Were You Arrested for DUI or DWI?
Looney, Smith & Conrad, P.C., Criminal Defense Law Firm:
Houston DUI and DWI Attorneys and serving Texas and the United States
Since 1995 criminal defense trial attorney Paul Looney has litigated
60 criminal jury trials with zero final convictions
Anyone who drinks alcohol and drives a motor vehicle is at risk of being arrested and charged with drunk driving. This includes a boat (Boating While Intoxicated - BWI). Law enforcement officers are increasing efforts to keep intoxicated drivers off the road, ensnaring many sober drivers in the process. It's not true that a person has to be drunk to be arrested for DWI or BWI.
Every day people are arrested for drunk driving after having only a few drinks. This can result in long-term negative consequences including jail, a criminal record, and the loss of driving privileges for an extended period of time. Beyond the legal penalties, a DWI conviction can carry various other consequences, such as loss of (or higher prices for) auto and life insurance, restricted travel to foreign countries, and even the loss of a job or professional license. Freedom, finances and the future are all at risk.
Drunk Driving in Texas
In Texas, a person may be charged with driving while intoxicated if operating or under physical control of a motor vehicle while under the influence of alcohol. A person is intoxicated when he or she does not have 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 having an blood alcohol concentration (BAC) of 0.08 or more. A BAC test measures the amount of alcohol (ethanol) in the body. This level can be measured by blood, breath or urine tests.
The State of Texas has lower limits for commercial drivers (.04) and for drivers under the age of 21 (.02). Police may consider speech patterns, bloodshot eyes, the odor of alcoholic beverages, driving ability and performance on field sobriety tests when determining whether they believe a person is under the influence of alcohol or drugs.
| Driver | BAC |
|---|---|
| Under 21 | .02 |
| 21 or Older | .08 |
| Commercial | .04 |
Alcohol is quickly absorbed into the blood and can be measured within minutes of having an alcoholic drink. The BAC reaches its highest level about an hour after drinking. Food in the stomach may slow down the time it takes for alcohol to be absorbed. About 90% of alcohol is broken down in the liver. The remainder is passed out of the body in urine and exhaled breath.
Blood Alcohol Percentage Charts
| Drinks | Body Weight in Pounds | Influenced | |||||||
|---|---|---|---|---|---|---|---|---|---|
| 100 | 120 | 140 | 160 | 180 | 200 | 220 | 240 | ||
| 1 | .05 | .04 | .03 | .03 | .03 | .02 | .02 | .02 | |
| 2 | .09 | .08 | .07 | .06 | .05 | .05 | .04 | .04 | |
| 3 | .14 | .11 | .11 | .09 | .08 | .07 | .06 | .06 | |
| 4 | .18 | .15 | .13 | .11 | .10 | .09 | .08 | .08 | |
| 5 | .23 | .19 | .16 | .14 | .13 | .11 | .10 | .09 | |
| 6 | .27 | .23 | .19 | .17 | .15 | .14 | .12 | .11 | |
| 7 | .32 | .27 | .23 | .20 | .18 | .16 | .14 | .13 | |
| 8 | .36 | .30 | .26 | .23 | .20 | .18 | .17 | .15 | |
| 9 | .41 | .34 | .29 | .26 | .23 | .20 | .19 | .17 | |
| 10 | .45 | .38 | .32 | .28 | .25 | .23 | .21 | .19 | |
| Source: National Highway Traffic Safety Administration | |||||||||
| Drinks | Body Weight in Pounds | Influenced | |||||||
|---|---|---|---|---|---|---|---|---|---|
| 100 | 120 | 140 | 160 | 180 | 200 | 220 | 240 | ||
| 1 | .04 | .03 | .03 | .02 | .02 | .02 | .02 | .02 | |
| 2 | .08 | .06 | .05 | .05 | .04 | .04 | .03 | .03 | |
| 3 | .11 | .09 | .08 | .07 | .06 | .06 | .05 | .05 | |
| 4 | .15 | .12 | .11 | .09 | .08 | .08 | .07 | .06 | |
| 5 | .19 | .16 | .13 | .12 | .11 | .09 | .09 | .08 | |
| 6 | .23 | .19 | .16 | .14 | .13 | .11 | .10 | .09 | |
| 7 | .26 | .22 | .19 | .16 | .15 | .13 | .12 | .11 | |
| 8 | .30 | .25 | .21 | .19 | .17 | .15 | .14 | .13 | |
| 9 | .34 | .28 | .24 | .21 | .19 | .17 | .15 | .14 | |
| 10 | .38 | .31 | .27 | .23 | .21 | .19 | .17 | .16 | |
| Source: National Highway Traffic Safety Administration | |||||||||
Note: Texas Penal Code §49.01 defines "alcohol concentration" as the number of grams of alcohol per 1) 210 liters of breath 2) 100 milliliters of blood or 3) 67 milliliters of urine.
