Charged with a DWI in Fort Worth, Texas / Tarrant County? Call Top-Rated DWI Defense Lawyer Brandon Fulgham today.
Are you or someone you know facing a driving while intoxicated charge in Fort Worth, Arlington or a surrounding city?
If so, you need an experienced Fort Worth DWI Lawyer to fight on your behalf. Brandon Fulgham has personally tried over 50 jury trials in the area of DWI alone. Additionally, Mr. Fulgham has tried numerous trials before a Judge. When it comes to someone representing you on a DWI charge in Fort Worth it is important you hire a Fort Worth Criminal Lawyer with trial experience.
A person commits the offense of Driving While Intoxicated if they are operating a motor vehicle in a public place while intoxicated. If you have been charged with driving while intoxicated, you face up to 180 days in county jail and up to a $2,000 fine.
In addition to DWI, I handle other alcohol-related offenses including:
- Driving While Intoxicated 2nd offense
- Driving While Intoxicated 3rd or more (Felony DWI)
- Intoxication Assault
- Public Intoxication
- Minor in possession
Texas DWIs At a Glance
Texas drunk driving laws are the 13th strictest in the nation. Individuals facing DWI charges stand to be hit with Texas-tough penalties. What is more, subsequent DWI offenses in this state are always punished increasingly more severely.
Penalties on First DWI Offenses Are Already Pretty Steep
- Fined up to a maximum of $2000.
- Three days to a maximum of one year in jail
- Suspension of driver’s license up to one year
- An annual fee of $1,000 or $2,000 over a 3-year period to retain driver’s license.
A Second DWI Offense Doubles the Fine and License Suspension Time
- Fined up to a maximum of $4000.
- One month to a maximum of one year in jail
- Suspension of driver’s license up to two years
- An annual fee of $1,000. $1,500 or $2,000 over a 3-year period to retain driver’s license.
Get a Third DWI, Pay Five Times the Fine of a First-time Offender
- $10,000 fine
- Two years to a maximum of ten years in prison
- Suspension of driver’s license up to two years
- An annual fee of $1,000 or $2,000 over a 3-year period to retain driver’s license.
Furthermore, two-plus DWI convictions within a five-year period require the installment of a special ignition switch that prevents the vehicle from being operated if it detects alcohol consumption.
Possible DWI Defenses
Did you know Texas is a state in which a motorist can get a DWI without driving (our courts have defined the term “operating” quite broadly)? Or that there are several substances that can “read” as alcohol on a breath test – even though they are not?
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.
Why? Because a Texas DWI charge could cost you more than you think, but only if you do nothing. Depending on the specific circumstances of your case, there are plenty of ways to fight back if you know the law. Like what?
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.
Factors Determining Whether or Not Texans Get a DWI
Driving under the influence of alcohol or drugs takes hundreds of lives each year – and those are just the numbers for our state. In the past few years, Texas law enforcement officials have experimented with different methods for reducing the number of fatalities on the road. Extra vigilance and more DWI arrests seem to be doing the trick – but are they at the expense of truth and justice?
Unless you have a breathalyzer or ignition interlock device in your car, you likely do not know what your blood alcohol content is at any given moment. The difference between .07 and .08 is small in numbers, but big when you consider the thousands of dollars in fines and fees that you will have to pay for a DWI arrest.
Pair this with the fact that there are several factors that can impact how your BAC reads – some of them valid, some not – and it becomes incredibly important how blood-alcohol level works and what you can do to impact yours.
Can Technology Keep You from Getting a Texas DWI?
Since 1980, the year Mothers Against Drunk Driving (MADD) was founded by a mother after losing her young daughter by a serial drunk driver, the issue of drinking and driving has been solidly in the public consciousness. Studies have been performed, laws have been tightened, and rehabilitation programs developed.
Yet according to TXDOT, a person is still hurt or killed in a vehicular crash involving alcohol about every 20 minutes.
Under Texas law, you are legally defined as intoxicated while driving when your BAC registers as 0.08 or higher. However, regardless of actual BAC, law enforcement may consider a person intoxicated and driving under the influence if he or she demonstrates impairment in any way, and research shows the average drinker reaches this point through the consumption of two to three drinks in an hour.
