are highly subjective. We will review sobriety tests in a detailed manner with you to determine if these tests were administered and/or graded properly. If not, this could cause the results of the sobriety tests being suppressed and thrown out of court.
What is Normal
There is considerable variation when it comes to what is normal for one person compared to another as all handle stress and pressure differently, not to mention our coordination abilities. Being pulled over is a very stressful situation, especially if you have a few drinks. “Normal” is different for everybody. One shoe size does not fit everyone. We must first determine if alcohol had an impact on your ability to drive or respond to the police. If an accident occurred, we have to determine if alcohol caused the accident or any resulting injuries. Just because you drank any alcohol does not mean you are acting in a non-normal capacity.
Further, we will investigate the chemical test and their results. Breath and blood testing is not absolute, and errors can be made in the testing process as results can be false positive. There are also written policies on how testing is to take place and how analyses are to be performed. We will review the machine used in your testing to ensure it was calibrated and cleaned properly so as to avoid a false positive result.
Improper Conduct by the Police
In every case, we look at the conduct of the police to determine if they were conducting themselves professionally, properly, and in accordance with police procedure. How the police conduct themselves will leave an impression on how competent or trustworthy their opinion is, which always plays a role in the outcome of your case.
These are just a few examples of what we do to investigate and develop the most effective defense for our clients. Rest assured, we will be meticulous in our review and preparation of the defense in your case.
DWI and Deferred
On September 1, 2019, the law in the state of Texas changed and a Class B DWI or BWI are now eligible for deferred probation. There are several aspects of a deferred probation that everyone must understand:
- Who is eligible?
- Is an ignition interlock device mandatory?
- What must I tell employers?
- Can a deferred probation be held against me?
- The person is charged with a DWI as defined under 49.04 or a BWI as defined under 49.06;
- The alcohol concentration was not 0.15 or above; and
- The person does not have a Commercial Driver’s License.
*The statute itself does not indicate if this has to be your very first DWI or BWI, only that you are charged with a Class B misdemeanor DWI or BWI.
Mandatory Interlock – Yes and No
- YES: If a judge grants deferred to a person charged with a DWI or BWI as defined above, the law requires that the person as a condition of the deferred probation have an ignition interlock device installed in any car that they drive. If ordered, the device must remain in the car a minimum of 50% of the length of probation.
NO: A judge may waive the ignition interlock requirement for a person if, based on a controlled substance and alcohol evaluation of the defendant, the judge determines and enters into the record that restricting the defendant to the use of an ignition interlock is not necessary for the safety of the community.
*It is my opinion that the vast majority of Judges will require the interlock device and will not be willing to waive that, even if an evaluation indicates it is not necessary.
What Must I Tell Employers:
- A person who successfully completes a deferred probation will not have a DWI conviction on their record. If they are ever asked in a job application if they have ever been convicted of a DWI, they will be able to honestly answer no.
Can a Deferred Ever Be Used Against Me:
- If a person were to get into trouble in the future, the deferred probation will be considered to have been a conviction and can be used to enhance future charges. The criminal justice system deems a successful deferred probation to be the equivalent of a conviction to enhance any future DWI to a higher and more severe offense.
DWI and Order of Nondisclosure
An Order of Nondisclosure is a court order prohibiting public entities such as courts and police departments from disclosing certain criminal records. This order can be very beneficial for the person who will only be in trouble with the law one time (traffic violations are not included). There are a few things one must know before applying for an order of nondisclosure.
- Who is eligible?
- Conviction waiting period
- Deferred waiting period
A person may be granted an order of nondisclosure if during during the period of time after the court pronounced the sentence or placed the person on probation (including deferred probation) they:
- Received a discharge and dismissal under Article 42A.111, Code of Criminal Procedure; and
- Have never been previously convicted of or placed on deferred adjudication probation for another offense, other than a traffic offense that is punishable by fine only.
Conviction Waiting Period:
- Two years from the completion of your sentence if you were court ordered to have an ignition interlock installed in your car for a minimum of six months.
- Five years from the completion of your sentence if you were not ordered to have an ignition interlock installed in your car.
Deferred Waiting Period:
- Two years from the completion of your deferred probation. The law does not state that the two year waiting period is contingent upon an interlock being installed in your car with a deferred probation.
Penalties of a First Offense DWI
The penalties for a Texas DWI changed for those arrested on or after September 1, 2019. A deferred probation is now an option in Texas, and the penalties for being placed on a deferred probation differ then those penalties associated with a final conviction for DWI.
- Only available if your alcohol concentration is below a 0.15
- A jail sentence up to 180 days (if ever finally convicted).
- A fine up to $2,000.
- An ignition interlock device installed in your car for a minimum of six months.
- Probation up to two years.
- A successful deferred probation can be used to enhance any subsequent DWI arrest to a DWI 2nd.
- A jail sentence of 72 hours to 180 days; or
- Probation up to 2 years.
- A Court fine up to $2,000
- A State “Super Fine” of $3,000, in addition to any Court fine assessed; or
- A State “Super Fine” of $6,000, in addition to any Court fine assessed if your alcohol concentration was 0.15 or greater.
- Potential 90 day to 1-year driver license suspension.
- An increase in auto insurance rates.
- A DWI listed on your permanent criminal record.
- Difficulty obtaining or keeping certain professional licenses.
- Difficulty obtaining or keeping certain jobs.
- Difficulty furthering your education
- Child custody issues
- Immigration issues.
Our Focus is Your Future
When facing a DWI in Texas, you need The Wilder Law Firm on your side – to get the facts straight and tell your side of the story. From the outset, we will make sure you know what needs to be done to most effectively defend you. We will set your expectations and prepare you for the road ahead. Preparing an effective defense takes time, dedication, and attention to detail. Contact us at 469-551-8609 so that we can start defending you today.