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DUI | DWI DEFENSE ATTORNEY | LAWYER



Have you been busted on a DWI/DUI charge?



“Intoxication” defined under Texas Law:


(A) not having the normal use of mental 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


(B) not having the normal use of 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


(C) having an alcohol concentration of 0.08 or more.
A prosecutor only needs to prove “beyond a reasonable doubt” one of the three conditions listed above, in order to obtain a conviction.

"Alcohol concentration" defined under Texas Law, is the number of grams of alcohol per: (A) 210 liters of breath; (B) 100 milliliters of blood; or (C) 67 milliliters of urine.



DWI vs. DUI in Texas


Under Texas law, intoxication may include the introduction of alcohol, or a controlled substance, a drug, a dangerous drug, or any combination of two or more of those substances, or any other substance into the body. Driving While Intoxicated includes all substances including alcohol.


“Driving Under the Influence” or DUI in Texas is an offense that involves minors. To be arrested in Texas for DUI, the person arrested must be a minor (anyone under the age of twenty-one) who operates a motor vehicle in a public place while having any detectable amount of alcohol in the minor’s system. The key words are, “any detectable amount of alcohol.” Generally, an offense under this section is a Class C Misdemeanor. That is the difference between DUI and DWI in Texas. Other states use these terms interchangeably or differently than Texas.



IF STOPPED, YOU HAVE THE RIGHT NOT TO ANSWER ANY QUESTIONS THAT WILL INCRIMINATE YOU


You have a right under the U.S. Constitution, to not incriminate yourself. If you have consumed alcohol or drugs, your best bet is to not answer any questions about drinking or consuming drugs. Respectfully and calmly, show the cops your driver’s license and insurance information, and state that you do not wish to answer any questions without your attorney being present. Your conversation with the officer as well as the stop is recorded on video by the police car. This video will be used against you in a court of law.


If you have consumed any alcohol or other drugs that could impair your faculties, it is probably in your best interest to not agree to any field sobriety, breath, blood, or urine tests. You may be arrested for DWI/DUI, but without more, it would be difficult for the state to prove its case and you have not helped the state prove its case against you. However, you will have to deal with the consequences of a failure to cooperate. The Kane | Varghese Law Firm has experience in the representation of clients in DUI & DWI matters.



"Intoxication” defined under Texas Law:


Not having the normal use of [one’s] mental 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
(B) not having the normal use of [one’s] 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

(C) [a person] having an alcohol concentration of 0.08 or more.
The State and the prosecutor only needs to prove one of the three options listed above, by a “beyond a reasonable doubt” standard, in order to obtain a conviction. For example, if the jury believes the person has lost their physical faculties, although they have not lost their mental faculties and there is no blood or breath test, the jury could find that person guilty.  Alternatively, if the jury believes that the evidence showed beyond a reasonable doubt that the accused defendant’s blood alcohol content was more than .08, that could justify a verdict of guilt.

"Alcohol concentration" defined under Texas Law:
It means the number of grams of alcohol per:
(A) 210 liters of breath;
(B) 100 milliliters of blood; or
(C) 67 milliliters of urine.


DWI vs. DUI in Texas


Under Texas law, intoxication may include the introduction of alcohol, or a controlled substance, a drug, a dangerous drug, or any combination of two or more of those substances, or any other substance into the body. Driving While Intoxicated includes all substances including alcohol. “Driving Under the Influence” or DUI in Texas is an offense that involves minors. To be arrested in Texas for DUI, the person arrested must be a minor (anyone under the age of twenty-one) who operates a motor vehicle in a public place while having any detectable amount of alcohol in the minor’s system. The key words are, “any detectable amount of alcohol.” Generally, an offense under this section is a Class C Misdemeanor. That is the difference between DUI and DWI in Texas. However, there are other states that use these terms differently than we do.


