Texas DWI – Laws

Texas Drunk Driving Defense


Depending on the circumstances of your DWI arrest and any other prior convictions you may have, you can be charged with a misdemeanor or a felony in Texas. For a first offense, a DWI is a Class B misdemeanor. Under the Texas Penal Code, DWI is by a “person who commits an offense if the person is intoxicated while operating a motor vehicle in a public place.”

There are two ways you can be considered DWI in Texas. The first is if you did not have normal mental or physical abilities while driving due to a controlled substance or alcohol. The second way you can be charged with a DWI is if you have a blood alcohol concentration (BAC) of .08% or higher. And whether you’re the driver or the passenger, you can be fined up to $500 for having an open alcohol container in the vehicle.

Source: Texas DWI laws

Jury trials are available in Texas if you are charged with a DWI. For the prosecutor to win the case against you, he or she must convince all jurors that you were guilty of driving drunk beyond a reasonable doubt.

Under Texas’ Implied Consent Law, you will be punished if you refused to submit to a chemical test by police officers. Refusal to take a blood or breath test will result in having your driver’s license suspended for 180 days.

One DWI: Two Different Cases

In Texas, a DWI charge results in two separate cases; one is the criminal case, the other is ALR, a civil, administrative process. Whether you fail a chemical test or refuse a chemical test, the police will confiscate your license. You only have 15 days from the date that your suspension notice is received to request a hearing. If you do not request a hearing, your automatic license revocation goes into effect on the 40th day after your suspension notice was received.

Aggravated DWI

There are certain circumstances that make your DWI aggravated. If your passenger was under 15, this is a felony. If you were in an accident and caused serious bodily injury, this is intoxication assault. If you caused a death, this is considered intoxication manslaughter. Jail time will be imposed for all of these.

Texas DWI Penalties

A DWI charge in Texas is when you have a blood alcohol content (BAC) of .08% or higher, or your mental and physical abilities were affected by alcohol. Texas is known for its strict laws and tough ideals, and a DWI charge is no different! The following penalties may apply to your DWI case. Some you may already know about; others may come as a shock to you.

1st DUI in Texas

You may face a fine up to $2,000. You can spend anywhere from 3 to 180 days in jail. Your driver’s license could be revoked for up to 1 year. Here’s what you may not know: you’ll pay an annual fee of $1,000 to $2,000 for 3 years just to retain your driver’s license!

2nd DUI in Texas

Your fine will double up to $4,000. You can spend anywhere from 1 month to 1 year in jail. You could lose your driver’s license for up to 2 years. Plus, you’ll have an annual fee of $1,000, $1,500 or $2,000 for 3 years to retain your driver’s license!

Two Separate Cases

Your penalties will fall under two separate cases; one is criminal, the other applies to the ALR law. Under the ALR law, you would have your license suspended for 90 days if you failed the BAC (blood alcohol content) test and were a first-time offender. If you were previously suspended for failing or refusing the test, your license will be suspended for 1 year.


Many times, the judge will allow your jail sentence to be probated for 2 years. Probation is essentially a deal between you and the court. In exchange for probation, you’ll have to fulfill certain requirements such as: meeting with your probation officer once a month, not to commit any other crimes, perform community service, attend DWI classes, refrain from consuming alcohol and not leaving your county of residence unless you have received permission.

Other Penalties

While these are just some of the penalties of a DWI charge, there are many more. From increased insurance rates, to an ignition interlock system being installed in your car, there are many ways a DWI charge can affect your life. That’s why it’s imperative to contact an attorney that focuses his practice on DWIs.

Texas Field Sobriety Tests

Did you know that unlike the breath and blood test, you can refuse to take a field sobriety test without receiving a separate ticket? Somehow, police officers always seem to miss telling you that. Police officers are not required to tell you that you don’t have to perform these tests.

How Can You Defend My Field Sobriety Tests?

I can challenge your testing based on many things. For example, did you even need to use the car for support when you got out of the car? Did the officer ask you if you have any injuries that could prevent you from doing the testing? If you have a back, knee leg or foot injury, perform the one leg stand and walk and turn can prove to be very difficult. Do you have balancing problems such as vertigo, middle ear problems? Were you wearing 2 inch heels or higher? Are you overweight or 65 years or older? All of these reasons can prevent you from performing well on your field sobriety tests.

One Leg Stand

In order for this test to be completed properly, the officer must tell you exactly what to do and also demonstrate this act for you. The one leg stand requires you to stand with your feet together and arms at your sides and keep that position until you are told to begin. The officer must ask if you understand and you must acknowledge that you do before beginning. You will then raise one leg six inches off the ground with your foot pointed out. The test can last no more than 3 seconds.