Since the last way you want to end the night is by getting charged with DWI, it is up to you to take advantage of all the tools at your disposal. Today, there are a myriad of useful digital tools out there to advise and inform those who elect to drink.
How can you choose which ones are best to use, and at what point?
Just as you might drink one particular type of alcohol over another depending on the event, there are several types of apps appropriate for a given situation. We suggest thinking of them this way and pairing them with other safety measures – just like you would when deciding which wine to pair with dinner, for instance.
There are three general types of app available if you are already a drink or two in: those designed to analyze your breath; those which simply estimate your blood alcohol content; and those to track your consumption.
BACTrack Mobile Breathalyzer
In an experiment by the Rossen Reports with TODAY, the breathalyzer with readings most consistent to law enforcement testers was Alcohoot. However, we selected BACTrack for two reasons.
First, BACTrack has stated that they chose to err on the side of caution and user safety by over-estimating BACs, and we like that – you are always better safe than sorry. The other reason is that the phone attachment happens to be a bit less expensive.
Pairing: Remember, readings are affected by a multitude of factors beyond the amount of alcohol you have consumed, causing mobile breathalyzers to produce results that are all over the map. A blow into a breathalyzer should be taken as nothing more than a quick check in on your condition. For this reason, we recommend pairing it with a walkable overnight reservation – whether it is a hotel room or an Airbnb, make the evening last all night.
IntelliDrink BAC Calculator
Estimating your BAC is more than comparing your height and weight to the number of drinks you have had. ItelliDrink considers your age, gender, general tolerance, and current stomach content level, as well.
On-screen, you can watch your own BAC rise and fall, and set notifications for when you are above your limits if you would like. This one has even been incorporated in university-level research projects for calibrating sophisticated data analysis in alcohol sensors.
Pairing: Regardless of the accuracy of the data you input, an estimate will never equal a blood draw. These estimates are a great tool for pointing out what you probably already know – you are intoxicated, so we think this app would pair perfectly with some time with a food menu. These days, you would be hard-pressed to escape a row of food trucks after hours in any entertainment district. Wait it out – give yourself enough time to sober up and fill your belly with a heavy snack before you hit the road.
DrinkControl Drink Tracker
This app is the free version of the DrinkControl apps by the same developer, E-protect. It carries a 4.3 out of 5-star rating and is designed to help users be more self-aware about the number of drinks they are consuming. Its primary purpose is to prevent binging.
What’s great about this app is that it not only monitors your consumption against national guidelines, but also can track what you’re spending on those drinks – in money and calories! Additionally, the application allows you to view (and download, if you want) a personal infographic detailing monthly, quarterly, and annual statistics on your drinking habits.
Pairing: Because the risk of forgetting to track your drinks after a certain point can leave you in the lurch at your most critical point, we recommend pairing this one with a rideshare. If you have not already designated a driver, this is the best option if you have stopped counting.
If there is an overall drawback to these technological tools, it is that they are designed for the most part to be used when your judgement is already impaired. What these tools can provide, however, is a support system for avoiding a DWI by planning to drink responsibly before the first sip has ever been taken.
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.
Texas DWI Charge? How Much Could It Cost You?
Getting a DWI does not cost the same for everyone – but in Texas they are always expensive. We will break down the potential costs for you in this post and tell you what the law says.
Do not Believe the Cost Hype… Or Maybe You Should
Awhile back there was a TxDOT billboard near Austin proclaiming that a DWI in Texas costs $17,000. The link on the billboard told the story of a woman who was arrested for DWI. She lost her drivers’ license, spent half a day in jail, was ordered to serve 100 hours of community service and was subject to two years of probation. She also had to take alcohol education classes as part of her sentencing.
In the video, the woman also pays attorney fees, court costs, vehicle towing services, and bail bonds. Her checkbook register shows a negative balance of over $17,000.
That is a terrifying story, but it is also just that – a story. An independent research team looked into it and discovered that the woman’s story is fiction.
