A Texas DWI Charge Is Not a Conviction

By March 29, 2018May 27th, 2022Drunk Driving, DUI

A Texas DWI Charge Is Not a Conviction

Fort Worth Misdemeanor DWI Attorney

If you are arrested for driving while intoxicated (DWI), you can face serious penalties that may impact your future employment, rental housing options, admission and/or financial aid for college not to mention the immediate concern about the risk of jail time, loss of your driving privileges and damage to your reputation. There are several ways that a person can be considered to be driving while intoxicated in Texas.

The first type of DWI is based on impaired mental or physical faculties. This is the type of DWI that most people envision where a driver is pulled over because of erratic driving, failure to stop at a stop sign or other types of unsafe driving. However, Texas law like that in other states does not require evidence of actual bad driving. Texas has a DWI “per se” component that permits a prosecutor to obtain a conviction for DWI even if you drive flawlessly and chemical testing of your blood alcohol concentration (BAC) via blood or breath exceeds the legal limit of .08 percent. This type of violation is often referred to as a “per se” violation because a valid accurate chemical test that indicates your BAC level exceeds this legal limit constitutes a violation even if your mental and physical ability to drive are not impacted in any way.

Texas Penal Code Section 49.0 defines intoxication as follows:

Not having the normal use of mental or physical faculties by reason of the introduction of alcohol, a controlled substance, a drug, a dangerous drug, combination of two or more of those substances, or any other substance into the body or having an alcohol concentration of 0.08 or more.

Penalties for 1st DWI Offense & 2nd DWI Offense

If you have no prior DWI offenses, you will be charged with a Class B misdemeanor provided your BAC level does not exceed .15 percent, which will result in enhanced penalties. A first conviction for DWI with a BAC level over the legal limit but not exceeding .15 percent will result in a minimum jail term of 72 hours up to a maximum of 180 days. However, this minimum increases to six days if you are driving with an open container in your vehicle when you are arrested for DWI. A first offense for DWI also carries a fine up to a maximum of $2,000. A 1st offense conviction of DWI in Texas also results in a driver’s license suspension of 90 days to one year.

If you submit to blood or breath testing with a BAC of .15 or above, you will face even more serious penalties. DWI with this higher BAC level constitutes a Class A misdemeanor which carries a sentence of thirty days in jail up to a year of incarceration and a maximum fine of $4,000. A second DWI conviction also may be charged as a Class A misdemeanor carrying similar penalties to a first offense with a BAC level of .15 or above. If a driver is convicted a second time for DWI, this also will bring a license suspension of 180 days to two years.

While these penalties can seriously disrupt your life, we aggressively defend clients charged with DWI based on grounds like insufficient basis for the initial stop, improper conduct of the officer during the stop, failure to follow proper procedures when conducting field sobriety tests (FSTs), inaccurate BAC breath or blood testing and other defenses. Even if the evidence against you is overwhelming, we frequently seek diversion or probation options to minimize the consequences of a DWI conviction and to keep you out of jail. If this is your first Fort Worth DWI offense, we may be able to get any jail time suspended with a period of probation between six months and two years. If you have questions about your options following a DWI arrest, contact a Fort Worth DWI attorney at the Fulgham Law Firm P.C. at 817-886-3078 to schedule a free consultation.

A Texas DWI Charge Is Not a Conviction

If you have been charged with a DWI in Texas, don’t think that a conviction is certain. There are all kinds of ways that you may be able to beat your charges.

Which is a good thing, because the consequences here can be quite severe. You can lose your license for a set period of time, face higher insurance costs, and possibly even serve jail time.

An experienced DWI lawyer will be able to help you put together the strongest possible defense for your specific situation. In this post, we’ll detail several potential defenses that might work in your case.

The Police Had No Probable Cause for Arrest

To pull you over, police must have probable cause that you were driving under the influence or were committing a driving violation. They cannot pull you over on the basis of age, race, or ethnicity. If they pulled you over without probable cause, your case can be dismissed.

Your Rights Were Not Read Aloud

Police are required to read you your Miranda warnings during your arrest. If you did not hear phrases such as “You have the right to remain silent” or “Anything you say may be held against you in court,” your statements to them can be inadmissible.

