HOUSTON CRIMINAL DEFENSE & DWI DEFENSE ATTORNEY BLOG

The consequences and penalties of a DWI charge and/or conviction are detrimental and costly for Class C drivers (non-commercial drivers). However, the consequences for a DWI charge and/or conviction are may be even worse for holders of Class A or B commercial driver’s license (CDL). A DWI conviction will certainly led to a one (1) year suspension of an individual’s CDL, thus leading to lose of a the driver’s job. In addition, unlike a non-commercial driver, a CDL holder is not eligible to apply for an occupational license pursuant to Section 522.086 of the Texas Transportation Code. See Section 522.081 of the Texas Transportation Code below pertaining to violations, including DWI arrests/convictions, that would disqualify a CDL holder from driving a commercial motor vehicle and lead to a suspension of a CDL.

Sec. 522.081. DISQUALIFICATION.

(a) This subsection applies to a violation committed while operating any motor vehicle, including a commercial motor vehicle. A person who holds a commercial driver’s license is disqualified from driving a commercial motor vehicle for:

(1) 60 days if convicted of:

(A) two serious traffic violations that occur within a three-year period; or

(B) one violation of a law that regulates the operation of a motor vehicle at a railroad grade crossing; or

(2) 120 days if convicted of:

(A) three serious traffic violations arising from separate incidents occurring within a three-year period; or

(B) two violations of a law that regulates the operation of a motor vehicle at a railroad grade crossing that occur within a three-year period.

(b) This subsection applies to a violation committed while operating any motor vehicle, including a commercial motor vehicle, except as provided by this subsection. A person who holds a commercial driver’s license is disqualified from driving a commercial motor vehicle for one year:

(1) if convicted of three violations of a law that regulates the operation of a motor vehicle at a railroad grade crossing that occur within a three-year period;

(2) on first conviction of:

(A) driving a motor vehicle under the influence of alcohol or a controlled substance, including a violation of Section 49.04 or 49.07, Penal Code;

(B) leaving the scene of an accident involving a motor vehicle driven by the person;

(C) using a motor vehicle in the commission of a felony, other than a felony described by Subsection (d)(2);

(D) causing the death of another person through the negligent or criminal operation of a motor vehicle; or

(E) driving a commercial motor vehicle while the person’s commercial driver’s license is revoked, suspended, or canceled, or while the person is disqualified from driving a commercial motor vehicle, for an action or conduct that occurred while operating a commercial motor vehicle;

(3) for refusing to submit to a test under Chapter 724 to determine the person’s alcohol concentration or the presence in the person’s body of a controlled substance or drug while operating a motor vehicle in a public place; or

(4) if an analysis of the person’s blood, breath, or urine under Chapter 522, 524, or 724 determines that the person:

(B) had an alcohol concentration of 0.08 or more while operating a motor vehicle, other than a commercial motor vehicle, in a public place.

(c) A person who holds a commercial driver’s license is disqualified from operating a commercial motor vehicle for three years if:

(1) the person:

(A) is convicted of an offense listed in Subsection (b)(2) and the vehicle being operated by the person was transporting a hazardous material required to be placarded; or

(B) refuses to submit to a test under Chapter 724 to determine the person’s alcohol concentration or the presence in the person’s body of a controlled substance or drug while operating a motor vehicle in a public place and the vehicle being operated by the person was transporting a hazardous material required to be placarded; or

(2) an analysis of the person’s blood, breath, or urine under Chapter 522, 524, or 724 determines that while transporting a hazardous material required to be placarded the person:

(A) while operating a commercial motor vehicle in a public place had an alcohol concentration of 0.04 or more, or a controlled substance or drug present in the person’s body; or

(B) while operating a motor vehicle, other than a commercial motor vehicle, in a public place had an alcohol concentration of 0.08 or more.

(d) A person is disqualified from driving a commercial motor vehicle for life:

(1) if the person is convicted two or more times of an offense specified by Subsection (b)(2), or a combination of those offenses, arising from two or more separate incidents;

(2) if the person uses a motor vehicle in the commission of a felony involving:

(A) the manufacture, distribution, or dispensing of a controlled substance; or

(B) possession with intent to manufacture, distribute, or dispense a controlled substance; or

(3) for any combination of two or more of the following, arising from two or more separate incidents:

(A) a conviction of the person for an offense described by Subsection (b)(2);

(B) a refusal by the person described by Subsection (b)(3); and

(C) an analysis of the person’s blood, breath, or urine described by Subsection (b)(4).