Do not rest easy, though. While their research found that her story was made up, they also learned that the $17,000 figure was based on a 2006 study commissioned by TxDOT. The study included 30 interviews of DWI offenders, county clerks, defense attorneys, and prosecutors in 15 different Texas counties.
The report from these interviews says that first-time DWI offenders can expect to pay anywhere from $5,000 to $24,000 in total costs, and that the true average cost is somewhere around $13,000.
That is a scary number, but perhaps the most frightening one is $19,000. That is the difference between the highest and lowest costs they mention, and your cost can fall anywhere in that range.
Oh, it is also important to note that loss of income, the cost of alternate transportation while your license is revoked, higher insurance rates, and counseling fees are not included in the figure. Ouch.
How Do You Prepare for the Cost? Learn the DWI Laws in Texas
Unfortunately, you cannot know exactly what you are going to have to pay for your DWI. However, there are some basic numbers that you can get from official sources.
A first conviction for DWI will cause you to lose your license for up to one year. You may be ordered to spend between three and 180 days in jail and pay a fine of up to $2,000. To retain your driver’s license, you will be required to pay an annual fee of $1,000 to $2,000 for three years.
Basic Cost: $5,000-$8,000
A second conviction for DWI will cause you to lose your license for up to two years. You may be ordered to spend between one month to one year in jail and pay a fine of up to $4,000. To retain your driver’s license, you will be required to pay an annual fee of $1,000, $1,500 or $2,000 for three years.
Basic Cost: $7,000-$10,000
A third conviction for DWI will cause you to lose your license for up to two years. You may be ordered to spend between two to 10 years in prison and pay a fine of up to $10,000. To retain your driver’s license, you will be required to pay an annual fee of $1,000, $1,500 or $2,000 for three years. If you have two or more DWI convictions within a five-year period, you will be required to install an ignition interlock device that allows you to drive only if your BAC is below a set limit.
Basic Cost: $13,000-$16,000
Seek Legal Counsel for a Texas DWI Charge
All these big numbers making you feel a little anxious? They should.
Remember that a charge does not equal a conviction, though. When you speak with an experienced Texas criminal attorney, he or she will be able to go over the facts of your case and lay out the potential options that are available to you.
They will help you put together the strongest possible defense, enabling you to minimize costs while providing you with the best chance to get your charges reduced, dropped, or dismissed.
Experienced and Aggressive Fort Worth DWI Attorney Brandon Fulgham is the Only Call You Will Need to Make
If you are convicted of driving while intoxicated in Fort Worth, it can affect the rest of your life. You need an aggressive and knowledgeable Fort Worth criminal lawyer on your side. Whether you have been charged with your first or subsequent DWI a conviction could carry with it the possibility of jail time, fines, and other devastating consequences.
At Fulgham Law Firm P.C., you will find a Fort Worth DWI law practice focused on passionately defending the accused. Contact our Fort Worth office now at 817-886-3078 for a free and confidential consultation with an experienced Fort Worth DWI attorney.
DWI First In Texas?
Is this your first DWI arrest? Are you worried about what the consequences might be when you resolve your DWI case? Let’s answer a few common questions frequently asked:
- Is jail mandatory for a first DWI arrest in Texas?If it is your first DWI arrest, an experienced and aggressive DWI lawyer should be able to negotiate your case in a manner that avoids jail time. However, it is critical that your DWI attorney tear apart the evidence and compare the police reports to the DWI videos and establish reasonable doubt regarding the elements of DWI, as provided under the Texas Penal Code. The more doubt that can be established by your attorney, the more leverage you will have to negotiate a favorable result to your DWI case.
- How long is probation for a first DWI in Texas?Under Texas law, the maximum term of probation for a first DWI in Texas is two years. However, if your DWI lawyer pushes the prosecutor in the negotiation, even the worst of DWI cases can many times be negotiated for a much shorter term of probation than 2 years. Additionally, your DWI attorney must work to lower the fines for a first DWI. Under Texas law, you can receive a fine of up to $2,000, not including court costs and probation fees.
