Are you or a loved one facing a charge of “driving while intoxicated” (DWI)?
We can't understate the severity of the issue. The impact of a DWI can be life-changing, with penalties up to and including prison. But what we can't overstate is that a DWI charge is not a DWI conviction. Therefore, it is essential to have an attorney at your side, and not just any attorney, but someone who is an expert in criminal law and DWI defense.
With our decades of experience in DWI and criminal law defense at Doug Murphy Law Firm, P.C., we know that you may be scared or anxious—in no small part because you are confused as to what this all means, and what is going to happen next. Let's alleviate some of your concerns by answering common questions relating to a first DWI offense.
What is a DWI in Texas?
While “DUI” (“driving under the influence”) may be a more widely-known expression, the legal standard for drinking and driving in Texas is actually “DWI,” i.e., “driving while intoxicated.”
Under Texas Penal Code’s section 49.01 et seq., to be convicted of a DWI in Texas, the state must prove that the driver of a motor vehicle operating on a public street:
· did not have the normal use of mental or 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
· The driver had a blood alcohol concentration (BAC) of 0.08 or more.
Alcohol concentration is the amount of alcohol present in the body. It is measured by the number of grams of alcohol per: 210 liters of breath; 100 milliliters of blood; or 67 milliliters of urine.
If I've been arrested for a DWI, aren't I already guilty? Is there even a point in fighting a DWI charge?
You absolutely can fight a DWI charge, especially in Houston, Texas. Houston police are regularly overly zealous, and they will pull over a driver for almost any reason. They can do so, because they are only required to have a reasonable suspicion that any crime, no matter how big or small, is in progress.
But the standard is much higher in a court of law than a roadside stop.
And DWI defendants can—and do—win in court.
Under the United States Constitution, defendants are presumed to be innocent until found guilty. In other words, you don't have to prove that you're innocent. The prosecution bears the burden of proving guilt to a finder of fact—either a judge or jury—who must review evidence.
The defense has an opportunity to defend themselves, explaining why the prosecutor's facts may be inaccurate and the defendant did not commit the alleged crime. For example, an attorney specializing in DWI defense may argue that the results of a blood alcohol test were inaccurately high, because the attorney had learned that the sample was incorrectly stored prior to the analysis. Had the sample been run correctly, the defendant's blood alcohol would have been below the legal requirement.
Then the finder of fact must decide whether, based on the facts presented, if someone is guilty, without reasonable doubt. If they do doubt the result, they must announce that the defendant is “not guilty” and therefore acquitted of the charges.
If convicted, what should I expect in terms of sentencing for a first offense DWI?
First time DWI convictions may result in incarceration and fines, though the exact penalties depend on the case.
For those convicted of a BAC of 0.08 or more, a first conviction may result in fines of up to $2,000; a minimum of 72 hours of confinement to 180 days in the county jail; license suspension of 90 days to 1 year; and an annual fee of up to $2,000 for 3 years to retain your driver's license.
For those found to have a BAC of 0.15 or more, they may receive a sentence of up to 1 year in jail and a fine of up to $4,000.
Sentences may also increase if a child was a passenger in the car, if there was a related accident, and other factors.
Additionally, upon conviction, the court can require a defendant to pay court costs, so you essentially reimburse the state for the cost of prosecuting you. A court may also require restitution—paying people for any related damages they may have sustained due to the DWI, from property damage to medical bills relating to an accident.
Is there a difference, in terms of the likelihood of DWI conviction, for a breathalyzer test or blood test?
Defense attorneys will always take the types of evidence into account, when preparing your defense, and defending your DWI is no different on that front. Both tests have strengths and weaknesses that may affect your case.
Breathalyzer tests are frequently unreliable. Police may not have been correctly trained on how to administer the test. The user may not have had a deep enough breath for the test to work. The breathalyzer itself may not have been correctly maintained or need recalibration. The results may be inaccurate, because they failed to include the adjustments in calculations needed for height, weight, gender, medical conditions, and other factors.
Traditionally, blood tests are generally considered more accurate--if the blood sample is preserved properly and the analysis follows international standards of quality control--and therefore can take more work to defeat in court. However, even blood tests have reliability issues of their own. For example, blood taken from an artery will have a higher BAC than a sample taken from a vein. Blood tests may not be stored properly, throwing off the results. Blood tests require a number of individuals to process the test—the more people involved, the more possible it is that someone mishandled the evidence along the way.