(e) A person may not be issued a commercial driver’s license and is disqualified from operating a commercial motor vehicle if, in connection with the person’s operation of a commercial motor vehicle, the person commits an offense or engages in conduct that would disqualify the holder of a commercial driver’s license from operating a commercial motor vehicle, or is determined to have had an alcohol concentration of 0.04 or more or to have had a controlled substance or drug present in the person’s body. The period of prohibition under this subsection is equal to the appropriate period of disqualification required by Subsections (a)-(d).

(f) In this section, “felony” means an offense under state or federal law that is punishable by death or imprisonment for a term of more than one year.

(g) A person who holds a commercial driver’s license is disqualified from operating a commercial motor vehicle if the person’s driving is determined to constitute an imminent hazard under 49 C.F.R. Section 383.52. The disqualification is for the disqualification period imposed under that section and shall be noted on the person’s driving record.

(h) A disqualification imposed under Subsection (g) must run concurrently with any imminent hazard disqualification that is then currently in effect.

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Brief Overview of SB 328: Pertaining to DWI and other Alcohol-related Offenses

Senate Bill 328 adds the Nicole “Lilly” Lalime Act to amend provisions of the Alcoholic Beverage Code, Code of Criminal Procedure, and Transportation Code relating to operating a motor vehicle or watercraft while intoxicated or under the influence of alcohol. The bill redesignates the offense of driving under the influence of alcohol by a minor as driving or operating a watercraft under the influence of alcohol by a minor, expands the conditions that constitute that offense, and includes an offense prohibiting the operation of a watercraft within the definition of “alcohol-related or drug-related enforcement contact.” The bill authorizes any magistrate who is a licensed Texas attorney to issue a search warrant to collect a blood specimen from a person who is arrested for a certain intoxication or alcohol offense and refuses to submit to a breath or blood alcohol test and increases from $50 to $100 the fee to reinstate a driver’s license suspended due to the commission of a certain intoxication offense. The bill includes the offense of driving while intoxicated with a child passenger in provisions relating to the requirements for the automatic suspension of a license, the suspension of a license of a person younger than 21 years of age, and the suspension of a license because of intoxication offenses. The bill includes an offense of driving while intoxicated with a child passenger and boating while intoxicated in provisions relating to an administrative suspension of a driver’s license for failure to pass a test for intoxication, modifies the circumstances under which a peace officer must require the taking of the specimen of a person’s blood or breath, and amends certain provisions regarding liability for purposes of the taking of a blood specimen.

This bill went into effect on September 1, 2009.

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Section 49.01(2) of the Texas Penal Code:

“Intoxicated” means:

(B) having an alcohol concentration of 0.08 or more.

Just a few things that are important to point out under this definition. First, the State does not have to prove that you are “drunk” in a DWI case. Under subsection (B), the State need only prove by proof beyond a reasonable doubt that your blood alcohol concentration (BAC) was 0.08 or above. This illustrates why in most cases I would advise individuals to refuse any breath or blood tests requested by law enforcement, because you might not be “drunk”, but a breath/blood test might show you with BAC at or above 0.08.

Even if you have a BAC lower the 0.08, the State could still choose to charge an individual with DWI under subsection (A). So there may be cases in which an individual is below the legal limit, but still might be charged with DWI, if they perform poorly on the Standard Field Sobriety Tests (SFSTs). Again, if you are stopped and suspected of DWI, I would politely refuse to perform the SFSTs.

Furthermore, section 49.01(2)(A) also states that you are “intoxicated” if your normal physical/mental abilities are diminished by the introduction of drugs or a combination of alcohol and drugs, this includes the use of illegal drugs, over the counter drugs, and prescription drugs. A lot of people, including some attorneys, are not aware that a person can be charged with a DWI while operating a motor vehicle under the use of prescription drugs and/or other controlled substance. Subsection (A) does not require that an individual have introduced alcohol into the body to charged with DWI. The State could accuse you of having a diminished physical/mental capacity due to the introduction of medications prescribed by your doctor or taken over-the-counter. Of course in these cases, the State has to prove whether the medication or controlled substance actually diminished your normal physical/mental capacity to state that you are “intoxicated”. The State often uses a Drug Recognition Expert (DRE) to attempt to prove these types of DWI cases.

To briefly summarize, there are several aspects of “intoxication” in a DWI case, that the average person might not realize. “Intoxication” does not equal “drunk”. Generally, it’s advisable to refuse to submit to any field sobriety testing or any breath/blood testing. Don’t give the State any evidence to help them prove their DWI charge against you.

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