Frequently Asked Questions Will I have to go back to jail? You will probably not have to go back to jail for your first DWI charge unless you chose to. You will not have to go back to jail if I am able to convince the State to dismiss your case or you are found “not guilty” after a trial by judge or jury. Even if convicted for your first DWI, it would be unusual for your sentence to include any jail time. Instead, you can almost certainly get probation. However, I have had clients who chose to complete a short jail term rather than attempting to comply with the terms of a lengthy DWI probation and risk being revoked by the court for violating probation and getting a much longer jail term. Will a DWI be on my record? If you are charged with DWI, there are three ways that I can prevent the DWI from being on your record: It is important to note that you cannot receive deferred adjudication for DWI which is a type of probation that provides an opportunity to ultimately keep numerous criminal offenses off of your record. What is DWI? The Texas legislature defines the criminal offense of Driving While Intoxicated (DWI) as follows: An individual may not: What are the penalties for DWI? What is DUI? DUI stands for driving under the influence and is a law that applies to minors or individuals under the age of 21. A minor commits an offense if they operate a motor vehicle in a public place while having any detectable amount of alcohol in their system even if they are not intoxicated. Individuals between the ages of 18 and 20 may also be charged and prosecuted for DWI. Is it legal to drink an alcohol beverage while driving so long as I am not intoxicated? No. It is a Class "C" Misdemeanor offense for an individual to operate a motor vehicle and possess an open alcoholic beverage container. The penalty for this offense is enhanced if the driver is arrested for DWI. Moreover, it also illegal for a passenger in a motor vehicle to have an open container unless that individual is a passenger in a limo, bus, taxi or motor home. Is it legal to drink an alcoholic beverage and then drive without an alcoholic beverage in the vehicle? Yes – as long as you are not intoxicated. Thus, the State of Texas’ slogan “Drink, Drive, Go to Jail” is not always true. What does 0.08 mean? 0.08 alcohol concentration is defined by the Texas legislature as follows: You may have realized that it would be possible for an individual to have an alcohol concentration at or above 0.08 when testing from one source (ie. blood) while at the same time have an alcohol concentration below 0.08 when testing from another source (ie. breath). Thus, for example, you could have “guilty” blood and “not guilty” breath. Should I refuse a breath test? Yes, you should refuse the breath test unless you have not had anything to drink. The breath test machine (Intoxilyzer 5000) makes mistakes as do the people who operate this machine. If the machine is not working properly it may read your breath alcohol concentration at or above the legal limit of 0.08 in error. The prosecutor could attempt to use such faulty evidence to convict you of DWI. Can I refuse to take the field sobriety tests? Yes, you have a choice to refuse to take these tests. There are no penalties for exercising this choice. However, you may still go to jail if the cop determines that he or she has probable cause to arrest you for DWI. Moreover, the police officer may consider your refusal as an omission of guilt. Should I refuse to take the field sobriety tests? Yes, you should always refuse to take the field sobriety tests even if you have not had alcohol to drink. Quite simply, often times the only way to pass the field sobriety tests is to not take them. Even under ideal laboratory conditions, these tests have been proven to be inaccurate at predicting whether or not an individual has a blood alcohol concentration of 0.08 or higher. Such inaccuracies can be magnified under more realistic roadside conditions meaning that the chances of you being incorrectly identified as an individual who is intoxicated increase. It is important to note, however, that a refusal of these tests may result in your arrest. Can a police officer force me to take breath, blood or urine tests? The general rule is that a police officer may not force or compel you to submit to breath, blood or urine tests. However, an officer is required by law to take a specimen of your breath or blood if: How does the Texas legislature define "intoxicated"? The Texas legislature defines “intoxicated” in two ways: A prosecutor only needs to prove one of these definitions along with the other elements of DWI to get a “guilty” finding. Do I have a choice to refuse to take the breath test, and if so, should I refuse this test? Yes, you have a choice to refuse to take the breath test as well as blood and urine tests. However, by refusing, you violate the implied consent law which states that by driving a motor vehicle on a Texas roadway, you have already implied consented to chemical testing. Thus, exercising this choice may result in the suspension of your driver’s license and the assessment of surcharges against you. Moreover, your refusal can be used as evidence against you at a criminal DWI trial. How Do I Prevent My Driver’s License/Commercial Driver’s License From Being Suspended If I Failed Or Refused The Breath Test? You have 15 days from the day that you received written notice that your driver’s license will be suspended to request an ALR hearing-not 15 days from the date of arrest. Usually an officer will serve this written notice on you after you are arrested for DWI and either fail or refuse chemical testing. If the officer fails to serve you with notice of your license suspension, the DPS will mail a notice to you, via certified mail, that your driver's license is subject to suspension. This is important because instead of the 15 days to file for a hearing from the date of your arrest, you now have 15 days from the date you receive