- Can you get a DWI dismissed in Texas?Although it is possible to get a DWI dismissed in Texas, it is rare. Very few DWI cases are dismissed in Texas. Common reasons why a prosecutor may dismiss a DWI case: death of a necessary witness, improper blood draw, arresting police officer subsequently arrested for a DWI offense or other felony offense.Although it is rare that a DWI is dismissed in Texas, there are other strategies by which your DWI attorney can achieve a similar result. If it is determined that your DWI traffic stop was illegal, your DWI lawyer can file a motion to suppress the evidence and the DWI could be thrown out by the judge. If your blood draw was taken improperly or the search warrant affidavit was defective, your blood evidence may be excluded, which could lead to a much more favorable result that could keep the DWI arrest off your criminal record. If the Field Sobriety Tests were improperly administered, there may not be probable cause for a DWI arrest and your DWI attorney may be able to file a motion challenging the arrest, which could result in your DWI being thrown out by a judge.
- Does a DWI stay on your record in Texas?Until recently, a plea to a DWI in Texas would always result in a conviction on your criminal record. However, Texas DWI law now provides deferred adjudication as an alternative to straight probation under certain circumstances. Texas has also recently enacted DWI legislation that provides for the possibility of having a non-disclosure of all records if you resolve a first DWI case under a probation sentence. However, the rules for getting a DWI off your criminal record are nuanced and require the attention of an experienced DWI lawyer that regularly handles these matters. For example, depending upon how you resolve your DWI case, there may be a 2 year or 5 year waiting period before you will be eligible for a non-disclosure for a DWI case.
- How long does a DWI case take in Texas? Each county in Texas has different procedures for how they handle DWI cases Generally, larger counties in Texas have more cases and large dockets. As a result, it can take significantly longer to resolve a DWI case in a large county than in a smaller county. For example, in Tarrant County, there are many pending DWI cases in the county criminal courts The average time frame to resolve a misdemeanor DWI in Tarrant County can range from 6 months to 1 year. On rare occasions, a DWI case can take up to 2 years to resolve for a favorable result If you are charged with a felony DWI in Tarrant County, Texas, it is not uncommon for the court system to take 12 months to 18 months to resolve. This further emphasizes the importance of having an aggressive DWI attorney willing to push the prosecutor as far as necessary to ensure you receive a favorable result.
DWI Child Passenger Charges Defense Attorney in Fort Worth
At the Fulgham Law Firm P.C., our experienced DWI defense lawyers are well aware that any DWI conviction can have serious consequences in terms of both formal sentencing terms and the effects that flow from such a conviction. When you are convicted of DWI with a passenger under the age of 15, the potential consequences can be even more serious including incarceration, a state jail felony conviction and substantial fines.
Transporting a child passenger under age 15 when you are intoxicated may even be considered child endangerment or abuse which could lead to the Texas Department of Family and Protective Services taking your child from your custody.
Because we understand that these formal penalties are accompanied by potential long-term consequences that may impact your job, education, immigration status, future employment opportunities and more, we use our experience handling these types of cases to seek acquittal or the best potential plea agreement to mitigate these harsh consequences.
People get pulled over by police every day for a variety of reasons. For not coming to a full stop at a stop sign to impaired driving, every stop by police is serious in its own way – especially if there are kids in the car and the driving has been drinking.
Recently a woman was pulled over in Harris County, Texas with her four-year-old daughter in the back. According to police, she was visibly intoxicated, mumbling to officers and stumbling out of the car.
Considering a Texas Plea Deal
Plea deals are a common way to resolve criminal cases before they go to trial. In a plea deal, prosecutors on your case agree to reduce the charges or lower your sentence in exchange for you to plead guilty to the charges.
In cases where the charges are reduced, prosecutors agree to lower the level of the charges in order for your agreement to plead guilty to a charge that is less severe than what you were originally charged with.
Sentence reduction plea deals to offer a resolution to your case for the same charges you are currently charged with but a sentence that is at the lower end of the spectrum for your sentencing. For example, a DWI in Texas that may result in up to six months in prison and fines of $1,000 may be lowered to a sentence of no jail time with a reduced fine, but the charge will still be a part of your record.