Factors Police look for in making a DWI/DUI stop:


Police officers look for the following factors when deciding to make a DWI/DUI stop in Texas.
Turning with wide radius
Straddling center of lane marker
Appearing to be “drunk”
Almost striking object or vehicle
Weaving
Driving on other than designated roadway
Swerving
Speed more than “10" miles below speed limit
Stopping without cause in Traffic lane
Following too closely
Drifting
Tires on Center or Lane marker
Braking Erratically
Driving into Opposing or Crossing Traffic
Signaling Inconsistent with driving actions
Slow response to traffic signals
Stopping inappropriately (other than in a lane)
Turning abruptly or illegally
Accelerating or Decelerating Rapidly
Headlights off.


Don’t answer any questions, if stopped!


You have a right under the U.S. Constitution, to not incriminate yourself. Your best bet is to not answer any questions about drinking or consuming drugs. Be calm, respectful, show the cops your driver’s license and insurance information, and state that you do not wish to answer any questions without your attorney being present. Your conversation with the officer as well as the stop is recorded on video by the police car. This video will be used against you in a court of law.


Signs of Intoxication that police look for:

Flushed face

Red, watery, glassy or bloodshot eyes

Odor of alcohol on breath

Slurred Speech

Fumbling with wallet while trying to get license

Failure to comprehend officer's questions

Unsteady of feet while exiting vehicle
Swaying while standing
Leaning on car for support
Being combative, argumentative or jovial while talking with officer

Disheveled clothing

Lack of awareness in regards to time and place
Unable to follow police instructions



What do I do if the police ask me to take Field Sobriety Tests, blood, breath or urine tests?


It is best for you to "respectfully decline" all tests, especially if you have ingested any alcohol or drugs.  However, if you agree to take one of these chemical tests for the police, remember that you are then entitled to request your own independent test, so you need to request a blood test also.  Most police officers will not provide you with that information.



Consequences of a refusal or failure to take one of these tests:


If a person refuses or fails a blood or breath test following an arrest for driving while intoxicated, the person may receive a license suspension of 90 days up to 2 years, depending on the number of alcohol related convictions the person has had in the past. More importantly, whether you take a test, or you refuse one that the police offer, you only have 15 days after your arrest to request a hearing to fight to keep your license from being suspended. This is one of the reasons it is important to request a hearing before the State Office of Administrative Hearings to stop the Texas Department of Public Safety (DPS) from attempting to administratively (civilly) suspend your license. Again, calling an experienced DWI lawyer immediately after your arrest is important!

Conviction on DUI/DWI can result in drivers license suspension.


A final conviction can result in a person’s license suspension, ranging from 90 days to 2 years. A conviction for driving while intoxicated under the age of 21 will result in an automatic suspension for one year, unless the person is on probation and required to have an Ignition Interlock Device.

DWI arrest and conviction will stay record forever unless you are found not guilty, in which case you can ask for the arrest records to be “expunged.”


Will I have to have an Ignition Interlock Device put in my car as a condition of bond?


For a first offense, conditions of bond are a matter of discretion with the Court. Generally, most judges will not make an Ignition Interlock Device as a condition of bond for a first offense DWI. However, if you are charged with a subsequent DWI (no matter how long ago your first DWI was), with Intoxication Assault, or with Intoxication Manslaughter you are required by law to install an Ignition Interlock Device on you automobile. In fact, you will not be able to drive any vehicle that is not equipped with an Interlock Device. If the device determines a certain level of alcohol on your breath, it will temporarily disable your vehicle. When driving, you have to continuously blow into the device about every twenty (20) minutes. Please note, that the alcohol in some mouthwashes can even be enough to cause the Ignition Interlock Device to disable the vehicle if you do not wait a certain period of time after its use.



What is an occupational or restricted license?


An occupational or restricted license is a special restricted license authorized by a Court, and issued to persons whose license has been suspended or revoked for certain offenses. This restricted or occupational license authorizes the operation of a non-commercial motor vehicle in connection with a person’s occupation, for educational purposes or in the performance of essential household duties.



Is the Order from the court the actual occupational or restricted license?


