If the police arrested you for a DWI while you already have a pending DWI charge, your instincts are right – this isn't good. But it's important to remember that you still have rights, and you still have defenses to both your first and second DWI charge. The best thing you can do is consult a Board Certified DWI expert to discuss your options and prepare for your defense. But in this article, we'll try to answer some of your top questions.
Can the police charge me with a second DWI while a first is still pending trial?
Yes, the police can charge you with a second DWI while your first one is still pending. When the police arrest you for DWI, they typically confiscate your driver's license and give you a temporary driving permit "pink sheet" that's good for 40 days. After that, the state will automatically suspend your driver's license unless you timely request an Administrative License Revocation Hearing within 15 days of your arrest. If you requested an ALR hearing for your first DWI, you r driver's license will not be suspended, if at all, until your ALR hearing is conducted.
Violating a Restricted License
If you were driving on an already restricted license or pink sheet while awaiting your first DWI trial or resolution, you may also face a charge of “violating an occupational license.” An occupational license is one that comes with specific restrictions from a judge about how and when you may use your license. An occupational license might include restrictions that allow you to drive only to and from work, limit the time of day when you may drive, or specific routes you may use. Violating these restrictions can be a Class B misdemeanor and result in the loss of your license.
A person who holds an occupational license commits an offense if the person: (1) operates a motor vehicle in violation of a restriction imposed on the license; or (2) fails to have in the person's possession a certified copy of the court order as required under Section 521.250. (b) An offense under this section is a Class B misdemeanor. (c) On conviction of an offense under this section, the occupational license and the order granting that license are revoked.
Tex. Trans. Code § 521.253 (1995). A judge can also revoke this temporary license for good cause under Texas law. See Tex. Trans. Code § 521.252 (1995).
An interlock license is another form of occupational or temporary license that requires you to have a device installed on your car to detect alcohol in your breath. The car won't start if the device detects alcohol in your breath. However, the interlock device can't tell who is breathing into the device. If you are arrested for a DWI while driving with an interlock license, the judge may revoke it as well.
If your two DWIs are both in the same county, the court may consolidate your cases. Consolidation can be a complicated situation because a jury will hear about both DWIs. You should assume that the court will know about both DWIs, even if they are in separate counties, simply because of the nature of electronic files. It's likely the prosecutor in each case, even in different counties, will know about both DWIs as well.
How will this second DWI charge impact my pending charge?
It seems only fair that the law should prohibit a prosecutor from bringing up your new DWI charge during the trial for your first DWI. After all, you're still innocent until proven guilty, right? While that may be true, if the court consolidates your cases, it may be impossible to avoid having your second DWI charge come up while deciding the first. It's a good idea to discuss your litigation strategy with an experienced DWI attorney. A DWI legal specialist will know the best way to approach this conundrum for the best possible outcome.
It's also important to understand that a second DWI comes with harsher possible penalties than a first DWI.
- First DWI: A first DWI is a Class B misdemeanor, assuming there aren't any aggravating circumstances. Possible penalties include up to a $2,000 fine, 72 hours to 180 days in jail, and a driver's license suspension between 90 and 180 days.
- Second DWI: A second DWI charge is a Class A misdemeanor with no aggravating circumstances. You can face a fine of up to $6,000, a minimum of eight days in jail and up to 12 months in jail, a license suspension, and alcohol or drug abuse counseling.
- Third or Subsequent DWI: A third or subsequent DWI is a third-degree felony charge. You can face up to a $10,000 fine and jail time between two and ten years. While the judge may place you on probation for most of that two-year sentence, you must spend at least ten days in jail. A felony conviction also comes with other consequences, including child custody consequences, loss of the right to own a gun, career consequences, and even an inability to get a loan.
- Additional State Imposed Fines: Texas also imposes additional mandatory fines for DWI convictions. These fines are not up to the discretion of the judge. For a first DWI, you'll receive a $3,000 fine. For any additional DWI within 36 months, you'll receive a $4,500 fine. If the police arrest you with a BAC of over .15%, it is a $6,000 fine.
Am I going to lose my driver's license again?
You still can request an Administrative License Revocation hearing after a second DWI arrest. You have 15 days to file the request for a hearing. If you don't request an ALR hearing, your temporary license will automatically expire within 40 days.
While having an attorney for the hearing isn't mandatory and is less formal than a trial, the hearings are conducted by the court using the same rules of evidence and procedure the court uses during a trial. It can be difficult to navigate an ALR hearing without an attorney. You also need to ensure that the attorney you hire for your DWI cases will also represent you during your ALR hearing. Not all attorneys are willing to do so.
The state must prove three elements to uphold your license suspension:
- Reasonable Suspicion for the Stop
The state must show reasonable suspicion that you committed the traffic violation that was the original reason for your stop. The police officer must be able to articulate facts that explain why they pulled you over. The “reasonable suspicion” standard is fairly low.
- Probable Cause for the Arrest
Next, the state must show that the police had probable cause to arrest you. Probable cause means that it is more likely than not that the person arrested committed the alleged crime. The police officer makes this determination based on their interactions with you during the traffic stop, field sobriety tests, and any portable breath test results.
- Blood Alcohol Content Level Over the Legal Limit
The state must also show that your BAC was over the legal limit. In Texas, this is .08% or .04% if you have a commercial driver's license.
An ALR hearing standard is not “beyond a reasonable doubt” like it would be for a trial. But if the state fails to convince the judge on any one of these three elements, the judge will reinstate your license. Even if your ALR hearing is unsuccessful, having a hearing can be a good strategic move for your DWI case. The hearing will give you and your attorney a sneak peek at the evidence the state has against you and intends to present at trial. An ALR hearing can also be a good opportunity for your attorney to negotiate with the prosecutor, perhaps convincing them to drop one of your DWI charges or reduce the charges to another offense.
Hire a Board Certified DWI Attorney
If you're facing two charges for DWI, the stakes are even higher if a court convicts you. You need to ensure the defense attorney you hire has the expertise and technical know-how to defend multiple DWI cases. Look for an attorney who is Board Certified in DWI Defense. This board certification tells you that an attorney has advanced training in DWI legal and technical issues, advanced education in DWI defense methods, extensive experience litigating DWI cases, and the approval of their legal peers in judges in the area.
Attorney Doug Murphy has the expertise you need. Doug has:
- A Board Certification in DUI Defense by the National College of DUI Defense, accredited by the American Bar Association and the Texas Board of Legal Specialization,
- A Board Certification in criminal law by the Texas Board of Legal Specialization,
- Extensive knowledge about DWI procedures in local courts and police departments, and
- Decades of DWI litigation experience and advocacy.
Doug's peers voted him the “Lawyer of the Year” for 2021 for DWI defense by Best Lawyers in America. He's taught criminal defense lawyers at more than 120 continuing legal education seminars across the U.S. and currently serves as the Dean of the National College for DUI Defense conducted at Harvard Law School. See how Doug can help you. Call us at 713-229-8333 today to set up a consultation.