Plea Deals Aren’t Always the Right Option
Prosecutors are often encouraged to strike plea bargains in many cases simply to help reduce the strain on the court system, but this isn’t the right path for everyone. Sometimes there are circumstances that prove the adult was making the very best decision at the time the crime was committed, for instance.
For this reason and others, a skilled attorney with experience making these kinds of decisions (and in negotiating plea bargains when it is the right path) is imperative.
Fort Worth DWI Felony Attorney
If you have been arrested for DWI with a child under 15 traveling in your motor vehicle in Fort Worth, you should exercise your right to remain silent and to speak to a Fort Worth DWI lawyer before answering any questions. Because of the serious nature of the offense of DWI with a child passenger, it is important to find an experienced DWI attorney. At Fulgham Law Firm P.C., we carefully investigate the facts and circumstances so that we can develop effective defense strategies to protect you from the harsh consequences of a conviction for this serious DWI offense. Contact our Fort Worth office now at 817-886-3078 for a free and confidential consultation with a skilled Fort Worth DWI Attorney.
Felony DWI Cases in Fort Worth & Tarrant County
If you are arrested and charged with any type of DWI offense in Fort Worth or the surrounding areas of Tarrant County, Texas, the penalties can be significant including loss of your freedom, substantial fines, mandatory classes and counseling, suspension of driving privileges, mandatory installation of an ignition interlock device, probation, a criminal record and other sentencing terms.
While all DWI charges in Fort Worth are serious, they are not all created equal. Although most first and second offense DWI charges are labeled misdemeanors under Texas DWI law, those with two prior DWI convictions or those involved in motor vehicle accidents that cause serious injury or fatalities may face a felony DWI charge.
Can A DWI Attorney Save Your License From Being Suspended?
It is possible. The best change your DWI attorney has at winning your license hearing is to do the following:
Request a hearing – missing the deadline to request the hearing removes any possibility of escaping a DWI license suspension
File and receive discovery from the State of Texas – your DWI lawyer should make a discovery request from the Texas Department of Public Safety. By obtaining the evidence, you can formulate winning arguments for the hearing.
Review the video – police reports area almost always written to make a DWI arrestee look bad. However, DWI videos can many times reveal facts that are not clearly articulated in the police reports. The video can be powerful evidence for the best DWI attorneys to win your license hearing.
Subpoena the DWI officer – if you subpoena the arresting officer on your DWI and he does not appear, you will likely win your hearing. If the officer does appear but fails to provide evidence consistent with reasonable suspicion for your traffic stop or failed to follow protocol regarding the providing and reading of the statutory warning form, you could win your hearing.
What Can You Do If Your License Is Suspended At The DWI License Hearing?
If the Administrative License Revocation judge rules against you and chooses to suspend your license, you can still obtain an occupation driver’s license so that you can continue to drive. However, Felony DWI license suspensions will require the installation of an ignition interlock device, purchase of SR-22 insurance (high risk DWI insurance) and the payment of filing fees to the court to obtain the occupational driver’s license.
Types of Felony DWI Charges in Texas
There are a number of circumstances that may result in a felony DWI charge including a third or subsequent DWI conviction, car accident resulting in injury, vehicular manslaughter or DWI with a child passenger.
Third or Subsequent DWI Conviction: If you have previously been convicted of two DWI charges, the third offense may be charged as a felony. When seeking a conviction for felony DUI on this grounds, the prosecutor must prove the prior convictions. When fighting this type of felony DWI charge, we will both attack the factual basis for the current DWI conviction as well as put the prosecutor to his or her proof regarding establishing the prior convictions. This form of felony DWI is considered a third-degree felony. A conviction for this form of DWI will result in loss of your driver’s license for a period of between 180 days and two years.
Intoxication Assault: If you cause a car accident while driving under the influence of alcohol that causes disfigurement or serious bodily injury the prosecutor typically will charge this offense as a third-degree felony. Serious bodily injury is defined as an injury that results in a permanent loss of use or protracted loss of use of a bodily member or organ. If the accident resulted in an injury that does not meet the definition of serious bodily injury, the intoxication assault charge will be dropped to a misdemeanor DWI.