No, this is the order granting the occupational license. The court order and all other required items need to be submitted to the Texas Department of Public Safety (DPS) so an occupational or restricted license can be issued. The court order may be used as a temporary restricted license for 30 days from the date of the judge’s signature while DPS processes the occupational license, and is to be kept in the glove box of the motor vehicle you operate.



What are the requirements for obtaining the restricted license in a DWI or ALR suspension case?


You must mail into the Texas Department of Public Safety (DPS), a certified copy of the court order granting the occupational license. Also enclose the following:


An original pink SR-22 certificate of insurance. This is the only proof of insurance acceptable.

A $10 license fee for a one-year license or less. The maximum length of issuance is a 2-year license for $20, provided that the court order grants this length of time.

A $125 statutory reinstatement fee for the Administrative License Revocation (ALR), if required; and a completed SR-37 form to type the occupational license.

Caveat: The Texas Department of Public Safety (DPS) requires all reinstatement fee(s) be paid prior to the issuance of the occupational or restricted license.



What is an SR-22 and how can I obtain an SR-22?


An SR-22 insurance policy is a certificate of insurance that shows the Texas Department of Public Safety (DPS) proof of insurance for the future, as required by law. SR-22 insurance is not necessarily "high risk" insurance. It is motor vehicle liability insurance which requires the insurance company to certify coverage to DPS, and the insurance company must notify DPS anytime the policy is cancelled, terminated or lapses. You may contact an insurance agent/company of your choice who is authorized to write liability insurance for the State of Texas.



If I do not own a car, can an SR-22 be obtained?


You do not need to own a car to buy this kind of insurance. If you do not own a car, please contact an insurance agent/company of your choice and talk to them about a non-owner SR-22.



Can an insurance card or insurance policy be accepted toward the requirement of filing the SR-22?


No, when proof of financial responsibility is required, form SR-22 must be filed to meet the compliance requirements with the DPS.



What happens if my SR-22 is cancelled?


Once the Texas Department of Public Safety (DPS) receives notification from the insurance company that the policy is cancelled, terminated, or lapses appropriate enforcement action may be taken. If the SR-22 is still required and there is not a valid SR-22 on file, you again face the possibility that your driving privilege and vehicle registration will be suspended. Additionally, the Court may withdraw its original court order granting you the restricted license.



Can you drive a commercial motor vehicle with an occupational or restricted license?


No, if a person’s driver license or the privilege to drive is suspended, revoked, cancelled, or denied under any law in this state, the person may not be granted an occupational, restricted or “essential need” license to operate a commercial motor vehicle.


Someone said I could get " Deferred Adjudication" if I am charged with a DWI is that correct?


No. DWI is one of a few of crimes in Texas where Deferred Adjudication is not available under the law as a punishment option.



Could I receive a probation if I am convicted of DWI?


Yes, depending on your prior criminal history, the facts surrounding your case, etc. and whether you meet the minimum requirements under Texas law — for "community service" or "probation:" Those minimum requirements are: 1) That you have never been convicted of a felony offense in this State, another state or the United States; and you have never been given adult "community service" or "probation" for a felony offense in this State, another state or the United States.



What is the difference between deferred adjudication and Probation?


First, Texas classifies both of these punishments as "community service," — one is called "Deferred Adjudication Community Service" and the other is called just "Community Service" or what we used to call "probation." Second, Deferred Adjudication is a punishment that an individual can only receive from the Judge and never a jury, whereas probation can be received from either a Judge or a Jury. Third, in a Deferred Adjudication situation, the Judge defers a finding of guilty against an individual and places that person on community service without entering judgment of guilty. On the other hand, under the punishment known as "probation", the person is found or judged "guilty" and sentenced, but the sentence is then probated. With probation the individual is actually convicted, but the sentence is probated, whereas with the "Deferred Adjudication" the person is not convicted, but is placed on community service. However, as stated in Question 24, Deferred Adjudication is not a punishment option in a DWI case in Texas. If some attorney mentions to you that it might be available or tells you that it is, then you are not talking with a DWI Attorney.



