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An arrest for DWI is one of those offenses that can and does happen to anyone. Even in the most questionable of cases, even for first time offenders, the consequences can be devastating. Furthermore, there seems to be so many moving parts that it is nigh unto impossible to navigate these troubled waters without an experienced lawyer. That is where we come in. We not only know how to navigate these waters, we know the safest passages even with the ever changing tide of DWI law.

Is is a crime to have a couple of drinks with dinner and then drive home?

First, you should understand it is not a crime to drink and then drive. Notice that I said drink “then” drive. It is an infraction to drive while consuming an alcoholic beverage. Although “don’t drink and drive” may be good advice and look catchy on billboards, it is not the law. It is, however, a crime to drive while intoxicated, hence the offense of DWI – driving while intoxicated. You may have had a few beers or glasses of wine or you may even have been slightly tipsy. Does this mean you are guilty of driving while intoxicated. No. Defending that accusation, however, in these times of tough on crime (including DWI), can be difficult. You should chose your lawyer wisely.

Should I submit to the breath (or blood) test?

One of the first questions we get is, “Should I blow or consent to a blood test?” The easy answer is no. We have rarely, if ever, seen a person released simply because they submitted to a breath or blood test. These tests are not determinative of whether you will be released regardless of what the officer may tell you. By the time you are asked to submit to a breath or blood test, you have already been arrested, whether you have been told or not and whether your rights have been read to you or not. These tests are tools the police utilize in gathering further evidence against you for prosecuting you for the DWI. The principal draw back is the different consequence on your license for refusing compared to failing a breath or blood test.

Pre-Trial, Administrative Suspension (first offender):

Failure: 90 Days

Refusal  180 Days

Post Trial Suspension for DWI Conviction (first offender):

90 day to One (1) Year – Judge’s Discretion

Either way, though, passing the breath test will not get you a “get out of jail free card.” As mentioned, you have already been arrested for DWI for not not having lost the normal use of you mental or physical faculties.

To understand, you need to know there are two means of proving guilt in a DWI case. In the first instance, the government seeks to prove you have lost the “normal” use of your physical or mental faculties. That is, you are not behaving or thinking “normally.” In the second instance, assuming there is a breath or blood test, the government can prove guilt by showing that your breath or blood alcohol content (BAC) was 0.08 or greater at the time you were driving.

If you are arrested for DWI, the arresting officer has already concluded your guilt can be proven by showing you were not acting or thinking “normally.” Submitting to a breath or blood test does little more than add fuel to the fire for the prosecutors’ case against you. The one exception, of course, is the situation where you actually trust the machine to render an accurate reading of your breath or blood alcohol content and, further, trust the personnel involved in collecting your sample for either type of test. As mentioned, any request that you submit to giving a sample is a post-arrest event and amounts to little more than an officer’s effort to collect further evidence for you prosecution. In other words, you are already under arrest and not going home without posting bond. Thus, regardless of how courteous the officer appears to be while speaking with you, the end result, whether you submit or not, is jail, a bond amount and a court date.

What are the possible punishments for a DWI?

Here are the various Punishment Ranges for DWI’s:

First offense (Class B Misd): Up to 180 days in jail and a $2,000 fine (possible probation)

Second offense (Class A Misd): Up to One Year in Jail and a $4,000 fine (possible probation)

Third offense (felony): Two years to Ten years in prison (possible probation)

What is going to happen to my driver’s License?

DWI is one of few offense that carry a plethora of ancillary consequences. These can include the following:

1. Special conditions of your release on bond, such as ignition interlock devices installed on your vehicle, restricted hours for driving, and attendance at DWI education classes – all before you have even been convicted.

2. Suspension via the Administrative License Revocation (ALR) – civil suspension that occurs before you are even convicted.

3. Occupational License fees, including filing fees and obtaining an SR-22 for insurance purposes.

4. Suspension for a conviction for DWI – possible second suspension arising from a single arrest for DWI.

5. Possible Second Occupational License with attendant costs.

6. Surcharge: $1,000.00 per year for three years following a conviction for a first offense DWI.

We are well adept at fighting these restriction requests and finding ways that allow you to continue to drive legally in order to carry on you daily activities and responsibilities.

To understand, a DWI arrest starts the ball rolling on two separate legal actions against you. The first is called the Administrative License Revocation process or ALR. This is the process utilized by the Department of Public Safety seeking to revoke or suspend you license. The other, of course, is the criminal action for DWI. In this arena, the State of Texas is seeking to convict you of the offense and subject you to possible incarceration in jail or, in the case of a felony DWI (third offense), incarceration in prison.

Drivers License Issues:

As discussed above, the ALR process is a civil, administrative proceeding unrelated to the criminal charge of DWI. The proceedings are instituted against you for refusing to submit to the taking of you breath or blood or for failing the test. If you refuse or fail the test, your driver’s license may be suspended from 90 days to 2 years, depending on the number of prior DWI arrests and the alcohol content in your breath or blood at the time the test was taken. Refusal or failure can also result in a two (2) year suspension of a CDL license.

Concerning the process, if an officer has reason to believe you are driving while intoxicated, a set of field sobriety tests can be administered. Although most officers lead drivers to believe these physical tests are mandatory, you are not required to participate in the tests. If you do, however, and perform poorly, in the officer’s opinion, then you will be arrested for DWI. Next, you will asked to take a breath or blood test to measure your blood alcohol concentration (BAC). By law, the officer must advise you prior to requesting a sample of your breath or blood that your driver’s license will be suspended if you refuse to take the breath or blood test or, if you submit to the test and fail, that your license will likewise be suspended. As indicated above, registering a 0.08 BAC or greater is considered failing. For purposes of the ALR, the failure occurs at the time of submission. However, for purposes of a proving guilt in a DWI case, it must be shown that your BAC was 0.08 at the time of driving. In the event you are issued a notice of suspension for failing the requested test or refusing to submit to the requested test, then we well have 15 days from the date the notice of suspension was received (usually the date of arrest) to request a hearing. It is imperative that you contact us as soon as possible to allow us time to request your hearing. If a hearing is not requested within 15 days, the opportunity to have a hearing and keep you license is forever lost. If a hearing is not requested, the suspension goes into effect on the 40th day after the notice was served. (Usually 40 days after the date of arrest.)

Please note that the Notice of Suspension serves as you temporary driving permit until the hearing is held and a decision rendered. In the event your license is suspended following the hearing, a reinstatement fee of $125.00 is required by the end of the suspension period in order to get you license back. We walk you through every step of the process and handle most, if not all, of the work required to protect your license and, if your license is suspended, to obtain an occupational license for you to prevent as much interruption in your life as possible.

If your driver’s license is suspended, do not worry. We will apply to the court for an Essential Needs License (sometimes called an Occupational License) in your behalf. This type of license allows you to continue to drive in order to take care of you day-to-day affairs. So, you will not have to worry about how you are going to get to work or get the kids to school or pick up groceries for the family. In most instances, with this kind of license, you will not be affected in you daily affairs as concerns your ability to drive.


​​​Kevin Fine, Attorney at Law