A third-degree felony in Texas like the two forms of felony DWI above can expose you to extremely serious penalties including incarceration for a minimum of two year up to a maximum of ten years in the Institutional Division of the Texas Department of Corrections (prison). Felony DWI based on an individual’s status as a repeat offender or intoxication assault also entails a fine up to a maximum of $10,000 and 160 to 600 hours of community service.
Intoxication Manslaughter: When a drunk driver is involved in a collision in which someone is killed, this may constitute a second-degree felony. This is the most serious form of DWI offense carrying a prison sentence of between 2-20 years and a fine of up to $10,000. The sentence may also include between 240 and 800 hours of community service.
The best DWI attorneys know that one of the most effective legal defenses for citizens charged with intoxication manslaughter is the element of causation. The State of Texas must prove beyond a reasonable doubt that the intoxication was the cause of the death of another. What if there was another contributing cause? What if the accused was not at-fault from the accident report from the DWI police records? These are serious issues that should be defended and examined by your DWI attorney. In fact, situations like this must be looked at early in the legal defense so that your DWI lawyer can make a presentation to the grand jury. A grand jury acts as a filtering process for all felony cases in Texas. If your DWI attorney presents evidence showing a serious doubt regarding the element of causation, the grand jury may render a No Bill. A no bill is the equivalent of a dismissal of all charges and provides eligibility for an expunction and complete clearing of all records.
How To Beat A Felony DWI Case
If you have been charged with felony DWI, you are facing a serious legal battle that requires the best DWI law firm on your side. Part of making sure you are treated fairly is making certain that all your possible DWI defenses are examined.
Prosecutor Can Not Prove You Were “Operating” A Motor Vehicle
In order to convict you of Felony DWI, the Tarrant County District Attorney’s Office must prove beyond a reasonable doubt that you were “operating” a motor vehicle. Does that mean you had to be driving? Not necessarily. You do not have to be physically moving the vehicle to be operating it. The good news for your DWI attorney is that the law is not crystal clear on what constitutes operating.
For example, if it is shown at a felony DWI trial that you were sleeping off your intoxication in your vehicle with it remaining in Park position, many juries have a hard time convicting someone beyond a reasonable doubt regarding the element of “operating.” However, if you fall asleep in a drive-thru lane at a fast-food restaurant because you were intoxicated, the same jury would be more likely to convict. The reason why you were in the car can matter to a jury.
Prosecutor Can Not Prove Intoxication
In order to prove the element of Intoxication beyond a reasonable doubt, the prosecutor will have to show one of the following:
Not having the normal use of your mental faculties due to the introduction of alcohol, drug or dangerous drug into your body;
Not having the normal use of your physical faculties due to the introduction of alcohol, drug or dangerous drug into your body; OR
Having an alcohol concentration of 0.08 or higher at the time of driving
In order to prove the loss of the normal use of mental or physical faculties, the prosecutor will look to your performance on Field Sobriety tests performed at the roadside. Your DWI lawyer must thoroughly examine the DWI officer’s administration of the tests to determine if they were instructed and graded properly. If the officer failed to follow the specific guidelines laid out by the National Highway Traffic and Safety Administration, the test results will be deemed unreliable and inadmissible in court.
In order to prove you had a blood alcohol level of 0.08 or higher at the time of driving, the prosecutor will point to breath or blood test results to argue you were driving while intoxicated. Once again, if the breath test machine was not maintained, if it malfunctioned or if the Intoxilyzer operator failed to administer the breath test properly, your breath test result could be thrown out in court. If you provided a blood test, your DWI attorney must examine whether the blood draw was performed by a qualified technician, whether the vials were sealed properly and if the lab tested the samples properly.
As you can see, there is much that must be examined by an experienced and aggressive Forth Worth DWI attorney in order to protect your legal rights and ensure you are treated fairly.
Prosecutor Can Not Prove You Were Driving In A Public Place
The State of Texas must prove beyond a reasonable doubt that you were operating a vehicle in a public place while intoxicated. A public place is defined as a place that the public, or a substantial group of the public, as has access – including parks, apartment complexes, private businesses that provide public access, etc. However, if you were on private property where the public did not have access, you may have a strong argument in a DWI trial that you did not commit the crime.
