In my last post, I discussed the six elements of a driving while intoxicated (DWI) charge that the prosecution must prove beyond a reasonable doubt. Here, I discuss the penalties of a DWI.
For a first-time DWI, an accused faces:
A second-time DWI carries a possible:
A third-time DWI is a felony with even more serious consequences.
Probation is generally available for DWI and typically lasts a year or two. The contractual terms of probation are simple. The judge promises not to put the accused in jail, not make the accused pay the entire fine, and not take away the accused’s driver’s license. In exchange, if the accused agrees to the probation, the court typically imposes these conditions:
1.Report monthly to a probation officer.
Note that an administrative license revocation (ALR) may occur and is a separate issue from the criminal case. Texas has an “implied consent” law. This means that if an accused is arrested for DWI, the accused may choose not to provide a breath or blood sample for testing. However, the accused’s choice can result in suspension of his driving privileges for up to 180 days (assuming it is a first-time DWI).
Almost all DWI lawyers advise others never to volunteer a breath or blood sample if arrested for DWI. Such a sample, assuming it incriminates the accused, makes the DWI attorneys job tougher, but not impossible. Experienced Houston DWI attorneys and Harris County DWI lawyers know how to attack tests of a breath or blood specimen.
It is important to know Texas law regarding driving while intoxicated (DWI), particularly if you are charged with this offense.
The elements of DWI are defined in Texas Penal Code §49.04, which states: “A person commits an offense if the person is intoxicated while operating a motor vehicle in a public place”. The offense of DWI has six elements that the prosecution must prove beyond a reasonable doubt:
(1) The defendant,
Additionally, the prosecution can prove the sixth element–intoxication–beyond a reasonable doubt in three different ways:
(1) Not having the normal use of physical faculties OR
The “OR” in the above definition of intoxication means that the prosecution only has to prove one of the three ways of being intoxicated. Thus, if the accused gives a breath or blood sample under the legal limit, the prosecution can still argue that the accused has a low tolerance for alcohol, is intoxicated from substances other than alcohol alone, or had “sobered up” during the time that elapsed between his arrest and giving the sample.
The job of the criminal defense lawyer is to attack the elements of the alleged offense. Almost always, this means attacking the third, fourth, and particularly the sixth elements. Thus, a DWI attorney would cross-examine prosecution witnesses, or the DWI lawyer would introduce his own evidence, to discredit these offense elements.
Now that I have discussed the elements of DWI, I will discuss the serious direct and indirect consequences of a DWI conviction in my next post.