The officer will score you on swaying while balancing, using arms for balance, hopping and if you put your foot down. If you put your foot down 3 or more times, this is a fail.

Walk and Turn

This second standardized test requires that you place your left foot on a line in the road. Your right foot should be in front with the heel touching the toe of your left foot. Keeping your arms at your sides, you will take 9 heel-to-toe steps, turn and keep your foot on the line and walk back in the same manner.

The eight scoring factors of this test are: cannot keep balance while listening to instructions, starting before instructions are finished, stopping while walking, did not touch heel-to-toe, stepped off the line, used arms for balance, improper turn and incorrect number of steps.


The horizontal gaze nystagmus test required you to follow an object with your eyes only, without turning your head. The officer will look for an involuntary jerking of the eyes.

Texas DWI Breath Test

Texas law enforcement employs numerous tests to help quickly identify intoxicated drivers. The Breathalyzer and machines like it require a sample of the driver’s breath. Using this, the machine can determine the driver’s Blood Alcohol Content (BAC). In Texas, driving with a BAC level of .08 or higher will yield a DWI charge. However, a qualified DWI lawyer can defend these charges with the right knowledge. Let’s study more about these breath tests and learn how they are defended.

An Array of Breath Analysis Machines

Breathalyzer is actually just one brand of breath testing device. It’s just so well known it become a name for all similar machines. Other breath analyzers include Alcosensor, AlcoMate, and Intoximeter. Police use two different types of breathalyzers. One is hand-held and used by officers on the road as a preliminary field sobriety test. They are not as accurate, but can be used as a field sobriety test to get an idea of BAC before taking them to the station for a standard breath test. The other is the breathalyzer used in police stations, which utilizes infrared spectrophotometer technology. This type of technology is generally more reliable than the hand-held fuel cell analysis.

Ok… Spare Me the Boring Scientific Explanation! How Do I Defend My Breath Test Results?

As with any form of analysis there are numerous chances for error. In fact, the results are entirely dependent on the ad minister’s competence and compliance with test procedure. Air temperature, subject temperature, and pre-existing conditions can alter test results. In addition, any breath analyzer must be calibrated regularly. Even if a breath test was administered correctly and the machine was working properly there may still be a 20% margin of error. This is clearly large enough to mean the difference between innocence and guilt. It may not seem like much of a difference to the prosecution, but to the individual whose life is at stake it can mean everything.

Refusing the Texas DWI Breath Test

Because Texas does not require you to consult with a lawyer before deciding whether or not to take a breath or blood test, this can be a perplexing question for many Texans. Breath tests are not always accurate, so submitting to testing may not be in your best interests.

Defending Your Breath Test Results

Did you know that there are numerous factors that can influence the accuracy of a breath test machine? For example, if you used cough syrup to treat a cold or a breath mint, the machine may register a reading! And, like any other machine ever created, there will always be mechanical issues. What if your machine was malfunctioning at the time you took the test? Officers must also be properly trained in order to administer the breath test. How can you be sure your results are correct if the breath test was not administered correctly? All of these reasons, and more, are flaws in the breath test, which I will expose if I find them.

Implied Consent

Because of a little law known as Implied Consent, the State of Texas has the right to ask you to take a breath test. If you have a driver’s license in Texas, you have already impliedly consented to submit to a chemical test if properly asked by police.

How Does the Breath Test Work?

Because the software program is protected by copyright laws, this is a bit of a mystery. What we do know is that the machine is designed to detect your blood alcohol concentration, and a BAC of.08 percent or higher is illegal in Texas.

Texas Administrative License Suspension

If you are arrested for a DWI, you must act fast! Usually during the arresting process, the officer will give you a notice of suspension for your driver’s license. Following 15 days from the date you received that notice of suspension, you must request a hearing with the Department of Public Safety, otherwise the ALR (automatic license revocation) takes place.

Luckily when you hire a Texas DWI lawyer, they’ll take care of all this work for you. Contact an attorney immediately after you are arrested for a DWI and they’ll act quickly to request your hiring so you have a fight chance of saving your license.

When someone is arrested for a DWI in Texas, they are actually facing two separate cases; one criminal, the other a civil proceeding known as the ALR. If you requested the ALR hearing in the proper procedure here is what will happen. If the arresting officer does not appear, the complaint is often dismissed and the license suspension is avoided. However, this is separate from the criminal court case where they will also seek to take away your license.

If the hearing does proceed the Department of Public Safety must show that there was a reasonable suspension to stop you. They must show that you were in control of the vehicle and that the arresting officer gave you the opportunity to take a breath or blood test an informed you orally and in writing the consequences of refusing and failing the test. Finally, they must show that your BAC was at or over the limit of .08% or that you refused the test altogether.