Driving (DWI), boating (BWI), flying (FWI), or operating or assembling an amusement ride while intoxicated are all criminal offenses, and if convicted, the penalties can be steep. You can be sentenced from days to years, be fined thousands of dollars, have your driver's license suspended, and face difficulties in your personal and professional lives due to a criminal record. Sometimes, these penalties can be “enhanced” if additional, serious elements happen at the time you allegedly committed one of the above-referenced offenses. Enhancement means an offense's classification is increased to another higher level classification, which means the sentence, is also increased.
In Texas, there are several statutory enhanced offenses that can make a serious difference in your sentencing if convicted on all accounts. It is always in your best interests to retain an experienced DWI lawyer who will aggressively pursue your case and leave no piece of evidence unchallenged.
Enhanced Offenses' Classifications Under Texas Penal Code § 49.09
Enhanced offenses and penalties are outlined in Texas Penal Code § 49.09. A first-time conviction of the above-mentioned “while intoxicated” offenses is a Class B Misdemeanor, but if any of the below enhancements are present, the classification increases in response.
Prior Convictions
Prior convictions is a condition where you are charged with a DWI, BWI, FWI, or operating or assembling an amusement ride while intoxicated offense within the last five years, and have had one or subsequent convictions prior to the new charge. If you have been previously convicted of one “while intoxicated” offense so that this current charge is your second, then the classification increases from Class B misdemeanor to Class A misdemeanor. If the current charge is your third or subsequent charge, then the classification increases to a Third Degree Felony.
Any “while intoxicated” charge will be considered as a first, second, third or subsequent offense. This means if you were charged with a BWI five years ago, it counts as a first offense for a DWI offense you are charged with today.
Intoxication Assault
Intoxication assault happens when someone who during the commission of driving, boating, flying, or operating or assembling an amusement ride while intoxicated causes an accident that results in serious bodily injury to another person. This charge likely accompanies a charge of any of the following: DWI, BWI, FWI, or operating an amusement park ride. Intoxication assault is a Third Degree Felony, and "serious bodily injury" means an injury that creates a substantial risk of death or that causes serious permanent disfigurement or protracted loss or impairment of the function of any bodily member or organ.
In Texas, this is a strict liability offense. The prosecution will not need to prove culpability, which means the prosecution does not need to prove you intended to injure someone. According to § 49.09, intoxication assault becomes a Second Degree Felony in two circumstances: (1) the victim's injury was in the form of traumatic brain injury that results in a vegetative state; and/or (2) the victim is a peace officer, firefighter, or emergency medical services personnel. Each separate injured person is a separate Third or Second Degree Felony offense, depending on the nature of the injuries and the title of the victim.
Intoxication Manslaughter
Intoxication manslaughter happens when someone who during the commission of driving, boating, flying, or operating an amusement ride while intoxicated causes the death of another person by accident or mistake. This offense is separate from a charge of any of the following: DWI, BWI, FWI, or operating an amusement park ride. Intoxication manslaughter is a Second Degree Felony.
In Texas, this is a strict liability offense. The prosecution will not need to prove culpability, which means the prosecution does not need to prove you intended to kill someone. If the victim is a peace officer, firefighter, or emergency medical services personnel, the classification increases to First Degree Felony. Each separate fatality is a separate Second or First Degree offense, depending on who the victim(s) was/were.
Title of Victim
If at the time you were charged with an offense of DWI, BWI, FWI, or operating an amusement ride while intoxicated, and there was a victim who was either injured or killed due to your actions while intoxicated and that victim had/has a certain status or title associated with him or her, then the classification of your charge will increase to a higher classification.
An offense classification increases to a Second Degree Felony if the person was either (1) a “peace officer, a firefighter, or emergency medical services personnel while in the actual discharge of an official duty;” or (2) the victim regardless of the latter status sustained serious bodily injury “in the nature of a traumatic brain injury that results in a persistent vegetative state.” The classification increases to a First Degree Felony if a peace officer, a firefighter, or emergency medical services personnel while in the actual discharge of an official duty is killed.
- A firefighter means “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 means an emergency care attendant, emergency medical technician, advanced emergency medical technicians, emergency medical technicians-paramedic, or licensed paramedic.
- Peace officer means a person elected, employed, or appointed as a peace officer, which includes 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.
Possible Defenses
A good defense is one that upturns every piece of evidence and approaches a case from all angles. There are defenses based on constitutional challenges, scientific evidence challenges, and witness testimony challenges, among other possible defenses. An experienced lawyer will question everything as he or she builds a defense for you. Some of what these possible defenses include are explained below.
Was the stop legal?
There are multiple reasons why a stop may not be legal. A defense attorney will start attacking the prosecution's case before trial through the use of pleadings. For instance, the defense can contest the reason an officer pulled you over for a traffic stop through a Motion to Suppress Evidence. If a hearing is held on this motion, the State has the burden to prove the officer did not violate a constitutional protection, e.g., unreasonable searches and seizures; there must be a specific reason you were stopped. The defense may also challenge the proper administration of Miranda warnings to confirm that your statements were voluntary and not coerced. If either of these or other improper acts were conducted during your stop, then evidence can be suppressed. Suppressed evidence cannot be produced at trial and often results in a dismissal of charges.