Can Texas DWI Records Be Sealed?
A DWI on your criminal record isn’t just embarrassing. It can seriously hinder you from moving forward with your life. Employers, landlords, and the public can easily access your past mistakes and use them against you.
What you may not know is state laws allow many Texans to seal their records after they’ve served their time. If you do know, you may not be aware that some charges don’t qualify.
Questions we often field from clients are specifically about your Texas DWI records, and whether they can be sealed. The short answer is “yes…but there are rules.”
In 2017, Texas lawmakers proposed HB 3016. The bill set out to expand the laws regarding orders of non-disclosure, or “criminal record sealing.” Orders of non-disclosure allow offenders to hide their criminal records, including convictions, from the general public.
Governor Abbott signed the bill in June of that year, and people who were convicted of a misdemeanor DWI can now apply to have their records sealed. However, they must meet certain criteria before their application is approved.
Scenarios That Disqualify You from Sealing Your Criminal Record
Not all DWI convictions can be sealed. If any of the following elements were present in your case, you won’t be able to apply for criminal record sealing:
- Your BAC registered over .15 BAC at the time of your DWI
- You have previous DWI convictions on your record
- You have previous convictions on your record, period
- Your DWI coincided with an accident that hurt pedestrians, passengers, or other drivers
- The DWI on your record is a felony
The other requirement is that (in most cases) you must wait until two years pass since your DWI conviction. Here’s more on how timing works…
Eligibility Also Depends on Your Conviction (and Often Your Penalties)
HB 3016 also changed the dates in which offenders could apply for expunction. Texans convicted of DWI can apply for non-disclosure immediately after their sentence is completed only if the crime was punishable by a fine.
In many cases, however, offenders have to wait until they have completed their initial sentences. When an offender receives other penalties (community service, jail time, ignition interlock device installation, etc.) in conjunction with their DWI conviction, they will most likely have to wait longer than that.
For instance, offenders who are sentenced to at least six months driving a motor vehicle equipped with an ignition interlock device (or IID), they are required to wait two years after they complete their sentence. On the other hand, if an IID was not part of their sentence, the waiting period is five years.
Fort Worth DWI Defense Lawyer
So let’s say you’ve waited, and applied, and had your request granted. Once your records are sealed, does it mean no one can see them? Not exactly.
The Rules on Who Can See Your Sealed Records
Criminal record sealing simply seals your record. It hides the record from the general public, but special groups have permission to unseal and view your record.
Law enforcement officers can still view your sealed records. Employers who work for the government may also access these records and make employment decisions based on what they find. State and federal authorities may also view sealed records.
Is there a way to clear my name permanently? Well, there is a legal term for it — expunction — but it doesn’t apply here.
What About Expunction?
If you want a charge or conviction to disappear completely, you will have to apply for an expunction. Unfortunately, Texas does not allow people convicted of DWI to get their records expunged.
There are certain circumstances that can pertain to a DWI arrest that may qualify. If you were arrested for DWI and not charged, for instance, or charged and not convicted, you may be able to apply for expunction.
Reach out to a Texas criminal defense lawyer for more information on expunction and whether you qualify to have your arrest/charges erased from your permanent record.
This Rule Does Not Apply to All Misdemeanor DWIs
DWIs don’t just happen behind the wheel of a car. Boating while intoxicated, for example, is another misdemeanor DWI charge in Texas. The following misdemeanor DWI charges are not included in HB 3016 and remain ineligible for records sealing:
- Boating while intoxicated
- Flying while intoxicated
- Operating an amusement park ride while intoxicated
HB 3016 takes a lot of confusion out of the criminal record sealing rules. Texans can apply to have most convictions sealed from the public eye, provided they wait up to two years after their sentence was completed.
If you are currently facing DWI charges, you already have a criminal record. This doesn’t mean you should just give up and accept a conviction and whatever consequences the prosecutor is seeking, though.
Call us right now to get help
We’ve helped hundreds of people in Texas and we can help you too. We’ll set you up with a free conversation with Mr. Fulgham which will help you know what to do next. The Fulgham Law Firm serves Fort Worth and Tarrant county areas.
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