An arrest and charge of driving, boating, flying, or operating an amusement ride while intoxicated is a serious offense under any circumstance. Even for a first offense, the cost of defending a DWI case can be high, never mind the fact that your freedom could be at risk. For a first-time DWI arrest, you are unlikely to serve serious jail time despite the crime carrying a maximum sentence of a year in jail.
However, there are circumstances that can dramatically increase the potential punishment of a first offense DWI. You could even face felony charges. These circumstances are known as enhanced offenses under Texas Penal Code § 49.09.
Law enforcement began building the case against you from the moment you were arrested. The prosecution already has the power of the State of Texas behind them; any delay in preparing your defense only gives the prosecutor additional advantages. Evidence disappears and witnesses get lost over time, so the sooner you hire a DWI defense attorney the better. If you have been charged with a DWI and are facing enhanced penalties, contact the Doug Murphy Law Firm, P.C. today to discuss your defense options.
What are Enhanced Offenses on a Texas DWI Charge?
If you are charged with enhanced penalties in addition to your DWI, the resulting penalties can be life-altering. What would normally be a first-time DWI conviction that leaves you with some fines and probation can turn into a felony that sends you to prison for years.
There are four circumstances that can lead to enhanced penalties in DWI-related cases. They include when:
- you have certain prior convictions
- your DWI leads to the serious injury
- you DWI leads to the death of another person, or
- your DWI causes injury to a certain class of person.
The state may have a strong case against you for DWI while lacking grounds to enhance the penalties against you. In some cases, your DWI defense attorney may be able to convince the prosecutor not to pursue enhanced penalties or drop the charges entirely.
Possessing prior convictions in the last five years at the time you are arrested for a DWI means you could risk enhancement of the charge. These prior convictions include any "while intoxicated" charges, like:
Having any one of the above charges at the time of your DWI arrest means you could see your charge for a first-time DWI offense, normally a Class B misdemeanor, change to a second-time DWI offense, a Class A misdemeanor. Likewise, two prior convictions of any of the above "while intoxicated" can result in a charge of a third-degree felony.
Consider the following example:
You are working your third straight shift at a carnival due to several co-workers failing to show up for their shift. To get through the grueling day, you slipped away to polish off a bottle of vodka you have kept in your car for special occasions. When you return to work, you are assigned to operating the Ferris wheel. It becomes obvious you are intoxicated, and you are ultimately arrested under suspicion of operating an amusement ride while intoxicated. You've never faced that charge before and a first offense is typically a Class B misdemeanor.
However, you were charged and convicted of driving while intoxicated the year before and boating while intoxicated two years ago. Both of those count as prior convictions, meaning you are facing a felony charge for a third offense.
Intoxication assault occurs when you cause a serious bodily injury to another person during the course of driving, boating, flying, or operating an amusement ride while intoxicated. Under the Texas Penal Code, intoxication assault is appropriate when another person receives a “serious bodily injury.”
Texas law defines a serious bodily injury as any injury that creates a substantial risk of death or that causes serious permanent disfigurement or protracted loss or impairment of any bodily member or organ. Intoxication assault is a felony in the third degree. However, it can be enhanced to a second-degree felony in two circumstances:
- The victim's injury lead to a vegetative state due to a traumatic brain injury; or
- The victim is a peace officer, firefighter, or emergency services personnel.
Consider the following example:
You are driving home from a long night at the bar. While you thought you were ok to drive, you were clearly impaired with a BAC over the legal limit. As you approach an intersection, you get distracted by trying to change the radio station. You notice too late that your light has turned red, and you crash into the side of a vehicle that just entered the intersection. You are arrested under suspicion of DWI, but after emergency services personnel arrive you learn that the people in the car you hit were badly injured. The impact to the driver was serious enough that he will never have full use of his right arm again. The passenger sustained such an impact to the head that she will never awake from a vegetative state.
In this instance, you would face two counts of intoxication assault. The first would be a third-degree felony for the arm injury to the driver. The second would be a second-degree felony due to the passenger's vegetative state stemming from a traumatic brain injury.
Intoxication manslaughter is similar to intoxication assault. However, this charge is used when a person is killed through accident or mistake during the commission of a “while intoxicated” offense. Despite its relation to “while intoxicated” charges, intoxication manslaughter is a separate offense.
Intoxication manslaughter is a strict liability offense. The prosecutor doesn't need to prove that you acted with any specific intent. You will be convicted if the prosecutor can show that while you were driving, boating, flying, or operating an amusement ride while intoxicated you accidentally caused the death of another.
Intoxication manslaughter is a second-degree felony. However, if the victim is a peace officer, fire fighter, or emergency services personnel, the charge is upgraded to a felony in the first degree. You will be charged with an additional count of intoxication manslaughter for each fatality.
Consider the following example:
You are driving home from a night out on the town with a blood alcohol concentration above the legal limit. On your way home, you pass the scene of a minor accident. A police officer is questioning one of the drivers by the side of the road. You accelerate your vehicle to go around the accident but lose control, striking both the officer and driver. Both die at the scene, and you are charged with two counts of Intoxication Manslaughter. One count is a second degree felony, but because one of the victims is a peace officer, the second count is a felony in the first degree.
Title of Victim
A “while intoxicated” charged that would otherwise be a misdemeanor can turn into a felony charge if a person with a certain title is injured or killed. These special titles include firefighters, emergency medical services personnel, and peace officers. Texas law defines these titles as:
- A firefighter is “an individual employed by this state or by a political or legal subdivision of this state who is subject to certification by the Texas Commission on Fire Protection; or a member of an organized volunteer fire-fighting unit that renders fire-fighting services without remuneration and conducts a minimum of two drills each month, each at least two hours long.”
- Emergency medical services personnel are any person serving as an emergency care attendant, emergency medical technician, advanced emergency medical technicians, emergency medical technicians-paramedic, or licensed paramedic.
- Peace officer includes any person who is elected, employed, or appointed as a peace officer. Peace officers are defined as sheriffs, marshals, police officers, airport security, municipal park patrolmen, security officers, investigators, rangers, among many others as designated by Code of Criminal Procedure, Title 1, Chapter 2.12.
Hire a Board Certified Expert in Texas DWI Law to Defend Your Rights
The consequences of a DWI conviction under Texas law are stiff to begin with. But if you are facing the additional consequences related to enhanced DWI penalties, you could be facing years of your life in prison. Your best shot at obtaining the best possible outcome is hiring an experienced DWI defense attorney to stand by your side. You need an expert with a mastery of both criminal defense as well as DWI defense law. If you have been charged with enhanced penalties in the Houston area, you can count on attorney Doug Murphy to fiercely challenge those charges.
Doug Murphy is one of only two attorneys in Texas that is Board Certified as an expert in both DWI defense law and criminal defense law. Doug is an experienced trial attorney that is prepared to put his expertise to work in front of a jury of your peers. The Doug Murphy Law Firm, P.C. has years of successful trials and positive results. If you would like to discuss your case with Houston's premiere DWI defense attorney, contact the Doug Murphy Law Firm, P.C. today.