Were the blood or breath tests administered properly and were the results accurate?
The prosecution's scientific evidence can also be attacked, either by attached the evidence itself or the experts who must testify as an expert witness. Evidence produced based on Horizontal Gaze Nystagmus (HGN), preliminary breath test (PBT), breathalyzer test (BT), and blood tests require the prosecution to call an expert witness to testify in order to make the evidence admissible. These tests can be scientifically unreliable depending on the manner in which they are administered or managed. The experts called to testify are also sometimes in want of sufficient knowledge or training. The defense can challenge the evidence and experts either before or during the trial. There are generally three reasons the prosecution's scientific evidence can be found unreliable and, therefore, inadmissible:
- Some tests, like the HGN and PBT, are routinely proven to be scientifically unreliable based on the test itself, without having to prove the existence of improper administration or faulty equipment.
- Human error is often present with the administration and/or interpretation of tests. Procedures may not have been followed in accordance with the standard.
- Equipment may also not be maintained in accordance with regulations and, as a result, calibrate inaccurate results.
Is the testimony of police officers consistent?
A good defense lawyer will attack a police officer's statement or testimony to make sure his memory is consistent with what actually happened. A good defense attorney will have his or her own experts to review and analyze videos, accident reconstructions, or other evidence and cross-examine the officers accordingly to highlight any inconsistencies with their statements and the evidence. The defense lawyer's aim is to cast as much doubt as possible on the officer's testimony, creating holes in the testimony presented during the State's direct examination. A primary source of evidence to be challenged are the field sobriety tests (FSTs). The defense will want to find an opening where the officer did not follow the proper administration of the FSTs or the interpretation of the results may have been unfair.
In cases involving accidents, did the defendant actually cause the accident?
If the charge is one of intoxication assault or intoxication manslaughter, an accident likely had to occur. These are strict liability cases, so there is no need on behalf of the State to prove the intent to injure or kill, but there are elements that must be proven nonetheless. The State must prove a person knowingly became drunk or high and then operated a vehicle, boat, plane, or amusement ride, which caused an accident that resulted in the injury or death. There are three possible defenses: (1) you unknowingly took drugs that caused the impairment (maybe a new medication); (2) you did not cause the accident even though you were impaired; or (3) you were not impaired and did not cause the accident. An experienced DWI lawyer will have the skills to identify and argue successfully anyone of these arguments that are applicable.
Enhanced Penalties Under Texas Penal Code § 49.09
The below chart identifies what the enhanced penalties are for each offense.
| Offense |
Enhancement |
Class |
Fines |
Incarceration |
|
First Offense DWI, BWI, FYI, Assembling or Operating an Amusement Ride while Intoxicated |
Class B misdemeanor |
Up to $2,000 |
3 - 180 days |
|
|
One Prior Conviction of DWI, BWI, FWI, Assembling or Operating an Amusement Ride while Intoxicated |
Class A misdemeanor |
Up to $4,000 |
30 - 365 days |
|
|
Two or subsequent Prior Convictions of DWI, BWI, FWI, Assembling or Operating an Amusement Ride while Intoxicated |
Third Degree Felony |
Up to $10,000 |
2 - 10 years |
|
|
Intoxication Assault |
Third Degree Felony |
Up to $10,000 |
2 - 10 years |
|
|
Vegetative state |
Second Degree Felony |
Up to $10,000 |
2 - 20 years |
|
| Peace officer, firefighter, medical personnel injured in line of duty | Second Degree Felony | Up to $10,000 | 2 - 20 years | |
|
Intoxication Manslaughter |
Second Degree Felony |
Up to $10,000 |
2 - 20 years |
|
|
Peace officer, firefighter, medical personnel |
First Degree Felony |
Up to $10,000 |
5 - 99 years or life |
Contact a Board Certified DWI & Criminal Defense Lawyer Today
If you are convicted of any of these crimes, your entire life is dependent on retaining a DWI lawyer who can get you the best possible results. You should hire a Board certified lawyer because only then will you know your lawyer has the experience and specialized skills to defend your case successfully. Only those attorneys who have been recognized by the Texas Board of Legal Specialization are legally permitted to claim on behalf of themselves that they are specialists in their area of work. In Texas, there are several 1,000 Board certified criminal defense lawyers. Likewise, there are several 1,000 Board certified DWI lawyers. But there are only two in the great State of Texas who can claim both specialties. Fortunately, Houston is home to one: Doug Murphy.
At Doug Murphy Law Firm, we devote our resources and capabilities to DWI cases. We have decades of proven experience and a reputation earned in the courtroom for successful results. Attorney Doug Murphy not only fights on behalf of his clients but constantly gives back to the legal community to teach other attorneys how to do the same. Contact Doug Murphy today to discuss the circumstances of your case.