BAC decreases by approximately .015 per hour as alcohol is metabolized. One drink is based on 1.5 oz. of 80 proof liquor, 12 oz. beer, or 5 oz. wine. Some drinks may be stronger or weaker than these standards. While the above charts can help estimate an individual's BAC, they do not take into consideration all the factors, such as the time between drinks, food consumption, and personal metabolism needed to precisely predict an individual's BAC.
Misdemeanor vs. Felony
When a person is arrested for a DWI, he or she may be charged with either a misdemeanor or felony offense. If it is the person's first time being arrested for driving under the influence, and he or she did not cause any third party or property damage, he or she will be charged with a misdemeanor. However, if the person has multiple prior DWI convictions or caused bodily harm to a third party or extensive property damage, it is likely that he or she will be charged with a felony. Additionally, driving while intoxicated with a child passenger under 15 years of age in the vehicle is a State Jail Felony under Texas law.
Driving While Drugged
A person can be arrested for Driving While Intoxicated if he or she is operating or under physical control of a motor vehicle while intoxicated due to the use of prescription or recreational drugs (controlled substances including marijuana, cocaine, inhalants, and narcotics).
Many drivers are surprised to learn they can be arrested for driving while using prescription medications under a doctor's orders if those drugs impair their ability to drive, but many prescription medications, such as oxycontin or Ambien, may dramatically hinder an individual's ability to drive.
Penalties for DWI in Texas
| 1st Offense | 2nd Offense | 3rd or Subsequent Offense | |
|---|---|---|---|
| Minimum Incarceration | 3 to 180 days | 30 days to 1 year | 2 years |
| Fines | Up to $2,000 (unless a child under 15 is in the car) | Up to $4,000 (unless a child under 15 is in the car) | 2 years |
| License Suspension | 90 days to 1 year and annual fee of $1,000 or $2,000 for three years to retain driver's license | 180 days to 2 years and annual fee of $1,000, $1,500 or $2,000 for three years to retain driver's license | 180 days to 2 years and annual fee of $1,000, $1,500 or $2,000 for three years to retain driver's license |
| Ingnition Interlock Device | At discretion of Judge | Yes after two or more DWI convictions in five years | Yes after two or more DWI convictions in five years |
Difference Between DUI and DWI in Texas
DUI is Driving Under the Influence, and applies only to drivers under 21 with a blood alcohol level over .02. Texas has a "zero-tolerance" law for people below the legal drinking age. A person under 21 may be charged with Driving While Intoxicated if the officer believes the driver is impaired and/or has a BAC above .08. The arresting officer and/or prosecuting attorney will make that choice.
The main difference between the two is in the seriousness of the penalties. Although both charges may result in a license suspension; the suspension period for a DUI is much shorter than for a DWI: 60 days for the first offense, 90 days for the second offense, and 180 days for a third (or subsequent) offense. However, any alcohol-related offense can cause an underage driver's license to be suspended, even if the person was only in possession of alcohol and not driving at the time.
Ignition Interlock Devices
A restricted interlock license authorizes a person to only operate motor vehicles equipped with an ignition interlock device (IID). Upon payment of the required fees, the Texas Department of Public Safety (DPS) will issue a restricted interlock license.
A restricted interlock license will not be issued if the individual's current driver license is expired, suspended or if the individual has not paid the required fees.
Cancellation of Driver License
When DPS receives a court order restricting an individual's driving privilege to motor vehicles equipped with an IID, the individual's license will be cancelled unless a restricted interlock license is obtained. The cancellation takes effect 30 days from the date DPS sends notice to the individual. This cancellation will be removed once DPS receives a court order or vendor removal form signed by a judge or county clerk.
Required Fees
To obtain a restricted interlock license, individuals will pay the restricted interlock license fee and reinstatement fee.
IID Installation
All court-ordered installations of ignition interlock devices must be performed by DPS-certified service centers. The Regulatory Services Division of DPS certifies locations that can install and service the devices. Most courts can provide a list of certified installers in their area.