Someone mentioned to me that Texas has increased its fines for DWI or that it passed a "Surcharge" for individuals convicted of DWI? Is this some sort of a fine and how does it work?


Contrary to media reports, the 78TH Texas Legislature did not increase fines. However, the Legislature did pass a "Surcharge" or an administrative fee under a law known as the "Driver Responsibility Act," that took effect on September 1, 2003. The fees under this law are strictly administrative in nature, and are above and beyond, any fines, court costs, probation fees or filing fees that the State already receives in a DWI case. The law basically requires any person convicted after September 1, 2003 of a first offense DWI to pay the State of Texas a "surcharge" in the amount of $1,000.00 per year for three years to keep their drivers license; or any person convicted of a second offense DWI to pay the State of Texas a "surcharge" of $1,500.00 per year for three years to keep their drivers license; or any person convicted of an offense of DWI, that has a test result of .16 or higher with a breath or blood test, to pay $2,000.00 per year for three years to keep their drivers license. These fees are paid to the Department of Public Safety and if not paid within the designated time allowed, the person will automatically lose their driver’s license or the privilege to obtain a driver's license until the money is paid.


Can a person be charged with a felony DWI if there is child in the vehicle when they are arrested by the police?


Yes. Effective September 1, 2003, the 78TH Texas Legislature passed a law that makes a DWI punishable as a felony, if there is a child younger than fourteen (14) years old in the vehicle when a person is stopped and arrested.



The penalties for DWI convictions are as follows:


First offense: A first-offense conviction includes a fine not to exceed $2,000.00 and/or the possibility of serving jail time from 3 days to 180 days, and a driver's license suspension of 90 to 365 days. (Class B Misdemeanor).
Second offense: The maximum fine increases to no more than $4,000.00 and/or jail from 30 days to one year, and a possible driver's license suspension ranging from 180 days to 2 years. (Class A Misdemeanor).
Third offense: You may receive a fine up to $10,000.00 and/or 2 to 10 years of imprisonment, and suspension of your driver's license ranging from 180 days up to 2 years.  (3rd Degree Felony).

DWI with an open alcohol container (first offense): In addition to the penalty referenced above you face a minimum 6 days in jail and a fine of no more than $2,000.00.  (Class B Misdemeanor).

DWI with an accident where serious bodily injury occurred as a proximate cause of the intoxication:    This crime is called intoxication assault, and upon conviction you may serve a minimum of 2 years up to a maximum of 10 years in jail.  Additionally, you may be fined up to $10,000.00. (3rd Degree Felony).

DWI where a death has occurred as a proximate cause of the intoxication:  Also called intoxication manslaughter.  Upon conviction you might have to pay a maximum fine of $10,000.00 and/or be imprisoned from 2 to 20 years (Intoxicated Manslaughter or Manslaughter with use of Deadly Weapon are both 2nd Degree Felonies).

A prior DWI conviction and a present drag racing charge: drag racing is a Class B Misdemeanor, however, it becomes a Class A Misdemeanor where the person had a prior drag racing conviction, a DWI conviction, or had an open alcohol container while they were driving.

DWI with a child passenger:  A person commits a state jail felony if they drive while intoxicated and there is another person in the vehicle who is under 15 years of age. Punishment for a non-enhanced state jail felony is by confinement in a state jail for any term of not more than 2 years or less than 180 days and a fine not to exceed $10,000.00.

In some of the above minor classifications you may be eligible for probation, but there is no guarantee that you will receive a probated jail sentence or fine.  If you are convicted of intoxication assault and wish to receive probation, a minimum of 30 days in jail must be served as a condition of probation.  Furthermore, to receive probation upon being convicted of intoxication manslaughter you must serve a minimum of 120 days in jail.  However, if you are convicted of Intoxication Assault or Intoxication Manslaughter and the court or jury finds that you committed the offense with a deadly weapon you may be ineligible to receive probation at all.


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