I refused to take a breathalyzer test when I was pulled over. Do I automatically lose my driver's license?
Many people believe that Texas law mandates that you automatically lose your license after failing to take a breathalyzer test (or refusing to take a test), but that is actually false.
You have the legal right to prevent and automatic suspension by requesting an Administrative License Revocation (ALR) hearing, to fight the suspension of your license. The majority of Doug Murphy Law Firm clients who request this hearing prevail and have their license restored.
However, it is important to note that requests for an ALR hearing must be filed within 15 days after the date of a DWI arrest, so it is important to get counsel representing you as quickly as possible.
What if I plead guilty on my own, without a lawyer? What's the harm in doing that, if I'm willing to pay the penalty?
Plenty. You need a lawyer at your side, even if you ultimately decide to plead guilty.
A DWI conviction can impact every aspect of your life. So you need an attorney who can make sure that the prosecutor has facts and law to back up all of the allegations, so you don't end up confessing to a crime you didn't commit.
You also need to understand the full ramifications of a conviction—starting with the fact that pleading guilty has the same legal consequences as if you were convicted in a trial.
As such, DWI convictions can impact child custody determinations. You may lose constitutional rights, including the right to own and use a firearm and the right to vote. Those with DWI convictions are less able to receive home mortgages and student loans. DWI convictions can be often a bar for new employment, and professional licenses (e.g., medical professionals, CPAs, and teachers) can be suspended or revoked. Security clearances can also be lost after a DWI.
And the direct fines paid to the court are just the beginning of your financial liability: You are responsible for fees relating to towing and impounding your vehicle at the time of arrest. Towing can cost up to $500 while impound lots may charge $20 a day. Courts can require you to install an ignition lock that requires you to pass a breath-test before your car will start; you would be responsible for the costs of that installation. Longer-term, in Texas, driver’s insurance typically increases by 59% after a DWI. And a criminal conviction can also be used against you in other proceedings—such as a civil trial if there is a car accident related to the DWI charge.
With an attorney at your side, you can make a better determination of whether you should fight the charges. And your attorney can look for other procedures that can limit your liability and the impact of the case, no matter what the outcome.
Say I win at trial, will my Texas DWI arrest always be on my record?
Every arrest results in an arrest record, and that record remains—even if you are later exonerated in court. However, you can petition the court to might be able to seal or expunge your record of a conviction for a first offense, if you meet certain other requirements.
Sealing records means that the records still exist. Members of the public cannot review the documents, but they are still accessible to government agencies, if a need were to arise.
Expunction of an arrest means that all documentation related to the case is physically destroyed, so there is literally no longer a record of the arrest. After an expunction, if you are ever asked if you have been arrested, you can legally say, “No, I haven't been.”
An attorney can guide you through the process, prepare and file the necessary materials, to truly put a DWI behind you, and you can start anew.
Okay, so I need a lawyer. Do I need one who specializes in DWI? Won't any lawyer do?
Yes, it is important to have an attorney who specializes in criminal law and DWI defense. These attorneys are highly trained in the procedure and evidential issues that specifically arise in DWI cases. You want an attorney who dedicates his practice to this type of work and someone who has garnered the respect of attorneys in the community for having a successful track record.
With 20 years of experience in criminal law and DWI defense, Doug Murphy is one of only two attorneys in the entire State of Texas who holds both DWI Board Certification and Criminal Law Certification. Doug was recently named for his DWI defense work as Houston's “2021 Lawyer of the Year,” according to Best Lawyers in America (published in U.S. News & World Report). A “lawyer's lawyer,” he has been recognized by both Texas SuperLawyers and Best Lawyers every year since 2013. He frequently lectures on successfully handling all aspects of DWI litigation throughout the nation, teaching other lawyers how to successfully handle DWI cases at more than 120 continuing legal education seminars.
Contact Doug Murphy Law Firm, P.C. today for a free consultation—to ask the questions you have about your DWI and discuss your best courses of action. And remember that the answers you hear are not just about your case, but the rest of your life.