Driver Eligibility Status
For people required to submit compliance documents (i.e. certificate of completion, SR-22, etc.), their driver eligibility status will change from "ineligible" to "eligible" on the License Eligibility website once all documents have been processed and fees have been paid.
The Implied Consent Law in Texas
Section 724.011 of the Texas State Transportation Code states that anyone who is arrested for a DWI in Texas "is deemed to have consented, subject to this chapter, to submit to the taking of one or more specimens of the person's breath or blood for analysis to determine the alcohol concentration or the presence in the person's body of a controlled substance, drug, dangerous drug, or other substance." When a person places his or her key in the ignition and starts a car, he or she is consenting to take an alcohol or drug test if a police officer deems it necessary.
Refusal to Take a Chemical Test in Texas
Under the implied consent law, if a person refuses to submit to a chemical test he or she will be subject to an administrative license suspension. Refusing to take any of the offered chemical tests subjects the driver's license to automatically be suspended and may limit what plea offers become available.
| 1st Offense | 2nd Offense | 3rd Offense | |
|---|---|---|---|
| License Suspension Period | 180 days | 2 years | 2 years |
The police cannot normally force a person to take a chemical test without a search warrant; however, the refusal may be used as evidence that the person knew they were intoxicated at a trial for the underlying DWI offense. Upon refusal, the police officer will confiscate the driver's license and issue a temporary driving permit. On the 41st day after the arrest, the license will be suspended unless a hearing has been requested. If the person has previously been arrested for DWI and refused to provide a specimen, the length of the administrative suspension rises to 2 years.
A DWI may be charged even if the person doesn't submit to a breath or blood test and the State will try to prove guilt through other means. Field sobriety tests such as the Horizontal Gaze Nystagmus test, Walk and Turn, One Legged Stand, and other tests may be used to show that the person's normal faculties were impaired. The officer's observations of slurred speech, difficulty standing, odor of alcoholic beverages, and difficulty responding to questions or commands may be used to show that the driver was intoxicated.
Pleading to a Lesser Offense Than DWI in Texas
A plea bargain for a conviction of "wet reckless" (reckless driving involving alcohol) is barred by statute in Texas. However, DWI offenses may be reduced, depending on the particular facts and circumstances of the case. This is part of the reason why it is necessary to retain an attorney able and willing to take the time to listen, understand, and professionally analyze the specific facts of your case.
Penalties for DWI Convictions
A person who has been convicted in Texas of driving under the influence faces a variety of severe legal consequences. It is important to work with a skilled Houston DWI attorney who provides effective legal counsel. The legal penalties associated with a DWI may include, but are not limited to:
- Mandatory Alcoholic Anonymous Meetings
- Community Service
- Driver's License Suspension
- DWI School
- Fines
- Imprisonment
- Jail Time
- Vehicle Impoundment
Planning Your DUI / DWI / BWI Defense
Our Texas DUI/DWI attorneys have successfully litigated legal challenges in trials in cases resulting in acquittals, reduced charges, dismissals, and favorable plea agreements. To preserve driving privileges, avoid jail time, keep a clean record and achieve the best possible outcome, call us today. Because legal challenges in these types of cases have strict deadlines, it is important to contact us today for a free case evaluation. You need to hire an experienced DWI attorney because a deferred adjudication will count toward a DWI offense. This also includes Boating While Intoxicated (BWI).
In preparing the defense, our Houston DUI Attorney and Houston DWI Attorney will create a plan of defense that has the best chance of standing up in court. We have extensive experience in investigating the charges and raising issues particular to the case including:
- Did the police officer have the right to stop the vehicle?
- Did the police officer properly administer the standardized field sobriety tests?
- Were the field sobriety tests accurate?
- Was there probable cause for the arrest?
- Was there justification for refusing to submit to an evidentiary sample of breath, blood, or urine?
Are you looking for a Criminal Defense Lawyer? Call us today (281) 597-8818 in Houston or (979) 826-8484 in Hempstead.
We are Criminal Lawyers Near 77079 and Criminal Lawyers Near 77445.
For assistance with DUI or DWI issues, contact a DUI lawyer at
Looney, Smith & Conrad, P.C. at 281-597-8818. Text Us: 405-388-6191
Our DWI attorneys are available 24 hours a day, 7 days a week for a
free, no-obligation case evaluation.
Call today for a DUI Attorney Near Me.
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Call Us Today at 281-597-8818
For Priority Scheduling, ask for Paul Looney
11767 Katy Freeway, Suite 740
Houston, Texas 77079
or 979-826-8484
918 Austin Street
Hempstead, Texas 77445