The Police Officer’s Observations Were Incorrect

A police officer makes observations at the stop to determine whether you are under the influence of alcohol. These observations may include detecting alcohol odors on your breath, slurred speech, bloodshot eyes, erratic behavior, and poor field sobriety test results. Your attorney may challenge the officer’s testimony with other facts.

Perhaps your eyes were bloodshot because you have allergies, or your speech was slurred due to a physical impairment. Maybe you performed poorly on the field sobriety test because you were severely fatigued. There are several ways to poke holes in the officer’s testimony.

The Breathalyzer Test Results Are Inaccurate

At the time of arrest, the police officer may have used a breathalyzer to detect your blood alcohol concentration (BAC) level. To produce accurate results, however, the machine must be correctly calibrated and used. If the officer was not sufficiently trained to use the device, or if the machine was not calibrated correctly, the test results can be thrown out.

Additionally, test results can show up as false positives for several other reasons. If you recently used mouthwash or were exposed to various chemicals, they may show up as alcohol on the breathalyzer test. If you have diabetes, the ketones in your breath may be detected as alcohol by the device. Your attorney will know if you can fight your charges with this defense.

Your Blood Test Results Were Mishandled

At the police station, your blood will be drawn for a more accurate BAC testing. If the blood samples are improperly handled or stored, the results can be compromised. Your case will be dismissed if these situations occur.

You Were Involuntarily Intoxicated

Admittedly, this is a rare one, but in very specific circumstances it can serve as a strong defense.

What does it mean to be “involuntarily” intoxicated? Well, it’s possible that you did not realize you ingested alcohol. For example, if you attended a party and drank spiked punch, you may not have realized your BAC was over the legal limit when you drove home.

If any of these defenses sound viable to you, call an experienced Texas DWI attorney today for an appointment. We will provide a free initial consultation where you can learn about the options available to you.

What You Need to Know about Chemical Tests of Blood Alcohol Concentration. Were you asked to submit to a blood or breath test following a Fort Worth DWI arrest?

If a police officer in Fort Worth or the surrounding areas arrests you on suspicion of DWI, the officer will usually ask you to submit to a chemical test of blood alcohol concentration (BAC) by way of a blood or breath test. While either BAC chemical test may be employed, the officer may exercise discretion in terms of which type of DWI test to administer, breath tests are the most common option because the breath testing device is located at the jail.

When the officer elects to administer a blood test, you usually will be transported to a local hospital to have a blood specimen extracted by qualified medical professionals. When the blood test is performed by qualified technicians in compliance with the applicable procedures and protocols, blood tests are the more accurate measure of BAC level.

Can I refuse to consent to chemical testing of my blood or breath if I am arrested for DWI?

While Texas law generally prohibits an officer from forcibly extracting a blood sample if you refuse with certain exceptions indicated below, there are consequences for such a refusal under the Texas “implied consent” law. The implied consent law essentially provides that any driver who applies for a license is deemed to give consent to a BAC chemical test of blood or breath when arrested for DWI. Refusal to comply with the implied consent law can be used against you in court and could result in an administrative suspension of your driver’s license for 180 days. Even if you do not consent to chemical testing of your blood or breath, you may still be prosecuted for DWI.

What if the officer wants to take my blood despite my refusal to give consent?

Even if you refuse to voluntarily provide a blood sample for chemical testing of your BAC level, the officer may seek a warrant to extract blood for such testing. The warrant may be granted by a magistrate if the officer has sufficient evidence to constitute probable cause that you were driving while intoxicated. Because extracting a sample of your blood without your consent constitutes a “search and seizure” under the Fourth Amendment, the officer must comply with the Texas Code of Criminal Procedure in obtaining the warrant based on an affidavit that articulates sufficient evidence to constitute probable cause to believe you were driving while intoxicated.

Will blood test results obtained without my consent or a warrant be thrown out?