the DPS notice. If you fail to request a hearing, you waive that right and your license will be suspended on the 40th day after receiving notice of suspension. If the officer fails to provide you with notice of your license suspension, the DPS will mail a notice to you, via certified mail that your driver's license is subject to suspension. When you request an ALR hearing, the suspension of your driver's license is stopped while you await the hearing. If your ALR hearing is scheduled more than 40 days after you receive notice of suspension, your attorney can ask the DPS to extend your temporary license beyond the 40-day limit until your ALR hearing takes place. You have the right to appeal even if you lose your ALR hearing. You must request the appeal within 30 days after the ALR judgment becomes final or you waive the right to appeal and your driver's license will be suspended on the 40th day after the judgment becomes final. While you are waiting for the appeal to be heard, your driver's license suspension is stopped for a 90-day period. Your license will be suspended on the 91st day, even if your appeal has not been ruled upon, but if you win your appeal, then your suspension judgment is overturned. However, your driver’s license will be suspended on the 40th day after the final judgment while waiting for your appeal to be heard if you have been convicted of an alcohol related offense or had any suspensions imposed against your driving privileges within the past 10 years or if your driver's license has been suspended in relation to a drug or alcohol related offense in the past 10 years. However, the suspension is overturned if you win your appeal. How Long Can I Lose My Driver’s License/Commercial Driver’s License If I Refuse The Breath Test? 90 days unless you timely request and win an ALR hearing or are found not guilty at trial. How Long Can I Lose My Driver’s License/Commercial Driver’s License If I Fail The Breath Test? 180 days unless you timely request and win and ALR hearing or are found not guilty at trial. Can I Still Lose My Driver’s License/Commercial Driver’s License If I Take A Chemical Test And My Bac Is Below 0.08? Yes but only if you are convicted for DWI or a related offense in a criminal proceeding. You will not lose your driver’s license in a civil ALR proceeding if you “pass” a breath, blood, or urine test by having a Bac below 0.08 while driving. Can Texas Suspend My Out-Of-State Driver’s License? No, but Texas can prevent you from applying for a Texas license during the period of suspension. Also, you may face a license suspension in your own state if Texas notifies it of your suspension in Texas. What Happens If I Am Caught Driving While My Driver’s License Is Suspended? You could be charged with the offense of Driving While License Suspended (DWLS), a Class B Misdemeanor. The punishment range for DWLS is term in jail of not less than 3 days and not more than 180 days in jail and a fine not to exceed $500.00. Each time your are caught driving while your license is suspended could constitute a separate offense and if you get a second DWLS, it can be enhanced to a Class A Misdemeanor – maximum of 1 year in jail and a fine of not more than $4,000.00. Is There Any Way That I Can Legally Drive While My Driver’s License Is Suspended? Yes. You can petition the court for an occupational license unless you have a suspended commercial driver’s license or have already had an occupational license within the last 10 years. An order granting an occupational license remains valid until the end of the period of suspension of the person's regular driver's license. You must show the court “essential need” (need to drive because of work, school, household duties, etc.) in order to be granted an occupational license. If the court grants your petition for an occupational license, you will be allowed to drive up to 12 hours a day of your choosing. If your license is suspended for failure or refusal of chemical tests, the court will require you to take a program approved by the court that is designed to provide counseling and rehabilitation services to persons for alcohol dependence. The court may also require you to install an ignition interlock device in your car and comply with terms similar to DWI probation in the order granting your occupational license. Within 30 days of obtaining the order granting you an occupational license, you must file it with the Department of Public Safety along with the following documents: It is also important to note that you commit a Class B Misdemeanor if you hold an occupational license and either operate a motor vehicle in violation of a restriction imposed on the license or fail to have in your possession a certified copy of the court order granting the occupational license. Moreover, the court that signs an order granting an occupational license may issue, at any time, an order revoking the license for good cause. What Is A Surcharge? A surcharge is an administrative penalty charged by DPS as a fee for a person to maintain their driver's license after they have suffered either a DWI conviction or submitted to a breath, blood or urine test which reveals an alcohol concentration of 0.16 or more. The surcharge is assessed for 3 years following either of these two events. Specifically, the surcharges are: How Do I Get My License Reinstated Once The Suspension Is Over? If your driver’s license is suspended, it may not be reinstated until you pay DPS a fee of $125.00 in addition to any other fee required by law. You may also be required to have a SR-22 on file with DPS for one year after your license has been reinstated.
Frequently Asked Drivers License Questions
Frequently Asked DWI/DUI Questions
Frequently Asked Drivers License Questions
If you are arrested for and charged with DWI, there are two ways to prevent your driver’s license from being suspended:
Serving Houston - Harris County - Montgomery County
Fort Bend County - Brazoria County - Galveston County - Texas