If you have hired us because you were charged with DWI, the following is some general information about your situation. Please carefully read this and call us if you have any questions about anything that we've included here or in your contract. As you've already probably guessed, we believe the that the more informed you are, the better you'll be able to deal with your situation. As we've explained to you, we are going to do everything within our power to help you avoid a DWI conviction. At this point you have just been accused. Nevertheless, we are going to explain to you the possible consequences of being convicted of DWI. This does NOT mean that we expect you to be convicted, but just that we want you to be informed.
DWI means Driving While Intoxicated, it does NOT mean Driving While Drunk. Under Texas law, the State must only prove that you were not "normal" while driving, and that the reason you were not "normal" was due to the voluntary introduction of an intoxicant. They may also claim that you not being "normal" was because of a combination of alcohol and legal or illegal drugs.
A DWI 1st is a Class B misdemeanor, usually punishable by up to six months in jail and a $2,000 fine. If there is an elevated breath or blood test, the punishment can be that of a Class A Misdemeanor. A DWI 2d is a Class A misdemeanor, punishable up to one year in the county jail and a $4,000 fine. A DWI 3rd is a felony, and is punishable by 2‑10 years in prison. Subsequent DWIs can result in an even higher prison sentence. This is why DWI is considered an "enhanceable" offense. Subsequent offenses are "enhanced" with priors.
If a person is convicted of a DWI, there are a number of costs incurred. If probation is given, there is usually a monthly probation supervisory fee. Similarly, there are usually classes required, all of which incur a cost. Commonly, the Court will also require community service hours as a term and condition of probation. There will also be court costs that are usually several hundred dollars.
A DWI conviction will result in a surcharge being assessed. The surcharge is assessed by the Texas Department of Public Safety and is NOT negotiable. It' s a minimum of $1,000 per year for three years.
A DWI conviction may also result in a Driver's License suspension. Typically, a DWI 1st conviction will not involve such a suspension as long as the sentence is probated and the probationer takes DWI classes. An exception to this is if, at the time of the offense, the driver was under 21. This almost always results in a suspension. The Judge can make an exception but will require the installation of a deep‑lung device (ignition interlock).
A DWI is a criminal charge. There is also a quasi‑criminal or civil issue. We refer to this issue as the "ALR" problem. ALR stands for Administrative License Revocation. Almost always the person charged with a DWI also faces a Driver's License revocation for either failing a breath/blood test or refusing the test. Such a revocation results in a driver's license suspension and is in addition to the possible suspension for the DWI.
When arrested for DWI, the driver is supposed to be offered a breath test. If refused, or failed, the Officer is supposed to take the person's driver's license and give them a warning that tells them that they have 15 days to request a hearing to determine whether their license will be suspended. If a hearing is not requested within the 15 days, then 40 days after arrest the driver's license will be suspended. If a hearing is timely requested, the driver's license cannot be suspended until there has been a hearing. The person arrested can make such a request for a hearing, or, if we are hired within the 15-day period, we can make the request. If we've not already discussed this, please call us.
If a person's license has been suspended, it MAY be possible to obtain an Occupational Driver's License. This is referred to as a Driver's License Issued for Essential Need. Such a license MAY permit a person to continue to drive to and from work or school. This again is a separate issue from the DWI for which we've been hired. Please discuss this with us IF it becomes an issue.
During our discussion about your arrest, we may have discussed an issue that we always refer to as "The long line and the short line." This is a summary of that discussion, and is figuratively but not literally accurate. In the court on your Initial Appearance date there are two lines leading up to the Judge's bench. The short line is the line of people who are making a mistake and are cheating themselves out of discovery time. They are demanding a trial at the earliest possible date. The long line is the line of people who are trying to gain as much discovery and negotiation time as possible, and are asking that their case be delayed until that process is complete. We will almost always put our clients in the long line, so that we can do all of the necessary discovery and negotiation before it becomes necessary to go to court. A few days after the Initial Appearance date, you should receive from us a notice that tells you a new court date. If you have any questions about the notice, please call us and we can discuss it. There is a high probability that your case will be reset several times as we take the time to do the essential discovery and negotiation.
We will do our very best to resolve your case in the most favorable way. All of us would like to see the case rejected by the prosecutor or dismissed. Unfortunately, as we've explained, there is no way to assure that disposition. If we resolve it with a negotiated plea bargain, you will have to appear before the Judge. It is critical that you are drug and alcohol free for every court appearance. You should expect to be urine tested to verify that you are drug and alcohol free.
If you have been charged with a felony DWI, then there are several things that can happen IF you are convicted. First, your driving privileges will be suspended for some period. There will also be a surcharge of at least $1,000 per year that must be paid to DPS for three years. Most of our clients who have been convicted of a DWI 3rd, have received probation. That is not automatic, but must be fought for. IF the Judge gives probation, then he will sometimes also require SAFPF as a term and condition of probation. SAFPF is the acronym for Substance Abuse Felony Punishment Facility. There is a waiting list to get into the SAFPF that generally takes four months, during which time the Defendant will be locked in jail. The SAFPF program takes from six to twelve months, and also involves being locked up in a prison for that time period. Usually, release from SAFPF is into a half-way house for aftercare.
In felony cases, IF a person asks for probation, the Judge will usually order the preparation of a Presentence Report. This involves an investigation by the probation department to determine whether the Defendant will be a suitable client for probation. It is critical that the Defendant asking for probation totally cooperate with the probation officer doing the presentence investigation ("PSI"). IF the defendant fails to cooperate, the Judge can do any one of a number of really BAD things. The worst is that the Judge can consider there to be NO plea bargain, and simply send the Defendant to prison. If the lack of cooperation is less blatant, the Judge can grant probation, but require up to six months in custody as a term and condition of probation. If the lack of cooperation is as a result of drugs or alcohol, then the Judge can send the Defendant to SAFPF. Things that indicate that the Defendant is being less than cooperative include getting arrested for something after the PSI is ordered; coming up dirty for illegal drugs; and the failure or refusal to provide the PSI Officer with requested information.
As we've told you, this is a lot of information to digest. Please call if you have any questions. We welcome any input and want to make sure that we've answered all your questions. We look forward to working with you.