While the general rule is that an officer must have a warrant based on probable cause and signed by a magistrate to forcibly extract your blood for a BAC chemical test, Texas law provides a number of exceptions to this general rule when drivers are involved in accidents that result in the following:

  • If you have at least two prior convictions for DWI
  • If you were involved in an accident where someone was seriously injured or died
  • If you have a prior conviction for DWI, and you were transporting a child under 15

Those arrested for DWI who are forced to provide a blood specimen for testing should speak to an experienced Fort Worth DWI Attorney. If you have any questions regarding chemical testing of blood or DWI, we invite you call a Fort Worth DWI lawyer at the Fulgham Law Firm P.C. Call us at 817-886-3078 to discuss the specifics of your case.

Ft. Worth DWI Program’s Death Makes Fighting Back Even More Important

Drinking and driving is a problem in our country and here in Texas, but that problem might now be getting bigger due to funding being cut from a program aimed at helping repeat DWI offenders get sober.

Last week, we discussed some of the diversion programs offered by Tarrant County to rehabilitate offenders and help them avoid the standard criminal justice process. Well, one of those programs – the Felony Alcohol Intervention Program (FAIP) – has lost its $140,000 state grant.

Using risk-assessment data, the governor’s office “believes the data reveals that most DWI offenders are at low risk of being arrested again, and such programs are for high-risk offenders.” In fact, they determined that 80 percent of FAIP’s participants should have never been admitted.

With these “findings” as well as other programs needing larger grants, FAIP and their participants – 150 every year – are falling by the wayside.

Let’s look a bit more at what’s happened to FAIP and why it’s more important than ever to fight back if you’re facing felony DWI charges.

Despite Helping People, FAIP Can No Longer Accept Participants

Farris Hamideh is one of FAIP’s success stories. Hamideh had been arrested three times in nine years, but after his last arrest in 2012, he hasn’t taken a drink since.

Hamideh credits FAIP – an “intensive, four-year-long” program – with his sobriety, and wants to help other alcoholics from drinking and driving.

The governor’s office now says that Hamideh and similar participants aren’t high-risk or high-need offenders. According to them, high-risk offenders “tend to have low income, low education, an insufficient support system or mental health issues.”

Tarrant County’s “self-reported risk-assessment scores” supposedly illustrate that a majority of FAIP’s participants, including Hamideh, are low-risk. They tend to have “a steady income, a reliable family support system,” and “are better educated and typically older.” Because of these qualities, they’re apparently less likely to be re-arrested.

Some people, like the assistant director of the Community Supervision and Corrections Department, Cobi Tittle, say that DWI offenders shouldn’t be looked at or assessed the same way as other criminal offenders.

“Chronic DWI offenders do not set out to commit a criminal act, but rather the use of alcohol drives their criminal behavior,” Tittle said. “Chronic DWI offenders typically have underlying alcohol abuse issues, which are more likely to go unresolved with jail time and traditional probation.”

As of September 1, 2017, FAIP is no longer accepting new participants when others complete the program and will eventually only have 75 participants. With so few people having access to FAIP and its resources to help with alcohol issues, more drunk drivers could end up back on the roads.

Facing Felony DWI Charges? Fight Back with a Knowledgeable Fort Worth Attorney

Now that FAIP has lost its funding and can’t accept new participants, it’s more important than ever to fight your felony DWI charge with the help of an experienced Ft. Worth DWI lawyer. A skilled attorney who is well versed in Texas’ DWI laws will be your best bet in getting your charges reduced, dropped, or dismissed so you can return to your normal life, uninterrupted.

Although the FAIP program has helped a number of individuals, a knowledgeable attorney can also help you beat your charges and fight for your rights.

About the Author: 

Brandon Fulgham has an in-depth understanding of both Texas law and Texans themselves. Before practicing law here, he received his undergraduate degree from TCU, and his law degree from South Texas College of Law in Houston. After graduation, he worked in District Attorneys’ offices as a prosecutor, building cases designed to put people behind bars. Now, he uses that knowledge to protect the rights of people in and around Fort Worth, making sure they receive the strongest possible defense when they find themselves on the wrong side of the law. He has been recognized for his work by The National Trial Lawyers, Fort Worth Magazine, and others.